Unlike the Emergency, Article 370 was abrogated to undo an historic wronghttps://indianexpress.com/article/opinion/columns/an-unfair-comparison-article-370-emergency-india-5949170/

Unlike the Emergency, Article 370 was abrogated to undo an historic wrong

Comparing the abrogation to draconian acts such as MISA and the proclamation is a mismatch of epic proportions. It is to be noted that Article 370 itself was supposed to be temporary; it was under Part XXI of the Constitution, which is titled “Temporary, Transitional and Special Provisions”.

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The Indian government on August 5 revoked Article 370 which gave special status to Jammu and Kashmir and proposed that the state be bifurcated into two union territories, Jammu and Kashmir, and Ladakh. (File)

“The President has proclaimed Emergency. There is nothing to panic about.” These words of Prime Minister Indira Gandhi on June, 26, 1975, created a scene of total bedlam across the country. The President’s proclamation of Emergency came within a fortnight of the Allahabad High Court’s order that found Indira Gandhi guilty of using government machinery and officials for her 1971 poll campaign. Further, she was disqualified from membership of Parliament for six years.

Subsequent to the proclamation of Emergency, the Maintenance of Internal Security Act (MISA) was amended through a presidential ordinance. Simply put, after the amendment, carried out on June 30, 1975, any individual considered as a political threat or who gave a stimulus to the voice of the Opposition could be arrested under MISA without a trial. In view of this, several petitions were filed in various high courts challenging the detentions, which were in violation of the fundamental rights of the detainees. The respective high courts had ruled in favour of the detainees, compelling the Indira Gandhi government to approach the Supreme Court (SC) on this matter, known as Additional District Magistrate Jabalpur v. Shivkant Shukla or the habeas corpus case.

The SC’s ruling on 1976 came to be known as the darkest hour for India’s judiciary. The Court held that with the declaration of Emergency, no person had the locus standi to move a habeas corpus writ petition before a high court to challenge the legality of an order of detention. However, in 2017, the SC, declared that the suspension of the right to life and liberty during the Emergency was not good law and such an interpretation is seriously flawed.

It is important to understand this timeline in light of several articles in various newspapers that have compared the habeas corpus case to the situation in Kashmir following the abrogation of Article 370. With the SC referring all the petitions filed regarding Article 370 to a five-judge Constitution bench, these are brazen attempts to browbeat the judiciary.

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The sole purpose of proclaiming the Emergency was for Indira Gandhi to retain her position as prime minister. Article 370 was abrogated to address the gross injustice concerning the rights of women, tribal communities and backward classes of society. For example, a woman from Jammu and Kashmir who married outside of the state would lose her status as a state subject as per the erstwhile state law. It is also saddening that the present and future generations of backward classes who were initially brought to J&K in 1957 by the state government have been compelled to remain as sweepers in the state. This was because they were not given the Permanent Resident Certificate. Prior to the amendment, non-Kashmiri Indians, manufacturing firms or multinational corporations were not permitted to invest in land or property. This is all set to change. Explaining each advantage this abrogation brings to the table would require a lot of space. Article 370 being scrapped was in the interest of the public at large, unlike promulgation of the Emergency, which was to suit the private interest of an individual.

Secondly, the Emergency was undoubtedly arbitrary in nature. It was proclaimed without the consent of any of the cabinet ministers and was devoid of any reasoning. After the imposition of the Emergency, the government amended the MISA through the 39th Amendment, yet again in an arbitrary manner, when most parliamentarians were jailed. In stark contrast lies the abrogation of Article 370. Comparing the abrogation to draconian acts such as MISA and the proclamation is a mismatch of epic proportions. It is to be noted that Article 370 itself was supposed to be temporary; it was under Part XXI of the Constitution, which is titled “Temporary, Transitional and Special Provisions”. Moreover, only after both houses of Parliament voted in favour of the resolution after an informed debate, was Article 370 abrogated.

Lastly, given the manner in which MISA was amended, it was of no surprise that the government led by Indira Gandhi arrested over 900 individuals under the Act between 1975-77. These arrests were undertaken without any reasoning, violating inviolable Fundamental Rights such as those provided by Articles 14, 19 and 21. In sharp contrast, the precautionary measures taken in J&K are for the larger interest of the public to maintain public order, which is the responsibility of the elected government. Moreover, a section of society have claimed these actions to be a violation of human rights. However, such an argument is misplaced as these actions have been undertaken in accordance with Section 144 of the Code of Criminal Procedure.

The essence and rationale of Emergency was summarised aptly by Jayaprakash Narayan in the foreword of renowned jurist M C Chagla’s autobiography: “I never thought that the daughter of Pandit Jawaharlal Nehru would dare or stoop to snuff out the lamp of liberty to serve her personal and dynastic ends.” Unlike the Emergency, Article 370 was abrogated to undo a historic wrong.

This article first appeared in the print edition on August 30, 2019 under the title ‘An unfair comparison’. The writer is a Mumbai-based senior lawyer and managing partner, Parinam.