Sanjoy Ghose

| @advsanjoy | June 25,2020

On the 45th Anniversary of Declaration of Emergency, we wish to honour the brave judges who stood their ground to the tyranny of executive and upheld the independence of judiciary. In this piece, the author draws out the profile of the courageous judicial career of Justice Jagmohan Lal Sinha.

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I don’t want the judgement to leak out to anyone, not even to your wife. It is a big responsibility.  Can you undertake it?”

 

Justice Jagmohan Lal Sinha of the Allahabad High Court, who had just heard the most definitive case of his judicial career, asked this of his trusted Secretary Manna Lal.  Reminiscent of Judge Panna Lal Basu who had heard South Asia’s most iconic dispute-the Bhowal Sanyasi’s Case and then sequestered himself to write his elaborate verdict in favour of the alleged princely imposter, Justice Sinha also locked himself to pen his verdict.  The hearing of the case had taken four years and the judgement was reserved on 23.05.1975.  The maverick Raj Narain, who had contested the Rae Bareli Lok Sabha Elections and lost, had filed an election petition to unseat the winning candidate.

 

Prashant Bhushan writes that it was a misconception that Indira Gandhi was summoned as a witness[i].  Raj Narain’s case against Gandhi was that Yashpal Kapoor, who was assisting Gandhi in her election campaign, was a government servant at that time and hence it was electoral malpractice.  According to him, as Kapoor performed miserably as a witness, Team Indira took that fatal decision to offer up the Prime Minister herself as a witness.  Gandhi’s counsel Khare petitioned Justice Sinha to have Indira examined by a commission. This was declined on the grounds that a Commission would not have the power to disallow any question. When Pandit Kanhaya Lal Mishra, former Advocate General of Uttar Pradesh, heard of this move he immediately wrote to Mrs Gandhi to abort it as it would be suicidal to her case.

 

Also read: Are We Condemned To Repeat History?

 

Justice R B Mehrotra, who went on to be elevated to the same High Court, was a young advocate then and he claimed that Justice Sinha had conducted the proceedings with “Calm and appropriate dignity[ii]”.  He recalls that on the day before Indira Gandhi was to appear in Court No 24 of the High Court, in order to maintain the dignity of court proceedings, Justice Sinha ordered that no policeman, even on security duty, was to be permitted inside the court.

The day had its fair share of drama, as just before the proceedings one Govind Mishra-a two-bit journalist- was apprehended with a loaded country made pistol.

 

“In an important concession, Mrs Gandhi, the witness, was permitted to be seated on a chair higher than that of the other lawyers but lower than that of the judge.”

 

Unparalleled in the history of legal history, the security of the Prime Minister was managed by lawyers of the High Court who formed a human chain when Indira came to Court.   Justice Sinha had instructed the Registrar to spare no effort to ensure that the sanctity and the dignity of the Court was maintained despite the presence of the Prime Minister[iii].  In an important concession, Mrs Gandhi, the witness, was permitted to be seated on a chair higher than that of the other lawyers but lower than that of the judge. The lawyers were strictly instructed not to stand up when the Prime Minister arrived, as that honour was reserved only for the judge.

 

The assembled lawyers heeded to J Sinha’s command and remained seated.  Well almost all.  Shanti Bhushan claims, Indira’s own counsel S C Khare “half rose”. Prashant Bhushan writes “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.

 

Contemporary legal historians have asserted that Indira Gandhi had underestimated the overwhelming impact of sitting in a witness box. In fact, according to BN Tandon, who was a joint secretary in the Prime Minister’s Secretariat, she was rattled by the sustained cross examination conducted on her by Raj Narain’s lawyer Shanti Bhushan. In fact, the kitchen cabinet members, Bengal’s Chief Minister Siddhartha Shankar Ray and Law Minister Gokhale, both lawyers, had even proposed that Bhushan should be enticed away from litigation by being offered a Supreme Court judgeship. This was vetoed by the powerful Parmeshwar Narayan Haksar, the principal secretary to the Prime Minister.

 

On day one, the consensus was that Indira held her fort. The opposition leaders who had flocked from Delhi were a disappointed lot.  In the evening, they gathered to strategise with the legendary Shanti Bhushan.  Piloo Mody was livid and accused Bhushan of going soft.  Finally, Shanti Bhushan assured the gathering that what they had witnessed was only the bait and that “tomorrow she will walk into the trap.”  The 90 minutes of cross examination that followed the next day, claims Prashant Bhushan, sealed Mrs Gandhi’s fate.

 

The Prime Minister was not the only star witness to be examined before Justice Sinha in this high profile case. AK Bhattacharya, in The Rise of the Goliath (Penguin), notes the deposition of Haksar before Justice Sinha on 12.2.1975.  He was an important witness because Indira Gandhi’s defence to electoral malpractice was that Yashpal Kapoor had met Haksar on 13.1.71 and had tendered his resignation which was immediately orally accepted by him.  Therefore, he was not a government servant at the time he was helping Indira win Rae Bareilly.

 

‘Slimly thin’ and an avid golfer, Justice Sinha was born on 12.5.1920 in Agra and had studied law from Agra University.  He started his career in law from a small town called Bareilly in 1943, a few years before Independence.  In 1957 Sinha opted to become a career judge when he was selected to the Uttar Pradesh Higher Judicial Service.  In 1970 Sinha was finally elevated to the Allahabad High Court.

 

Shanti Bhushan has revealed a sensational disclosure made to him by Justice Sinha while both were playing golf[iv].  It transpired that while Justice Sinha was hearing the case, Allahabad High Court Chief Justice DS Mathur, from the Indian Civil Service, had visited him and indicated that his name was being considered for elevation to the Supreme Court.  This elevation would happen as soon as the judgement was delivered.  It seems Mathur was closely related to the personal physician of the Prime Minister.  Sinha maintained a discreet and respectful silence. Much later when Charan Singh was Prime Minister he had appointed the said Mathur to head a Commission of Inquiry.  Shanti Bhushan was away at an International Conference.  Upon his return when he found out about the appointment, he informed Charan Singh about J Sinha’s golf course disclosure. Charan Singh wanted Sinha to confirm this in writing which he promptly did.  When confronted, Justice Mathur was left with no choice but to resign.

 

Rohit Kumar in “The Judge who Stood Up to Indira Gandhi and Whose Judgement Shook India”, Swarajya, 20.3.16, writes that Justice Sinha, while writing his judgement, would receive daily visits from a Congress MP of Allahabad.  Sinha unsuccessfully attempted to get fellow judge Parekh to intercede.  When he failed, he disappeared into the innards of his own house, not even appearing in the verandah until the final draft was ready.  All visitors were rebuffed with a white lie: The judge was visiting Indore.

 

“He angrily rebuffed his Chief and immediately instructed the Registrar to intimate the parties that the judgement was ripe for delivery.”

 

It seems that not only was an effort made to hint to him that in Delhi circles his name was being considered for elevation, on June 7, 1975, when the judgement was almost completed, he received a call from the Chief Justice of Allahabad High Court who indicated that Home Ministry Additional Secretary PP Nair had met him and “wanted” the judgement postponed till July. Sinha by now had become aware that further delay would only increase the pressure on him.  He angrily rebuffed his Chief and immediately instructed the Registrar to intimate the parties that the judgement was ripe for delivery.

 

This got the executive into action mode and a special task force of the CID was constituted to find out the contents of the judgment. The team visited the house of Manna Lal. He sent his wife to some relative’s house and himself sought shelter at Justice Sinha’s residence.  Next morning the CID Team caught up with him and indicated that Mrs Gandhi was herself on the line. She wanted to know which way the judge had dictated his order. Manna Lal managed to save himself that day.  However, his harassment continued even long after the verdict was delivered, as the team would interrogate him on who were the visitors at Justice Sinha’s house while he wrote the judgement.

 

Also Read: Close shave in August 1975

 

The morning of June 12, 1975 started off on the wrong note for Mrs Gandhi.  She just received news that her trusted advisor Durga Prasad Dhar had just passed away[v].  She was also informed that Justice Sinha was ready to pass his judgement.  Sinha entered Court No 24 at 9.25 AM[vi]. The 258 page verdict[vii], was delivered when he sat in Court punctually at 10 AM, that unseated a sitting Prime Minister and sent the nation hurtling into the black hole of emergency.[viii]   He even directed that costs be paid to Raj Narain.[ix]  Within minutes the All India Radio had aired tidings of Sinha’s bold decision to a shocked nation.[x]

 

“The 258 page verdict, was delivered when he sat in Court punctually at 10 AM, that unseated a sitting Prime Minister and sent the nation hurtling into the black hole of emergency”

 

Ravi Prasad, whose father Sharada Prasad was Indira’s Information Advisor, claims that his father along with PN Dhar had the unfortunate task to carry the tidings about Sinha’s judgement to Mrs Gandhi. It seems she heard about it calmly and without showing any emotion. Then she turned to Ray, whom she had summoned from Calcutta the evening before and asked “You probably knew this, didn’t you?”[xi]

 

Shanti Bhushan recalls the judgement as “an act of great courage”. He says that as his judgement was subject to appeal, Justice Sinha promptly stayed his own order as soon as an application was made on behalf of Mrs Gandhi by her lawyer VN Khare, who had been flown into Allahabad from Srinagar[xii].  Raj Narain would later claim before the Supreme Court, that Team Indira had led Justice Sinha into believing that the time was needed to be able to elect another Prime Minister.

 

Fali Nariman, on the other hand, was of the firm belief that the judgement, which Mrs Gandhi wanted him to personally examine to vet the grounds for her appeal, was “singularly weak in its reasoning”[xiii]. This sentiment was echoed by the Times, London, which described Justice Sinha’s verdict disqualifying Mrs Gandhi for six years on account of the length of a rostrum as “firing the Prime Minister for a traffic ticket”[xiv]

 

Sinha’s elder daughter-in-law Vibha recalls the when he returned home that night, the family members could not make out that he had delivered such a significant verdict against India’s most powerful politician.  It was like any other day! Penning the judgement had made Sinha a pariah.  Post Emergency, with the tables turned, Shanti Bhushan became the Law Minister and offered to transfer Justice Sinha to Himachal Pradesh High Court so that he could be accommodated as the Chief Justice, which Sinha politely refused.

 

“Penning the judgement had made Sinha a pariah.”

 

He retired in 1982 and walked into the sunset.  At his farewell reference in the Chief Justice’s Court of the Allahabad High Court on 11.05.1982, Tapan Ghosh reports for the All India Reporter, that in a “clear mellifluous voice”, Justice Sinha spoke for the last time as a Judge and hoped that “we, the members of the Bar and the Bench of this Court, by our mutual efforts and co-operation shall preserve the prestige, dignity and honour of this Court at all cost and for all times to come”[xv].

 

Justice Sinha’s last injunction has bound the future generations of judges and lawyers. I cannot think of a better time than the present to ask ourselves whether we have lived up to this courageous judge’s expectations?

 

(The author is an advocate practising in the High Court of Delhi and in the Supreme Court of India. He can be reached at @advsanjoy)

Note: Views expressed are personal.

 


Endnotes:

[i] Prashant Bhushan, “The Case that Shook India”, Penguin/Viking, 2017.

[ii] “Justice Sinha, who set aside Indira Gandhi’s election, dies at 87”, Express News Service, March 21-22, 2008

[iii] Wendy Springer, Independent India, 1947-2000

[iv] Shanti Bhushan: “Courting Destiny: A memoir”

[v] RVS Prasad, “Emergency: Indira’s ‘shock treatment’, 12.06.2019, Deccan Herald.

[vi] “Justice Sinha, who did not bow down to Indira Gandhi”, Rebellion Voice, 22.1.2018.

[vii] Shreeja Sen, In Search of the judgement that led to the Emergency, 26.06.2015, LiveMint

[viii] A great judge departs-don’t mourn, celebrate his courage.” Shanti Bhushan, March 21-22, 2008, The Indian Express

[ix] “Mrs Gandhi Vows to stay in Office In spite of Ruling”, New York Times, 13.06.1975.

[x] “Shanti Bhushan: the Lawyer Who Got Indira Gandhi Disbarred”, the Quint, 24.06.2017.

[xi] Pranay Gupte, in his biography of Indira Gandhi titled “Mother India” claims that it was Rajiv Gandhi who was the first person to carry the news to Mrs Gandhi.

[xii] Ananth V Krishna, ”India Since Independence: Making Sense of Indian Politics.

[xiii] Fali Nariman, Before Memory Fades.

[xiv] Arunabha Bagchi, “Shock & Awe of 1975”, The Statesman, 3.09.2015.

[xv] Tapan Ghosh, “Justice Jagmohan Lal Sinha”, AIR, 1982.

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