Huan, TS LAW ‘THIRD INTERNAL EXAMI ATION Emergency is often labelled as one of the most debated and unfortunate episodes in the history of independent India. The people’s faith and trust in the reigning party at the centre was absolutely annihilated, despite its nearly twenty-one month long stay in power. There were major curbs imposed over the civil liberties and human rights during the entire emergency period in India. It included forceful exclusion of people from private properties, searching of houses without warrants, killing people with ‘suspicion’ without any trial and many other such. practices which were certainly not democratic. During the period there was a severe threat imposed over press and media as well and there were censorship clouds that were looming large over any organization who was reporting against the presiding government. Article 352 of our constitution provides for a declaration of emergency. Under Article 358, on a declaration of emergency, the fundamental rights guaranteed by Article 19 stand suspended. Furthermore Article 359 of the Constitution, as originally enacted, provided that when a Proclamation of Emergency was in operation, the enforcement of any fundamental right may be suspended by the issue of a Presidential Order. Regional and international instruments of human rights also reflect the same trend. For example, Article 15 of the European Convention on Human Rights (ECHR)! permits the Contracting States to take measures derogating from their obligations under the Convention in respect of the guaranteed fundamental freedoms in time of war or other public emergency threatening the life of the nation, Article 4of the Intemational Covenant on Civil and Political Rights of 1966 (ICCPR)? provides for suspension of the human rights guaranteed by the Government in time of public emergency, which threatens the life of the nation. At the same time, it is also recognized that there are certain basic human rights, which cannot be suspended during any kind of emergency, be it war or armed rebellion or civil insurrection. These rights are so basic that to suspend them destroys the basis of a civilised State and the Rule of Law. Indeed, they are so fundamental to the human personality that without them * Convention for the Protection of Human Rights and Fundamental Freedoms, Rome ( 4% November, 1950). 2 Article 4 - In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve Furthermore, certain rights have no real nexus with the purpose of the emergency in the sense that their suspension does not facilitate or advance the achievement of the objective of the emergency and therefore their suspension is unnecessary. For example, for effective prosecution of war or for quelling an armed rebellion it is not necessary to suspend the ‘guarantee of immunity from imprisonment for inability to fulfil contractual obligations. In the year 1949, the doctrine that certain basic human rights cannot be suspended was not articulated in human rights instruments. Yet that was precisely what some of our founding fathers projected in the debates in the Constituent Assembly relating to emergency provisions, Draft Article 280 corresponding to present Article 359 of the Indian Constitution which empowers the President to issue an order suspending the enforcement of all or any of the fundamental rights, came in for severe criticism because it is not necessary that, when a Proclamation of Emergency has been issued by the President, all the fundamental rights should be suspended. This received severe backlash from many members of the Assembly. However, this opposing view did not prevail and the view supporting the emergency provisions deftly blunted them by conceding that there are rights that do not need a suspension during the period of war. Such rights will not, and cannot, be suspended. He argued that instead of singling out particular clauses, it is left to the President, who without a doubt would act in a reasonable and proper manner, not in a spirit of vandalism against the fundamental rights guaranteed to the citizen in the Constitution. ‘The warnings which fell on deaf ears in 1949 were painfully realized when emergency was declared on 26 June, 1975 on the pretext that the security of India was threatened by internal disturbance. The hardest knock came most unexpectedly from the Supreme Court. In its decision in Habeas Corpus Case* delivered on 28 April, 1976, the Court by a majority of 4 to 1 (Justice Khanna dissenting), ruled that once there was a Presidential Order under Article 359 suspending the enforcement of the fundamental rights to life and liberty guaranteed by Article * Kesavananda Bharati v, State of Kerala; AIR 1973 SC 1461 “ADM Jabalpur v. Shivkant Shukla; AIR 1976 SC 120721 a person who is deprived of his liberty by a detention order, even though it was passed mala fide, could not approach the Court for redress. During the 1971 Parliamentary elections, Indira Gandhi had defeated Raj Narain from the Rac Bareli constituency, who subsequently had filed a petition in the Allahabad High Court accusing Indira Gandhi of electoral malpractices, On June 12, 1975, Justice Jagmohanlal Sinha found the Prime Minister guilty of misuse of the government machinery during her election campaign and declared her election null and void and also barred her from contesting an election for the next six years. The court, however, gave the Congress 20 days to find a replacement to Gandhi as Prime Minister. Indira Gandhi, then, moved the Supreme Court against the verdict. On June 24, the Supreme Court granted her a partial stay on the High Court order ~ till her appeal was decided and that she could remain an MP but could not take part in the proceedings of the Lok Sabha. The government responded to the June 25 strike by declaring a state of emergency that night itself. According to the government, there was a threat of internal disturbances and said a grave crisis had arisen which made the proclamation necessary. President Fakhruddin Ali Ahmed declared a state of internal emergency upon the Prime Minister’s advice on the night of June 25, 1975, just a few minutes before the clock struck midnight, Post-midnight, the electricity to all the major newspaper offices were disconnected and were restored only two to three days later after the censorship apparatus had been set up. On June 26, a large number of opposition leaders and workers were arrested, The Union Cabinet was only informed about it at a special meeting at 6 am after all this was over. s soon as the national emergency was proclaimed by the President of India, all the powers were concentrated in the hands of the Union government. ‘The government assumed mammoth power and restricted the fundamental rights of the citizens during the period. The press was kept under duress. All newspapers needed to get prior approval for the articles to be published. The Union government further banned the Rashtriya Swayamsevak Sangh (RSS) and the Jamait-e-Islami. Moreover, the Constitution was amended in an autocratic manner, particularly in the 42nd amendment as the government enjoyed a huge majority in parliament, In the background of the Allahabad High Court verdict, an amendment was made declaring that elections of Prime Minister, President and Vice-President could not be challenged in the Court. Apart from this, Sanjay Gandhi, who did not hold any official position at the time gained control over the administration, In the conclusion of his Making of India's Constitution, Justice Khanna writes:If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees, and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. The imbecility of men, history teaches us, always invites the impudence of power. A fallout of the Emergency era was the Supreme Court laying down that, although the Constitution is amenable to amendments (as abused by Indira Gandhi), changes that tinker with its basic structure® cannot be made by the Parliament.” In the Rajan case, P. Rajan of the Regional Engineering College, Calicut, was arrested by the police in Kerala on Ist March, 1976, tortured in custody until he died and then his body was disposed of and was never recovered. The facts of this incident came out owing to a habeas corpus suit filed in the Kerala High Court.* Many other cases where teenagers and youth were arrested and imprisoned had also come to light. In September 1976, Sanjay Gandhi initiated a widespread compulsory sterilisation programme to limit population growth, The exact extent of Sanjay Gandhi's role in the implementation of the programme is disputed, with some historians holding Gandhi directly responsible for his authoritarianism, and many others blaming the officials who implemented the programme rather than Gandhi himself. Nonetheless, the bad publicity that the centre received by this drive led every government since 1977 to stress that family planning is entirely voluntary. In essence, the criticism and accusations from the Emergency era may be grouped as: * Detention of people by police without charge or notification of families © Abuse and torture of detainees and political prisoners © Use of public and private media institutions, like the national television network Doordarshan, for government propaganda © Forced sterilisation, S H.R. Khanna, MAKING OF INDIA'S CONSTITUTION, Eastern Book Co, Lucknow (1981), 6 Supra at 3 ? Aravind P Datar, The Case that Saved Indian Democracy, The Hindu (24% April, 2013) “TV. Eachara Varier v. Secretary to the Ministry of Home ASfairs, Government of Kerala, 1977 K. L. T. 335; K. Karunakaran y. T V Eachara Warrier, 1978 AIR 290; 1978 SCR (2) 209; 1978 SCC (1) 18; See also T.V. Eachara ‘Varier, Memories of a Father (2004)* Destruction of the slum and low-income housing in the Turkmen Gate and Jama Masjid area of old Delhi * Large-scale and illegal enactment of new laws (including modifications to the Constitution), As Mr. Soli Sorabjee has rightly stated, it should never be forgotten that the ultimate justification for an emergency in a democratic State is to enable it to preserve vital values of a democratic society temporarily endangered on account of unexpected situations of exceptional gravity. Emergency cannot be declared for undermining the basis of democracy. The Rule of Law is an indispensable feature of democracy. In the absence of the Rule of Law. Lawlessness predominates, especially government lawlessness, when there is no authority to question government's action, no mechanism to control it and no institution to make it accountable and. to check its excesses. However grave the emergency, it should always be remembered that there exists an inseparable bond between legality, democratic institutions and the Rule of Law. Once that bond is severed, all ties with decent, civilised life have been severed and human beings become devoid of humanity. He further adds that rights without remedies are worthless. It is of paramount importance that the right to judicial remedies and especially the writ of habeas corpus must not only be guaranteed be the Constitution but should also be made expressly non-suspendable during emergencies, The immense value of habeas corpus, cannot be over-estimated and its availability during an emergency is indispensable. This will ensure effective supervisory jurisdiction by a competent court of law to determine whether detention is legal and valid, It should also enable the production of detainees before the court, which will go a long away to prevent torture, degrading and inhuman treatment and other physical or psychological abuses to which detainees are usually subjected.