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Revisiting The Infamous Emergency & Its Impact On Legal Community

Swapnil Tripathi
25 Jun 2020 2:58 PM GMT
Revisiting The Infamous Emergency & Its Impact On Legal Community

45 years ago, on this day, the central government led by Late Mrs. Indira Gandhi imposed the infamous National Emergency in the country ("Emergency"). The Emergency lasted for 21 months and is considered to be one of the darkest phases of independent India. It saw widespread human rights violations, censorship of the press, rampant arrest of dissenters etc. Most importantly, it was the time when arguably the constitutional functionaries, let down the nation.

The decision to impose the Emergency is considered a response to the Allahabad High Court judgment in Raj Narain v. Indira Gandhi (delivered on 12 June 1975) wherein the election of Mrs. Gandhi (sitting Prime Minister at the time) was invalidated on counts of electoral malpractices and she was debarred from holding any elective office for six years. In effect, the Court gave the Congress Party 21 days to make alternate arrangements for running the government. The judgment sent shockwaves to the central government. It gave support to the J.P. Movement led by the opposition forces to ask for the resignation of Mrs. Gandhi.

Mrs. Gandhi made every possible attempt to save her Prime Ministership. The Congress Party organised several rallies and marches in support of Mrs. Gandhi. It is believed that the rallies were orchestrated to an extent that government employees were forced to attend them, failing which they were marked absent from duty and their salaries were deducted. On June 20, Mrs. Gandhi did the unthinkable and organised a rally wherein her entire family (including Late Mr. Rajiv Gandhi and Late Mr. Sanjay Gandhi, along with their spouses) sat on the dais behind her. She remarked, 'My opponents are after my chair, they want to murder me and family.'

Never before had Mrs. Gandhi displayed her family on a public platform, for electoral purposes. It was on this day that Mr. Dev Kant Baroah coined the famous slogan,

"Indira tere subah ji jai,

Indira tere shaam ki jai,

Indira tere kaam ki jai,

Indira tere naam ki jai,

Indira is India and India is Indira"

Mrs. Gandhi challenged the Allahabad High Court verdict before the Supreme Court, which was heard by a vacation bench consisting of Justice Krishna Iyer. Mrs. Gandhi was represented by Shri Nani Palkhivala who was successful in securing a stay order against the judgment. In effect, Mrs. Gandhi could remain in office but not vote in the Parliament, till the election appeal was decided by the Supreme Court.

The stay order did not impress Mrs. Gandhi and she now had two choices before her. First, to either resign as the Prime Minister and appoint a titular PM (in reality her pawn) in her place. Once the Supreme Court acquitted her, she could come back to power vindicated. The second choice, was to continue in office and not resign. While Mrs. Gandhi seemed inclined towards the first choice, her son Mr. Sanjay Gandhi cautioned her that the Supreme Court may take up to six months to decide the appeal, which was a long time in politics. He further stated that the titular PM she appoints, may not agree to vacate the office later. Mr. Sanjay Gandhi's convincing worked.

It is believed that another factor influenced Mrs. Gandhi's decision. She is reported to have told Mr. Siddhartha Shankar Ray (then Chief Minister of West Bengal) that Indian Intelligence Agencies have informed her that the Central Intelligence Agency (CIA) of USA is secretly supporting the JP Movement and US President Nixon wants to overthrow her government. She considered Ray her legal advisor and asked him to study the Constitution and present a solution to stay in power. Interestingly, she did not consult the Law Minister.

Ray advised her to invoke Article 352 of the Constitution that allowed the President to declare a National Emergency on grounds of 'internal disturbance'. The invocation of this ground could be justified because Late Shri JP Narayan had called for a massive rally in Ram Leela Maidan, New Delhi for ousting Mrs. Gandhi. On the eve of the rally, Shri Morarji Desai had given a statement to a foreign journalist,

'We intend to overthrow her, to force her to resign…For good, the lady won't survive our movement... Thousands of us will surround her house to prevent her from going out. We shall camp here night and day.."

Mrs. Gandhi was advised that these statements amounted to 'internal disturbance' and hence, it was decided that next morning, India would go on a state of National Emergency. A proclamation under Article 352 was sent to the President Late Shri Fakhruddin Ali Ahmed who signed it past midnight.

Nobody except the PM and her confidantes had any idea about the proclamation, including the Cabinet. It is believed that the government wanted to arrest opposition leaders by surprise, which is why the entire operation was kept a secret.

Next morning the Emergency was announced and several opposition leaders were arrested. Mrs. Gandhi during her address to the nation justified the Emergency in the following words,

"A climate of violence and hatred had been created… The opposition parties had chalked out a programme of countrywide gheraos, agitation, disruption and incitement to industrial workers, police and defence forces in an attempt to paralyse totally the Central government. One of them went to the extent of saying that armed forces should not carry out orders... this programme was to begin from 29th of this month. We had no doubt that such a programme would have resulted in a grave threat to public order and damage to the economy beyond repair. This had to be prevented…"

Maybe, if Mrs. Gandhi had chosen the first option and resigned, there would have been no emergency, no Janta party and no electoral humiliation later.

Emergency and the Legal Community:

The period of Emergency saw attacks on almost every quarter of the nation and the legal profession was not an exception.

  • Resignations and Arrests:

Mr. Fali Nariman who was the Additional Solicitor General at the time, resigned in protest. In his book 'Before Memory Fades', he recalls that he was in Bombay when he heard about the Emergency and immediately sent his resignation to the Law Minister. News of his resignation was suppressed and only reported in some international newspapers. Mr. Nariman recalls, that shortly after his resignation he appeared before the Bombay High Court and he heard the Judges' whisper that Nariman had resigned, to which Justice Tulzapurkar on the Bench responded, 'I don't quite know'.

Similarly, Nani Palkhivala who was appearing for Mrs. Gandhi in her election appeal in the Supreme Court, returned the case brief in protest.

Late Shri Arun Jaitley who was in college at the time, was doing a Satyagraha and leading a protest against the emergency. He was arrested under the draconian Maintenance of Internal Security Act and detained at the Tihar Jail. Mr. Jaitley had once remarked that during his arrest he was frequently dragged to Patiala House and Tis Hazari Courts, which was his first experience with Courts and the Law.

Similarly, the current Law Minister Shri Ravi Shankar Prasad was also arrested during the Emergency. Interestingly, Mr. Prasad was studying law at the time and pleaded with the Judge of the Advisory Board before whom he was produced, to argue his own case. It is believed that the Judge was impressed with his arguments and was inclined to release him, but the District Collector placed a last-minute fabricated report before him, according to which Mr. Prasad was accused of manufacturing explosives. He was denied his release.

The authorities raided the house of Late Shri Ram Jethmalani as well, who was seen as a critic of Mrs. Gandhi. It is reported that Mr. Jethmalani was playing badminton at the time and is in his famous rhetorical style is believed to have remarked, 'Tell them to carry on, I'll finish the game and come'. Later, an attempt, was made to arrest Mr. Jethmalani as well, but he left India in time.

  • Bench Composition in ADM Jabalpur's Case:

The Supreme Court of India heard the infamous ADM Jabalpur's case during the Emergency. I have discussed the case in detail here. It is believed that at the time, there were rumours that Chief Justice of India, Shri A.N. Ray was going to constitute a Bench favourable to the government. On hearing this, the Bar approached Shri CK Daphtary (a doyen of the Bar) to intercede with the Chief to not do so.

The conversation of Shri Daphtary and Justice Ray went this way.

"Shri Daphtary – I hear that you are going to constitute a bench to hear the preventive detention cases.

Justice Ray – Yes

Shri Daphtary – It is causing some concern at the Bar, so may I make a suggestion.

Justice Ray- Has it ever been suggested to the Chief Justice as to how to constitute a Bench and who's it to be put on the Bench?

Shri Daphtary - Well I do recollect that on a prior occasion when CJ SR Das was told about the composition of the Bench he never took it ill.

Justice Ray- I am not taking ill."

Shri Daphtary knew that Justice SR Das was Justice Ray's mentor and he would not go against something which Justice Das had done. The trick worked and the Bench was constituted objectively and consisted of the five seniors most judges.

A little-known fact about ADM Jabalpur's case is that originally Shri Nani Palkhivala was to appear for the detainees. However, he is believed to have refused stating that the case is too straightforward and the state was bound to fail in its challenge.

  • Transfer of Non-Compliant Judges-

In addition to advocates, the Judges who did not toe the government's line were also punished. In addition to superseding the great Justice HR Khanna, the government arbitrarily transferred Judges, so as to punish them.

For instance, a bench of Justice SI Rangarajan and Justice RN Aggarwal of the Delhi High Court had allowed the habeas corpus petition of Shri Kuldip Nayar, a journalist detained under the MISA. As punishment, Justice Rangarajan was transferred to the Assam High Court and Justice Aggarwal's term as an Additional Judge was not extended. As a result, Justice Aggarwal was forced to revert to his former position as a District Judge in Delhi.

Fortunately, after the Emergency Justice Aggarwal was elevated permanently to the Delhi High Court and he went on to serve as its Chief Justice later.

Justice Rangarajan and Aggarwal were not the only Judges punished though. (Read here)

Despite the attacks on the legal community, the Bar stood united in its opposition to the Emergency. Fortunately, the Emergency did not last forever and was revoked 21 months later. It is believed that Mrs. Gandhi was sure of an electoral win, given the fact that the opposition had no time to campaign, since majority of them were detained during the Emergency. She was proved wrong as her party suffered a crushing defeat. The nation exercising its democratic right, showed her that 'India was not Indira'.



± The author is a practising lawyer in New Delhi. The post was first published on his personal blog The 'Basic' Structure.

The author does not wish to offend any member of the legal community with this post. The information mentioned in the article have been taken from publicly reported sources.

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