Emergency -- Darkest hour in India's judicial history

V R Krishna Iyer

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KOCHI, JUNE 26: Courts and judges played a significant role in the history of the Emergency. Two judges -- Justice V R Krishna Iyer and Justice Jag Mohan Lal Sinha -- were crucial to the imposition of the Emergency. Justice Sinha's (Allahabad High Court) verdict on June 12, 1975, declared Indira Gandhi's election to the Lok Sabha as void. Justice Iyer, then a vacation judge in the Supreme Court, decided on Indira's appeal. On June 24, Justice Krishna Iyer gave a conditional stay allowing her to remain a member of Parliament, but disallowing her to take part in the proceedings of the Lok Sabha. Indira Gandhi acted fast, the Emergency was declared on June 26. Justice Iyer, who is active in espousing public causes in his retired life in Kochi, looks back.

The era of Emergency, which was inaugurated by Indira Gandhi on June 25/26, 1975, was the darkest chapter in the democratic history of India (1991 to 2000 A D is the darkest economic decade). Several people are under the erroneous impression that my judgment in the stay petition following upon the invalidation of the Prime Minister's selection by the Allahabad High Court, is the `causa causans' of the mid-night proclamation of Emergency.Merely because one event follows upon another, you cannot read the former as the reason for the latter, that is the fallacy of linking up my refusal to grant unconditional stay of the High Court's order.

I gave the highest priority to the petition for stay, heard it without break on June 24 from 10 am to 5 pm and pronounced judgment the very next day at 3 pm. Simultaneously, I made copies of my order available free to every person who desired a copy. The Supreme Court staff did a blitz job in making a few thousand copies in the wee hours of the 26th morning. I refused the Prime Minister the right to vote in Parliament, I referred to the dharma of politics and insisted that equal protection of the law could not make a difference in favour of the Prime Minister, the great proposition being ``Be you ever so high, the law is above you.''

(Nani) Palkhiwala appeared for her and much later he told me when I met him as Ambassador in the US that Smt. Indira Gandhi was furious that I refused unconditional stay. A judge has to face crises and discharge his duty courageously. I did that and no more. Dharma and law, in the Indian context, have a common content. Being unhappy about the right to vote, the indignant prime minister apparently wanted to silence criticism or upheaval of opposition and in her myopic wisdom proclaimed Emergency, suspended Fundamental Rights and deprived the judges of even the highest court the power to protect the citizen against official violence and violation. Large numbers of people were taken into custody and detained in unknown places.

The Supreme Court heard arguments against the Emergency but the Attorney General Sri Niran De went to the extreme extent of justifying the Emergency. Even when a police officer maliciously shot dead an innocent man, the court had no power to interfere even in such a blood-thirstyoutrage. Alas, except Justice (H R) Khanna, the other four judges of the Bench upheld the Emergency with all its macabre implications. That was the darkest hour of the Supreme Court.

In the course of the arguments I was not on the Bench I happened to meet prime minister Indira Gandhi to request her to preside over the first V K Krishna Menon Memorial speech. She declined but agreed to sit through the speech of Jenney Lee, who came from England. I presided and in my address severely condemned the despotism implicit in the lawless proclamation. Some members in the audience later told me that she turned pale. In fairness, I must say that she sat through the meeting and made a brief speech without any critical reference to my condemnation of the eclipse of people's freedom. Later, I had occasion to criticise, by implication, the Emergency in my address at the Gandhi Peace Foundation which was well-received and copies of the speech went around the world.

In fairness to Indira Gandhi, I must say that when I met her for inviting her to preside (over the function), I told her how shocking the Attorney General's argument was that a man could be shot and the Court was impotent because of the Emergency. If the Dred Scctt case decided by the US Supreme Court upheld slavery, our court was in soulful company when upholding the Emergency. I reminded the Prime Minister about the mounting national tension and mentioned about Mujibur Rehman being assassinated in Bangladesh. I told her about the reckless detentions in Kerala and she told me she had a telegram from K N Raj to the same effect.

In the evening Om Mehta, the Home Minister, came to my residence at the instance of the prime minister to collect the names of persons who were unjustly detained. I gave the names of a few, including Kunjananthan (who worked in my chambers at Tellicherry and later was private secretary of EMS). I also mentioned the name of Gopalan Adiyodi, who was a simple lawyer and had a surgery just a week before. I later learnt that he was a RSS Sanchalak. Anyway, she complained against the unnecessary detentions in Kerala, and all the names I gave were set at liberty without delay.

Another shocking episode: Jayashuklal Hathi, a leading Congressman and Governor of Punjab and Haryana, mentioned to me how a chartered bus carrying professors for a seminar was diverted to a hospital and all the learned participants in the seminar were forced to undergo vasectomy despite their protest. These were orders perhaps from Sanjay Gandhi. The Governor was against it. Many women from villages fled to the hills for fear of the police carrying away people for sterilisation by force. There was a sense of terror throughout the country.

However, I did visit the Cannanore Central Jail during the Emergency and met the detenues. Few would have dared to do that at that time. Long later, when Indira Gandhi lost her election, I happened to meet her and she defended her son. I did not care to take part in that discussion because I felt that the court has blessed the Executive's order and the judges had nothing to be proud of vis-a-vis human rights.

A fitting finale of the Emergency was the stab on the independence of the High Court judges who were moved helter-skelter across the country. Perhaps out of vendetta but curiously with the concurrence, so I am told, of the Chief Justice of India.

Courtesy : Indian Express Newspapers (Bombay) Ltd.