Nations which do not remember their immediate past are in danger of repeating the same tragedy. This thought comes to me when on random questioning of the significance of June 26, 1975 (the Emergency Day) from the age- group of 35 and below (who constitute two-thirds of the population of India) one draws an overwhelming blank look, and not so encoura-ging even from those in the 35-55 age-group. Even newspapers never frontpage it—some do not even carry the information, and a few may just mention it casually somewhere in the corner of inner pages. Many Opposition parties, which were the victims of the Emergency, choose to keep a low key. Even though the PUCL and other civil liberties organisations as usual hold protest meetings, but TV and newspapers designedly avoid 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 was the ruling party for most of the period in the immediate past? 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 only after 18 months.
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 was a limit beyond which unarmed people could fight an intolerant and a near-fascist state which India had become those days.
In times of crisis, the judiciary is expected to act as a bulwark against the excesses by the executive, like during the Emergency. But to our utter shame the fatal blow to freedom was struck by the Supreme Court judgment in the ADM Jabalpur case, holding that right to life does not survive during the Emergency—this disgrace will continue to proclaim the pusillani-mity of the Supreme Court in refusing to act as a sentinel safeguarding human rights.
The Supreme Court ruling in the ADM Jabalpur case in 1976 which overruled the view of nine High Courts that the legality of the detaining order passed by the government could still be set aside for illegality—in fact in some cases the High Courts had ordered release of the detenues. Had this view been upheld by the Supreme Court 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 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 malafides, factual or legal, or is based on extraneous considerations.”
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 available. Naturally in this situation, no peaceful opposition to emergency could continue. I am shocked how the majority decision could rely on Liversidge versus Anderson given during wartime in 1942 by the House of Lords (UK), but with a memo-rable dissent by Lord Atkin when English Courts subsequently felt so ashamed of that decision that a conscious effort was made to throw that decision into a dung heap.
In 1963, Lord Radcliff (HL) referred dismissi-vely to the very peculiar case in Liversidge versus 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 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 Narayanji, Morarji Desai, Raj Narain, George Fernandes, Madhu Limaye and the brave 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 over-whelming 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 pusillani-mity of a few individuals—in this case embarra-ssingly by the highest judiciary which it can never live down.
Soon after the change of government, in 1978 Justices Chandrachud and Bhagwati publicly expressed regret and conceded that their decisions were wrong and that they should have joined Khannaji which would have been the majority. But this crying over 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 Amend-ment to the Constitution (1978) which has taken away the power of the President to suspend Article 21. But still we must continue to remember that “eternal vigilance is the price the nation must pay for safeguarding the liberties of individuals”. And the press should keep reminding the public of this frequently.
The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister's high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People's Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23@bol.net.in