Emergency: SC corrects itself after 3 decades

The Supreme Court of India in January 2011 admitted that its decision during the Emergency was erroneous and violated the fundamental rights of a large number of people in the country. The bench referred to the majority decision of the Constitution Bench of Supreme Court in 1976, which became infamous as the Habeas Corpus case, in which four judges went with the then Congress government view that even the right to life stood abrogated during the Emergency

BJP’s all-time great and popular leader L K Advani is of the opinion that India’s political system is still to come to terms with the Emergency and a similar suspension of civil liberties could not be ruled out in the future. He further said that in the years since the Emergency in 1975-77, nothing has been done that gives an assurance that civil liberties will not be suspended or destroyed again.

A similar opinion was expressed by the Supreme Court of India in January 2011, wherein it admitted that its decision during the Emergency was erroneous and violated the fundamental rights of a large number of people in the country. The bench referred to the majority decision of the Constitution Bench of Supreme Court in 1976, which became infamous as the Habeas Corpus case, in which four judges went with the then Congress government view that even the right to life stood abrogated during the Emergency.

The bench also pointed out that it was Justice H R Khanna who rightly gave a dissenting judgment by holding that issue of writs of Habeas Corpus by High Courts was an integral part of the Constitution and no power had been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of Habeas Corpus during the period of emergency. The Supreme Court of India, the highest judicial body established by the Constitution, is the guardian of the Constitution and the highest court of appeal.

However, during the 1975-1977 Emergency, the constitutional rights of imprisoned persons were restricted under the preventive detention laws. In a Habeas Corpus case, a bench of five senior most judges of Supreme Court – Justices A N Ray, P N Bhagwati, Y V Chandrachud, and M H Beg – ruled in favour of the State's right for unrestricted powers of detention during the emergency, while the only dissenting opinion was from Justice H R Khanna.

Justice Khanna said that detention without trial was an anathema to all those who loving personal liberty. A dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may be possible to correct the error into which the dissenting Judge believes the court to have been betrayed. This dissent opinion did cost him the Chief Justice-ship of India.

Justice Khanna remains a legendary figure among the legal fraternity in India for this decision. In fact, the dissent of Justice Khanna became the law of the land when, by virtue of the 44th Constitutional Amendment, Articles 20 and 21 (personal liberty) were excluded from the purview of suspension during the Emergency. The background of this was that, on June 25, 1975, the President declared that a grave emergency existed whereby the security of India was threatened by internal disturbances.

The President also declared that the right of any person to move any court for the enforcement of the rights conferred by the Constitution shall remain suspended during the period of Emergency. Petitions came up for hearing, by the issuance of a writ of Habeas Corpus , claiming that the petitioners had been deprived of their personal liberty in violation of the procedure established by law, which was available to them under the Constitution, in view of the Presidential order dated June 27, 1975, suspending the right to move for enforcement of the right conferred by the Constitution. High Courts took different views.

The matter was brought before the apex court. The Supreme Court majority order said that in view of the Presidential order, no person had any locus stand to move any writ petition before a High Court for Habeas Corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order was not under or in compliance with the Act or was illegal or was vitiated by mala fides factual or legal or is based on extraneous consideration. Maintenance of Internal Security Act was held as constitutionally valid.

After three-and-a-half decades, the Supreme Court admitted that the same apex court violated the fundamental rights of a large number of people by endorsing Emergency during the Indira Gandhi regime. Fundamental rights is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, freedom of association and peaceful assembly, freedom to practise religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as Habeas Corpus .

The fundamental rights are defined as basic human freedom which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. The development of constitutionally guaranteed fundamental human rights in India was inspired by historical examples such as England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man. Let us hope that such dark days of Emergency will never be repeated again! Let us hope that governmental and non-governmental human rights’ bodies are alert all the time to safe-guard the rights of citizens. Let us also hope that Advani’s fears will not become true.

By Vanam Jwala Narasimha Rao