Author: LK Advani
Publication: Lkadvani.in
Date: January 2, 2011
URL: http://blog.lkadvani.in/blog-in-english/emergency-of-1975-akin-to-nazi-rule
The 172-page book published by the Congress
Party with the title "Congress and the Making of the Indian Nation"
carries just two short paragraphs to tell the country what happened during
the emergency of 1975-77. The two paragraphs are as follows:
"The period of the emergency saw the
suspension of normal political procedures and fundamental rights, arrests
of the leaders of the Grand Alliance, and enforcement of press censorship
and strict discipline. Extreme communal and leftist organizations were banned.
More than one lakh people were arrested over the 19 months of the Emergency.
Powers of the judiciary were reduced drastically. Unlimited state and party
power was concentrated in the hands of the Prime Minister.
Vast sections of the population welcomed it
initially since general administration improved. But, civil rights activists
took exception to the curbs on freedom of expression and personal liberties.
Unfortunately, in certain spheres, over-enthusiasm led to compulsion in enforcement
of certain programmes like compulsory sterilization and clearance of slums.
Sanjay Gandhi had, by then, emerged as a leader of great significance. It
was due to his support to family planning that the government decided to pursue
it more vigorously. He also promoted slum clearance, anti-dowry measures and
promotion of literacy but in an arbitrary and authoritarian manner much to
the annoyance of the popular opinion."
These two curt paragraphs are preceded by
two full pages about factors leading to the emergency in which Jaya Prakash
Narayan's "extra-constitutional and undemocratic movement" on the
one hand and the Allahabad High Court's verdict on the other hand, charging
Smt. Gandhi with violating the election law to win her seat and invalidating
her election, have been identified as the two factors which led to the Emergency.
The second paragraph from the book quoted
above is a ridiculous attempt to make Sanjay Gandhi a scapegoat for all the
misdeeds the country had to suffer during the Emergency. In the last sixty
years, whenever the executive has found a judicial verdict unpalatable its
reaction has been to have the verdict undone by mobilizing legislative support
for the executive's view point. In 1975 also this was sought to be done by
amending the law in respect of electoral corruption. But Mrs. Gandhi did not
stop there. Without consulting her Cabinet, or even her Law Minister and Home
Minister, she made President Fakhruddin Ali Ahmed invoke Art., 352 to put
democracy under indefinite suspension. The Congress Party publication indicates
that the Party regrets only the 'excesses' committed during the Emergency,
because Sanjay Gandhi promoted worthwhile causes such as slum-clearance, anti-dowry
measures, and literacy, but in an arbitrary and authoritarian manner.
I hold that promulgation of the Emergency
itself was an unforgivable crime against Democracy and that the constitution
makers had never ever conceived that any Prime Minister of independent India
would so grossly abuse Art. 352 of the Constitution.
I am very happy therefore that lately (November,
2010) the Supreme Court has revisited the Emergency and affirmed that the
A.N. Ray majority judgement of the Supreme Court during the Emergency was
erroneous and that the lone dissenting judgement of Justice H.R. Khanna is
the law of the land today. In a lecture delivered in February, 2009 former
Chief Justice Venkatachallaiah commented that the 1976 majority judgement
deserved to be "confined to the dustbin of history".
The Congress Party has admitted that more
than one lakh persons were jailed during the Emergency. The exact number was
1,10,806. Of these 34,988 were detained under the Maintenance of Internal
Security Act whereunder no grounds were to be given to the prisoner. These
prisoners included Jayaprakash Narain, Morarji Desai, Chandra Shekhar, Atal
Bihari Vajpayee, Bala Saheb Deoras, and a large number of MPs, MLAs and eminent
journalists.
Almost all MISA detenues had filed habeas
corpus petitions in their respective State High Courts. At all places, Government
had raised the same objection: in an Emergency, all Fundamental Rights are
suspended and so no detenue has a right to file a Habeas Corpus petition.
Almost all the High Courts rejected the Government's objection and ruled in
favour of the petitioners. Government not only went in appeal to the Supreme
Court but actually punished the judges who had allowed the petitions. The
diary I used to maintain while I was in prison records the names of 19 judges
who were transferred to other High Courts because they had decided against
Government!
My diary also records under the date December
16, 1975:
The Supreme Court has been hearing GOI's appeal
against the High Court judgements in favour of MISA prisoners. This includes
our case also. Justice Khanna is reported to have pointed out to (Attorney
General) Niren De that Article 21 of the Constitution deals with the right
not only to personal liberty but also to life. Is it the stand of the Attorney
General that even if a person is killed he has no remedy because enforcement
of this right has been suspended? Niren De replies: "It weighs on my
conscience. But that is the position in law."
Pronouncing majority judgement in this appeal,
Supreme Court Bench comprising of C.J. A.N.Ray, Justices H.R.Khanna, M.H.Beg,
Y.V. Chandrachud and P.N. Bhagwati (Justice Khanna dissenting ) declared :
"In view of the Presidential Order dated 27 June, 1975 no person has
any locus standi to move any writ petition under Art 226 before a High Court
for habeas corpus .
"The appeals are accepted. The Judgements
of the High Courts are set aside"
In his historic dissenting judgement, Justice
Khanna observed:
"Sanctity of life and liberty was not
something new when the Constitution was drafted. It represented a facet of
higher values which mankind began to cherish in its evolution from a state
of tooth and claw to a civilized existence. Likewise, the principle that no
one shall be deprived of his life and liberty without the authority of law
was not the gift of the Constitution. It was a necessary corollary of the
concept relating to the sanctity of life and liberty; it existed and was in
force before the coming into force of the Constitution.
"It has been argued that suspending the
right of a person to move any Court for the enforcement of right to life and
personal liberty is done under a constitutional provision and therefore it
cannot be said that the resulting situation would mean the absence of the
rule of law. This argument in my opinion, cannot stand close scrutiny for
it tries to equate illusion of the rule of law with the reality of rule of
law. Supposing a law is made that in the matter of the protection of life
and liberty, the administrative officers would not be governed by any law
and that it would be permissible for them to deprive a person of life and
liberty without any authority of law. In one sense, it might in that event
be argued that even if lives of hundreds of persons are taken capriciously
and maliciously without the authority of law, it is enforcement of the above
enacted law. Thus, in a purely formal sense, any system or norm based on a
hierarchy of orders, even the organized mass murders of Nazi regime can qualify
as law."
Justice Khanna passed away on 25 February
2008, at age ninety five. In its editorial after he delivered his landmark
judgement, the New York Times wrote on 30 April, 1976, "If India ever
finds its way back to the freedom and democracy that were proud hallmarks
of its first 18 years as an independent nation, someone will surely erect
a monument to Justice H.R. Khanna of the Supreme Court".
L. K. Advani
New Delhi
2nd Jan, 2010
