25th June, 1975: The Night Was Dark and Full Of Terrors
On the advice of Prime Minister Mrs. Indira Gandhi, the President of India Fakhruddin Ali Ahmed, declared an emergency on the night of 25th June, 1975 which marked the beginning of the darkest era of Indian democracy. With a single stroke of the president’s pen, the world’s largest democracy was pushed to the brink of a dictatorship for a period of 21 months. The very civil liberties we secured when we gained independence from the British Raj were suspended. Thousands of people were arrested, a number which far exceeded the number of people arrested during the 1942 Quit India Movement. A reign of terror was unleashed with the opposition leaders imprisoned, Sanjay Gandhi’s forceful mass-sterilization program of millions of people, slum areas being bulldozed and an increase in police brutality. The finest bureaucracy debased itself, the media asked to bend started to crawl and the most learned and able judges failed the very people they were supposed to protect.
The Case That Shook India: The Catalyst
The catalyst for the decision to declare emergency was not because of any internal or external threat which threatened the security of our nation but a court verdict on 12th June, 1975, which put aside Mrs. Gandhi’s election, threatening her very position as the Prime Minister of India. It was as the renowned author Prashant Bhushan dubbed in his magisterial book on the subject, truly, ‘The Case That Shook India’. It was the case of Indira Gandhi v. Raj Narain1 which forever changed the course of our country. Justice Sinha declared her election void on the basis of corrupt practices used to win the election and also, more importantly, disqualified her from holding any public office for a period of six years. Mrs. Gandhi was losing her political footprint and her opposition was getting more powerful. The only way she could get back her power was to declare emergency as this would give her absolute power. The parliament passed the Election Laws (Amendment) Act, 1975 and the 39th Constitutional Amendment Act 1975 with retrospective effect designed to validate her election. This amendment also placed Representation of People’s Act in the 9th Schedule ensuring that this was beyond the preview of judiciary, making the amendment immune to the violation of fundamental rights. Unfortunately, it took away the whole basis of finding Mrs. Gandhi guilty of corrupt practices since the election law amendments could not be challenged on the ground of basic structure doctrine or violation of fundamental right which led to the validation of her elections.
A Sentinel No More
The emergency continued and the judiciary struggled to maintain its legitimacy. Judges who swore allegiance to the government were rewarded and those who refused to budge were transferred. At the time the country needed the judiciary the most, the courts abdicated from their duty to enforce the rule of law. The Supreme Court who was assigned the role of “a sentinel on the qui vive”, with respect to fundamental rights by the constitution itself surrendered to the government their powers and from their position as custodians of justice, the judges became the custodians of their own personal interests who couldn’t keep the lure of their ambitions at bay. Shortly after the declaration of emergency, the President on 27th June 1975 issued a Presidential order barring anyone detained to exercise their right to relief through the writ of habeas corpus under Article 226 of the Constitution. The contingency contemplated under Article 359 (declaration of emergency) was that the right to ‘life’ and ‘liberty’ would stand forfeited as consequence of suspension of Article 21 during the subsistence of state of emergency. Bogus cases were framed against political dissenters to punish them creating a veil of deceit that only the judiciary could pierce. The courts strongly opposed granting bail to such political dissenters even when everyone knew the charges were false. Even when some judges in the High Courts (Justice JP Chaturvedi and Justice MP Saxena in the Allahabad High Court) gathered the courage and bail was granted by the courts nobody was released, they were preventively detained under the Maintenance of Internal Security Act (MISA).2 The amended MISA Act, a draconian law, being immune to judicial review, became a dangerous weapon in the hands of a government who was already drunk on power. Subsequently, many people who were detained, most of who were political rivals challenged their detention under Article 226. Various High courts (nine to be precise) despite the presidential order strongly rejected the government’s contention and held that even during the state of emergency a person has the right to prove how his detention was not in accordance with law lighting up the lamps of liberty briefly. Seervai in Constitution of India: Appendix Part I the Judiciary of India rightly pointed out, “the High Courts reached their finest hour during the emergency; that brave and courageous judgments were delivered … the High Courts had kept the doors ajar which the Supreme Court barred and bolted”.3
28th April, 1976: The Day Judiciary Bowed, Bent and Broke
‘Indian Court Upholds Political Jailings’ was the headline of the newspaper article in the New York Times on the 29th of April, 1976 outlining the Supreme Court’s decision to uphold the right of Mrs. Gandhi’s government to imprison their political rivals.4
All the nine High Court judgments were overturned by the Supreme Court bench with the majority of 4 out of 5 judges. The Court callously disregarded the rights of detainees and gave the outrageous and the disgraceful judgment in the case A.D.M. Jabalpur v. Shivkant Shukla5, also known as ‘the habeas corpus case’ on April 28, 1976. The bench consisted of five judges,
namely, Chief Justice A.N. Ray, and Justices H.R. Khanna, M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati. It is important to note that four out of the five judges who constituted the bench had also been the part of the 13-judge bench which decided the case His Holiness Sripadagalvaru Kesavananda Bharati v. State of Kerala.6 By a 7-6 verdict the Supreme Court decided that the basis structure of the constitution cannot be amended and Justice Hans Raj Khanna had championed the cause of individual’s rights by giving his decisive vote in favour of the majority view. On the very next day of the judgment, Justice Ray, who had dissented, was appointed by Indira Gandhi’s regime as the Chief Justice of India superseding — Justices Jaishanker Manilal Shelat, A N Grover and K S Hegde, who held seniority but were on the side of majority in the judgment. All three resigned in protest but this was not the last episode of supersession done to punish the judges who stepped over the boundary line drawn by Mrs. Gandhi, by passing a judgment not favorable to her cause.
Habeas Corpus: A Key to Freedom Lost
The Supreme Court held in the Habeas Corpus case that in view of the presidential order, during the subsistence of the state of emergency the right of a person to move to court for the enforcement of rights conferred under Article 14, 21 and 22 of the constitution and all the proceedings pending in the courts for the enforcement of these rights will remain in a state of suspension. Habeas corpus, the key to unlock the doors of freedom was lost, swallowed by judges who did not have the intellectual integrity or the moral courage to stand up against the Gandhi regime. This deprived detune of his liberty putting him at the mercy of the same authoritarian rule that detained him taking away any hope for justice because the institution as great as judiciary had turned its back on him. This was the fate of thousands of people particularly the government’s political rivals for months during which the state of emergency existed.
The judgment reduced the position of the judiciary as helpless spectator even when the state acted contrary to law. Fali S Narimal in his book ‘The State of the Nation’ compares the Habeas Corpus case with the Supreme Court judgment of United Sates in the Dred Scott case which held that ‘Negro was ineligible to be citizen since he was not even a person’.7 Few commentators make comparisons of this case which the Korematsu decision of the U.S Supreme Court in 1944 upheld the compulsory exclusion of Japanese Americans during World War II from the West Coast Military Area in order to reduce the risk of espionage which has been loudly criticized by many civil libertarians.8
Reliance of the Decision on the Liversidge Case
The majority decision relied on the opinion of the House of Lords in the wartime judgement Liversidge v. Anderson– 1942 Appeal Cases 206- which was opined by the Law Quarterly Review (1970) as an embarrassment and the courts shamed by this decision made a conscious
effort bury it. The Liversidge case is still remembered because of the historic and lone dissenting opinion given by Lord Atkin.
Lord Atkin observed in the dissenting opinion
‘I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive- minded than the executive,….
In England, amidst country the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the court of King’s Bench in the time of Charles I.
I protest, even if I do it alone, against a strained construction put upon words, with the effect of giving an uncontrolled power of imprisonment to the minister. To recapitulate the words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them….
I know of only one authority which might justify the suggested method of construction. ‘When I use a word’ Humpty Dumpty said in rather scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is’ said Alice, ‘whether you can make words mean different things.’ ‘The question is’, said Humpty Dumpty, ‘which is to be master that’s all”… the question is whether the words ‘if a man has’ can mean ‘If a man thinks he has’, I am of the opinion that they cannot, and the case should be decided accordingly.’9
The majority view in the Jabalpur case wrongly based its opinion on the Liversidge case since there was no ‘war- time circumstance’. Few commentators have found startling similarities in the role of judiciary in the Liversidge case where some felt that that the court contributed to war time efforts by England and the role that the Indian judiciary played in the Jabalpur case which contributed to the continuance of the emergency. Both the cases seem to be an example of “Piso’s justice” – which can be understood as issuing a sentence in accordance with the law, but against morality.10Ironically both the cases had lone dissenters.
Judicial Courage and the Decorum of Dissent
Chief Justice AN Ray, words that state ‘liberty is itself the gift of the law and may by law be forfeited and abridged’ depicts the conceptual misunderstanding of the concept ‘personal liberty’.
According to the then Chief Justice who outlined the basic view of the majority, liberty was not an absolute freedom and the reason for the extraordinary powers given to the government was because the emergency in itself was extraordinary. The majority of 4 judges refused to take into account the provisions of UDHR notwithstanding the fact that India was signatory to UDHR. The majority opinion is remembered as the lowest point in the history of Indian Judiciary but the lone dissenting opinion of Khanna J. holds more value than the majority.
Justice Khanna equated the position of Indian citizen whose fundamental rights are suspended with that of the citizen of British India who had no guaranteed fundamental rights. He gave a haunting reminder of the Nazi regime citing the legal scholar Wolfgang Friedman, wrote, “in a purely formal sense, even the organized mass murders of the Nazi regime qualify as law.” He quoted Plato’s own experience with ‘rule by will’ which taught him that ideal state was not possible and if a society is governed by the will of the ruler than the interest of the community will be sacrificed. Later, Plato modified his position and advocated ‘rule by law’. According to Justice Khanna, Article 21 is not the repository of the right to liberty, the state has no right to take away the right to life or personal liberty contrary to law because such right existed before the constitution came into force. The right to life and liberty as stated by the justice was not a plaything and could not be taken by the whims and fancy of an individual. He unlike his colleagues took into the account UDHR which lays stress on the sanctity of right to life and liberty. Justice Khanna being apprehensive of the intentions of the government asked the Attorney General the question, “Life is also mentioned in Article 21 and would the government argument extend to it also?” to which Niren De replied “Even if life was taken away illegally, courts are helpless”.
Justice Khanna knew the cost he would pay for his dissention. He had told his sister just the day before he delivered the judgment he would not become the Chief Justice. His apprehension sadly came true in January, 1977 when for the second time after the Keshavananda Bharti case; Mrs. Gandhi used the weapon of supersession. Justice Khanna, the senior most judge was superseded by his junior, Justice Mirza Hameedullah to become the Chief Justice of India. Khanna J. resigned in protest and that day Indian democracy lost a noble man whose only crime was to protect the constitution rather than an absolutist government. His dissenting opinion had served as a beacon of hope and earned him the respect of the judiciary and the bar. The New York Times lauded the contributions of Justice Khanna in its editorial column and went on to write that,
‘If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H. R. Khanna of the Supreme Court.’11
Though no monument has been erected Justice Khanna’s portrait does adorn the walls of Court Room 2 of the Supreme Court as a mark of respect.
Let me end by quoting the great man himself,
If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power.– Justice H.R. Khanna, ‘Making of India’s Constitution’