On 12 June 1975, Justice Jagmohanlal Sinha of Allahabad High Court found the then Prime Minister Indira Gandhi guilty of electoral malpractices in the “State of Uttar Pradesh vs Raj Narain” case. The judge declared her election null and void, unseated her from the Lok Sabha and barred her from contesting elections for the next six years.
About ten days later, on 23 June 1975, the appeal in the Supreme Court, which had closed for summer vacation, was heard by Justice V R Krishna Iyer who was the vacation judge. In a much-praised verdict, he refused an unconditional stay but allowed Indira Gandhi to attend Parliament as a member without a vote, pending final decision. The lawyer who appeared for Indira Gandhi and got that stay order: Nani Palkhivala.
Palkhivala is known to have taken up the brief for Mrs Gandhi because of the grave nature of the issues involved. He also felt that the Allahabad High Court’s decision was wrong. For him, Justice Sinha’s verdict meant that if anyone down the line did anything wrong, the person at the top, irrespective of whether he or she knew of such wrongdoing, would be held guilty. He thought he had a good case. However, just a day later, on the night of 25 June 1975, Indira Gandhi panicked and declared Emergency.
Palkhivala did the unthinkable. As a mark of protest, he promptly returned his already accepted brief to defend the PM. To do such a thing to Indira Gandhi, at the height of her powers and during Emergency, required enormous courage. With Emergency in full force, had Palkhivala been arrested and sent to a torture chamber, no one would have known.
That wasn’t the end. Later that year, for some strange reason known only to him, the CJI A N Ray constituted a 13-judge bench to revisit the Kesavananda Bharati case (1973) in which the Supreme Court had concluded that the Constitution’s basic structure was inviolable by any amendment by Parliament.
Palkhivala rose to the occasion to counter the gravest threat the Constitution had faced. Heading a team of constitutional lawyers, Palkhivala argued continuously – morning to evening – for 2 days on November 10 and 11, 1975 and prevailed upon their lordships not to review the majority view in Kesavananda Bharati case. Sensing that most judges on the bench had been swayed by the brilliance of Palkhivala’s submissions, on November 12, CJI Ray dissolved the bench, without any explanation.
Justice Khanna, who was on the bench, remarked later: “The height of eloquence to which Palkhivala rose on that day had seldom been equaled and never surpassed in the history of the Supreme Court of India”.
If you remember Indira Gandhi today – sure, she gave us our most decisive victory against Pakistan – do spare a thought for Nani Palkhivala – who made sure our Constitution survived her intact.