Emergency turns 39‏

It has been 39 years since the ill-fated day in the Indian history, when political expediency presided over rule of law and emergency was declared. It was that period of free India which exists as the biggest blotch on democracy.It all began with the High Court of Allahabad declaring Indira Gandhi’s election to the Lok Sabha, void on grounds of electoral malpractice. Indira Gandhi had won her 1971 election from Rai Bareilly against the Socialist Leader Raj Narain. Raj Narain had filed an election petition in the Allahabad High Court challenging the validity of Mrs. Gandhi’s election. His lawyer in the Allahabad High Court was Shanti Bhushan. On June 12, 1975, Justice Jagmohan Lal Sinha found the sitting Prime Minister of India Mrs Indira Gandhi guilty. He declared her election “null and void” and forbade her from fighting elections for six years.In his brilliant essay, Justice with a Fine Balance, the noted lawyer AG Noorani discloses the concluding words of Justice Sinha: “I regret my inability to accept her evidence, on one point; her plea has no legs to stand on, on another; and that it does not bear any scrutiny, on a third.”“Justice Sinha”, wrote Noorani, “was heir to the older tradition – dispensing justice according to the law, not personal whim or political philosophy. They do not make men like him anymore.”She then got surrounded by appeals from all corners to resign. On June 24, 1975, Justice Krishna Iyer granted a conditional stay of the order on the usual terms. Indira Gandhi could not vote or participate in the proceedings as a Member of Parliament but could sign the Register of Attendance to save the seat. She could participate in the proceedings as Prime Minister, but without a vote. “There will be no legal embargo on her holding the office of Prime Minister,” Justice Krishna Iyer pointedly added. He referred to the dharma of politics and insisted that equal protection of the law could not make a difference in favour of the Prime Minister, the great proposition being ``Be you ever so high, the law is above you.'' Justice Krishna Iyer recalls the darkest hour of the Supreme Court when except Justice (H R) Khanna, the other four judges of the Bench upheld the Emergency with all its macabre implications. That was the darkest hour of the Supreme Court. Justice Krishna Iyer rightly stated that if the Dred Scott case decided by the US Supreme Court upheld slavery, our court was in soulful company when upholding the Emergency.The very next day, in the dead of night, Indira Gandhi imposed Emergency, imprisoned leaders of the Opposition and imposed press censorship.On August 5-6, the Election Laws (Amendment) Act was enacted to amend the law retrospectively and power to disqualify an elected candidate was solely vested in the President, excluding even the Election Commission. On August 7-8, Parliament enacted the Constitution 39th Amendment Act, 1975. Its effect was to exclude the court’s jurisdiction on disputed elections to higher offices, including the Prime Minister’s, but without setting up an alternative forum. At about 11pm she, accompanied by Siddhartha Shankar Ray, West Bengal’s chief minister and a leading lawyer, went to Rashtrapati Bhavan to get President Fakhruddin Ali Ahmed’s signatures on the Emergency proclamation. Ray explained to him that the prime minister’s word was enough. No cabinet resolution was needed. The president complied.Within a matter of minutes, people standing in opposition, including Morarji Desai and JP Narayan were awaken from their sleep and arrested.The Government was suddenly became all-powerful, mighty with absolute powers without checks. As John Grigg wrote in The Spectator, “Nehru’s ‘tryst with destiny’ seemed to have been turned into a tryst with despotism — and by his own daughter”. Others commented that with a single stroke of a “pliant president’s pen”, the world’s largest democracy was reduced to a “tin-pot dictatorship”, the likes of which then thrived in the Third World.The declaration of emergency under Article 352 of the Constitution was convoyed with a Notification under Article 359 suspending fundamental rights under Articles 14, 19, 21 and 22.All the newspapers were subjected to pre-censorship. No news critical of the Government could be published. The right to oppose the Government was taken away. No protests were allowed anywhere in the country.The Supreme Court in the habeas corpus case ruled that even though political detainees have been illegally detained, they have no right to approach the court and seek relief. The Government took the position that even if a detainee was physically killed, he could not approach the court.Civil rights stalwart Rajni Kothari describing this period, states that, “It was a state off-limits, a government that hijacked the whole edifice of the state, a ruling party and leader who in effect treated the state as their personal estate. It was the imposition of a highly concentrated apparatus of power on a...

Emergency turns 39‏

Apoorva Mandhani

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