Emergency of 1975 akin to Nazi rule – L K Advani

The 172-page book published by the Congress Party with the title “Congress and the Making of the Indian Nation” carries just two short paragraphs to tell the country what happened during the emergency of 1975-77. The two paragraphs are as follows:

“The period of the emergency saw the suspension of normal political procedures and fundamental rights, arrests of the leaders of the Grand Alliance, and enforcement of press censorship and strict discipline. Extreme communal and leftist organizations were banned.  More than one lakh people were arrested over the 19 months of the Emergency. Powers of the judiciary were reduced drastically.  Unlimited state and party power was concentrated in the hands of the Prime Minister.

Vast sections of the population welcomed it initially since general administration improved. But, civil rights activists took exception to the curbs on freedom of expression and personal liberties. Unfortunately, in certain spheres, over-enthusiasm led to compulsion in enforcement of certain programmes like compulsory sterilization and clearance of slums. Sanjay Gandhi had, by then, emerged as a leader of great significance. It was due to his support to family planning that the government decided to pursue it more vigorously. He also promoted slum clearance, anti-dowry measures and promotion of literacy but in an arbitrary and authoritarian manner much to the annoyance of the popular opinion.”

These two curt paragraphs are preceded by two full pages about factors leading to the emergency in which Jaya Prakash Narayan’s “extra-constitutional and undemocratic movement” on the one hand and the Allahabad High Court’s verdict on the other hand, charging Smt. Gandhi with violating the election law to win her seat and invalidating her election, have been identified as the two factors which led to the Emergency.

The second paragraph from the book quoted above is a ridiculous attempt to make Sanjay Gandhi a scapegoat for all the misdeeds the country had to suffer during the Emergency.  In the last sixty years, whenever the executive has found a judicial verdict unpalatable its reaction has been to have the verdict undone by mobilizing legislative support for the executive’s view point.  In 1975 also this was sought to be done by amending the law in respect of electoral corruption.  But Mrs. Gandhi did not stop there.  Without consulting her Cabinet, or even her Law Minister and Home Minister, she made President Fakhruddin Ali Ahmed invoke Art., 352 to put democracy under indefinite suspension. The Congress Party publication indicates that the Party regrets only the ‘excesses’ committed during the Emergency, because Sanjay Gandhi promoted worthwhile causes such as slum-clearance, anti-dowry measures, and literacy, but in an arbitrary and authoritarian manner.

I hold that promulgation of the Emergency itself was an unforgivable crime against Democracy and that the constitution makers had never ever conceived that any Prime Minister of independent India would so grossly abuse Art. 352 of the Constitution.

I am very happy therefore that lately (November, 2010) the Supreme Court has revisited the Emergency and affirmed that the A.N. Ray majority judgement of the Supreme Court during the Emergency was erroneous and that the lone dissenting judgement of Justice H.R. Khanna is the law of the land today. In a lecture delivered in February, 2009 former Chief Justice Venkatachallaiah commented that the 1976 majority judgement deserved to be “confined to the dustbin of history”.

The Congress Party has admitted that more than one lakh persons were jailed during the Emergency. The exact number was 1,10,806. Of these 34,988 were detained under the Maintenance of Internal Security Act whereunder no grounds were to be given to the prisoner. These prisoners included Jayaprakash Narain, Morarji Desai, Chandra Shekhar, Atal Bihari Vajpayee, Bala Saheb Deoras, and a large number of MPs, MLAs and eminent journalists.

Almost all MISA detenues had filed habeas corpus petitions in their respective State High Courts. At all places, Government had raised the same objection: in an Emergency, all Fundamental Rights are suspended and so no detenue has a right to file a Habeas Corpus petition. Almost all the High Courts rejected the Government’s objection and ruled in favour of the petitioners. Government not only went in appeal to the Supreme Court but actually punished the judges who had allowed the petitions. The diary I used to maintain while I was in prison records the names of 19 judges who were transferred to other High Courts because they had decided against Government !

My diary also records under the date December 16, 1975 :

The Supreme Court has been hearing GOI’s appeal against the High Court judgements in favour of MISA prisoners. This includes our case also. Justice Khanna is reported to have pointed out to (Attorney General) Niren De that Article 21 of the Constitution deals with the right not only to personal liberty but also to life.  Is it the stand of the Attorney General that even if a person is killed he has no remedy because enforcement of this right has been suspended ?  Niren De replies: “It weighs on my conscience.  But that is the position in law.”

Pronouncing majority judgement in this appeal, Supreme Court Bench comprising of  C.J. A.N.Ray, Justices H.R.Khanna, M.H.Beg, Y.V. Chandrachud and P.N. Bhagwati (Justice Khanna dissenting ) declared : “In view of the Presidential Order dated 27 June, 1975 no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus .

“The appeals are accepted. The Judgements of the High Courts are set aside”

 

 In his historic dissenting judgement, Justice Khanna observed:

“Sanctity of life and liberty was not something new when the Constitution was drafted.  It represented a facet of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence. Likewise, the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force of the Constitution.

“It has been argued that suspending the right of a person to move any Court for the enforcement of right to life and personal liberty is done under a constitutional provision and therefore it cannot be said that the resulting situation would mean the absence of the rule of law. This argument in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law with the reality of rule of law.  Supposing a law is made that in the matter of the protection of life and liberty, the administrative officers would not be governed by any law and that it would be permissible for them to deprive a person of life and liberty without any authority of law. In one sense, it might in that event be argued that even if lives of hundreds of persons are taken capriciously and maliciously without the authority of law, it is enforcement of the above enacted law. Thus, in a purely formal sense, any system or norm based on a hierarchy of orders, even the organized mass murders of Nazi regime can qualify as law.”

Justice Khanna passed away on 25 February 2008, at age ninety five. In its editorial after he delivered his landmark judgement, the New York Times  wrote on 30 April, 1976, “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court”.

L. K. Advani
New Delhi
2nd Jan, 2010

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