THE DAY LIBERTY STOOD STILL …


They were conquerors, and for that you want only brute force – nothing to boast of, when you have it, since your strength is just an accident arising from the weakness of others. – Joseph Conrad, Heart of Darkness.

On June 25th 1975, the then Prime Minister of India, Indira Gandhi declared a state of emergency under Article 352 of the Constitution, effectively bestowing upon herself the power to rule by decree and thereby ushering in the most criticized and controversial period in the political history of Independent India. Fundamental Rights stood suspended, censorship was imposed on the press and prominent political leaders were arrested. Dictatorship had replaced democracy and India was in chains all over again, this time enslaved by her own. The Indian economic policy bend sharply towards socialism after Indira Gandhi became the Prime Minister in 1966. And in 1976, our Constitution was slyly amended to declare India as a “Sovereign Socialist Secular Democratic Republic“ by the 42nd Amendment Act. The Emergency lasted for 21 months till 21st March 1977 – long, intensive and enough to leave permanent scars; to forget it would be a grave injustice to those who have suffered so that liberty and rights would be ours.

In many ways the foundation for the proclamation of the Emergency was laid when the Allahabad High Court on June 12th, 1975 , in the case of State of Uttar Pradesh V. Raj Narain, found Indira Gandhi guilty of electoral malpractices and declared her election “null and void” and unseated her from the Lok Sabha. The court also banned her from contesting in any election for an additional six years. However, the verdict was later challenged in the Supreme Court and on 24th June 1975, the court granted a conditional stay to Indira Gandhi, allowing her to remain as a member of Parliament but disallowed her to take part in any parliamentary proceedings. The Emergency was proclaimed to deal with what Indira Gandhi described as the “threat of lawlessness and anarchy.” In fact, the country was at peace, the only threat was her own position. The judgment of the Allahabad high court had disqualified her from continuing as Prime Minister and the Emergency was a cynical device to perpetuate her hold on the government.

Fear corrupts… perhaps the fear of a loss of power.
― John Steinbeck

On April 28th, 1976, the Supreme court slump to its lowest when five of its senior most judges by a majority of four to one held in the infamous case of ADM Jabalpur Vs. Shukla , also known as the Habeas Corpus Case, that a person could be arrested or detained without any legitimate reason and there was no remedy since the right of a person to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution was to remain suspended for the period during which the Proclamation of Emergency was in force. The Supreme Court went against the unanimous decision of all the High Courts and upheld the right of Indira Gandhi’s government to suspend all fundamental rights. It was the Supreme Court’s “utter surrender” to an absolutist government. And what happened in the Habeas Corpus case was not only a momentary lapse in judgment, it was a disgrace to the legal system.

Out of the five judges, the only person to voice the antithetical judgment was that of Justice H.R. Khanna, of whom the New York Times remarked: “’surely a statue would be erected to him in an Indian city”. Justice Khanna paid the price for his judgment. He was the next in line to become the Chief Justice of India but his junior, Justice M.H. Beg, superseded him and he resigned. His scandalous supersession too had its impact: the norm of seniority has never been breached since 1976. After the Emergency, Justice H.R. Khanna was asked to draft the constitutional provisions that could prevent such atrocities in the future, and the amendment he helped author bars future ‘emergencies’ from suspending the judicial power to investigate imprisonment.

Nations which do not remember their immediate past are in danger of repeating their tragic mistakes.

The most heinous aspect of the Emergency was not its imposition but the manner in which almost the whole country succumbed to it and accepted it quietly. Less than half a dozen newspapers denounced the action. A few judges and lawyers protested. It is often asked how could the Emergency happen notwithstanding our Constitution guaranteeing all the Fundamental Rights and democracy being its basic structure as so notably held in Kesavananda Bharati case back in 1973. Had Supreme Court taken the same view as the High Courts, the emergency would have toppled immediately and the inevitable result would have been the immediate release of leaders leading to an overwhelming opposition movement which would have swept away Indira Gandhi’s government by mid 1976. This incident proved that sometimes the fate of nations can be subverted by a few politicians backed by a small coterie of individuals – in this case, by the highest judiciary which it can never live up to. The Emergency is now a distant memory and the rest, they say is history.

We live in the flicker – may it last as long as the old earth keeps rolling! But darkness was here yesterday. – Joseph Conrad, Heart of Darkness.

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