Opening his arguments in his rejoinder, Bhushan first referred generally to the arguments advanced by Khare and the Attorney-General. “During the last thirteen days, your Lordship has heard at length the Attorney-General and my learned friend, Mr Khare. I must confess that while both of them have drawn heavily for their submissions on their personal experience of fighting elections, I am under a handicap in this respect. I have not fought any election.
“Mr Khare from his experience was able to enlighten your Lordship about heavy expenses on facelifts and make-up amounting to Rs 20,000. He also told your Lordship about the expenses on Scotch whisky, presumably for keeping up the morale of the candidate, and then he mentioned the huge expenditure on several suits so that the candidate could wear a new one at each election meeting.
“The Attorney-General, on the other hand, told your Lordship about his unhappy experience in the general elections of 1951 which he contested as an independent candidate, and in which, despite the use of his money-power which he said was not too little, he lost on account of the attractive posters of Jawaharlal Nehru pasted throughout his constituency. The Attorney-General concluded from his personal experience that money could not play any significant part in the elections. I was, however, wondering as to whether my learned friend would really have used his enormous money-power during the elections.
“The ceiling on election expenses in 1951 was fairly low, and I am sure that he must have taken good care to keep himself within the prescribed ceiling. In that event, the Congress candidate opposing him could not have suffered any handicap of money-power and with the other advantages available to him as a party candidate, particularly the high image of the Congress in 1951, it is not surprising that the Attorney-General lost.
“Before going into the various points which have been raised by the other side, I would like to refer to certain submissions of a general nature which have been made by them and which appear very startling to me.
“The Attorney-General so strongly commented on the judgment of Justice Bhagwati in Chawla’s case that the Delhi newspapers almost gave a full-page headline, ‘Attorney-General questions the wisdom of the Supreme Court’. I would, on my part, like to cite the judgment of Justice Bhagwati as a very learned judgment by a great judge. It was indeed my misfortune that I was not able to appreciate the significance of the Attorney-General’s criticism of the Supreme Court judgment which is binding under Article 141 on this court.
“What was more astounding was the manner in which the de jure leader of the Indian Bar referred to the judgment of the Supreme Court in Kesavananda Bharati’s case. He frankly conceded that the majority in that case had laid down an important principle about inviolability of the basic features of the Constitution, but proceeded to tell your Lordship that he was not attaching any importance to that judgment. He did not tell us why. But if his reasons could be surmised, it appears that he treated this decision in a cavalier manner, because three of the judges who were parties to the majority decision have been superseded by the government in the matter of appointment to the office of the Chief Justice. If I may say so, with respect to my learned friend, his attitude towards this historic judgment of the Supreme Court was unworthy of the high office which he holds.
“So long as the decision of the majority continues to be binding under Article 141, what can possibly be the relevance of the Attorney-General’s ceasing to attach importance to that decision. One has heard of judgments being marked AFR, meaning ‘approved for reporting’. Was the Attorney-General trying to evolve a new concept of the Supreme Court judgments being marked ‘DAG’, that is to say, disapproved by the Attorney-General’, in which event the judgment would cease to be binding on the High Court. Fortunately, no such proviso has yet been added to Article 141.
“My learned friend Mr Khare propounded the doctrine that the credibility of the witness is directly related to his status. If that be so, perhaps the evidence of witnesses should be assessed with the aid of the order of official precedence. I submit that the high office which the witness might be holding is quite irrelevant to the assessment of evidence, particularly in a case in which he is a party and has personal stakes. The evidence has to be assessed in the same way as any other witness. On the other hand, it is a matter of common experience that the people of so-called status would sooner resort to false statements as they have much more to lose than a poor man.
“Mr Khare at some stage asked your Lordship to decide the case as a ‘statesman’ although not as a politician. On my part it would be presumptuous to tell your Lordship how to decide the case, because I know that your Lordship will decide it like a judge and only as a judge. Though a rich businessman has the glamour of money and a politician or a statesman has the glamour of office, a judge is the highest of them all. A great judge lives in the hearts and minds of men. He lives in their hearts on account of his moral stature and in their minds on account of his intellectual stature.
“Mr Khare also desired that the consequences of the decision should be taken into consideration as well. May I, in this connection, be permitted to draw attention to the speech of William Wilberforce in the House of Commons in 1789. He said, ‘Sir, when we think of eternity and of the future consequences of all human conduct, what is there in this life that should make any man contradict the dictates of his conscience, the principles of justice, the laws of religion and of god.’
“A country is great when it worships principles and not men. The glory of justice lies in being based upon principles than on any other trivial considerations.”
Excerpted with permission from The Case That Shook India: The Verdict That Led to the Emergency, Prashant Bhushan, Penguin Viking.