Indira Gandhi

  The government’s leisurely handling of the Shah Commission’s report did not bear out Mrs Gandhi’s acute anxieties. The Committee of Secretaries,§ where it was referred for processing and recommendations, gave as its opinion that no penal action was possible against Mrs Gandhi, but that she could be disenfranchised. This left the government in a quandary about a course of action against her, though it began to deal variously and ponderously with the other cases arising out of the report, instituting ‘prosecutions’, ‘departmental proceedings’ and ‘remedial actions’, ‘all in accordance with law and after careful examination of each case’.

  In May 1978 a prominent Janata member of Parliament, Ram Jethmalani, urged the creation of a special court to try Mrs Gandhi. The prime minister reluctantly agreed under mounting pressure from the party, but said he would seek the Supreme Court’s advice first. However, a private bill to set up a special court was introduced in Parliament on August 4, 1978. On December 1, the Supreme Court approved its provisions, with two modifications: (1) the bill should not be restricted to misdemeanours from an arbitrary cut-off date (February 27, 1975 as proposed), and (2) the government should not appoint the special court judges, who should be appointed by the chief justice of India and the chief justice of the high court, from among present high court judges. Not until January 9, 1979, did the government introduce its own bill in Parliament, incorporating the Supreme Court’s modifications. It was passed by the Lok Sabha on March 9, 1979, and by the Rajya Sabha, with two changes on March 21. The Lok Sabha reconsidered and passed it on May 6, 1979.

  Two special courts were set up and hearings began on June 14, 1979. The misdeeds of the Emergency had now been reduced to twenty-one first information reports¶ resulting in four cases, two before each court. Rapid disposal of even these seemed unlikely as the Janata government’s disagreements became more public and its future uncertain. A decade of political encroachment on the judicial system had affected the detachment and integrity of judges. Quick to respond to Mrs Gandhi’s election victory in January 1980, the special courts declared themselves illegal soon afterwards. Justice Jain of Special Court Two announced on January 15, 1980, that ‘the creation and establishment of this court and the declarations and designations to try the said cases were not made in accordance with the provisions of the Constitution and are therefore of no effect and confer no jurisdiction on this court’. A month later Justice Joshi claimed similar grounds for winding up Special Court One. The Indian Express commented editorially on this phenomenon on February 20, 1980:

  The circumstances attending the demise of the Special Courts must strike public opinion as rather odd. It took Justice Jain six months and Justice Joshi a month longer to come to the realization of their lack of jurisdiction on an obscure technicality. It is not the Act creating the Special Courts that the two judges have found ultra vires. What invalidates the Special Courts, in their opinion, is that the Ministries of Home and Law which purported to exercise the powers under the Special Courts Act were not specifically allocated these functions under the rules of business.

  In March 1980 Mrs Gandhi’s government appointed a panel headed by S.M.H. Burney to decide which, if any, cases launched by the Janata government following the Shah Commission’s findings should proceed. Burney, who had been Secretary to the ministry of information and broadcasting during the Emergency, was not expected to be neutral in his assessment of the cases before his panel. Cases against Mrs Gandhi, Sanjay Gandhi and V.C. Shukla, minister for information and broadcasting during the Emergency, were excluded from the panel’s review. But, with important personnel changes in the investigating agencies and the appointment of a new public prosecutor, these were dropped by the courts on grounds of insufficient evidence. An example was the Kissa Kursi Ka case.

  Kissa Kursi Ka was the title of a film held up for release in 1975 because its main protagonist, a politician whose party symbol was a ‘people’s’ car, had a likeness too close to Sanjay Gandhi for official approval. The film’s producer filed a writ petition in the Supreme Court on June 11, 1975, and on July 18 was directed to surrender its prints and negatives to the government on the understanding that they would be kept safe. The prosecution case held that Shukla, appointed minister on June 28, 1975, banned the film and, in a raid on the film laboratory in Bombay on August 7, seized all material connected with it. This was brought by train from Bombay to the prime minister’s house in New Delhi in thirteen trunks on November 10 and taken from there to Sanjay Gandhi’s factory in Gurgaon near New Delhi, where it was destroyed between November 10 and 24. The Supreme Court ordered the government to screen the film before it on November 17. The screening never took place.

  On February 27, 1979, after an eleven-month trial, the district and sessions judge in Delhi convicted Sanjay Gandhi and V.C. Shukla of entering into a conspiracy to destroy the film under cover of the Emergency. Each was sentenced to two years’ rigorous imprisonment and fines of Rs 10,000 and Rs 25,000 respectively. In the course of the trial Sanjay had been found guilty of tampering with evidence and attempting to suborn the prosecution’s witnesses. A three-man bench of the Supreme Court had cancelled his bail and sentenced him, on May 5, 1978, to one month in custody.

  Sanjay appealed against his conviction, and the Supreme Court commenced hearing the appeal on November 26, 1979. It had been heard only in part when the court recessed for Christmas. When hearings were resumed, Indira Gandhi was in power. A.G. Noorani writes:

  It was a piquant situation. The government prosecuting Sanjay Gandhi was headed by his mother. A conviction would have disqualified him from membership of Parliament and sent him to prison. Co-accused Shukla would have suffered equally. In India the Government controls the prosecution agency to a remarkable degree. But the matter was now at the appellate stage before the highest court in India.6

  Yet Noorani points out, the highest court in India did not see fit to take notice of the new public prosecutor’s handling of the case, when he disposed of a record that ran to 6500 pages, filling twenty volumes and a 300-page judgement in fifteen minutes. On April 11, 1980, the Supreme Court allowed the appeal and quashed the convictions of Sanjay Gandhi and V.C. Shukla.

  The Shah Commission report had been printed in eleven regional languages. Mrs Gandhi’s government stopped its distribution and sale, endeavouring to ensure that a public record of the Emergency would be obliterated and the consequences of suspected criminality buried. Three hundred tapes of the commission’s hearings lodged with the home ministry have apparently vanished without a trace.

  The ‘commitment’ demanded of it by Mrs Gandhi after 1969 had made deep inroads into the tradition of an independent civil service, and the Emergency had dealt ruthlessly with those who questioned arbitrary orders. The Janata government inherited a deeply demoralized bureaucracy. In circumstances where Mrs Gandhi, as the months passed, appeared to be making a comeback, the bureaucracy, acutely sensitive to political pressures, showed little inclination to act even on vital information it received, as the following curious account7 discloses.

  Soon after the 1977 election, a van left Mrs Gandhi’s residence for her farm near Mehrauli, on the outskirts of New Delhi. A woman labourer employed for construction work on the farmhouse later told her village pradhan (headman) of valuables buried with the help of labourers at six places on the premises and a steel cabinet buried in the farmhouse itself in a room where the flooring was not yet complete. The pradhan, who had supported the Janata Party during the election, took the story to C.V. Narasimhan, director of the Central Bureau of Investigation (CBI) in the last week of May 1977. No action was taken, but the pradhan persisted in his efforts to interest someone in authority. On receiving the information in June 1978, Prime Minister Morarji Desai asked the Intelligence Bureau (IB) to corroborate the story. The IB, no longer able to locate either the labourers or the contractor who had hired them—inquiry revealed that several of the labourers were reported to have died—decided to verify the story with the use o
f a metal detection device. The son of a head constable in the bureau was sent to the National Geophysical Laboratory in Hyderabad for training in metal detection. On August 31, 1978 he was smuggled into the farmhouse for two hours. Readings were positive and were conveyed the next day to a meeting attended by a galaxy of the administration’s most important officials: the Cabinet Secretary, the Home Secretary, the chairman of the central board of direct taxes, the director of the CBI, the special director of the CBI, the director of the IB and the joint director of the IB. The Intelligence Bureau officers urged an immediate raid on the farm. The others were reluctant to take action. The finance minister decided to postpone the raid until November 6, 1978, the day after the Chikmagalur by-election to Parliament, which Mrs Gandhi was to contest. On November 5 it was further postponed without explanation until December 29. In mid-November the Intelligence Bureau sent a memorandum to the Cabinet Secretary and the Home Secretary, listing information they had obtained about the Gandhi family’s secret accounts, but the bureau was told the raid would remain scheduled for December 29. The IB placed the farm under surveillance but was ordered to withdraw this after two weeks, as it might bring the government unwelcome publicity. On December 28, the raid was postponed to January 5. On January 4 it was indefinitely postponed.

  On January 8, 1979, the IB posted surveillance at the farm again and urged the Home Secretary to order the raid immediately, since the matter had now reached the newspapers. At 8.00 a.m. on January 19, an informant on the farm telephoned the IB to say that two young men, who had arrived by car (licence number DLY-1) half an hour earlier, were digging in the grounds. The information was conveyed to the Home Secretary, who, in no hurry, called a meeting in his office for 11.00 a.m. to discuss the advisability of a raid. While the meeting was in progress, another message from the farm said the diggers had loaded a large steel cabinet into their car and left. The informants followed the car but did not search it, though they were empowered under the Income Tax Act to do so. They watched it enter 12 Willingdon Crescent, Mrs Gandhi’s residence.

  The Home Secretary’s meeting ended at 1.30 p.m., having decided to raid the farm. The raid commenced at 4.00 p.m. and discovered nothing. Later inquiries revealed that only the last remaining items had been dug up on January 19. Most items had been removed immediately after the IB’s surveillance was lifted on December 23. The newspapers carried pictures of the infructuous raid.

  A bureaucracy, unwilling or mysteriously unable to deliver results, with even the intelligence agencies at cross purposes with each other, was partly the reflection of a disunited government, but the delays and ineptitude in carrying out the government’s policy of rectifying the wrongs of the Emergency were symptoms of a more serious malaise affecting the very guts of a civil service in a democratic society. The fate of the process was finally sealed by the two special court judges, followed in rapid succession by other judges who uniformly dismissed the cases before them soon after Mrs Gandhi’s election victory—acts which may have lasting implications for the future of democracy in India.

  There is another aspect to the slow progress of prosecution. Prime Minister Desai was committed to the meticulous application of legal procedures with all their latitudes and insisted these be followed, no matter what the political cost to his government. This view, fundamental to his own approach, also represented the swing of the pendulum away from the arbitrary powers and shortcuts of the Emergency to democratic procedures and the rule of law. A united government, determined to see these through, would have emerged stronger in public estimation as a result. Its vacillation branded it weak and incompetent. Its collapse erased the legal processes it had begun.

  Mrs Gandhi’s by-election victory in Chikmagalur, on November 8, 1978, made it clear she was once again a factor to reckon with in Indian politics. Her public relations were assiduous and faultless. From jail she sent a bouquet of flowers to Charan Singh for his birthday, presented to him on the dais before he addressed his spectacular peasants’ rally on December 23, 1978. She took an elephant ride to Belchi in Bihar to establish her presence where violence against Harijans had taken place. She attended diplomatic receptions in New Delhi, and newspapers noted that she prayed at shrines in different parts of the country. She lost no opportunity to hold the Janata government responsible for the caste and communal incidents and the police violence she claimed were on the increase. Writing in the Economic Times on September 20, 1979, Prem Shankar Jha cited home ministry figures and police records of the past decade to refute her charges, saying that ‘the truth was considerably at variance with Mrs. Gandhi’s version of it’.

  In her speech Mrs. Gandhi expressly used three unimpeachable indicators of social tension and the degree of violence used to repress it. These were the number of police firings and casualties resulting from them, the number of communal incidents; and the extent of violence against the Harijans. A fourth indicator, the extent of labour unrest, was implicit in her repeated accusations that the Janata was ruining the economy. Unfortunately for her not one of these indicators supports her contention that the tensions are rising and that the nation faces a crisis.

  Her campaign to rehabilitate herself was assisted by ample funds and support. Leading business houses had maintained their links with her, and these were strengthened as the Janata government’s future became doubtful. Just before the 1980 election the capital witnessed an unusual stir of diplomatic activity in her favour.

  On October 9, 1979, Mrs Gandhi and Sanjay joined the mourning multitude at Jayaprakash Narayan’s funeral in Patna and laid a wreath on his bier. For thousands of youthful followers of the Bihar Movement this was the final irony. Yet the public at large found it no more ironic than the presence at the funeral of former ministers of the Janata government who now sat in the Opposition, in betrayal of the pledge they had taken to remain united to prevent the return of authoritarian rule.

  The death of Jayaprakash Narayan, whose call for ‘bread with freedom’ had brought five Opposition parties together in 1977 and led them to victory, removed the last great figure of the liberation struggle from the national scene. Had the Janata Party broken on ideological grounds, a realignment of political forces might have forged a strong Opposition. Its chaotic and unprincipled demise left political disarray within a system whose soundness even the elite—its main beneficiaries—were beginning to question. The political adventurer found little to obstruct him, and an impatience with law, convention and procedure marked the style of the new breed the January 1980 election brought into politics. Members of the Congress-I, elected to the Uttar Pradesh legislature in the state’s election in May 1980, did not wait for the formal allotment of their accommodation but stormed into the legislators’ hostel after breaking open the locks with their revolvers.

  *A rascal. Literally, one who betrays his salt.

  †On May 9, 1980 the Supreme Court struck down Section 55 of the Constitution (42nd) Amendment Act 1976, which gave unlimited powers to Parliament to amend the Constitution. The Supreme Court decision meant that the Constitution could not be amended in such a manner as to destroy its basic or essential features or its basic structure. It also reasserted the primacy of fundamental rights over directive principles of state policy. Mrs Gandhi’s government is considering whether it will appeal this decision before a larger bench of the Supreme Court.

  ‡The draft of the Sixth Five-Year Plan, prepared during the Janata regime, noted that, with 40 to 60 per cent of India’s people still living ‘below the minimum acceptable level of living’, ‘the most important objectives of planning have not been achieved, the most cherished goals seem to be almost as distant today as when we set out on the road to planned development.’ It held past planning responsible, which had devoted ‘an unduly large share of resources’ to ‘production which related directly or indirectly to maintaining or improving the living standards of the higher income groups’. The benefits of even government investment in the infrastructure ‘have accrued largely to the re
latively affluent … the concentration of economic power has increased… . Within the Corporate sector the assets of the bigger corporations have increased more rapidly’, while in the rural areas ‘the land reform measures had no visible impact on the distribution of rural poverty’.

  §A Secretary is a senior civil service adviser to the government.

  ¶The FIR under Indian penal law is the original complaint made by an aggrieved person or institution in regard to an alleged offence.

  SEVENTEEN

  The President Confers a Bonus

  Addressing a public meeting at Shivaji Park in Bombay on September 10, 1979, Mrs Gandhi said the Janata Party had led the country to ‘utter ruination’ and that the economy had degenerated. Two months earlier, on July 12, 1979, George Fernandes, minister for industry, had defended the government during a no-confidence motion in Parliament:

  We have been in power for only two years and three months so far and we could not have shaken the Himalayas … (but) I want Honourable Members to realize that so far as the economy is concerned, all their arguments are hollow. In terms of output, in terms of production, in terms of growth, the Janata government’s performance is an excellent performance. We are proud of that performance.

  The conflicting statements of Indira Gandhi and George Fernandes are better understood against the effects of the budget presented by Charan Singh in February 1979, after his re-entry into the cabinet as finance minister.