The Supreme Court?s observations on the matter of the ruling party in Tamil Nadu allowing a bandh in the state despite its decree that such a disruption is unacceptable has attracted considerable comment. The two-judge bench did not make the references as a ruling. It merely observed that it would consider recommending to the Centre that there is a ?breakdown of the constitutional machinery? in the state and how Article 356 could therefore be invoked to dismiss the state government. Yet, this was enough to create a stir of massive proportions.
This is not the first time that the courts have challenged the Executive, or more significantly, persons in the Executive. In fact, adopting a stance of open opposition to the Judiciary has even been used as a political device by several leaders. Recall the Allahabad High Court episode. On June 12, 1975, this court delivered Prime Minister Indira Gandhi a blow by setting aside her election as MP. Justice Jag Mohan Lal Sinha decreed that her victory in her Rae Bareli constituency was invalid on two of fourteen grounds; she was found guilty of having used state machinery to run her electoral campaign and of unfair use of a dominating position; her election agent, Yashpal Kapoor, was still in government service during the campaign.
The going wasn?t very good for her at the time?what with Jayaprakash Narayan?s (JP?s) movement at a peak, a vocal air of disenchantment with her style of functioning and a decline in her own sense of self-assurance. Still, commentators of the time felt that neither of the charges would be upheld by the Supreme Court had she bothered to wait for the appeal. But in her anxiety, coming as it did amidst a chorus of corruption chants, Indira Gandhi declared a state of national Emergency, suspending all citizens? fundamental rights by forcing the President of the day, Fakhruddin Ali Ahmed, to sign the declaration papers and accede to her wishes as PM.
Indira Gandhi had been given a stay of 20 days on the order, in order to appeal to the Supreme Court. The latter began its hearings of her appeal on June 23, and a judge even granted a conditional stay on the Allahabad High Court verdict. Justice VR Krishna Iyer ruled that until the appeal was fully heard and over, she could not vote in Parliament, but could attend all the same.
But such was the noise demanding her resignation, and such was the influence of her cronies and supporters, especially her second son Sanjay Gandhi and the barrister-loyalist Siddharth Shankar Ray, that Indira Gandhi launched a counter-offensive that is remembered as perhaps the worst national-level assault on Indian democracy to this day. Leaders were hounded into jail, any activity deemed anti-national (such as delaying trains or keeping the option of having one baby too many) could invite punishment, and newspapers and news journals were muzzled to put all forms of dissent down with a heavy hand.
The 1975-77 phase, until the PM declared general elections, were to prove a watershed for Congress politics. The suspension of civil liberties and repression of free voices paved the way for India?s first ever non-Congress government at the Centre. An entire sequence of events set into motion by a court order.
Apart from the Emergency brought on by the clash of institutions, there have been other instances, too, of politicians trying to harness their support base to defy court (or Election Commission) strictures against them.
Interestingly, the petitioner in the recent bandh case against the DMK is its local opposition party, AIADMK, whose own leader, Jayalalithaa, has spent much energy flouting court strictures against her. Though she was acquitted of graft charges, she had much to worry about in the scathing observations made against her at the time. Politicians, it would appear, are also quite comfortable using the pronouncements of courts to their advantage when it suits them. If there is no love lost between the two, there is also a mutual appreciation of power distances that one cannot really always fathom.