Ruler alone is not accountable, everyone who succumbs to authority is no less guilty

The record of the courts, a major pillar of any democracy, was not quite as dismal. Nine high courts had the courage to strike down the draconian Maintenance of Internal Security Act (MISA), as being ultra vires the Constitution. (Thousands were detained under MISA during the Emergency). Most of these brave judges were later penalised. But when the habeas corpus writ came in appeal to the Supreme Court (ADM Jabalpur vs S Shukla) the senior-most judges of the land let down the country. Of the five-judge bench, four upheld the Attorney General’s argument that a person has no legal rights, not even to be produced before the court or be informed of the reasons for his detention, as long as an Emergency is in force. The blemished four included two who projected themselves as champions of human rights and civil liberties. The sole dissenter, Justice H R Khanna, threw away his chance to be the next chief justice.

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L K Advani’s famous jibe at the media during the Emergency, “When asked to bend it chose to crawl’’ was not untrue. True, censorship laws were in force, but where there was a will there was a way. The Indian Express was one of the rare exceptions which defied the censors frequently, especially after elections were called in January 1977. The Express founder, Ramnath Goenka, knew that he would have to forfeit his newspaper chain in case Mrs Gandhi returned to power, but he refused to bend.

Mrs Gandhi imposed the Emergency with a sledgehammer. But dictatorships can also creep in slowly, silently and insidiously, without any formal announcement. History shows us that the ruler alone is not accountable. Everyone who succumbs to authority is no less guilty. The oft repeated question as to whether an Emergency could occur in India again is particularly relevant in 2020. A dangerous pandemic has weakened the institutions tasked with upholding the Constitution. The COVID crisis can also provide a screen to keep reality from the public gaze and assist rulers in arming themselves with more powers.

Because of the pandemic, justice has been delayed or diverted in some compelling human rights matters. A telling example is the habeas corpus petition filed by the wife of the 82-year-old leader in Kashmir, Saifuddin Soz. The Supreme Court has put off the hearing till July. Soz was detained in August last year along with many others in Kashmir when Article 370 was nullified. He has yet to be informed of the reasons for his imprisonment.

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While the courts are constrained from taking prompt action because of the pandemic, the Delhi Police, on the other hand, was hyper active during the lockdown, arresting protesters against the Citizenship (Amendment) Act (CAA). Most of the alleged trouble-makers are students and Muslims. They were charged with “unlawful activities’’ during the riots in North East Delhi in late February. The arrests are very obviously entirely one-sided. Even those whose inflammatory speeches and actions are a matter of record, such as local BJP leader Kapil Mishra, were not booked. When an arrested student recently approached a Delhi lower court, the court stated that because of the pandemic it was not in a position to ascertain whether due process of law was being followed.

In March, the Supreme Court rejected the anticipatory bail pleas of journalist Gautam Navlakha and professor Anand Teltumbde, both respected civil rights activists, accused of involvement in the Bhima Koregaon violence of 2018. The two have been detained under the Unlawful Activities (Prevention) Act as amended in July 2019. It is a law meant for terrorists which makes securing bail difficult. It is the government’s discretion whom to designate a terrorist, a throwback to the Emergency-era MISA.

The pandemic has delayed the next session of Parliament and there is no indication as to when the Lok Sabha will convene and in what form. Will meaningful debates on issues, such as handling of the pandemic or the Chinese intrusions, be possible? Or will the House meet merely to rubber stamp government decisions, the social distancing norms providing a handy pretext to keep the session brief and business-like?

Another COVID victim is the fourth estate. An unfounded apprehension that newspapers can somehow be carriers of the virus has led to a steep fall in print circulations. Several gated communities and apartment buildings have fuelled ill-informed paranoia. The economic consequences are devastating for the print media, one of the few credible sources of news in an age where social media is flooded with fake news and propaganda. Venerable language publications have shut shop, many newspapers groups have ruthlessly cut down on outstation editions and staff.

A financially debilitated media will struggle for survival after the pandemic. Another disturbing trend of late is for FIRs to be filed on frivolous charges against journalists who ask inconvenient questions to state and central governments. Over-zealous BJP bhakts, who instigate the police to slap such cases, seem to be following in the footsteps of Sanjay Gandhi’s storm troopers during the Emergency. A free media, one should remember, is the touchstone of a democracy.

This article first appeared in the print edition on June 25 under the title “1975 lesson for 2020”. The writer is consulting editor, The Indian Express and author of The Emergency: A Personal History.

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