The Emergency is a Permanent Scar on the Soul of India

The highest judiciary’s role in the perpetuation of the Emergency remains a blot

Nations which do not remember their immediate past are in danger of repeating the same tragedy. This thought comes to me when on randomly questioning people in the age group of 35 and below – which constitutes 2/3rd of the population of India – about the significance of June 26th 1975, one draws an overwhelming blank look; not much more encouraging is the reaction of those between 35 and 55. Even newspapers never front page Emergency Day – some even do not even carry the information, and a few may just mention it casually somewhere in the corner of an inside page. Many opposition parties which were the victims of the Emergency choose to be low key. Even though PUCL and other civil liberties organization as usual hold protest meetings as usual, most TV channels and newspapers designedly avoided any mention, overwhelmed as they are with the government’s neo-liberal policies. Or was it a sense of fear because the perpetrator of Emergency was the ruling party for most of the immediate past period?

June 26, 1975 was the day when India lost its democracy and the US President sarcastically boasted that his country was now the largest democracy. It is a different matter that thankfully, because of the sacrifices made by the Indian people under the inspiring leadership of Jay Prakash Narayan (JP), the boast of the American President lasted no longer 18 months.

It is not that there was no resistance to the Emergency. Thousands went to jail, including ex-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.

Let down by judiciary

In times of crisis, the judiciary is expected to act as a bulwark against excesses by the Executive, like during the Emergency. But to our shame a fatal blow to freedom was struck by the Supreme Court judgment in ADM Jabalpur, holding that the right to life does not survive during an Emergency – this disgrace will continue to proclaim the pusillanimity of the Supreme Court in refusing to act as a sentinel in safeguarding human rights.

The Supreme Court judgment in the ADM Jabalpur case of 1976 overruled the view of nine High Courts that detention orders passed by the government could still be set aside for illegality – in fact, in some cases the High Courts had ordered the release of detainees. Had this view been upheld by the Supreme Court, the Emergency would have collapsed. But to our eternal shame, the Supreme Court by a majority of 4 judges against one honourable exception (Khanna J.) laid down 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.”

Supreme Court’s shame

The Supreme Court to its shame 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 would be available. Naturally in this situation, no peaceful opposition to the Emergency could continue. I am shocked by how the majority decision could rely on Liversidge Vs. Anderson, a wartime judgment given by the British House of Lords in 1942 (but with a memorable dissent by Lord Atkin), when English courts subsequently felt so ashamed of that decision that a conscious effort was made to throw it in the garbage can.

In 1963, Lord Radcliff (HL) referred dismissively 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”. The Law Quarterly Review (1970) clearly spelled out how embarrassing the decision in Liversidge was becoming for the English judiciary.

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 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 nine High Courts, the Emergency would have collapsed immediately, because no court could possibly have upheld the detention of Jayaprakash Narayan, Morarji Desai, Raj Narain, George Fernandes, Madhu Limaye or journalist Kuldip Nayar 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 sometimes the fate of nations can be influenced by the pusillanimity of a few individuals – in this case, embarrassingly, by the highest judiciary which it can never live down.

Soon after the change of government in 1978, Justice Chandrachud and Bhagwati publicly expressed regret and conceded that their decisions were wrong and that they should have joined Justice Khanna which would have been the majority. But bemoaning their disastrous earlier view is like crying after having deliberately spilt the milk. So much distrust in the judiciary had been generated that Parliament took the precaution of passing the 44th Amendment to the Constitution (1978) which has taken away the power of the President to suspend Article 21. Still, we must continue to remember that “eternal vigilance is the price a nation must pay for safeguarding the liberties of individuals”. And the press should keep reminding the public of this frequently.

Rajindar Sachar is a retired Justice of the Delhi High Court.