The Specter of Emergency Continues to Haunt the Country Mahi Pal Singh Forty one years ago this country witnessed people had been detained without trial under the the darkest chapter in the history of indepen- repressive Maintenance of Internal Security Act dent and democratic India when the state of (MISA), several high courts had given relief to emergency was proclaimed on the midnight of the detainees by accepting their right to life and 25th-26th June 1975 by Indira Gandhi, the then personal liberty granted under Article 21 and ac- Prime Minister of the country, only to satisfy cepting their writs for habeas corpus as per pow- her lust for power. The emergency was declared ers granted to them under Article 226 of the In- when Justice Jagmohanlal Sinha of the dian constitution. This issue was at the heart of Allahabad High Court invalidated her election the case of the Additional District Magistrate of to the Lok Sabha in June 1975, upholding Jabalpur v. Shiv Kant Shukla, popularly known charges of electoral fraud, in the case filed by as the Habeas Corpus case, which came up for Raj Narain, her rival candidate. The logical fol- hearing in front of the Supreme Court in Decem- low up action in any democratic country should ber 1975. Given the important nature of the case, have been for the Prime Minister indicted in the a bench comprising the five senior-most judges case to resign. Instead, she chose to impose was convened to hear the case. emergency in the country, suspend fundamen- During the arguments, Justice H.R. Khanna tal rights of the people, impose unprecedented at one point asked the Attorney General Niren censorship on newspapers and put all the oppo- De: "Life is also mentioned in Article 21 and sition leaders and thousands of political work- would Government argument extend to it also?" ers behind the bars, including the ailing He answered, "Even if life was taken away ille- Jayaprakash Narayan, most of whom remained gally, courts are helpless." in jails for 19 months. During the emergency period the people who were not put into the jails The bench opined in April 1976, with the ma- felt that the whole country had been turned into jority deciding against habeas corpus, permit- an open jail because they could not speak a word ting unrestricted powers of detention during against Indira Gandhi or her infamous son, emergency. Justices A. N. Ray, P. N. Bhagwati, Sanjay Gandhi, who had acquired an illegal and Y. V. Chandrachud, and M.H. Beg, stated in unconstitutional position as the ruler of the coun- the majority decision: try. He ran a campaign of forced sterilization in In view of the Presidential Order [declar- the country and with the help of the goon force ing emergency] no person has any locus to which the Youth Congress headed by him had move any writ petition under Art. 226 be- become at that time which looted shopkeepers fore a High Court for habeas corpus or any and businessmen without any fear of law be- other writ or order or direction to challenge cause at that time whatever Sanjay Gandhi said the legality of an order of detention. was the law and every government servant, in- With this majority order the Supreme Court cluding the highest police officers, was supposed abdicated its duty to protect the fundamental to follow his dictates, obviously with the conniv- rights of the people, which was most needed at ance of Indira Gandhi, who wanted him to hold a time when they were under the gravest threat. the reins of power after her. With this order the highest judiciary also suc- In an atmosphere where a large number of cumbed under the pressure of the government THE RADICAL HUMANIST 3 and its prestige as an independent judiciary re- pendent judiciary to absolutist government is vir- ceived an irreparable loss. There was, however, tually the last step in the destruction of a demo- an honourable exception. Justice H.R. Khanna, cratic society; and the Indian Supreme Court's the senior-most judge, resisted the pressure to decision appears close to utter surrender.” concur with this majority view and gave a dis- The imposition of the emergency, like the senting opinion: emergency of 1975-77, has now become almost The Constitution and the laws of India do impossible as it requires the prior approval of not permit life and liberty to be at the mercy Parliament, the provision added after the 42nd of the absolute power of the Executive . constitutional amendment of 1977. But it is naïve What is at stake is the rule of law. The ques- to think that now the life and personal liberty of tion is whether the law speaking through the the people are safe. Without resorting to the authority of the court shall be absolutely si- proclamation of emergency, the central and lenced and rendered mute... detention with- many state governments have been resorting to out trial is an anathema to all those who love fake encounters and arrests of innocent people personal liberty. under other black laws passed by both the gov- ernments under special security acts, AFSPA Before delivering this opinion, Justice Khanna and the outdated and equally draconian sedition mentioned to his sister: I have prepared my judg- law under Section 124 (A) of the IPC. Ratio- ment, which is going to cost me the Chief Jus- nalists, writers, thinkers, those who do not agree tice-ship of India. True to his apprehensions, his with the ideology of the ruling party or the poli- junior, M. H. Beg, was appointed Chief Justice cies of the government and those who try to in January 1977. This was against legal tradi- expose the corruption and ill-governance through tion and was widely protested by bar associa- RTI are targeted, harassed, arrested and even tions and the legal community. Justice Khanna killed. Students of institutions of higher learning resigned on the same day. However, all the re- like the JNU and Hyderabad University are maining three judges who had given the order in being implicated in politically motivated and base- favour of the executive also went on to become less charges and even physically attacked by the Chief Justice of India. The concept of ‘com- the Hindutva outfits with the tacit support of the mitted judiciary’ was playing its role. BJP and the RSS. Those who are prosecuted After the judgement, the New York Times after being implicated in baseless charges and wrote: survive long periods of incarceration because “If India ever finds its way back to the free- of the failure of the prosecution to produce any dom and democracy that were proud hallmarks evidence of guilt, are mostly left a broken lot – of its first eighteen years as an independent na- physically, mentally and financially. Emergency- tion, someone will surely erect a monument to like conditions still haunt the country – from Justice H. R. Khanna of the Supreme Court. It Kashmir to Chhattisgarh and Jharkhand, U.P was Justice Khanna who spoke out fearlessly and Bihar to Rajasthan and Madhya Pradesh and eloquently for freedom this week in dissent- etc. ing from the Court's decision upholding the right The ideological Hindutva bandwagon of the of Prime Minister Indira Gandhi's Government RSS and the BJP is a greater threat to the people to imprison political opponents at will and with- today who hold a differing ideology or views out court hearings... The submission of an inde- because a mental slavery is even more danger- 4 JUNE 2016 ous than physical assault or incarceration. It was ist garb. Hitler did it in Germany earlier. Now one goon force during the emergency. It is an- the BJP is doing it in India. If you have a politi- other goon force which is doing it now. Besides cal backing and are booked even under the anti- the hoodlums of the Bajrang Dal, the Sanatan terror laws because there is evidence against Sanstha, the Ram Sene etc., the good-for-noth- you, you have only to wait for a favourable gov- ing brigade of the saffron-clad uneducated ernment to come to power to influence the pros- trouble-makers who are always doing what they ecution and get you acquitted, as many have know best to do – spreading hatred against the got bail and clean chit recently. But if you are biggest minority in the country – the Muslims – an ordinary person and dare to oppose those in in an attempt to communalise even the slightest power in anything and become an irritant to them, and insignificant incidents. And the purpose is or hounding you can politically benefit them in the same – to hold on the reins of State power any way, you get labeled as ‘anti-national’ and by intimidation and divisive tactics. They do not then get ready to be prosecuted under anti-ter- know, and neither do their mentors, that in a ror or sedition law. And mind you, even the courts democratic society the most respected and sa- will not examine the evidence against you at the cred book is the Constitution and the highest first instance and send you into judicial, if not in education is how to live in harmony democrati- police, custody. That will just be the beginning cally, respecting the faiths and views of others. of a long ordeal from jail to the courtroom and The irony is that those who were victimized back, for how long – nobody knows. It may take during the emergency earlier including the Jan several years even if not even an iota of evi- Sanghis of that time, who are ruling the country dence existed against you.