Opinion Emergency’s useful scars

The Justice J.C. Shah Commission report, today all but forgotten, on the Emergency’s excesses should be compulsory reading in our schools and colleges, for our political parties and leaders. It gives us a full judicial picture of how despotic power can be constitutionally acquired, and how dictatorial powers are actually misused.

While the political detention of party members, leaders, students and related others was repressively commonplace, a recent study of the “scrutiny” files of detention suggests that it was more frequent in the south (321 of 477 in Karnataka, 709 of 1,017 in Tamil Nadu). A non-political approach dominated many states (Uttar Pradesh recorded only 19.5 per cent politically motivated detentions (1,405/7,185), and 25.4 per cent in Bihar (593/2,333). Most detentions were for “general types of criminal and antisocial behaviour, or any behaviour that would bring individuals into conflict with the district magistrate”. “It is impossible to escape the conclusion,” writes political scientist Alexander Lee, “that the district officials were detaining people simply for making their job more difficult,” suggesting as more probable the thesis that for the bureaucracy, the Emergency was more a liberation than an imposition.

The Shah Commission also found that the target of 4.3 million sterilisations set by the government of India was exceeded by 190 per cent. And despite Emma Tarlo’s anthropological study, the lament is sadly true that the troubled relation between gender and power has yet to be fully studied; the acute and tragic enormity of this cruellest experiment at governance is perhaps best understood by reading Rohinton Mistry’s A Fine Balance and Mahasweta Devi’s short but haunting Draupadi. And today, under the rubric of “development”, we continue to invent new forms of the biopower and biopolitics that began with the Emergency.

No constitution or country is emergency-proof. That is the message of recent history, from the Czech Republic to the Arab Spring. India is exceptional among the global South because it has had only the experience of internal emergency from June 1975 to March 1977. The Emergency was terrible, but the scars it left were also useful. It radicalised the middle classes as no other event since Independence did. This “never again” syndrome was a great gain of the Emergency. Not that we did not have it

before, but investigative journalism and a media that dares to speak truth to power were truly born in the aftermath of the Emergency. Ramnath Goenka personified the freedom of the media and gave a timeless motto to The Indian Express because the “truth concerns us all”.

A determined political class, most of which was imprisoned then, enacted the 44th Amendment to the Constitution, which ensured that the fundamental rights of the people could not be completely submerged, or trampled, by a proclaimed state of emergency. There was an attempt to outlive the shame of ADM Jabalpur vs Shivkant Shukla, which repudiated nine high court rulings that had restored some core human rights to detainees. The Praful Bhagwati era witnessed a truly charismatic moment in social action litigation, and the Supreme Court of India became the Supreme Court for all Indians. And Justice Krishna Iyer (who famously refused to stay the order unseating Indira Gandhi) insisted that we must take human and social suffering seriously if we are to take human rights seriously.

Human rights and social action movements began to flourish, and vigorous dissent became the norm. Soon, it wasn’t merely the demosprudence (democracy-reinforcing) justices who wished to be counted among the defenders of democracy, but noted lawyers also espoused the pursuit of human rights as a good governance project. Two founders of this shift should at least be recalled: Gobinda Mukhoty (PUDR) and V.M. Tarkunde (PUCL). Rajni Kothari, joined by other stalwarts, tried to formulate a new agenda for India. We must pause to recall that every activist judge and social activist remains a lineal descendent of Jayaprakash Narayan, whose Total Revolution movement and well-guarded call to the police and army not to obey manifestly unjust orders apparently triggered the Emergency.

The Emergency is the vast graveyard of many a reputation, some unjustly so. The uncouth practices of competitive politics — either you are for us or against us — that make truth ultrahazardous have developed much since then. We need to keep at bay the assassins of memory, even while keeping alive the sins of memory.

Milan Kundera said that the struggle of men (and I add women) is a struggle of memory over forgetfulness. On the contrary, public memory is not short; rather, it is made short by the forces and practices of domination, which equate power with control over public memory and its reorganisation to suit the ends of governance and development. If so, a prime task of the people’s struggle is to recover the embodied memory and reflexively learn from the misery, and the tyranny, of the time.

The writer is emeritus professor of law, University of Warwick