Because of the 44th amendment

Gandhi’s resignation was being demanded all over the country. However, she felt that if she resigned, Jagjivan Ram would take over as prime minister, and even if the Supreme Court, under the chief justice-ship of A.N. Ray, who had been handpicked by her in 1973 and appointed chief justice after superseding three eminent judges, could be persuaded to reverse the HC judgment, Jagjivan Ram would not let her come back as PM.

In such a scenario, she was advised that in order to continue as PM, she had to suppress all dissent and establish a reign of terror. For this, a declaration of internal emergency was necessary. Further, she was told that if an emergency was declared, the government could suspend two important fundamental rights: Articles 19 and 21.

Article 19 conferred on citizens many fundamental rights, including two that are vital for democracy. One was the freedom of speech and expression. The other was the right to assemble peacefully without arms. The suspension of these rights could strangulate democracy and pave the way for the establishment of a dictatorial regime. Article 21 conferred on all persons a fundamental right to life and personal liberty. Hence, no person could be detained or imprisoned without good cause. Even though, on a correct interpretation, this could not mean that a habeas corpus petition would not be heard by the courts even if an arrest were contrary to law or totally mala fide, Gandhi’s advisors were confident that, having packed the SC with loyalist judges, they could manage to get a favourable verdict on this.

This is exactly what happened. Illegal detentions were challenged in nine HCs of the country. The attorney general argued that as Article 21 stood suspended, the HCs did not have the jurisdiction to entertain habeas corpus petitions, howsoever illegal the detentions might have been. To the credit of the HCs, each one rejected this contention and held that the petitions were maintainable. But the government went in appeal to the SC and got the HC proceedings stayed. This constitutional question was then argued in the apex court, and when judgment was pronounced, it left the country in a state of utter shock. Four of the five judges on the constitutional bench held that, as the fundamental right to life and liberty enshrined in Article 21 stood suspended during the Emergency, the courts stood deprived of any power to grant relief, even if the arrests or detentions were wholly illegal or even mala fide. The SC went to the extent of saying even if a person
was illegally deprived of his life by being shot for no reason, there was no legal remedy. This judgment was the last nail in the coffin for democracy.

When elections were held in March 1977, a new India was born. When the results were declared, both Gandhi and the Congress lay shattered among the ruins. In the whole of north India, where the Emergency and its attendant atrocities had been the worst, the Congress won only one seat.

The first ever non-Congress government was formed at the Centre by the newly formed Janata party. The most important task before this government was to ensure that what happened between June 1975 and March 1977 could never be repeated. This necessitated a constitutional amendment, which required a two-third majority in each House. While the Janata party had more than a two-third majority in the Lok Sabha, it did not have even one-third of the seats in the Rajya Sabha.

Important leaders of the Congress were convinced by the government that since they were no longer in power, it was not in their interests to oppose what the government wanted to do to protect democracy. Realising that the government was acting in national interest, they agreed to lend support and the 44th Amendment was passed unanimously in both Houses. It was expressly provided by amendments to Articles 358 and 359 that Article 21 could not be suspended during an emergency, and Article 19 could not be suspended during an internal emergency. These amendments have effectively ensured that democracy will never be taken hostage for political opportunism.

This was effectively tested during the “Anna andolan” of 2011. The jan lokpal movement against corruption had captured the public imagination and the ruling dispensation felt threatened. It took several strong steps to suppress the movement. It arrested Anna Hazare as well as thousands of activists. But this was futile. As early as in April, when only a few days had passed since the launch of the movement, it had spread all over the country and massive crowds were carrying out processions and meetings in support of the movement in a disciplined manner. The scenes on TV channels reminded people of the freedom movement, which had proved the immense power of peaceful disobedience.

The spread of the movement had left the government stunned and nervous. It made haste in conceding to the demand of a joint drafting committee, on which there would be an equal number of government and civil society nominees. Earlier, this demand was being called totally unconstitutional.

The government was so worried that it perhaps would not have hesitated to declare an emergency if it felt it could suppress the movement by doing so. However, the 44th Amendment came in its way. It could neither make arbitrary arrests nor ban public meetings nor muzzle the loud exposure of large-scale corruption. There indeed was a clear realisation that the 44th Amendment had made the country emergency-proof.

The writer, a senior advocate at the Supreme Court, was Union law minister from 1977-79