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India – Emergency Antidote

India is indebted to Shanti Bhushan for undoing Indira Gandhi’s 42nd Amendment.

The criticism coming from the party patron assumes significance as there has been a discontent brewing within the party.Shanti Bhushan’s role in and contribution to fighting corruption in the judiciary displays matchless courage.A significant milestone was reached on November 11, when Shanti Bhushan, a doyen of the legal profession and an advocate extraordinary, celebrated his 90th birthday. On occasion brusque, prickly and opinionated, his razor-sharp mind and good intentions disarm critics. His achievements are the stuff of legend. Shanti Bhushan earned national and international fame on June 12, 1975, when he won Raj Narain’s election case, unseating Indira Gandhi.

Justice Jagmohan Lal Sinha of the Allahabad High Court held the prime minister guilty of electoral offences and set aside her election while imposing a mandatory disqualification under the law. Shanti Bhushan had reached the apogee of his forensic career and came to be known as a giant-killer. The events of 1975-77 are mostly unknown to young lawyers and citizens.

On her appeal to the Supreme Court for an unconditional stay, Gandhi was represented by the legendary advocate, Nani Palkhivala. Before the vacation judge, Justice V.R. Krishna Iyer, Shanti Bhushan succeeded against Palkhivala, who had argued for an unconditional stay. On June 24, 1975, Justice Iyer gave Gandhi only a partial stay — she could continue as an MP and PM but could not vote or participate in Lok Sabha proceedings.

On June 25, hardly 12 days after the election verdict and a day after the conditional stay, the internal Emergency was declared and many opposition leaders were detained without trial, including Jayaprakash Narayan, Atal Bihari Vajpayee and L.K. Advani. The press was muzzled, censorship imposed, and even judgments could not be reported. A pall of fear enveloped the country. Justice Iyer’s conditional stay and Shanti Bhushan’s victory in Allahabad earned them the unmerited distinction — unintended and unforeseen — of being the fathers of the Emergency.

Meanwhile, during the Emergency, the 42nd and other constitutional amendments emasculated judicial review, curtailed the powers of the higher judiciary, and almost extinguished and eclipsed fundamental rights. The Constitution was defaced and defiled.

In March 1977, the Janata party swept to power after defeating the Congress led by Gandhi. Shanti Bhushan became law minister. He masterfully managed Parliament and was the architect of the 43rd and 44th Amendments, which undid the damage caused by the 42nd Amendment. Shanti Bhushan’s amendments not only repealed many of the malignant articles but revived judicial review and the powers of the higher judiciary, and restored Article 226 to its pristine glory. For this unmatched achievement, generations of Indians must be beholden to him. This was his finest hour.

His role in and contribution to fighting corruption in the judiciary displays matchless courage. He fought several cases representing the Sub-Committee on Judicial Accountability against Justice V. Ramaswami, whose impeachment failed in Parliament. He is not afraid of standing up to sitting CJIs when a question of judicial integrity is in issue. The case of Justice Ashok Kumar, who gave bail to M. Karunanidhi, needs to be recalled. The judge was appointed additional judge of the Madras High Court with seven others. He was not confirmed as a permanent judge by the collegium on grounds of doubtful integrity. Yet, he was given extensions as additional judge by two CJIs. Immediately on his appointment as CJI, K.G. Balakrishnan, without consulting the collegium, overturned the earlier decision, and appointed him as a permanent judge. Prashant Bhushan asked me if I would appear and question the appointment of Justice Kumar — this meant taking on

CJI Balakrishnan. I said I had no hesitation, provided that the petitioners were high-profile individuals with a penchant for upholding judicial integrity. Shanti Bhushan and Kamini Jaiswal unhesitatingly agreed to be the petitioners.

We failed — although the SC bench made highly disparaging remarks against the extensions given by the two former CJIs, it upheld the appointment, showing deference to the serving CJI. The bench observed: “The then CJI should have stuck to the view expressed by the collegium and should not have been swayed by the views of the government to recommend extension of the term of Respondent Two for one year, as it amounts to surrender of primacy by jugglery of words”.

Justice J. Chelameswar in his dissent in the NJAC case commented on this appointment: “It appears to have been a joint venture in the subversion of the law laid down by the second and third judges’ cases by both the executive and the judiciary which neither party is willing to acknowledge.”

There are some, like Shanti Bhushan, who never count their years but make their years count. Here’s hoping he masters the “nervous nineties” and scores a century

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