Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is” therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.
JUSTICE HANS RAJ KHANNA IN HIS DISSENTING JUDGEMENT IN THE ADM JABALPUR CASE 1976
Belated admission of grievous wrong by Inder Malhotra IN THE TRIBUNE
RATHER belatedly the media has discovered that in a “recent judgment” a two-member bench of the Supreme Court has declared that the apex court’s 1976 judgment upholding the suspension of fundamental rights for the duration of the Emergency (June 1975-March 1977) was “erroneous”. This admission ought to have come much, much earlier, but let that pass. Incidentally, Justice Aftab Ahmed and Justice Ashok Kumar Ganguly made their welcome pronouncement while reviewing and partially reversing an earlier verdict.
On May 5, 2009, the court had confirmed the death sentence passed on a man convicted of murdering four members of a family in 1992. Commuting this sentence to life imprisonment, Justice Ganguly, who wrote the unanimous judgment, argued that the instances of “this court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.” In this context he added: “We can remind ourselves of the majority decision of the Constitution bench of this court (in the Emergency case) … There is no doubt that the majority judgment violated the fundamental rights of a large number of people in this country”.
Understandably, the two Justices have expressed themselves with judicial restraint. But the story of the Supreme Court’s conduct during the Emergency is chilling. Like the other institutions expected to underpin democracy, the highest judiciary also caved in. The five-member Constitution bench’s decision, by a majority four to one, to uphold the virtual elimination of fundamental rights for the duration was nothing short of horrendous.
Chief Justice A. N. Ray had presided over the bench. His elevation was highly controversial because to appoint him as CJI, Prime Minister Indira Gandhi had superseded three of his senior colleagues amidst countrywide protests. This had happened in 1973 immediately after the apex court’s epoch-making judgment — by a majority of seven to six — ruling that Parliament could amend any part of the Constitution but could not alter its “basic structure”. Interestingly, this judgment was a tangled skein of conflicting opinions. So much so that the seven judges who prevailed in relation to an issue were not exactly the same that upheld or rejected another contention. Broadly, the picture was that six judges, headed by the then chief justice, S. M. Sikri, and including the three that were later superseded, were against the government’s contention while the remaining six, of whom Ray was the most senior, were wholly for the government. Justice H. R. Khanna provided the balance, agreeing with the first set on some points and with the second on others.
Justice Khanna was still on the bench when three years later the apex court heard arguments on the legality of the suspension of fundamental rights under the Emergency proclamation. From the word go it was clear that all the judges except Khanna were inclined to uphold the government’s view. At one stage, the dissenting judge asked Attorney-General Niren Dey, whether there was a remedy if a policeman told a citizen that he was going to be shot for no rhyme or reason. Dey replied: “My conscience revolts, My Lords, but under the law there is no remedy.” There was eerie silence in the court’s chamber.
It is also noteworthy that when the time came for CJI Ray to retire, Justice Khanna was the most senior of the possible successors. Needless to add that he was passed over and Justice M. H. Beg, a clone of Ray, appointed CJI. Justice Khanna resigned, of course. The crowning irony is that his dissenting judgment of 1973 is today the law of the land. For, the 44th Constitution amendment has made sure that any future declaration of the Emergency cannot interfere with fundamental rights to life and liberty under Articles 20 and 21.
By a curious coincidence, the Emergency is in the news again for another reason that is essentially trivial. To celebrate its 125th anniversary, the AICC published a volume on the Indian National Congress’s contribution to the making of the Indian nation. A mild criticism of Sanjay Gandhi about the “authoritarian” way in which he enforced such policies as family planning and slum clearance almost instantly touched off a cacophony that often made no sense. Senior BJP leader and former Deputy Prime Minister L. K. Advani has now given a totally different twist to the discussion. Since copies of the AICC publication are not yet available, one has to take Mr. Advani’s word that it has devoted only two paragraphs to the Emergency. His grouse is that the second paragraph on the subject is “a ridiculous attempt to make Sanjay Gandhi a scapegoat” for all the misdeeds such as “mass arrests, suspension of fundamental rights, etc”, that the country had to suffer. For these he lays the blame squarely on Indira Gandhi.
This is not all. Mr Advani compares the Emergency era in India to the Nazi rule in Germany. This surely is ridiculous, to borrow the expression from him. Ugly though the Emergency undoubtedly was, during it Delhi wasn’t like Berlin under Hitler, Moscow under Stalin, Beijing under Mao or Islamabad under Zia.
Two factors seem to have affected the BJP leader’s judgment. First, the Congress general secretary Digvijaya Singh’s overblown rhetoric against the Sangh Parivar describing RSS leaders as “Nazis”; and, secondly, that while the Gandhi dynasty controls the Congress and rules the country, there are at least two Gandhis in the BJP ranks, too.
Tragically, we Indians are disinterested in history, and when in need of interpreting history we tend to do so in a partisan or palpably esoteric manner. Any dispassionate person can discern that over the last 35 years the perspective on the Emergency has undergone a major change, regardless of the fact that more than half the Indians were born after that hammer-blow. They know little about the Emergency and care even less. Remarkably, an ever-increasing proportion of even those who used to hold Indira Gandhi alone responsible for what went wrong now accept that if she sinned, politically speaking, she was also being sinned against. Some are doubtless implacably hostile to her. However, premier sociologist Andre Beitelle, eminent historian Bipan Chandra and prominent scholar Ramchandra Guha are agreed that the Emergency was “scripted jointly by Indira and J.P.”, as Jayaprakash Narayan was popularly known. According to Professor Beteille, the “anarchy” that J.P. promoted and the “abuse of power” by Indira and her younger son, Sanjay, were “but two sides of the same coin”.
- Supreme Court makes amends (indialawyers.wordpress.com)
- Advani: Congress is trying to make Sanjay Gandhi a scapegoat (thehindu.com)
- Supreme Court admits it ‘violated’ fundamental rights during Emergency (indialawyers.wordpress.com)
- Politics of judiciary (indialawyers.wordpress.com)