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Mainstream, VOL LI, No 31, July 20, 2013

Emergency of 1975 and the Judiciary

Sunday 21 July 2013, by Rajindar Sachar

Nations which do not remember their immediate past are in danger of repeating the same tragedy. This thought came to me on June 26, 2013 (the Emergency day of 1975) when on random questioning of young persons in the 35 age-group (who are said to make up about half the population of the country), it was found that an overwhelming number of them knew nothing of any particular significance of the day—and what is more tragic, a fairly large number of people above the age of 35 fared no better.

The reason was obvious. Most of the population in this hype-age get their information from newspapers, which, with the commercial angle in view, never fail to remind us of Valentine’s Day. But on 26th June, the newspapers did not even have a small news item in their paper—leave apart on the front page. Even many Opposition parties which were the victims of Emergency chose to keep a low key. Even though the PUCL and other civil liberties organisations, as usual, held protest meetings, TV and newspapers viciously avoided any mention, overwhelmed as they are with the government’s neo-liberal policies. Or is it a sense of fear because the perpetrator of the Emergency is the ruling party? So much for freedom of the press. And yet tragically it was a day when India lost its democracy and the US President sarcastically boasted that the USA was now the world’s largest democracy. It is a different matter that thankfully, because of the sacrifices made by the Indian people under the inspiring leadership of Jayaprakash Narayan (JP), the boast of the US President was to end, but only after 18 months.

But the wounds have remained—the danger of it being repeated in the same manner may have been eliminated but a clearly concealed kind of version by the governments in using the various security legislations against human rights activists, trade unionists continues to haunt us.

A question is often asked: how come the Emergency could happen notwithstanding our Constitution giving us all the fundamental rights and democracy being a basic feature of the Constitution as so refreshingly held in the Kesavananda Bharati case as far back as in 1973 by our Supreme Court?

It is not that there was no resistance to the Emergency. Thousands went to jail which included ex-Central Ministers, ex-Chief Ministers, Governors, lawyers, legislators and a few brave journalists. Many human rights activists went underground but there is a limit beyond which unarmed people can fight an intolerant and a near-fascist state which India had become in those days. A total fear had enveloped the country. And all this because the rule of law had been completely eliminated by the Supreme Court ruling in the ADM, Jabalpur case (April 1976), which overruled the view of nine High Courts that the legality of the detaining order passed by the governments could still be examined—in fact in some cases the High Courts had ordered release of detenues. Had this view been upheld, the Emergency would have collapsed. But to our shame the Supreme Court, by a majority of four judges against one honourable exception (Khanna J.), laid down a proposition of law, which forever will remain a hall-mark of shame, thus:

“In view of the Presidential Order dated June 27, 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides, factual or legal, or is based on extraneous considerations.”

Is it not obvious that the Emergency could not be fought in a legal and democratic manner because the Supreme Court accepted the Attorney General’s argument that if a policeman under orders of his superior was to shoot a person or even arrest a Supreme Court Judge, it would be legal and no relief available? Naturally in this situation, no peaceful opposition to the Emergency could continue. I am shocked how the majority decision could rely on Liversidge vs Anderson given during wartime in 1942 by the House of Lords (but with a memorable dissent by Lord Atkin)! The English Courts subsequently felt so ashamed of that decision that a conscious effort was made to throw that decision into the dung heap.

Lord Akin caustically remarked about judges who ‘show themselves more executive-minded than the executive’ and commented that ‘such arguments... might have been addressed acceptably to the Court of King’s Bench in the time of Charies-I’. In fact Justice Stable, a Judge of the High Court, London, was so upset that he said that the status of the judiciary had been reduced “to mice squeaking under a chair in the Home Office”.

In 1963 Lord Radcliff (HL) referred dismi-ssively to the very peculiar case in Liversidge vs Anderson and said: “It should be confined apparently to a war time context and that it is already clear that the decision was regarded as an aberration.”

All this trenchant criticism of the Liversidge judgment was available in various Law Quarterly Reviews since the beginning. The Law Quarterly Review (1970) clearly spelled out how embarrassing the decision in Liversidge was becoming for the English judiciary.

That is why Lord Diplock (HL) in 1979 was constrained to rule: “For my part I think the time has come to acknowledge openly that the majority view in Liversidge vs Anderson were expediently and, at that time, wrong and the dissenting judgment right.”

And Lord Scarman laid its final demise by saying that “the ghost of that decision need no longer haunt the law”.

Some commentators have ironically described the majority in the Liversidge case as the Court’s contribution to the war effort of England; similarly many in this country are inclined to describe the majority in the Jabalpur case as the Supreme Court’s contribution to the continuance of the 1975 Emergency. Had the Supreme Court taken the same view as the nine High Courts, the Emergency would have collapsed imme-diately, because no court could possibly have upheld the detention of stalwarts and patriots like Jayaprakash Narayan-ji, Morarji Desai, Raj Narain, George Fernandes, Madhu Limaye and thousands of others on the ground that they were a danger to the security of the country. The inevitable result would have been the immediate release of these leaders leading to an overwhelming Opposition movement which would have swept away the Indira Gandhi Government by mid-1976. Alas, how sometime fate of nations can be influenced by the pusillani-mity of a few individuals – in this case embarrassingly by the highest judiciary which it can never live down!

The author is a former Chief Justice of the Delhi High Court.

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