Justice with a fine balance
THE LEGAL ARCHIVES FILES
A.G. NOORANI IN THE FRONT LINE
Justice Jagmohan Lal Sinha represented a precious legal culture far removed from that of today.
He pities the plumage, but forgets the dying bird.
– Thomas Paine on Edmund Burke
The Rights of Man, 1791, page 26.
In popular esteem, Justice Jagmohan Lal Sinha, who died on March 20, was an upright and courageous Judge of the Allahabad High Court who held Prime Minister Indira Gandhi guilty of two corrupt practices and declared her election to the Lok Sabha void, on June 12, 1975. But he represented a precious legal culture which was fading away, dying, even as he spoke. The Judge’s courage was applauded. The culture and the values he represented remain neglected as are the magnificent judgment he delivered, the atmosphere in which he functioned and the tragic aftermath of the decline of the Indian judiciary, the end of which is not in sight. It represents today a legal culture far removed from Sinha’s. This neglect is not all. His judgment was belittled. The offences Indira Gandhi committed were characterised as “technical” and “trivial”.
To get a measure of the situation, read his judgment today and compare it with the ones which one comes across all too often. Analysis of the law and the evidence was rigorous; the language was dignified and restrained; the fairness and the balance were conspicuous and there was not a trace of the florid rhetoric that is a prominent feature of very many judgments of now: no quotes from Tagore or Gandhi, no sermons and not a word about the tensions to which he was subjected. No claims to judicial heroism, either.
Recent disclosures provide a glimpse of the times. Shanti Bhushan, counsel for the petitioner Raj Narain, revealed an incident in The Indian Express (March 23, 2008). While the case was being heard, the Chief Justice, D.S. Mathur, visited Justice Sinha. He was related to the Prime Minister’s physician. Mathur told Justice Sinha that “Sinha’s name had been considered for the Supreme Court and as soon as the judgment had been delivered, he would get appointed to the Supreme Court. Of course, Justice Sinha maintained a discreet silence.” He also declined the offer Shanti Bhushan made, as Law Minister in 1977, to transfer him to the Himachal Pradesh High Court “so that he could get elevated as Chief Justice when a vacancy arose”. He did not project himself or preen about, nor did he lap up lucrative arbitrations.
Likewise, Justice V.R. Krishna Iyer, then vacation Judge of the Supreme Court, revealed in The Hindu (March 19) how Law Minister H.R. Gokhale telephoned him seeking an interview. “Why do you want to meet me, Mr. Gokhale?” he asked. The visit was not necessary. The appeal and petition for stay could be presented to the Court’s Registrar. On June 24, 1975, Justice Krishna Iyer granted a conditional stay of the order on the usual terms. Indira Gandhi could not vote or participate in the proceedings as a Member of Parliament but could sign the Register of Attendance to save the seat. She could participate in the proceedings as Prime Minister, but without a vote. “There will be no legal embargo on her holding the office of Prime Minister,” Justice Krishna Iyer pointedly added. The very next day, in the dead of night, Indira Gandhi imposed Emergency, imprisoned leaders of the Opposition and imposed press censorship.
The Election Laws (Amendment) Act was enacted, on August 5-6, to amend the law retrospectively on the very points on which Justice Sinha had ruled against the Prime Minister. Worse, the power to disqualify was vested solely in the President, to the exclusion of the Election Commission. On August 7-8, Parliament enacted the Constitution 39th Amendment Act, 1975. Its effect was to set aside Justice Sinha’s order, exclude the court’s jurisdiction on disputed election to named high offices, including the Prime Minister’s, but without setting up an alternative forum. On November 7, 1975, the Supreme Court upheld the amendments and validated the Prime Minister’s election, while striking down the provision in the constitutional amendment (Clause (4) of Art. 329 (A)) which in effect validated the Prime Minister’s election and put it beyond judicial scrutiny. It violated “the basic structure” of the Constitution. This doctrine has stood the country in good stead. Recently some ambitious schemers have set about belittling it to gain brownie points from the state.
We learn from B.N. Tandon’s memoir PMO Diary-I: Prelude to the Emergency that the Prime Minister’s trusted aide, the formidable P.N. Haksar, bitterly regretted her pressure on him to influence Judges of the Supreme Court. Tandon records his meeting with Haksar on December 9, 1989, when Siddharth Shankar Ray’s wife, Maya, also a lawyer, walked in. “I am mentioning this meeting in the Diary for a totally different result. There is an indication in various places in the Diary that the Judges of the Supreme Court had been approached from Indira Gandhi’s side in her case. Today Haksar himself told Maya Ray this. He said, ‘Maya this was not really necessary. Indira Gandhi had herself disposed of the case against her through amendments to the Constitution, etc. But I was forced to go to every judge.’”
I was surprised that this emerged in print, but was relieved that what Haksar had said to me in private was now on record. He had a couple of years earlier said exactly the same thing to this writer; namely, that he had met all the judges hearing the appeal – except one judge, whom he named. The writer was in a bind. It was said in confidence. I fully reciprocated Haksar’s affection, extended despite my known differences of view. But the disclosure was of historical significance. I had decided to reveal it to two persons, a close associate of Haksar and a trusted colleague at the bar. Now, it was in print.
The games had begun much earlier. Justice P. Jaganmohan Reddy, one of the finest Judges of the Supreme Court ever, records in his memoirs, The Judiciary I Served, that as early as November 1970, Chief Justice M. Hidayatullah told a meeting of the Judges that “there was a likelihood of Justice J.C. Shah next-in-line (as Chief Justice) being superseded because the Government felt that the Supreme Court was not supporting the Government’s actions”. Justice Shah had pronounced the Court’s judgment in the bank nationalisation case. All the Judges except one threatened to resign if he was superseded. Justice Shah was appointed Chief Justice on December 17, 1971. That solidarity was gone when, on April 24, 1973, three Judges were superseded (J.M. Shelat, K.S. Hegde and A.N. Grover) and A.N. Ray was appointed Chief Justice. Recent appointments to the Bench had destroyed the solidarity.
So complete was the government’s penetration into the Court’s deliberations that, as Justice Jaganmohan Reddy disclosed apropos the fundamental rights case (Keshavananda Bharati vs State of Kerala), “not only was the Government aware of what each one of us was going to decide some time before Judgments were pronounced, but the supersession was also decided about that time”. Judges circulate drafts of their judgments to colleagues. He did not receive his copy. The supersessions came the very next day after the judgment. Apparently the drafts reached Law Minister Gokhale.
It was in this clime that Justice Sinha delivered his judgment in the Allahabad High Court on June 12, 1975. He held Indira Gandhi guilty of two corrupt practices under Section 123 (7) of the Representation of the People Act, 1951. The first was her act of obtaining in her constituency, Rae Bareli, the assistance of Gazetted Officers of the Uttar Pradesh government, namely, the District Magistrate, the Superintendent of Police, the Executive Engineer, Public Works, and Engineer, Hydel, for the construction of rostrums and arrangement of supply of power for loudspeakers in the meetings addressed by her.
Second, she obtained the assistance of a Gazetted Officer in the services of the Government of India, Yashpal Kapoor, who held the post of Officer on Special Duty in the Prime Minister’s Secretariat, to further her election prospects.
Justice Sinha declared her election to the Lok Sabha in 1971 void and disqualified her from being a Member of Parliament or of a State legislature for a period of six years from the date of the order.
The Judge rejected five of the seven main charges that Raj Narain had levelled, such as assistance of the armed forces to Indira Gandhi for arranging flights by Air Force planes and helicopters; distribution of clothes and liquor to voters; use of the religious symbol of cow and calf; free conveyance of voters to the polling stations; and incurring expenditure in excess of the limit.
Nor was Raj Narain’s case accepted completely in respect of the remaining two charges. The Judge upheld the Prime Minister’s defence that the arrangement of loudspeakers was done by her party and not by government officers. But he found that they did arrange “for supply of power for the functioning of the loudspeakers” for which bills were sent to the Uttar Pradesh Congress Committee.
He fully upheld the posting of policemen and the erection of barricades at the places of meetings. “Failure in that regard could lead to a law and order situation and no government worth the name can take any risk in that regard.”
Justice Sinha fully accepted that and more besides, while rejecting the petitioner’s plea. “It is the first duty of every government to maintain law and order…. I am accordingly in agreement with the plea put forward by the respondent No. 1 [Indira Gandhi] that the posting of police along the routes and at the place of the meetings as well as the setting up of barricades at the two places was done by the Government in discharge of the Governmental duties. The construction of rostrums and the supply of power by or through the officers of the State Government, however, stand on a different footing.” Is there any other democracy in the world where government officials erect rostrum for candidates who happen to be Ministers? This was neither “trivial” nor “technical”. If allowed, it would facilitate graver abuses.
The construction of rostrums for Ministers on election campaign is no part of an official’s duty, nor is arrangement of power supply for the loudspeakers. The Judge rejected Raj Narain’s charge that Indira Gandhi’s use of an IAF plane was “directly connected” with electioneering.
Justice Sinha’s judicial approach is best reflected in his comments on the evidence of Indira Gandhi, Haksar and Yashpal Kapoor, who had served the Nehru family and particularly Indira Gandhi since 1951. R.K. Dhawan is his nephew. Both rose from stenography to membership of the Rajya Sabha. Kapoor flitted in and out of state service at her convenience when she was Minister for Information and Broadcasting (1964-66), or Prime Minister. He gave up his government job in the Prime Minister’s secretariat to work for her in the Rae Bareli constituency, only to rejoin his post after the polls, all, admittedly, at her instance. It suited her to have him on the government’s payroll and to resign whenever the law came into play. It worked in 1967. In 1971 both messed up the arrangement, with fateful results. The line between the party and the state never mattered to her.
The law is clear. Section 123 lists the “corrupt practices” that vitiate an election. Clause 7 reads thus: “The obtaining or procuring or abetting to obtain or procure by a candidate or his agent or, by any other person, any assistance (other than the giving of vote) for the furtherance of the prospects of that candidate’s election, from any person in the service of the government and belonging to any of the following classes, namely: (a) Gazetted officers; (b) stipendiary judges and magistrates; (c) members of the armed forces of the Union; (d) members of the police forces; (e) excise officers; (f) revenue officers including village accountants, such as patwaris, lekhpals, talatis, karnams and the like but excluding other village officers; and (g) such other class of persons in the service of the Government as may be prescribed.” Surely obtaining the assistance of a government servant to promote an election candidate’s prospects is not a “trivial” or “technical” matter in law or in morality. In the nature of things only the ruling party can do that. Clause 7 sought to establish a level playing field. The state and the party were kept separate.
Section 123 (7) applies to candidates as defined in Section 79(b) of the Act. “‘Candidate’ means a person who has been or claims to have been duly nominated as a candidate at any election, and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate.”
Rightly so. People begin to canvass and incur election expenses well before they file their nomination papers. Everyone knows when a person “began to hold himself out as a prospective candidate”. The Lok Sabha was dissolved on December 27, 1970. On December 29, Indira Gandhi addressed a press conference. A pressman asked whether the Prime Minister was “changing her constituency from Rae Bareli to Gurgaon”. Her reply was emphatic: “No, I am not.” It was taped by All India Radio and the tape was produced in court. It was reported by the entire press. She held out her candidature to the wide world from that moment, specifying her constituency.
Her office wired her tour programme on January 25, 1971, to the Chief Secretary, Uttar Pradesh, stating specifically that she was to file her papers at Rae Bareli on February 1 at noon.
Incredibly, she argued belatedly in an additional written statement on August 27, 1972, a year after the first on August 2, 1971, that she held herself out as a candidate only on February 1, 1971, when she filed her nomination at Rae Bareli. Why? Because she had meanwhile used the services of Yashpal Kapoor.
It was only on February 6 that the Gazette of India published a notification, dated January 25, 1971, announcing the President’s acceptance of the resignation of Yashpal Kapoor, but retrospectively from January 14. He had been working for her well before January 25.
Haksar claimed on oath to have accepted the resignation orally, subject to a written order thereafter, and to have followed this practice throughout his career.
The Judge noted: “Sri Haksar expressed his inability to mention any rule under which it was permissible to appoint people and to remove them by word of mouth…. The statement appears to have been made only to fortify the plea set up by the Respondent No.1 [Indira Gandhi] in the additional written statement regarding oral acceptance of the letter of resignation.” The plea of oral acceptance did not figure in her statement of 1971, only in the one of 1972. Asked whether he had passed any order in writing later accepting the resignation, Haksar could only reply that he did not remember.
Justice Sinha held that Kapoor ceased to be a government servant from January 25 and had worked for Indira Gandhi since January 7. On this mass of evidence alone, breach of Clause 7 was proved enough to vitiate her election. Were he partisan, the Judge would have branded her a liar and listed the lies. He used markedly different language for the trio. “I regret my inability to accept it [her evidence]”, on one point; her plea “has no legs to stand [on]”, on another; and “does not bear any scrutiny” on a third.
Haksar was disbelieved with a sarcastic comment: “interesting”. Contumely was reserved only for the contemptible Yashpal Kapoor. Yet, in restrained language. “He is not a reliable witness.” Conscious of his client’s lapses, Indira Gandhi’s counsel made a desperate plea citing her office. It met with a dignified response: “It should be conceded that when a person appears in Court as a witness and his evidence appears to be natural and probable, the status and respectability attaching to him is also taken into consideration to lend further assurance to his testimony. The status and respectability of the witness alone cannot, however, induce the Court to accept his/her testimony, more so when he or she is himself/herself a party to the proceedings and interested in the result of the case.” That was a crime for which she never forgave him.
On September 10, 1979, in Mumbai, she said that “a petty judge” had disqualified her on flimsy grounds. This shabby behaviour was ignored by the nation.
Significantly, even when the censorship rules were relaxed on September 19, 1975, the ban on “Supreme Court proceedings on Smt. Indira Gandhi’s appeal” remained.
So do her disgraceful amendments to the election law to this day. They are so convenient to those in power. The revised definition of “candidate” survives. He becomes one only when he files his nomination papers (Section 79 b), even if he has spent a fortune earlier on his campaign or committed other abuses. Under a new Explanation 3 in Section 123, resignation of a government official takes effect on its publication in the official gazette. On September 12, 1979, Chief Election Commissioner S.L. Shakhdhar called for their repeal. In June 1977, Parliament passed a Bill restoring to the Supreme Court the power to decide disputes relating to presidential and vice-presidential elections. The Bill was supported by all sections of the House, including the Congress.
Law Minister Shanti Bhushan said that he proposed to bring forth a comprehensive measure on the reform of the election law. His article on Independence Day cited the amendments to the election law and the Constitution, among “the more glaring distortions” of the former regime.
In his address to Parliament on March 28, 1977, acting President B.D. Jatti said that the government would take steps to secure the repeal of the amendments which “defined corrupt practices and afforded protection to electoral offences by certain individuals by placing them beyond the scrutiny of the courts”. Such a measure was promised in the Janata Party’s manifesto as well. The pledges were listed along with others for the repeal of the repressive laws. They were broken.
New legal culture
Already by 1975 a new legal culture was being spawned. Early in the day, the first Chief Justice, H.J. Kania, told Judges in Hyderabad:
“The British have given us a fine system of judiciary on a platter. No doubt, a little mortar is falling here; a little brick is coming out there. But don’t destroy it by trying to interfere with the edifice. You may repair it or add to it or alter it somewhat, without destroying the structure as a whole.” (The Judiciary I Served, page 42.)
In contrast, at an Indo-German (East German) seminar in Delhi in 1983, Justice D.A. Desai of the Supreme Court boasted: “I propose to remain in the system, corrode it and refill it with new elements so that the system can effectively render Justice”, his oath of office notwithstanding. To some Judges, the constitutional system is a foreign plant. They will replace it by their own will. Justice O. Chinnappa Reddy regarded (February 1987) “the basic structure” doctrine as one “propounded by the bourgeoisie”.
On November 26, 1968, Justice P.N. Bhagwati denounced Judges “trained in the old British tradition of adversary justice”. He should read these two excellent books to understand the roots of that culture. (Sir Edward Coke: A Force for Freedom by John Hostettler; pages 213, Rs.225; and Lord Mansfield by Edmund Howard; pages 198, Rs.215. Both published by Universal Law Publishing Co. Ltd., New Delhi.)
Coke, as Chief Justice of the Common Pleas, spoke up to King James I, and his defiance was noted by Justice K.K. Mathew in Indira Gandhi’s case (1975 Supp. SCC; page 133). It all happened on a Sunday morning on November 10, 1607. Coke told the King that he could not try cases. “Then the King said that he thought the Law was founded upon Reason, and that he and others had Reason as well as the Judges. To which it was answered by me, that true it was that God had endowed his Majesty with excellent science and great endowment of Nature. But his Majesty was not learned in the Laws of his Realm of England; and causes which concern the Life, or Inheritance, or Goods or Fortunes of his Subjects are not to be decided by natural Reason but by the artificial Reason and Judgment of Law, which requires long Study and Experience before that a man can attain to the cognisance of it, and that the Law was the golden Merwand and Measure to try causes of the Subjects, which protected his Majesty in safety and peace. With which the King was greatly offended, and said that then he should be under the Law, which was treason to affirm (as he said). To which, I said, that Bracton saith, Quod Rex non debet esse sub homine sed sub deo et Lege – that the King should not be under man, but under God and the Laws.” This puts paid to the Judges’ notion that they can ignore the law and use their own “reason”.
The will to mould the law is not backed by legal equipment. The desire to win popular acclaim and immortality is unworthy in a Judge. It results in arbitrariness and end to the rule of law.
Mansfield held unlawful the state’s declaration of John Wilkes as an outlaw. What he said on Judges seeking popularity or official favour ranks as a classic:
“The constitution does not allow reason of state to influence our judgments. We must not regard political consequences, how formidable ever they might be. If rebellion was the certain consequence, we are bound to say ‘Fiat justitia, ruat coelum’. The constitution trusts the king with reason of state and policy…. I wish popularity, but it is popularity which follows, not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends by noble means. I will not do that which my conscience tells me is wrong upon this occasion, to gain the huzzas of thousands or the daily praise of all the papers which come from the press. I will not avoid doing what I think is right, though it should draw on me the whole artillery of libels; all that falsehood and malice can invest, or the credulity of a deluded popular can swallow.” (98 E. R. 327 at 347; 19 State Trials, page 1075).
It was in full keeping with this tradition that on April 1, 1829, the Chief Justice of the Supreme Court of Bombay closed the Court because the Governor did not enforce its orders (Frontline, August 1, 2003, page 76). In contrast, as Chairman of the Press Council, Justice N. Rajagopala Ayyangar assured V.C. Shukla, Minister for Information and Broadcasting, on August 13, 1975, that he had successfully averted discussion of the Emergency (White Paper on Misuse of Mass Media).
Justice and law
Justice Sinha was like Justice Kania, heir to the older tradition – dispensing justice according to the law, not personal whim or political “philosophy”, and dispensing it in judicial language. He retired to lead a quiet life but spoke up once in an interview to The Hindustan Times (June 18, 2000) to censure those who had profited politically by his judgment:
“Posterity will not excuse the perpetrators of the Emergency. But what about succeeding regimes? Violations of fundamental rights to life and liberty continue on large scale. According to one report, 75,000 violations have been reported this year in Uttar Pradesh alone.
“Peaceful demonstrations are still subjected to use of excessive force. Custodial deaths and governments being called upon by courts of law to pay compensation are routine news. But can compensation be a solace to those whose near and dear ones lost their lives merely because they incurred the displeasure of those in authority?
“In 1975, all those atrocities occurred in the name of Emergency. There is no official Emergency today, yet the atrocities persist. It appears we have learnt no lessons. These are dangerous portents, and unless we take serious notice today to rectify these evils, the much-maligned Emergency may recur, albeit in a disguised form.” They do not make men like him any more.