Lest We Forget the Fraudulent Emergency's Opression by Law

Published: 28th June 2015 06:00 AM  |   Last Updated: 28th June 2015 07:39 AM   |  A+A-

It is incredible but true that Indira Gandhi, daughter of the great democrat Jawaharlal Nehru, imposed a fraudulent Emergency on the country on the specious ground that the country’s security was threatened by internal disturbance. In its wake, a virulent pre-censorship order was passed and there were massive arrests of political opponents. More incredible but true was the Supreme Court judgment ruled by a majority, which included Justices Chandrachud and Bhagwati, that a detenu was without any legal remedy even in case of a proven mala fide order of detention. It was nauseating that some public men and even proprietors of newspapers were singing the virtues of Emergency. A redeeming feature was the brilliant and courageous dissent of Justice H R Khanna who declared that the Rule of Law prevailed even during an Emergency. Justice Khanna was conscious that his dissent would deprive him of the office of Chief Justice of India and that did happen when the vindictive Indira Gandhi government superseded him. Mrs Coomi Kapoor’s recent book, Emergency, a Personal History, vividly recounts the horrors during the period of Emergency, when democracy suffered a temporary demise in our country till the revocation of Emergency. A salient feature of Kapoor’s book is the naming and shaming of protagonists, who did not object to the transformation of the Rule of Law into oppression by law.

Justice H R Khanna.jpgResignation Chorus: There should be some clarity about the situations in which politicians and persons holding public offices should tender their resignations. Levelling of accusations without more is no ground for resignation. Otherwise there would be resignations galore and resultant mass vacancies. An adverse finding or even a clear-cut obiter observation by a court of law or a competent judicial tribunal, which makes it untenable for the concerned person to remain in office, in that event resignation should follow unless the said finding has been stayed by an appellate court. The crux of the matter is that Caesar’s wife should be above suspicion to ensure public confidence in the probity of administration. Public confidence is essential and perceptions do matter.

Our political and public scene has of late been dominated by high profile women leaders. Leading the flock is Vasundhara Raje, the Chief Minister of Rajasthan, whose assistance to Lalit Modi, an unsavoury character, is likely to cause a ruckus in the next session of Parliament. Next in the line is our versatile External Affairs Minister Sushma Swaraj for her action in requesting the UK government to give Lalit Modi, according to the applicable rules and regulations, travel documents on humanitarian grounds to visit his wife who was receiving medical treatment for cancer in Portugal. Ex-facie Swaraj’s action is not blameworthy, and demands for her resignation are clearly politically motivated. Smriti Irani is needlessly embroiled in controversies about her academic qualifications and degrees. Ultimately, it depends on the conscience of the person concerned provided of course she or he makes conscience the guide and not an alibi.

Ban on Entry of Foreign Lawyers: In my conversation with English lawyers and academicians, one point which constantly recurred was the refusal of the Bar Council of India (BCI) to permit foreign lawyers to practice in India even on a reciprocal basis. The BCI’s view is that foreign lawyers cannot be allowed even to chip in for seminars and conferences or on ‘fly in and fly out’ basis as that would be detrimental to Indian lawyers. According to the spokesperson for BCI, a foreign law firm has to fulfil the requirement of being enrolled as an advocate under the Advocates Act, 1961. The arguments apparently are not convincing. It appears that the real reason is fear of competition from foreign firms and foreign lawyers. Surely, the Indian bar is capable of withstanding their competition. It is encouraging that the Centre has asked BCI to come out with rules, norms and guidelines on allowing foreign law firms to enter India on reciprocal basis.

Sorabjee is a former Attorney General of India


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