Author: Romi Kumari & Deeksha Prakash


The case of Indira Nehru Gandhi v. Shri Raj Narain& Anr.[1] is an iconic judgment that has surfaced in several forms of literatureconcerning the issue of the unconstitutionality of the 39thConstitutional (Amendment) Act, 1975 (“39th Amendment”). This case has been regarded as a landmark judgment as it represented many firsts viz. the first application of the iconic Kesavananda Bharati v. State of Kerala[2] case as a precedent and the first to involve retrospective amendment of election laws to validate an invalid election. However, the Supreme Court, in this judgment,remained silent on the unpunished conduct of Mrs. Indira Gandhi (“appellant”), an element gone unnoticed in today’s literature.

Essentially, it was the appellant’s unlawful conductthat resulted in the failure ofthe administration of justice upon the otherwise punishable conduct of the appellant,which was, however, condoned by the Supreme Court. The facts demonstratethe appellant’s malicious utilization ofthe 39th Amendment and the power to declare an emergency[3] to satisfy her political motives at the cost of democracy. The appellant’s clout post-victory in the Prime Minster elections elucidates her potential and plausible guilt.

Description & Background

On 12th June 1975, the appellantwas found guilty under Section 123(7) of the Representation of the People Act, 1951[4]for misusing government machinery during her election campaignfor the constituency of Rai Bareilly, Uttar Pradesh in the 1971 Lok SabhaElections. The appellant’s election was declared void by the Allahabad High Court in the case of State of Uttar Pradesh v. Raj Narain Ors.[5]

On 24th June 1975, the appellant filed an appeal before the Supreme Court against the Allahabad High Court verdict. The court, while on vacation at the time, granted a conditional stay wherein the appellant could continue in the office of Prime Minister but was not entitled to voting power in parliamentary proceedings. To analyze the arguments of both parties and pronounce a final verdict, the Supreme Court ordered them to appear on 11th August 1975. However, 1 day before said appearance, on 10th August 1975, the President, Mr. Fakhruddin Ali Ahmed declared a national emergency due to “internal disturbance” in the country upon the appellant’s recommendation. The effects of the emergency included the preventive detention of several Members of Parliament (“MP”) and non-MPs, suspension of fundamental rights, and press censorship. The imposition of emergency was followed by the enactment of the 39th Amendment in the absence of severaldetained MPs. Raj Narain (“respondent”) challenged the constitutional validity of the 39th Amendment, the Representation of the People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 (inserted in the 9th Schedule by the 39th Amendment). 

Case Analysis

The Supreme Court based its judgment on the issue of the constitutional validity of the 39thAmendment. Specifically, Article 329A of the 39th Amendment attracted judicial attention as it was a legislative attempt to rule out the court’s jurisdiction to adjudicate the matter in question, the validity of the Prime Minister’s election.

Firstly, clauses 1 and 2 of Article 329A expressly barred judicial review of the validity of Prime Minister and Lok Sabha Speaker’s elections.Electionsfor such posts could only be challenged before a committee/body established by the Parliament. Apart from the power to settle election disputes, the legislature was empowered to enumerate the grounds upon which such elections may be challenged, both powers being ultra vires to the powers intended for the legislature by the Constitution[6].

Secondly, clauses 4 and 5 retrospectively invalidated any prior laws regarding election petitions (and the like) passed by the Parliament before the enactment of the 39th Amendment. Moreover, the clauses also mandated the overturn of orders (passed before the 39th Amendment enactment) declaring the election for the aforementioned offices invalid/void with noprovision for an appeal or cross-appeal before the Supreme Court.

Furthermore,the State of Uttar Pradesh v. Raj Narain & Ors.[7] was the first controversial caseto set aside the Prime Minister’s election. The Apex Court’s decision to uphold the appellant’s election rendersthis judgment a failed attemptat creating a firm precedent that endorses justice against such attempts at national democratic annihilation. Additionally, the court, in this case, failed to recognize sufficient grounds to invalidate the Representation of People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975. Thereafter, the court, via the latter Act, retrospectively validated the appellant’s election and opined that the appellant’s indulgence in 2 corrupt practices[8] was not sufficient ground to vitiate her election altogether. Resultantly, the court deemed the respondent’s electoral objections to having been answered by the 2 Acts, hence, demonstrating a lack of logical reasoning in its ruling in favor of the appellant despitethe admission of her involvement in electoral malpractices.  

Parallelly, concerning the 39th Amendment, the judges opined as below:

A. N. Ray, CJI described the 39th Amendment as violative of ‘Rule of Law’.

K. K. Mathew, J. and H. R. Khanna, J. upheld the essence of ‘Free and Fair Elections’ in a democracy which necessitated resolution of election disputes through adjudicative facts and relevant laws, a feature deprived by Article 329A (4).

Y. V. Chandrachud, J. upheld the principle of ‘Separation of Powers’ as the legislature replaced and stripped the judiciary of its adjudicatory power in relation to election disputes. Further, he declared the 39th Amendment to be violative of ‘Article 14’ as it placed a few government officials above everyothercitizen. 

Collectively, the bench also held the 39th Amendment to be violative of ‘Audi Alteram Partem’, a principle of natural justice, as those, like the respondent, wishing to challenge the validity of the elections for such offices were deprived of their right to a fair hearing. All the aforementioned features, violated by the 39th Amendment, are part of the Basic Structure of the Constitution.[9] Therefore, with Kesavananda Bharati v. State of Kerala[10] as a precedent for the first time, the court held Article 329A (4) and (5) unconstitutional.

Being the first case of its kind, it entailed legal implications that were drastic to the extent of standing in contravention to the Basic Structure doctrine. Thus, the 39th Amendment was a threat for as long as it existed.[11] Though the Supreme Court justified its reasoning for the issue in question, the final judgment was ineffective as the 39th Amendment, as a whole, ought to have been struck down instead of 2 clauses only. The Supreme Court’s omission to strike down the aforementioned 2 Acts on grounds of their respective illegalities acted as a severe blow to the essence and practice of the largest democracy in the world.


Fundamentally, retrospective validation is a legislative process previously upheld by the judiciary in electoral matters as well.[12] In all such cases, the legislative intent behind retrospectively amending the law was to eliminate grounds for disqualification. In the present case, the Parliament withdrew all judicial competence and authority over election disputes[13] and conferred upon itself the power to adjudicate and determine the grounds for a valid challenge in such cases[14], hence, becoming the sole authority in electoral matters. While the Constitution confers powers on the legislature via Articles 245 -255, none of them authorize adjudication of disputes in any matter. Therefore, the Supreme Court’s statutory interpretation lacked merit as it approved of the legislature’s power to retrospectively validate the appellant’s invalid election.

Seemingly, the lethargy and ignorance of the ApexCourtare evident in its perspective of the appellant’s guilt, the core reason for her appeal, and, thus, the genesis of this case. Firstly, none of the conditions under Article 352 of the Constitution[15] were satisfied to deem the declaration of a national emergency (1975-1977) appropriate. Secondly, the modus operandi of the appellant’s government proved to sufficiently rule out her innocenceconcerning the allegations of electoral malpractices leveled against her.

Moreover, the 39th Amendment incorporated several statutes in the 9th Schedule (post entry 86 and before the Explanation) including the Maintenance of Internal Security Act, 1971 (“MISA”). MISA, enacted by the appellant’s government, gave Indian law enforcement agencies broad powers to preventively detain individualsindefinitely inter alia. As an exclusive power of the executive, the enforcement authority’s subjective suspicion upon the detainee was absolute and free from judicial review. MISA was an opportunity for abuse of executive power conferred by the legislature, more so, out of judicial scrutiny and control.

Article 22(2)[16]mandates the production of detainees before the nearest magistrate within 24 hours of arrest. The detainee has the right to be informed of the grounds of his/her detention[17] and the right to representation against his/her detention at the earliest opportunity[18].The detained MPs were deprived of both such rights in this case. The reason for the declaration of emergency, without appropriate reason, precisely 1 day before their appearance in the Supreme Courtwas most likely to satisfy the rule of 24 hours of detention without trial[19] and the prevalence of the Constitution, the Grundnorm[20], over MISA, thus, Article 22 over the arbitrary executive powers conferred by MISA. The purpose behind the preventive detention of MPs was to ensure the absence of their dissent towards the belying and treacherous proposal of the 39th Amendment.

Unfortunately, the Apex Court did not question the basis for such detention, instead, it declared the matter to be one between the 2 parliamentary houses despite having jurisdiction over the matter under Section 116A (1) of the Representation of the People Act, 1951[21], an Act expressly upheld by the Supreme Court in this case. The court was empowered to take up the issue of the appellant’s illegal conduct, an appeal against which led to this case, and, thus, question all her actions including that of the imposition of preventive detention upon several innocent MPs and non-MPs. Therefore, via its blatant but deliberate ignorance, the Supreme Court significantly weakened the merits of its own judgment. In terms of an exemplary model of justice, this judgment fell short in the eyes of the institution of administration of justice. Despite being conferred with the power to take suo motu cognizance of a matter that interferes with the justice administration system, warranted by Article 32[22], the Apex Court failed in its duty,as a constitutional watchdog,to do so at numerous instances in this case. 

Alternatives suggested

  1. Although preventive detention is subject to judicial scrutiny under Articles 14, 19 and 21[23] (“the golden triangle”[24]), the judiciary may be conferred with the liberty to question any aspect of preventive detention that it considers suspicious in order to prevent abuse at the hands of the Executive.
  2. Punitive measures for the commission of corrupt practices may be expressly mentioned under Section 123 of the Representation of the People Act, 1951[25].

[1]Appeal (civil) 887 of 1975.

[2]AIR 1973 SC 1461.

[3] India Const. art. 352.

[4]The Representation of the People Act, 1951, Legislative Department, Government of India, §123(7).

[5]AIR 1975 SC 865.

[6] India Const. art. 245-255.

[7] AIR 1975 SC 865.

[8] The Representation of the People Act, 1951, Legislative Department, Government of India, § 123.

[9] Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

[10] AIR 1973 SC 1461.

[11]39th Amendment was declared unconstitutional in Minerva Mills Ltd. and Ors. v. Union of India and Ors., AIR 1980 SC 1789.

[12] Kanta Kathuria v. Manak Chand Surana, AIR 1970 SC 694.

[13] India Const. art. 329A, Cl. 4.

[14] India Const. art. 329A, Cl. 1.

[15] India Const. art. 352.

[16] India Const. art. 22, Cl.2.

[17] India Const. art. 22, Cl. 1.

[18] India Const. art. 22, Cl. 5.

[19] India Const. art. 22, Cl.2.

[20] Mahesh Kumar Jha v. Union of India, WP No. 561/2008, WP No. 18607/2019.

[21]The Representation of the People Act, 1951, Legislative Department, Government of India, § 116(1).

[22]India Const. art. 32.

[23] India Const. art. 14, 19, 21.

[24] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[25]The Representation of the People Act, 1951, Legislative Department, Government of India, § 123.

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