Shame for judiciary

DEMOCRACY DURING EMERGENCY: As democracy was suspen-ded, it was a saga of utter failure of great institutions like the Presidency, the Sup-reme Court

Shame for judiciary
More than 80 per cent people of the country, born after 1975, are not familiar with a momentous phase of post-independent India when democracy was suspended for 19 long months. It was imposed on the intervening nights of June 25/26, 1975, debunked the greatness of the greatest democracy. It was a saga of the utter failure of great institutions like the Presidency, the Supreme Court and the Press.

The state, like a behemoth, crushed civil and personal liberties and freedom of the press. Unnerved by the rising political temperature of the country because of the “JP” movement, the Union government led by Indira Gandhi decided to strike back. An adverse judgment by the Allahabad High Court, penned by Justice Jag Mohan Lal Sinha, came as the final body blow.

The court set aside her election from Rai Bareilly but allowed her to continue as the prime minister for 20 days within which she could file an appeal before the Supreme Court.  The situation got further complicated when the vacation judge of the SC, Justice V R Krishna Iyer, refused to grant absolute stay on the high court’s judgement as prayed by Indira Gandhi but allowed her to continue as the PM though she could not vote as MP in parliament.

The judgment was delivered on June 24. Next day, the Opposition organised a huge public meeting at Delhi’s Ramlila Maidan which was addressed by many leaders including Jayaprakash Narayan (JP) who asked the people: “If Indira Gandhi imposes the Emergency today and sends all of us behind bars, will you support us?” Lakhs of people present there raised their hands in solidarity. The same night the Emergency was imposed and JP was arrested. Surprisingly, there was no protest.

The first person to acquiesce in the design of the government was the first citizen, President Fakruddin Ali Ahmed. Indira went to the Rashtrapati Bhavan along with then West Bengal Chief Minister Siddhartha Shankar Ray, and asked him to declare the Emergency. There was not even a cabinet resolution in the regard and the complaisant President signed the proclamation. Had he withheld it for a day or two at least, the history of the country might have been different.

The second to fall in line was the Supreme Court. It delivered the most dangerous judgment in the habeas corpus case (ADM, Jabalpur v Shivkant Shukla). In this case, it was argued that Article 21 is the sole repository of the right to life and personal liberty, and as during the Emergency this Article was suspended under the Presidential Order issued under Article 359, detenus did not have any right to move any court for the enforcement of that right.

Justice H R Khanna inquired from the Attorney General Niren De what protection or remedy did a person have if he/she were shot dead by a policeman out of sheer malice. The Attorney General replied that though it made him sad, in reality there was no remedy against it as long as the Emergency was in operation. He said that the executive even had the power to maim and mutilate a person during this period.

SC credibility

The majority of judges, comprising Chief Justice Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati accepted the argument with Justice Khanna dissenting. The judgment stripped the apex court of its credibility and moral authority. In his dissent, Justice Khanna refused to accept that Article 21 was the sole repository of the right to life and personal liberty as this was the most precious right of human beings in civilised societies governed by the rule of law. No wonder Justice Khanna had to pay the price and he was superseded as the Chief Justice by Justice Beg.

Another habeas corpus case that shook the nation during the Emergency was the one filed in the Kerala high court by T V Echara Varier, father of Rajan, an engineering student. Rajan was whisked away from his hostel for his suspected role in a sensational attack on a police station that made the foot soldiers of the Emergency regime run amok, hunting for “extremists”. Special camps were set up in various parts of Kerala where Naxalite suspects and other detainees were subjected to untold torture leaving a gory trail of broken limbs and fractured souls.

Varier left no stone unturned to find his son who was untraceable from March 1, 1976. He met Chief Minister C Achyuta Menon, CPI leader, and Home Minister K Karunakaran of the Congress. He explained to the police that Rajan was not involved in the attack on the police station as he was attending a college function at that time, but all in vain. Finally, in July, he filed a habeas corpus petition. Even witnesses and lawyers who came to Varier’s help were intimidated.

Everyone in the authority, including Karunakaran, denied that Rajan was ever taken into police custody. Ultimately, the court decided to discover the truth and the evidence was examined. A co-detenu revealed that Rajan was tortured by six policemen and he died in custody. The court then directed the government to produce Rajan as the government had never admitted that he was arrested.

The stinging observation of Justice P S Poti that Karunakaran had lied led to a wave of anger and his resignation as the chief minister in 1977, soon after assuming the office. This case demonstrated how the judiciary can be fiercely independent and haul the government on the coals. Though Varier never got his son back, and who is untraceable till date, his crusade made the state pay a heavy price of Rs 6 lakh as compensation for its barbarism. Varier used the bulk of this amount for the construction of a hospital ward in Ernakulam.

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