BY: Mrinal Pande

Court: Supreme Court of India.

Decided on: 7 November, 1975

Bench: A N Ray (CJI), H R Khanna J., K K Mathew J., M H Beg J., Y V Chandrachud J.


  1. Indira Gandhi and her party emerged triumphant in 1971, at the time of 5th Lok Sabha elections, winning total of 352 seats out of 518 seats in preceding polls. She contested her election from Rae Bareli constituency. Raj Narain, a strong and irreplaceable leader of Ram Manohar Lohia’s SSP, was contesting against Mrs. Gandhi. While Raj Narain was confident of his victory over Mrs. Gandhi, he lost by huge margin.
  2.  Raj Narain has not embraced the loss and has continued to press for the rectification of the election of bribery and ethical practices Indira Gandhi used during her election campaigning and subsequently challenging the Prime Minister on 24th April, 1971 election in Allahabad High Court by petition.
  3. On 12th June, 1975 High Court of Allahabad speaking under the authority of Jagmohan Sinha found Indira Gandhi guilty of misusing government machinery u/s 123(7) of Representatives of Public Act, 1952[1]. The judge accordingly also disqualified her from holding any public office for the period six years. [2]
  4. Aggrieved by High Court decision Mrs. Gandhi appealed to Supreme Court challenging the ‘unseating’ verdict against her and sought for absolute stay. The vacation judge of Supreme Court justice V R Krishna Iyer on 24th June, 1975 grant a conditional stay on execution at means Mrs. Gandhi could participate or could address the parliament but could not draw a vote.
  5. Thereafter National emergency was declared by then President Fakhruddin Ali Ahmad citing internal disturbance on 25th June, 1975.
  6. During emergency period on 10th August, 1975, thirty-ninth Constitutional amendment Act, 1971 was passed and inserted 329A in constitution and denied the Supreme Court jurisdiction over the matter.This amendment made the elections of President, Prime Minister, Vice-President and the Speaker of Lok Sabha unjustifiable in the courts of law.


  1. Whether or not clause 4 of Art 329A of the constitution of India, was constitutionally valid.
  2. Whether or not Representative of public (amendment) Act, 1974 and Election Law (amendment) Act, 1975, was constitutionally valid.


Following are the rules which applied while passing judgment:

  1. Art 329(b) in the constitution of India.
  2. Sec 123(7) in the RP Act, 1951.
  3. RP (amendment) Act, 1974.
  4. Election Law (amendment) Act, 1975.
  5. Art 368 in the Constitution of India.


  1. Whether or not clause (4) of Art 329A of constitution of India, was constitutionally valid.

Contented on the ground that it destroys the basic structure and this amendment passed by houses was unlawful.

  1. Hon’ble Supreme Court applied the basic structure doctrine laid down in Kesavanand Bharti V. State of Kerala[3]. Supreme Court declared the impugned clause (4) of Art 329 unconstitutional as it destroyed the free and fair election which is integral part of basic structure. Under Art 329(b)[4] election disputes shall be brought before an authority such as the legislature can provide for that by statute. The essence of the problem posed in an election petition is that, only a legal process can fix that. Clause (4) of Art329A excludes this right and thus should be struck down.
  2. AsRaj Narain alleged that several opposition leaders were illegally detained and thus, unable to attend the parliamentary session at the time when thirty-ninth amendment was passed and therefore passed amendment should laid down as unlawful or illegal.  The Supreme Court stated that court cannot go into the question whether the sitting of parliamentary house was constitutionally valid or not because some member of those house was prevented and detained. Court also held that, in performance of its constitutional function, the president u/A 352 and Art 359[5] did not allow any person to be illegally detained and also not to the member of parliament.
  3. Whether or not the representative of people (amendment) Act, 1974 and Election Law (amendment) Act, 1975 was constitutionally valid.
  4. Supreme Court held that apart from limitation laid down in Art 13[6] of the constitution, there is no prohibition on the legislation to make any law or any amendment. Under art 368, it comes within the competence of the parliament to lay down laws in relation to election. The Apex Court held that no objection can accordingly to be taken to the constitutional validity of two impugned Acts on the ground that they damage or destroy the basic structure. Parliament has enumerated powers to define election expenses and to lay down election expenses. Parliament also has power to adopt conclusive proof with regard to the matter of appointment, resignation, termination of services, etc.
  5. On interpretation of amendment in definition of ‘candidate’ Justice Khanna held that parliament has power to define or ament the definition of ‘candidate’.

Dealing with retrospective operation, Apex court held that legislation is allowed to give retrospective effect to law unless some specified provision of constitution restrict it. The power to pass this Act could be exercised retrospectively as much as prospectively. Free and fair elections are not violated by retrospective legislation relating to election. Therefore, the said amendments did not affect the basic feature of constitution and thus these amendments are valid.


After careful and thorough consideration of the justification in this particular case given by judges, I personally feel that, though it seems that the judgment is theoretically but in practically on the ground of justice, equity it was failed judgment. It was flawed on the ground of good conscience.

Mrs. Gandhi took an unconditional stay order from the Allahabad and then appealed to Supreme Court. Supreme Court gave partial stay order so she very artfully impose emergency on nation on the ground of internal disturbance and suspend all fundamental rights of citizens. But the real and hidden reason was that because of partial stay order she cannot vote in the parliament and her seat as a Prime Minister was in danger. Many of her opposition members were arrested and detained under MISA Act[7]

In the meantime, Mrs. Gandhi also passed new amendments in Representative of peoples Act and Election Law Act, 1951 and thirty-ninth Constitutional amendment was also passed. When many opposition leaders were not able to attain the parliamentary session. These major amendments were made deliberately to remove all the grounds on which Mrs. Gandhi found guilty in Allahabad High Court.

According to me, Mrs. Gandhi misused the power to amend the laws that charged of being guilty. If Mrs. Gandhi had ordinary person, she never could have been able to amend the laws as per she wants.  Therefore, she clearly misused the power as a prime minister of democratic nation.

All the three amendments were presented in both houses of parliament when major number of Gandhi’s opposition leaders were detained. I feel that Supreme Court also acted in very ignorant manner and said that, that was a matter of parliament and Supreme Court could not interfere in it. The duty of Supreme Court is to protect the constitution as a guardian and watchdog of constitution. But Supreme Court held that it was out of their jurisdiction.

Mrs. Gandhi also made sure about the definition of ‘candidate’ and change it to protect her skin.She also made sure that Yashpal Kapoor’s resignation was held valid from an earlier date, by Section 8(b) of the Amendment Act, 1975, by introducing Explanation 3 at the end of Section 123(7) of People’s Representative Act[8]. These amendments show that she did not took the help of Yashpal Kapoor a gazetted officer Actually, these amendments were aimed to reverse the judgment of Allahabad High Court which invalidate the election of Indira Gandhi.

The Prime Minister of the nation after finding herself guilty of violation of such elections norms and rules should have resign with left dignity instead of imposing emergency in nation to save herself.


Supreme Court passed its judgment on 7th November, 1975. 5 judge bench of Supreme Court gave its order in respect of the issue referred accordance with reasons mentioned above in application section:

  1. It was held that the clause 4 and clause 5 of Art 329A was unconstitutional as being violative of basic structure of Indian constitution.
  2. Representative of peoples (amendment) Act, 1974 and Election Law (amendment) Act, 1975 were considered to be legal, constitutional and perfect in all norms.
  3. Election of Indira Gandhi, from Rae Bareli was considered to be valid.

Supreme Court set aside the judgment of Allahabad High Court and acquitted Indira Gandhi, thereby making her election valid.



1.  Indira Gandhi vs. Raj Narain AIR 1975 SC 2299

2. Kesvananda Bharti vs State of Kerala AIR 1973 SC 1461

Book:The Case that Shook India- The verdict that led to emergency by Prashant Bhushan

Laws: Constitution of India, 1950

Representation of the People (Amendment) Act, 1974

Election Laws (Amendment) Act, 1975

[1]Rajnarain V. Uttar Pradesh,1975 AIR 865

[2]The case that shook India – by Prashant Bhushan, 9th Ed.

[3]Kesavanand Bharti V. State of Kerala (1973) 4 SCC 225)

[4]Art 329(b), Constitution of India

[5]Constitution of India

[6]Art 13 Constitution of India

[7]Maintenance of internal security Act, 1971

[8]Representative of people Act, 1975

1 Comment

  1. Very apt analysis given the circumstances prevalent then. My kudos to the author and best wishes to take up more challenging assignments.


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