Behind the order that offended Indira Gandhi enough to declare Emergency
June 24, 1975 was a day of reckoning for Indian democracy.
Not necessarily June 26, 1975 as most of us assume. Forty two years later, to the day, are we entitled to think that it was the "refusal" by Justice VR Krishna Iyer to pass an order of "absolute stay" of the orders of "unseating" the Lok Sabha membership of the then Prime Minister Indira Gandhi that triggered the Emergency?
Allahabad High Court's Justice Sinha's "historic" judgment following the election petition filed by the irrepressible Raj Narain alleging "corrupt practices" was the trigger to the imposition of Emergency.
Tomes have been written on the "causes" leading to the draconian Emergency and the suspension of fundamental rights of citizens.
Primary among the reasons cited are the Sampoorna Kranti - total revolution - urged by Jayaprakash Narayan (JP) and his call on June 20, 1975.
At a public rally in New Delhi, JP asked Chief Justice of India AN Ray not to hear Indira Gandhi's petition against the Allahabad High Court order that set aside her election and in his 80-minute-long speech, JP also "deliberately" reiterated his appeal to the police, armed forces and government servants not to obey the "illegal and immoral" orders of the government.
Yes, it is true that June 26 did not happen overnight. It was building up to the crescendo it became. The central government was under siege and the "unseating" of the prime minister was a huge catalyst.
Nevertheless, it has often been written that it was the "refusal" by Justice Krishna Iyer to grant the "absolute stay" pleaded for by Nani Palkhivala and opposed by Shanti Bushan that was the surest reason - as it dented the "bloated ego" of a prime minister who "had grown too big in her boots" with nary an opponent in the vicinity.
Commentators have observed that if Justice Krishna Iyer had granted orders in the appeal filed by the Supreme Court sitting singly as vacation judge, to continue the "20 day absolute stay" granted by the Allahabad High Court, then Indira Gandhi would have been "mollified" and "ready to do battle in the appeal", which Palkhivala had "legally advised her as a sure shot winner".
Alas, it was not to be. It has been recorded that though Krishna Iyer granted "interim stay", he was not inclined to grant "absolute stay" and chose to grant the order "only with conditions".
The prime minister felt "slighted, offended and furious".
To the day, when reading the interim order of Justice Krishna Iyer, one feels that it was not such a "slighting" order, after all. In fact, if Krishna Iyer had passed the order - "at first blush" - who knows India may have been saved the ordeal of the Emergency.
At least, there is ammunition for us to dream so, in hindsight. For his order said: "At the first flush I was disposed to prolong the 'absolute stay' granted by the High Court, moved not only by what Shri Palkhivala had urged but by another weighty time factor that the appeal itself, in the light of the directions I have already given yesterday, may well be decided in two or three months. But on fuller reflection I have hesitated to take that course."
If only Krishna Iyer had not "fully reflected" (as was permissible at the stage of interim orders), who knows the course of Indian history may have been different. Yet, the order passed by Krishna Iyer on "fuller reflection" not to grant "absolute stay" but grant "stay" with "conditions" that while the prime minister could attend Parliament, "She will neither participate in the proceedings in the Lok Sabha nor vote nor draw remuneration in her capacity as Member of the Lok Sabha" was itself not an order any less an order of "absolute stay", in the peculiar circumstances obtaining then, as elucidated by Krishna Iyer himself.
Was the prime minister not put on notice? Why should she have felt "slighted, offended and furious" when Krishna Iyer had made it clear that it made "little practical difference"?
Justice Iyer had stated: "It is true that between an absolute stay as sought and the stay as granted there is practically little difference when the petitioner is a Minister. Moreover when the House is not in session, as now, even the restrictions set out in sub - para III of para 31 of this order hardly, have any operation. In this view, the dispute between the parties one asking for an absolute stay (as if it were a magic formula) and the other citing heaps of orders of conditional stay for adoption (as if much difference would be made in practical effect) appears to be shadow-boxing, as pointed out by me even during the arguments."
It was nothing but legal quibbling or legal nuances that propelled Krishna Iyer to pass the order he did: "I propose to direct a stay, substantially on the same lines as have been made in, earlier similar cases, modified by the compulsive necessities of this case."
A conjoint reading of these observations would necessarily mean that for all "practical" purposes there was an "absolute stay" of the order of "unseating" of the membership of Lok Sabha, yet for judicial discipline - Krishna Iyer chose to add "conditions" which had little substance.
Just a thought. Too simplistic, may be, at one level. But substantive, at another level, given that Indira Gandhi was a woman of many moods, swayed by emotion and too "proud" of her position to claim the mantle of Iron Lady.
If only Krishna Iyer had not imposed the academic "conditions" to an otherwise "absolute stay" order, Indira Gandhi may not have felt "slighted, offended and furious" enough to fall for "advice" to impose internal Emergency and then go on to move the amendments to law retrospectively, which the practices complained of "ceased to be corrupt practices" et al.
Who knows what may have transpired had Krishna Iyer obliged Nani Palkhivala with the order without the academic "conditions" that the judge himself thought made "little practical difference"?