The darkest day in our democracy

A Constitutional Bench on April 28, 1976, held that common man can’t claim right to live during Emergency

However good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the workings of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics — Dr B R Ambedkar

Forty years have elapsed since the apex court denied the fundamental right to live during emergency, while adjudicating the Habeas Corpus Petition moved by the Additional District Magistrate against Shivkant Sukla on April 28, 1976. Four of the five judges on the constitutional bench agreed with the argument of then Attorney General Niren Dey that the common man would have no right even to his life during the emergency. Thus the verdict was passed by the majority and that day is considered to be “the darkest day in our democracy.”

Justice Hans Raj Khanna was denied his promotion as the head of Supreme Court for his dissent and his junior Justice Mirza Hameedulah Beg was given the chance to be the Chief justice of India. Justice S Obul Reddy, the Chief justice of Andhra Pradesh High Court, Judges Chinnappa Reddy and Challa Kondaiah, who were said to have decided many cases with human touch and leftist ideology, were shifted from the State for a short time immediately after the proclamation of Emergency.

As many as 18 judges of nine High Courts in the country, (including Allahabad Andhra Pradesh, Chandigarh, Delhi, Karnataka, Madhya Pradesh, Madras and Rajasthan) who were instrumental in indicting the authority for ignominious actions under the guise of Emergency, were also transferred from their benches to other States, to teach a fitting lesson so that the judiciary could be in tone with the throne.

The press was also jeopardised with censorship, and the arrest of veteran journalist Kuldip Nayar under MISA on 24th July, 1975 showed the wrath of the rulers against the media. However Nayar was released by the government, a day before the judgement was pronounced on the appeal by his wife Bharathi against the government for misusing MISA, with a hope that the action would be condoned by the court.

But the two judges on MISA bench of the Delhi High Court were punished for pruning the official action. While Justice S Rangarajan was shifted to Assam, additional judge R N Agarwal was demoted to the post of a District and Sessions judge of Delhi, with a phone call from Prime Minister’s Office, alleging that the two had leanings towards right-winged RSS.

It is to be remembered that curtailing civil rights guaranteed by the Constitution began from the very first year of its commencement. The first amendment to the Constitution was aimed at cutting down the right to property, which came into question through the case of Shankari Prasad Singh Deo decided on 5th of February, 1951.

However the very first constitutional bench comprising Justice Harilal Jaikisandas Kania, the first Chief Justice of India, and others pronounced that it is the prerogative of the parliament to go for amendments to the Constitution and the court could only say whether the act was constitutionally valid or void. The judgement was taken as if granted for the government's authority to amend at its will.

But Justice Janardhan Raghunath Mudolkar in the case of Sajjan Singh in 1964 felt that amendments to curtail or take away the rights guaranteed by the Constitution should be examined carefully whether such amendment would be in a sense rewriting the entire Constitution. A majority of 6 to 5 on the constitutional bench comprising Chief Justice Koka Subbarao and 10 others in the Supreme Court in the appeal related to Golaknath in 1967 felt that the power of Parliament was limited in amending the Constitution and it could not curtail the civil rights.

But the government had gone ahead with 24th amendment to the Constitution without heeding the advice of the apex court. The government tried to show that the Parliament is above the Judiciary by going ahead with 26th amendment after the court's judgement in privy purse bill. But the apex court had once again concluded in Kesavananda Bharatiar Swamigal case in 1973 , by a majority of 7 to 6, that the parliament could not deface the basic structure of the Constitution.

Irate with the judgement in Keshavananda Bharati case, within two days Indira Gandhi elevated Justice Ajith Nath (AN) Ray, who was in line with the her voice, to the seat of Chief Justice by ignoring three other seniors to him. Infuriated with this indignity to the judiciary, legal fraternity throughout the country agitated for a long time, but in vain.

Commenting on this ill-treatment to the judicial system, Justice Hidaythullah, the only person in the country to hold the highest positions like the Chief Justice of India, acting President of India and Vice President as well as the Speaker of Lo Ssabha, remarked that "this was an attempt of not creating 'forward-looking judges' but the 'judges looking forward' to the plumes of the office of Chief Justice.” Indira Gandhi continued the same stand of revenge against Hans Raj Khanna also.

The common man clamoured till the dictator was down in 1977 General Elections and democracy restored with the assent of Janata Party headed by Morarji Desai, which had passed the 43rd and the 44th Amendments to the Constitution to nullify the misinterpretations. The freedom has provided the spirit for redress.

It is evident from the remorse of Justice Prafullachandra Natwarlal Bhagawati (who was later elevated to the position of Chief Justice of India and considered to be instrumental in providing measures for public interest litigations in judicial system and also a member on the trust board of Shri Puttaparthi Satya Saibaba) on his judgment in ADM Jabalpur versus Shivkant Sukla, after 35 years. Later many cases were disposed with the true spirit of the Constitution.

However we cannot rule out a dreadful situation like that of an emergency even after so many years in spite of several safeguards provided in the Constitution, because almost all the dictators like Hitler, Mussolini, Indira Gandhi were groomed from the dais of democracy only and they could take any event to their advantage by preaching the precepts of progress to dupe the majority among the poor to their side.

Here, it is better to keep the words of Dr B R Ambedkar, who warned at the concluding session of the constituent assembly on 25th November 1949. Ambedkar cautioned that “however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot.

The working of a Constitution does not depend wholly upon the nature of the Constitution. The Constitution can provide only the organs of State such as the Legislature, the Executive and the Judiciary. The factors on which the workings of those organs of the State depend are the people and the political parties they will set up as their instruments to carry out their wishes and their politics.” (The author is a freelance journalist. He can be contacted on email: [email protected])

By K B Rammohan