JOIN USTragically it was a day when India lost its democracy and the US president boasted that US was the largest democracy.
Nations which do not remember their immediate past are in danger of repeating the same tragedy. This thought came to me on June 26, 2013 (the Emergency day of 1975), when on random questioning of those in the age group of 35 in the country (who are said to make up about half the population of the country) overwhelmingly many of them did not know of any particular significance of the day – and more tragic, a fairly large number of people above the age of 35 fared no better.
The reason was obvious. Most of the population in this hype age get their information from newspapers, which with commercial angle in view never fail to remind us of Valentine’s Day. But on June 26, the newspapers did not even have a small news item in their paper. Even many opposition parties which were victims of Emergency chose to keep low key.
Even though PUCL and other civil liberties organisations as usual held protest meetings, the TV channels and newspapers avoided any mention, overwhelmed as they are with the government’s neo liberal policies. Tragically it was a day when India lost its democracy and the president of the US sarcastically boasted that the US was now the largest democracy. It is a different matter that thankfully because of the sacrifices made by Indian people, under the inspiring leadership of Jayaprakash Narain (JP), the boast of US president was to end, but only after 18 months.
But the wounds have remained – the danger of it being repeated in the same manner may have been eliminated but a clearly concealed kind of version by the governments in using the various security legislation against human right activists, trade unionists continues to haunt us.
Question is often asked how come the Emergency could happen notwithstanding our Constitution giving us all the fundamental rights and democracy being a basic feature of the constitution as so refreshingly held in Kesavananda Bharati case as far back in 1973 by our Supreme Court.
It is not that there was no resistance to the Emergency. Thousands went to jail which included former Central ministers, former chief ministers. governors, lawyers, legislators and a few brave journalists. Many human right activists went underground but there is a limit beyond which unarmed people can fight an intolerant and a near fascist state which India had become those days. A total fear had enveloped the country. And all this because rule of law had completely been eliminated by the Supreme Court ruling in the ADM Jabalpur case (April 1976), which overruled the view of nine high courts that the legality of detaining order passed by the governments could still be examined – in fact in some cases the high courts had ordered release of detenues. Had this view been upheld, the Emergency would have collapsed. But to our shame the Supreme Court by a majority of four judges against one honourable exception (Khanna J) laid down a proposition of law, which for ever will remain a hall mark of shame thus.
Order of detention
“In view of the Presidential Order dated June 27, 1975, no person has any locus standi to move any writ petition under Article 226 before a high court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the round that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.”
Is it not obvious that Emergency could not be fought in a legal and democratic manner because the Supreme Court accepted the attorney General’s argument that if a policeman under orders of his superior was to shoot a person or even arrest a Supreme Court Judge, it would be legal and no relief available? Naturally in this situation, no peaceful opposition to Emergency could continue. I am shocked how the majority decision could rely on Liversidge Vs Anderson given during wartime in 1942 by House of Lords, but with a (memorable dissent by Lord Atkin) when English Courts subsequently felt so ashamed of that decision that a conscious effort was made to throw that decision in to a dung heap.
Lord Akin caustically remarked about judges who “show themselves more executive minded than the executive” and commented that such, arguments which might have been addressed acceptably to the Court of King’s Bench in the time of Charies-I’. In fact Justice Stable a Judge of High Court London was so upset to say that the status of judiciary had been reduced “to mice squeaking under a chair in the Home office”.
Some commentators have ironically described majority in Liversidge case as the court’s contribution to the war effort of England – similarly many in this country are inclined to describe majority in Jabalpur case as Supreme Courts contribution to the continuance of the 1975 Emergency.
Had Supreme Court taken the same view as nine high courts, the Emergency would have collapsed immediately, because no court could possibly have upheld the detention of stalwarts and patriots like Jayaprakash Narayan Ji, Morarji Desai, Raj Narain, George Fernandes, Madhu Limaya and thousands of others on the grounds that they were a danger to the security of the country. The inevitable result would have been the immediate release of these leaders leading to overwhelming opposition movement which would have swept away Indira Gandhi government by mid-1976. Alas, how sometime fate of nations can be influenced by the pusillanimity of a few individuals – in this case embarrassingly by the highest judiciary which it can never live down.
(The writer is former chief justice of Delhi high court)