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Tuesday, July 07, 2020

When the pillars of democracy were shaken

Indira Gandhi’s Emergency was an assault on the legislature, judiciary and media. It was against the Constitution.

Written by Gaurav Bhatia | Updated: June 25, 2020 8:14:02 pm
emergency 1975, indira gandhi, Coronavirus Pandemic, Covid impact on economy, print media, Fakhruddin Ali Ahmed, Coomi Kapoor opinion, Prime Minister Indira Gandhi addressing the nation from the Doordarshan studio during Emergency. (Express archive)

The Emergency destroyed the light of freedom and democracy in our country, impinging upon the rights of the citizens. It marks the darkest moment of Indian democracy. On the intervening night of June 25-26, Indira Gandhi, the then Prime Minister of India, invoked Article 352 of the Constitution and declared National Emergency.

The trigger to invoke Emergency was an order of June 24, 1975, passed by Justice V R Krishna Iyer, judge, Supreme Court of India. The judge did not grant a blanket stay of the impugned judgment delivered by Justice Jagmohanlal Sinha of the Allahabad High Court, setting aside the election of Indira Gandhi.

He granted only a partial stay and limited relief to Indira Gandhi, allowing her to sign the register kept in the House and attend sessions of the Lok Sabha. But she was disallowed from participating in any proceedings of the lower house and was debarred from voting or drawing any remuneration in her capacity as an MP.

The Emergency era witnessed Indira Gandhi in her dictatorial and self-serving style brutally assaulting the four pillars of Indian democracy.

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On June 25, Indira Gandhi unilaterally declared Emergency and she addressed the nation at 8 am the following day. She informed a shocked nation that Emergency has been declared due to “internal disturbance” and there was nothing to panic about. To use the words of L K Advani, the weak Indira cabinet when asked to bend, gleefully crawled. The meeting lasted for 15 minutes and the issue of the proclamation of Emergency was neither deliberated upon nor were the cabinet members allowed to discuss it. They were merely informed about the decision. The historical blunder was justified citing “internal disturbance” in the country when there was dissatisfaction amongst the masses.

The Congress tried to spread the propaganda that Indira Gandhi is indispensable to the country in their belief that she was above the Constitution. Slogans like “Indira is India and India is Indira” were coined by loyalists. It was made to appear that she is not to serve the Constitution, rather the Constitution is to serve her and the family.

In our parliamentary democracy, the Constitution is supreme — the legislature, executive and judiciary are a creation of the Constitution. During the disturbing times of Emergency, the legislature failed to perform its function as per the mandate of the Constitution.

Opinion | Those who have not seen the dark side of dictatorship, don’t truly appreciate the value of freedoms today

Around 1,10,000 citizens of our country were illegally detained and not even informed about the grounds of their detention. Almost all political leaders from the Opposition were put in prison.

The detention of these opposition members was done for a sinister purpose — to drastically reduce the participative strength of Parliament. After reducing the sitting strength, self-serving unconstitutional amendments amending the Constitution were introduced by Indira Gandhi and were passed by a fraudulent two-thirds majority of the present and voting members.

Such was the subservience of MPs from the Congress that they violated their oath to serve the Constitution and spinelessly served Indira Gandhi. During this period, Indira Gandhi brought the 42nd amendment to the Constitution, extending the term of the elected parliament to six years, which was violative of Article 83(2), mandating a term of five years for the Lok Sabha. The 42nd Amendment was later revoked by way of the 44th Amendment in 1978. It remains the only instance when a Parliament term was extended, ignoring the will of the people.

The Constitution and the Representation of People Act, 1951 were also amended with retrospective effect so that the grounds on which Raj Narain succeeded before the Allahabad High Court are not available to him against Indira Gandhi.

Opinion | It is unlikely that Emergency will return, but eternal vigilance is the price for freedom

The judiciary, the guardian of the Constitution, was also made subservient to the executive.

In the appeal filed by Indira Gandhi before the Supreme Court, just before the matter was to be heard, the then Law Minister H R Gokhale brazenly called Justice V R Krishna Iyer, who was to hear the matter and requested a personal audience. Justice Iyer politely inquired about the purpose of his visit, upon which the then Law Minister being frank and expecting an audience, told Iyer (as per his memoirs) that he wanted to discuss the case with him. The judge, upholding the doctrine of separation of powers, refused to meet the law minister.

By way of the 42nd amendment, the order of detention was placed beyond the scope of judicial review. The judiciary was at its weakest during this time. The citizens challenged illegal detentions in various high courts of the country. The high courts of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Haryana and Rajasthan upheld the spirit of the Constitution and held that even during Emergency, when Article 359 is invoked and the enforcement of fundamental rights is suspended, a detenu has the right to move the court.

April 28, 1976, can be termed as the darkest day for the Indian judiciary. A constitution bench comprising five judges of the Supreme Court in ADM Jabalpur vs. Shivkant Shukla reversed these pro-liberty judgments given by various high courts and held that “Liberty is the gift of law and can be forfeited by Law”.

Opinion | The unsung heroes of the Emergency

The sole dissenter judgment was Justice H R Khanna, considered by many as one the finest judges the country has ever produced. Justice Khanna held that even when right under Article 21 is suspended, the state has no power to deprive a person of his life and liberty without the authority of law. He was punished for not being committed to Indira Gandhi and for upholding the Constitution. Going against the established norms of appointing the senior-most puisne judge as the next Chief Justice of India, the government superseded him by Justice M H Beg.

Justice Khanna has been aptly rewarded by the citizens of the country and lives in the heart of every Indian as a saviour of democracy. His portrait hangs in court no. 2 of the Supreme Court, the court where he last presided. Every day, lawyers and litigants pay reverence to him for the exemplary courage he showed in protecting the rights of the common citizens of the country.

Even the media, the fourth pillar of democracy, was not spared from the autocratic functioning of Indira Gandhi. On the night of June 25, 1975, electricity supply to the offices of leading newspapers was withdrawn. This was done so that news declaring Emergency by Indira Gandhi does not reach the common citizens. Members of the censor board were stationed at the offices of all leading newspapers to dictate and monitor the content they publish.

The most important lesson learnt from the Emergency is that India as a democracy can only remain strong if we strengthen our constitutional institutions like Parliament, the Supreme Court, Election Commission of India and the PMO rather than sycophantically strengthening an individual or a family.

India has learnt that placing an individual above the country is detrimental to our democracy. Indian democracy under the leadership of Prime Minister Narendra Modi has set an exemplary precedent, showing how the three organs of democracy can function in complete harmony, despite differences, as their respective roles have been well-defined by the Constitution.

The writer is national spokesperson, BJP and Senior Advocate, Supreme Court of India

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