Remember, there’s always the Constitution: Prashant Bhushan

Prashant Bhushan, senior lawyer and author of a book on the Emergency, says the 42nd anniversary of the Emergency is a good occasion to remember that freedom of speech is paramount.

Published: 24th June 2017 09:30 PM  |   Last Updated: 25th June 2017 02:19 PM   |  A+A-

Prashant Bhushan. (File | PTI)

Express News Service

Forty-two years back, on this day, Indira Gandhi declared a national emergency that remained in place for 21 months, until March 1977. Senior lawyer Prashant Bhushan was a student of Allahabad University at the time, while his father Shanti Bhushan, a former law minister and senior advocate, was arguing against the PM in the case referred to as Indira Gandhi v. Raj Narain in the Allahabad High Court.

The book The Case that Shook India which Prashant Bhushan wrote in 1978 serves as both a legal and historical document of the case in which Indira Gandhi was found guilty of electoral malpractices and her election was declared as void. The book is now being re-released. In an email interaction with Jaideep Sen, Prashant Bhushan revisits the case and recalls the "sad truth" about Gandhi's legacy.

Excerpts from the interview:

You were a student when you wrote The Case that Shook India in 1978. How have your thoughts about the case changed over the last four decades?

I was a student when the case was argued in the Allahabad HC and also in the Supreme Court. My thoughts about the case and also the general principle that no one is and should be above the law stay the same and I work to enforce the same principle through my PILs in the Supreme Court.

The Allahabad HC judgment was an emphatic testament to the same principle: that no matter who you are, even the omnipotent Prime Minister, you are under the scrutiny of the Constitution.

Why would you say it is important for people to revisit the case today?

To understand the relevance of this case, one needs to understand the context and conditions prevailing back in the 1970s.

In the 1971 election, Mrs Gandhi came to power on a roaring majority and even beat the record of her father when he contested elections in 1952 and 1957. And after the 1971 Pakistan war, she was seen as Durga Mata. Then came this judgment from the Allahabad HC which convicted her of electoral malpractices and disqualified her from Parliament and the PM’s position and also debarred her from contesting future elections. And the SC did not also give her full relief as she only got an interim stay. It was then she panicked and declared the Emergency in 1975. The purpose was to stay in power and somehow subvert the HC judgment against her. And during this period she and her coterie (led by her son Sanjay Gandhi) committed innumerable atrocities such as jailing of all opposition leaders and stifling of the press. 

Did this case set the precedent for studying all major cases of corruption in India? Are there many present-day cases that match up in comparison, in terms of impact?

The judgment of Allahabad HC was a resounding judgment in favour of democracy but the appeal in the Supreme Court was a disappointment. 

What happened was that while the appeal was going on, Mrs Gandhi changed all the election laws in a hurried manner through Parliament (don’t forget that all the opposition leaders were in jail then) and by changing the rules of the game retrospectively, she was able to get exonerated from the electoral malpractices charge. This was very unfortunate, and I feel that the Supreme Court made a mistake by allowing such rule change after the offence was committed, so that the accused can go scot-free.

So in a way the case set a good and a bad precedent: the Allahabad HC convicted her and set the precedent that no matter how high you are, the law is above you. But the SC failed in its duty by exonerating her based on the law she changed, after violating it in the first place. Mrs Gandhi’s case was however a case of corrupt practices under the election law. The corruption cases which have come up subsequently fall in a different category where bribes were paid or people committed criminal misconduct under the Prevention of Corruption Act.

Would you ever consider a scenario where you might be in favour of gagging the media? How much of present-day journalism would you much rather have shut down?

I will never ever support gagging the media. Freedom of speech is paramount.

Though we see all kinds of problems in the media today, dumbing down of news, jingoism, etc. by channels in search of TRPs, a free press is undoubtedly more important than gagging the media or excessive regulation of the media. However, there does need to be independent regulation, though limited, of the media through an independent statutory body called the Media Council. Today we have a Press Council which has no jurisdiction over the electronic media and does not even have teeth to deal with blatant transgressions even by the print media. We do need a regulator which can penalize media organizations which indulge in deliberate fake news, which is a common phenomenon today, as well as reckless defamation of people without any basis. Such practices unfortunately, though they are offences under the penal code, the present justice system in India is too weak to deal with and therefore we need a strong independent regulator to deal with such malpractices in the media. However, this regulator must be totally independent of the government both in terms of its functioning and the manner in which it is appointed.

Also the masses can also exert a lot of pressure by simply not watching these channels and simply switching off.

The sad truth is a lot of youngsters today might not even know who Indira Gandhi was. That said, how would you like her to be remembered in the future?

Yes, it is true that most youngsters do not know what Mrs. Gandhi did and what she stood for. It is a comment on our education system also that such important leaders and periods of history are not objectively covered and taught in school curriculum. If that had been the case then we would have a much wiser electorate, which would not fall prey to the propaganda of political parties.

Unfortunately, the writing of history, especially for school textbooks, has fallen prey to the dictum that the victor or those in power write history in their own interest. While the Congress remained in power there was excessive glorification of its leaders. However, now we are seeing the opposite trend.

As for the legacy of Mrs Gandhi - she was a democrat gone wrong who became a dictator and that sad truth is that she will remembered as such. However, she did have several positive qualities. Because of her tutelage under Jawaharlal Nehru she had acquired a good understanding of the socio-political, economic problems of the country as well as of geopolitics. Thus, she did many things during her tenure which were in public interest and which maintained and improved some of our important institutions such as educational institutions etc. In many ways she would still dwarf most of today’s political leaders and especially with regard to their understanding of the socio-political and economic issues facing this country and also geopolitics.

(The Case That Shook India is published by Penguin Viking, Rs 499)

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