The recent letter written by 600 lawyers to the Chief Justice of India expressing their “deepest anguish” about the manner in which a “vested interest group” was trying to pressure the judiciary and defame courts on the basis of “frivolous logic and stale political agendas” could not have come at a more appropriate time.
With so many politicians facing the heat because of corruption cases, the signatories to the latest missive to the Chief Justice refer to the “antics” of this group and caution him of the pressure tactics that are most obvious in cases involving corruption and tend to “threaten our democratic fabric”.
Taking a cue from the letter by these lawyers, Prime Minister Narendra Modi tweeted to say: “To browbeat and bully others is vintage Congress culture.” Five decades ago, they had themselves called for a committed judiciary—“they shamelessly want commitment from others for their selfish interests, but desist from any commitment towards the nation.” This may sound harsh to the uninitiated, but for those who have lived through the dreadful Emergency (1975-77), this would be nothing more than a mild admonition.
The prime minister’s tweet has indeed triggered a flashback to some appalling events in the 1970s that undermined the judiciary and virtually rendered it incapable of performing its fundamental duty to uphold the constitution at that time. The first of these was former prime minister Indira Gandhi’s decision to supersede three judges of the Supreme Court—Justices K S Hegde, J M Shelat and A N Grover—in order to make A N Ray the Chief Justice.
The then chief justice, S M Sikri retired on April 25, 1973, a day after the historic judgement in the Kesavananda Bharati case, in which the majority declared that parliament cannot alter or abridge the “basic structure” of the constitution. Indira Gandhi was furious with this judgement because it constricted the party’s plans to bring in major amendments. So, the three judges were accorded “swift punishment” via supersession on April 26 and Justice Ray, who did not subscribe to the majority decision, was elevated.
The ruthless supersession of three eminent judges had obviously sent its message, as could be seen in the court’s majority decision in ADM Jabalpur vs Shivkant Shukla (also known as the Habeas Corpus case). This case arose when Indira Gandhi imposed the Emergency on June 25, 1975, and got the president to pass an order suspending all fundamental rights including the right to life and personal liberty (article 21).
This led to a string of petitions challenging the presidential order, all of which were bunched together and heard by a Constitution Bench of the Supreme Court headed by Chief Justice Ray and comprising Justices H R Khanna, M H Beg, Y V Chandrachud and P N Bhagwati. Attorney General Niren De told the court that so long as the Emergency was in force, no citizen could seek enforcement of the right to life and personal liberty.
Justice Khanna recounts in his autobiography Neither Roses nor Thorns that the other judges on the bench, who used to be vocal about human rights and civil rights, “were sitting tongue-tied” and hearing Niren De in silence, which seemed “rather ominous”. He, therefore, decided to confront the Attorney General and asked him in view of his arguments, would there be no remedy if a police officer, because of personal enmity, killed another man.
The Attorney General was absolutely candid in his reply. He told the court that “there would be no judicial remedy in such a case so long as the Emergency lasts”. Further, he told Justice Khanna, “It may shock your conscience, it shocks mine, but consistent with my submissions, no proceedings can be taken in a court of law on that score.”
However, though it shocked the conscience of the Attorney General, it did not prevent the majority on the bench to deliver what was clearly an unconscionable judgement and declare that citizens had no right to life and personal liberty during the Emergency! Justice Beg even went so far as to ask why those thrown in jail were complaining when they were “well-fed and well-treated” and the care bestowed on them was “almost maternal”.
Only Justice Khanna dissented. Though he was the senior-most judge after Chief Justice Ray, the Indira Gandhi government superseded him in January 1976 and appointed Justice M H Beg as the Chief Justice.
Justice Beg was succeeded by Justices Chandrachud and Bhagawati. Thus, all judges who declared that citizens had no right to life and personal liberty went on to occupy the highest judicial office in the country.
In November 1976, the Congress with its massive majority brought in the obnoxious 42nd Amendment that sought to snuff out judicial independence and pave the way for a full-fledged dictatorship. Here is a glimpse of what senior members of the Congress Party had to say about the judiciary at that time:
C M Stephen: Now the power of this parliament (through the 42nd Amendment) is declared to be out of bounds for any court. It is left to the courts whether they should defy it. I do not know whether they will have the temerity to do that but if they do … that will be a bad day for the judiciary. The committee of the House is sitting with regard to the enquiry into the conduct of judges. We have got our methods, our machinery.
Has anyone come across a more blatant threat held out to the judiciary by a member of a ruling party in a democracy? But there is more.
Swaran Singh: Unfortunately, the courts transgressed the limits prescribed for them. It is a crude sort of invasion.
N K P Salve: In the life of every nation … there comes a time when the constitution has to be saved from the court and the court from itself.
In recent times, having got a severe drubbing at the hustings in 2014 and 2019, the Congress is desperately trying to cajole, threaten and manipulate institutions including the Supreme Court to try and remain relevant. But one should never forget or forgive those who turned India into a fascist state during the 1970s. More importantly, does it lie in the mouth of those associated with such a party to claim the right to defend democracy? In other words, can the pall bearers of democracy in the 1970s have the luxury of pretending to be its standard-bearers in 2024?
(Views are personal)
(suryamedia@gmail.com)
A Surya Prakash | Vice-Chairman, Executive Council, Prime Ministers Museum and Library, New Delhi