How the verdict that led to Indira Gandhi imposing Emergency unfolded

[Book extract] Never before had a prime minister of the country gone to a court to testify.

 |  7-minute read |   19-06-2017
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Mrs Gandhi arrived in Allahabad on February 17. Until then the case had received very little publicity. Although the local newspapers were covering the significant events in the case (like the cross-examination of PN Haksar and Yashpal Kapoor), no one gave much importance to the case itself.

They regarded it as a futile election petition filed by a poor loser, just to harass the prime minister. But with the cross-examination of Mrs Gandhi, the case exploded into the limelight. It was a big event in itself. Never before had a prime minister of the country gone to a court to testify. The former president, VV Giri, had however once testified before the Supreme Court in his election petition.

There were massive security arrangements outside the court that day. All the gates were manned by policemen and entry inside the court premises was restricted to lawyers and litigants accompanied by lawyers. Apart from these, only a few news reporters, pairokars (special attorneys who are acquainted with the facts of the case and who can help counsel in some aspects of the case), and pass holders were permitted inside the court premises.

Entry inside Court Number 24, where the cross-examination took place, was severely restricted (Justice Sinha’s courtroom was Court Number 5, but Court Number 24 was chosen for the cross-examination because it was at one end of the court, and the restriction of entry around it would not hamper the working of other courts).

People had started pouring into the courtroom from as early as 9am that day. The security staff had installed a metal detector in the passage leading to Court Number 24 where the evidence was to be recorded. Just before the proceedings in the court were about to begin, a drama took place outside the court. A man carrying a plastic briefcase was apprehended by the security staff at the metal detector. His briefcase allegedly contained a loaded countrymade pistol. His name was Govind Misra and he was the editor of a two-page newspaper Vijay, published from Allahabad.

The exact circumstances in which he was caught are still not clear, but the version of the security men was that he was carrying the pistol in his briefcase, when the metal detector picked it up. When he was interrogated, he revealed that for the past four months, he had always carried a revolver with him, as he feared violence from some enemies. He did not have a licence for his weapon but had applied for one. He was kept in police custody for a few days and later released as he was found to be harmless.

indirabd_061917052055.jpgThe Case That Shook India: The Verdict That Led to the Emergency, by Prashant Bhushan; Penguin Random House.

The Govind Misra affair however caused quite a sensation in Parliament. Accusations were hurled across the floor. Many legislators demanded a high-level probe into the matter and urged that the security arrangements for the prime minister be further strengthened.

Meanwhile, Court Number 24 was completely packed by the time the judge arrived. Among those people who were present in the court were high ranking Opposition leaders like Madhu Limaye, Shyam Nandan Mishra, Piloo Mody, Jyotirmoy Bosu and Rabi Ray. They had come all the way from Delhi to witness the cross-examination. They had been cited as pairokars by Raj Narain. Among those present were also Mrs Gandhi’s son, Rajiv Gandhi, and his wife, Sonia Gandhi. Raj Narain himself was also present in the court.

Earlier, when he had told Bhushan that he wanted to be present during the cross-examination, Bhushan had objected to it, knowing the volatile temperament of Raj Narain. He, however, reluctantly agreed to Narain being present when he undertook not to utter a word during the proceedings. The judge arrived two minutes before 10am. Everybody in the courtroom rose when the judge came in.

After taking his seat, he announced that the court conventions dictate that no one should rise when a witness comes in. This however did not prevent some people from rising when Mrs Gandhi came in. Mrs Gandhi took a seat which was specially provided for her. The normal practice is that a witness stands in the witness box. The deviation from convention was made by Justice Sinha after consultation with Bhushan. Her chair was on a raised platform to the right of the judge so that she was on level with the judge.

She looked composed and unruffled as she sat down. If she regarded the ordeal before her as something of great significance, she did not give the slightest indication of it. Her appearance was of one who was performing yet another routine task. Khare was called upon to lead the examination, and he was visibly excited. He was the first person to question the prime minister in court.

The main issues which could turn on Mrs Gandhi’s evidence were (1) whether she held herself out as a candidate prior to February 1, and (2) whether Yashpal Kapoor actually resigned on January 13. Khare’s questions were mainly focused on these issues. His examination lasted about an hour. It was now Bhushan’s turn. He was inwardly excited, though outwardly calm, when he got up to begin the task before him.

It was a big event for him. Apart from the fact that he would be crossquestioning the prime minister, with the whole country watching at least through newspapers, he was also fully aware of the far-reaching political consequences of the outcome of this case. This cross-examination could be crucial to the outcome of the case.

Most people who are not familiar with courts visualise a cross-examination as something dramatic where the counsel is supposed to give a theatrical display, Perry Mason style. Most cross-examinations are, however, incredibly dull where little happens in the nature of drama. The cross-examination had not finished when the court rose that day.

That evening, all the Opposition leaders who had come from Delhi to witness the cross-examination were invited for tea to Bhushan’s house. Opinion there was almost unanimous, that Mrs Gandhi had fared well on the first day of her cross-examination. She had maintained her composure and was convincing in the manner in which she had answered the questions.

Piloo Mody did not enjoy the cross-examination. "Why don’t you heckle her? Annoy her a bit!" he told Bhushan. Bhushan smilingly remarked that on the first day, he had only given her the bait and made her feel confident. "Tomorrow she will walk into the trap," he said. Little did anyone know that he was indeed serious and was about to spring a surprise.

Pandit Kanhaya Lal Mishra wrote to Mrs Gandhi at the end of the first day’s cross-examination, "I hear that today’s cross-examination has gone off very well. I am pleased about that. But that still does not alter my opinion that you should not have appeared for the crossexamination." His words were indeed prophetic, and later Mrs Gandhi was to regret not having followed his advice.

Bhushan took only 90 minutes to complete his cross-examination the next day. The tables had indeed turned. The additional written statement containing the decision of the All India Congress Committee about her constituency had caught her off guard. Till the previous day she had been maintaining that she had taken a final decision to contest from Rae Bareli only on February 1. Her additional written statement said that a final decision regarding her constituency was announced by the AICC on 29 January.

When confronted with this statement, she said that the statement was drafted in legal language which she had difficulty in understanding. Bhushan did not give her time to recover her composure.

Although he had some more questions, he decided to end at this point, not taking the chance of losing his advantage.

(Re-printed with the publisher's permission.)

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Prashant Bhushan Prashant Bhushan @pbhushan1

Prashant Bhushan is an eminent public interest lawyer in the Supreme Court of India, most known for cases such as 2G and Coal Scam. He is also an activist and a founder member of Swaraj Abhiyan—a campaign organization that focuses on various issues such as the environment, human rights, corruption and good governance.

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