By And Large Supreme Court Let Down Citizens During Emergency: Tushar Mehta Remembers Unsung Heroes Of Emergency
It was the High Courts of the Country which stood by the citizens during the Emergency declared by Prime Minister Indira Gandhi in 1975, said Solicitor General Tushar Mehta. "By and large, the Supreme Court of India has let the citizens down. We are not naming, we have the names, which bench did what, but that's not the purpose", said Tushar Mehta on Sunday.
He said that since the last decade, we are often hearing phrases like "majoritarian regime", "arbitrariness in governance", "no independence of judiciary", "interference of government in the functioning of judiciary" etc. He said that Lawyers must confront this kind of factually incorrect propaganda with legal logic. "The era of Emergency from 1975 to 1977 was definitely the darkest period in the history of post-independent democracy. It was just the climax. The abuse of the Constitution was not just during the Emergency, but it started much before", he said.
The Solicitor General was the keynote speaker on the subject, "Abuse of the Constitution During the Emergency" at an event organised by Young Lawyers for Democracy. Member of Parliament Tejasvi Surya was the Chief Guest at the event held in New Delhi.
Tushar Mehta spoke about the decision during the Emergency to "lock up the High Courts". He said that the then Minister of State for Home, Om Mehta overheard one gentleman directing to lock up the High Courts. "He meant it because every High Court was interfering. It came to the notice of Mr Siddhartha Shankar Ray, a very eminent Counsel himself and a very eminent politician, once upon a time the Chief Minister of Bengal, and he understood the seriousness of it and therefore he could prevent it. But Sanjay Gandhi rebuked him for having prevented them. Otherwise, there was a direction to lock up the High Courts", Mehta said.
He explained the constitutional amendments and the major judgments of the Apex Court from the period. He said that he wants to highlight some unsung heroes of the Emergency from the legal fraternity.
Unsung Heros of Emergency
Justice AP Sen
Tushar Mehta said that the judgment of the Apex Court in the ADM Jabalpur arose out of a Judgment of the Madhya Pradesh High Court where Justice AP Sen said that despite the existence of the Emergency, fundamental rights are not curtailed and you cannot deprive somebody of his personal liberty except in accordance with the law.
Justice Rangarajan and Justice RN Agarwal
Mehta spoke about the late Kuldeep Nayyar, who was a journalist during the Emergency and whose son Rajiv Nayyar is a Senior Advocate. "He was a very open critic of the government of the day and particularly Mrs Gandhi. He was detained. His detention came to be challenged before the High Court of Delhi and a bench consisting of Justice Rangarajan and Justice RN Aggarwal held in his favour that despite existence of Emergency, fundamental rights still exist and he could not have been arrested or detained except in accordance with law. What happened, Justice Rangarajan was immediately transferred to Guwahati High Court. The most unfortunate person is Justice RN Aggarwal. He was an Additional Judge....his High Court judgeship was not confirmed and he was demoted as a Sessions Judge. The real hero of Emergency", Tushar Mehta said.
Justice UR Lalit
Tushar Mehta also spoke about Justice UR Lalit, the father of previous CJI UU Lalit. Mehta said that while being an additional judge in the Bombay High Court Justice UU Lalit passed orders against illegal detentions during the Emergency and he was not confirmed as a permanent Judge. "As luck would have it, he shifted to the Supreme Court and flourished. He was one of the most eminent Counsels on the criminal side in the Supreme Court of India, but a victim of Emergency", Mehta said, adding that he was also the founding President of the Akhil Bharatiya Adhivakta Parishad.
The Bar During Emergency
Tushar Mehta also spoke about how the Bar acted during the Emergency and how the Judges were sympathetic to the Bar's fight against Emergency. He said that a conference was held in Ahmedabad under the chairmanship of the former Chief Justice of India Justice JC Shah, attended by none other than Mr MC Chagla and a course of action was planned on how to deal with the Emergency.
He narrated an incident In Bombay, where some Lawyers under the banner of the Committee of Lawyers for Civil Liberties wanted to organize a function in the Jinnah Hall and permission was denied by the government of Maharashtra. He said that a petition was filed by Soli Sorabji and the judge was "very very savage", referring to the judgment of Justice Tulzapurkar, who set aside the order denying permission. "Unfortunately, the matter was carried in the Supreme Court and not only the operative part was stayed, but even the Judgment was stayed. I understand the intention was that no other High Court follows suit because the Judgment itself is stayed", he said.
Solicitor General said that approximately 65 to 70 High Court judges were transferred during the Emergency "and the Chief Justice of India had no role except to sign the transfer orders when so instructed by the government", he said.
"Even in Delhi, Mr PN Lekhi was arrested. Justice Rama Jois was arrested. Importantly, about 200 lawyers were arrested and approximately 200 Lawyers' chambers in Tis Hazari Court were demolished, only because they were protesting against the Emergency", Tushar Mehta said.
"When we inherit freedom, we take freedom for granted", the SG said, adding that our generation inherited the "second freedom" from 1977.
He said that henceforth, whenever someone speaks about a majoritarian regime or danger to democracy or danger to the independence of the judiciary, there is sufficient material from the Emergency period to contradict them. "We are in the safest possible constitutional scenario and we are lucky citizens", he added.
During the question and answer session, while answering a question about the alleged low ranking of India on freedom of the press, he said, "So far as the present scenario is concerned, this was suggested by one of the Judges of the Supreme Court that according to one survey, India is slipping down the index, and my answer was that it depends upon which survey you are relying upon. The survey which puts India below Afghanistan speaks more about the survey's credibility than India".
Answering another question about freedom of speech alleged undeclared Emergency nowadays, he said, "You say Undeclared emergency. That's the impression which is given. I will give you one example. After the rule of Lenin and Stalin, Nikita Khrushchev became the President of Russia and he was narrating the ill deeds, the atrocities of Stalin, Lenin etc. Some young men got up and asked, why did you not do anything even though you were also a member of that very political party, are you not equally guilty? He said, my friend, you can ask me this question because there is no fear in your mind. I could not have asked that question because I would have been dead the next day".