Memories of another June

Dictatorial rule can only be imposed when a majoritarian government is in power; a majoritarian government was then in power with a strong energetic and popular prime minister as head of government prior to the days of the Emergency of June 1975. Alas, constitutional dignitaries and even some judges of the highest court failed us.

Written by Fali S. Nariman | Updated: June 26, 2017 8:35:12 am
Emergency, Modi emergency speech, Modi emergency, emergency 1975, Indira Gandhi, indian express Prime Minister Indira Gandhi addressing the nation from the Doordarshan studio during Emergency. (Express archive photo August, 1975)

For me, the month of June is a month of memories: Of events leading upto June 26 — “Emergency Day” as I call it. The time has come to revive some memories of Emergency Day. As for my part, I recall that on June 12, 1975, judgment was pronounced by the Allahabad High Court in the election petition filed by Raj Narain against Indira Gandhi, holding her guilty of corrupt practices and disqualifying her from holding all public offices for six years. A few days later I was told by her lawyer, J.B. Dadachanji, that she had personally requested that I should vet the grounds of appeal against the judgment as also the stay application (to be filed in the Supreme Court) even though her own senior advocate, Nani Palkhivala, had settled them. I was flattered. I went through the papers, suggesting a few changes.

When the petition was ready, Siddhartha Shankar Ray and I were in the office of the Law Minister H.R. Gokhale (giving final touches to the stay application). Ray picked up the phone and spoke — as only he could — directly to the prime minister: “Look here,” he said — no ‘look here madam’, no ‘look here Indiraji’, just ‘look here’ — “this appeal has to be filed forthwith”. I could sense some reluctance at the other end of the phone; at that time astrologers were around, advising Mrs Gandhi that the appeal should be filed on a day more propitious! In deference to astrological advice, the filing of the appeal was delayed and the stay application got listed before the Vacation Judge Bench (Justice Krishna Iyer) on June 22, 1975. Palkhivala, Indira Gandhi’s personal choice of counsel, was to argue the application. He did and orders were reserved.

Next evening, my wife and I left for Mumbai by train where I read in the Evening News an item of interest tucked away in one of the inner pages. It said that the home secretary of the Union government had been transferred, and that a new man from Rajasthan, S.L. Khurana, had taken over. I thought to myself this was odd — a new home secretary in the Government of India. At this particular time? But then I paid no further attention to the matter.
At the time, the sudden transfer of the home secretary conveyed nothing to me. But later, in retrospect, it was apparent that preparations were afoot (unknown to all but those closest to the PM, including son Sanjay) to make firm contingency plans in the event of an absolute stay being declined by the Supreme Court.

Krishna Iyer’s order was handed down on June 24, 1975 when I was in Mumbai. It was only a conditional stay, not an absolute one. “Operation Emergency” promptly swung into action, but not without the acquiescence of India’s highest constitutional functionary — the president.

Fakhruddin Ali Ahmed was prevailed upon by three prominent lawyers — H.R. Gokhlale, S.S. Ray and Rajni Patel (all members of the Congress) — to sign the proclamation they had brought with them at midnight June 25.

Even before the council of ministers had met on the morning of June 26 to approve it, the proclamation of Emergency had already been signed (and had come into effect) the previous night. I recall the remark of one of the most competent members of Mrs Gandhi’s cabinet at the time, Babu Jagjivan Ram. He was asked by Mrs Gandhi in the early morning cabinet meeting about what he thought of the decision to impose an Emergency. Babuji deftly evaded the question with a googly: “Madam, what can I say about a decision that you have already taken?”

As for me, it was on June 27, 1975 that I sent from Bombay my one-line letter of resignation to the law minister in Delhi. There were no heroic passages in it.

We must never forget such events. Those of you who have not lived through them nor read about them must know that dictatorial rule can only be imposed when a majoritarian government is in power; a majoritarian government was then in power with a strong energetic and popular prime minister as head of government prior to the days of the Emergency of June 1975. Alas, constitutional dignitaries and even some judges of the highest court failed us.

On the night of June 25, all members of Parliament who were in the Opposition had been locked up in preventive detention and yet proceedings in Parliament went on. The Speaker of the Lok Sabha openly commended the fact that parliamentary business could be conducted “much more smoothly now”. And the court held that when MPs who could and ought to have attended its sessions could not so attend only because they had been preventively detained, such proceedings in Parliament were nonetheless valid.

This was the first regrettable decision of the highest court — only to be followed later by a still more regrettable one (ADM Jabalpur in April 1976), in which the majority decision of four out of five of the court’s senior-most judges negated personal liberties granted by the Constitution. The only brave dissent was that of Justice H.R. Khanna. He was number three (in 1975) in line to become the Chief Justice of India, according to convention. That did not deter him from dissenting on a matter of personal liberty.

After imposing an Internal Emergency in June 1975, Mrs Gandhi called for elections only in January 1977 — and lost. At that time, most people were concerned: Would she call in the army? To her credit she did not. Would she respect the mandate of the people? Despite the advice of some lawyer-politicians, she did. (I have always maintained that this was presumably because she was a member of what is now disparagingly called the Nehru Family/Dynasty). I also recall with pride British Prime Minister James Callaghan’s tribute to this event in our political history. He said that the ultimate mark of a true democracy is the willingness of a government defeated at the ballot box to surrender power peacefully to its opponents.

The writer is a constitutional jurist and senior advocate to the Supreme Court.

For all the latest Opinion News, download Indian Express App

More From Fali S. Nariman
  • Missing in Supreme Court: A spirit of collegiality

    The way in which the apex court has been run in the past few months is not just a matter of debate, but of acute…

  • Lest we crawl

    At this time of (justified) political triumph of India’s majority party, let’s recall a few Emergency stories..

  • My unsolicited suggestion

    To the highest court: Please do remember that the citadel never falls except from within...

  • Share your thoughts