It is strange that in the process of selecting who should be the next President of India, the nation has forgotten the Emergency imposed some 42 years ago. More than one lakh people were detained without trial.

The media which could have reported the conditions prevailing was muzzled. Civil servants dutifully issued the orders, which came through Sanjay Gandhi, who was the extra constitutional authority that ruled the country in the name of his mother, the then prime minister Indira Gandhi.

The judiciary caved in and upheld that Parliament could suspend the fundamental rights enshrined in the constitution. Even the imposition of the Emergency was justified. Only one judge, Justice H R Khanna, gave the dissenting judgement but he was superseded.

It is another matter that the country punished Indira Gandhi, when she was ousted from power, lock, stock and barrel, after elections were held. Similar was the fate of her son, Sanjay Gandhi.

What disappoints me is that the Supreme Court never passed a resolution or did anything to register its criticism against the judgement which gave the judiciary a bad name. Even now, it is not too late.
The Supreme Court has liberal judges on the bench. They can still dilute the situation by passing a resolution that their predecessor bench was wrong in endorsing the Emergency.

At least Prime Minister Narendra Modi’s cabinet, with Law Minister Arun Jaitley, should say sorry on behalf of the government for the excesses committed by the earlier government during the Emergency. Then attorney general Niren De had argued in the court that even the right to live was forfeited during the dark days of the Emergency.

There was so much fear that practically all lawyers in Delhi dared not to speak. A lawyer like Soli Sorabjee from Mumbai and V M Tharkunde from Delhi argued the habeas corpus petitions filed by my wife on my detention. Still, I spent three months in jail.

The two judges - Justice S Rangarajan and Justice R N Aggarwal, who gave the judgement, were punished for having given the verdict. The first was transferred to Guwahati where people still remember him for his impartiality.

The second was demoted and sent back to the Sessions Court. But this did not deter them and they carried on their work independently. Probably, the pressure on the judges has lessened in recent years because of a vigilant media. But the worse is happening. Appointments to the benches are being made according to the whims and wishes of rulers. It began with the Congress government and has continued even during the Bhartiya Janata Party (BJP) government.

The process was really started by Indira Gandhi when she superseded three judges — Justices J M Shelat, K S Hegde and A N Grover — to appoint Justice A N Ray as the chief justice. She was unseated from Parliament and disqualified for poll malpractices for six years. Instead of accepting the verdict, she imposed the Emergency and amended the election law itself.

The excesses Indira Gandhi and Sanjay Gandhi committed during the Emergency may be a part of history. They are recalled by not only those who suffered but also those who support democracy. It was the Janata Party, which came to power after defeating Indira Gandhi, that changed the Constitution to make the imposition of the Emergency impossible.

And Justice Khanna’s dissenting judgement, that the basic structure of the Constitution cannot be changed, was accepted as the norm. This has ensured the parliamentary system of governance and has deterred every ruler since then not to tinker with the judiciary.

Ultimately, the independence of the judiciary depends upon the quality of judges. In the US, the biggest democracy, the Supreme Court is divided between the Republican judges and Democrats. But since the tenure of the judges is for a lifetime, the appointees of one party have risen above their old loyalties and become independent and impartial.

In India, we had the best of judges when the government appointed them. But now, party politics is creeping in. At least in high courts, it is seen that the party in power has not appointed the best of lawyers but those who had owe allegiance to it. Even in the Supreme Court, some appointments have come under the shadow of doubt.

Toeing the line

Some examples of the past, however, are worth praise. Take the case of former solicitor general Gopal Subramanium whose appointment to the Supreme Court was stalled by the Narendra Modi government. Blaming the government for blocking his appointment, Subramanium said his “independence as a lawyer is causing apprehensions that I will not toe the line of the government.

This factor has been decisive in refusing to appoint me.” He subsequently withdrew from the race.

In fact, it was at his instance that the Gujarat police was forced to book a murder case in the Sohrabuddin fake encounter matter. When prime witness Tulsiram Prajapati was liquidated under suspicious circumstances, Subramanium had recommended the transfer of the case to the CBI.

Significantly, Subramanium also admitted that it was on his suggestion that the Supreme Court, while granting bail to accused Amit Shah, now the BJP president, had barred him from entering Gujarat.

Most pathetic was the role of the media. I recall that when the Emergency was imposed, there was anger and more than a hundred journalists assembled at the Press Club at my bidding to condemn Indira’s act. But when I tried to pick up the thread after my detention, there was hardly anyone to support me.

Indira Gandhi had created so much of fear in the minds of journalists that they were more worried about their jobs than the freedom of the press, which they otherwise cherished.