Prashant Bhushan - The Case That Shook India: The Verdict That Led to the Emergency

Elections to Parliament and the legislatures of the states are regulated in two ways by law. The first relates to the conduct of the elections by the Election Commission and the second to the personal conduct in it of the candidates. Unlike in other countries, the duty of deciding whether the election was fair and free and if the candidate was guilty of a corrupt practice is entrusted to the High Court and finally to the Supreme Court.

After the election is over, the defeated candidate or a voter can challenge the election of the successful candidate by proving irregularities in the conduct of the election by the authorities and/or by proving corrupt conduct on the part of the candidate. In no other way can the result of the poll be challenged. The courts apply to such cases the standards which they usually apply in trials before them. Such cases are like any other case. The allegations made must be strictly proved. Some judges call these quasi-criminal proceedings. This is not an apt description. They rather resemble the trial of allegations of fraud, subject to this that the benefit of the doubt goes to the successful candidate.

Ordinarily, I have found more perjury in these cases than in others. Political motivation often colours evidence and courts have to be very careful in assessing partisan testimony. This task becomes even more difficult when the actions of the candidate are also partly referable to his official position. Such was the case dealt with here.

The book deals with the election petition filed by Raj Narain to challenge the election of Mrs Gandhi in the 1971 election to Parliament. The author has recorded the day-to-day progress of the case through all stages. He is the son of the counsel for Raj Narain and was presumably present at conferences and in the courts. He has first-hand knowledge of all facts. He has narrated them in a very readable form, describing the proceedings objectively. He has also outlined the many steps by which legislative interference righted what was found wrong at the trial. So much so that the Supreme Court was not even allowed to decide the case in appeal. This was an unusual and undesirable feature of the case. Only one case (McCardie case) was withdrawn from the Supreme Court of the United States. It was not an election case but never afterwards was a pending case withdrawn from the courts. All the events are told without acrimony by the author and the comments that one finds are legitimate.

I have had my share of election trials as a judge of the High Court and the Supreme Court. Twice I unseated ministers and once upheld an election. There is no doubt that Justice Sinha proved equal to the task. He decided every issue adequately and his reactions during arguments were also relevant and proper. Whether one agrees with his conclusions or not, none can accuse him of taking a strained view of facts. It must be remembered that a person in authority can and should always prevent from acting overzealously the officials who go out of their way to act in aid of such a candidate. The higher the position of the candidate and the more the availability of official aid, the more the risk of allegations.

Justice Sinha, in my judgment, has rightly been strict. Although I do not say that I agree with him on every point pro or con, this much I can say, that my approach, by and large, would have been similar. In any event Justice Sinha and Judge Sirica of the Watergate case have much in common just as there is a parallel between Shanti Bhushan and Jaworski in the same case.

I have enjoyed reading the book and have found much that was not in the newspapers and I recommend it to the reader.

Bombay

1 October 1977

M. Hidayatullah
MA (Cantab); LLD,
Bencher Lincolns Inn and former Chief Justice of India