UNDER MODI, CONSTITUTIONAL CHECKS AND BALANCES HAVE ERODED MORE
Most commemorate Emergency on June 26 as a reminder of the bleak 21 months when democracy was derailed. Actually, the Emergency came into effect on June 25 at 11:45 pm when the then President, Fakhruddin Ali Ahmed, signed the proclamation even though he was alerted by his secretary that it would be constitutionally untenable. The President is expected to act on the advice of the council of ministers. Indira Gandhi’s cabinet met next day at 6 pm as a formality.President Ahmed was the first in the chain of constitutional authorities and autonomous institutions in our democracy that caved in, betraying their oath of office and abandoning professional integrity. While holding Indira Gandhi, Sanjay Gandhi and his henchmen guilty for Emergency, we generally forget to apportion blame to the others who succumbed when push came to shove. Mrs. Gandhi’s cabinet fell in line without a murmur. In Parliament, the entire Congress party, barring two expelled dissidents, meekly raised hands to approve not just the emergency proclamation, but several illegal laws. Mrs. Gandhi demonstrated her contempt for Parliament by doing away with the question hour and calling attention motions, declaring that henceforth only important government business would be transacted.
The record of the courts, a major pillar of any democracy, was not quite as dismal. Nine high courts had the courage to strike down the draconian Maintenance of the Internal Security Act (MISA), as being ultra vires the constitution. Thousands were detained under MISA during the Emergency. Most of these judges were later penalized. But when the habeas corpus writ came in appeal before the Supreme Court (ADM Jabalpur vs. Shivakant Shukla) the senior most judges of the land let down the country. Of the five-judge bench, four upheld the Attorney General’s argument that a person has no legal rights, not even to be produced before the court or be informed of the reason for his detention, as long as Emergency is in force. The blemished four include two who projected themselves as champions of human rights and civil liberties.
The sole dissenter, justice H R Khanna, threw away his chance to be next chief justice. But if there’s one judge that the country remembers with pride from during the Emergency days, it’s Justice H R Khanna, whose dissenting note became the bedrock for post-Emergency civil liberty jurisprudence and expansion of rights.
LK Advani’s famous jibe at the media during the Emergency — “When asked to bend it chose to crawl” —was not untrue. True, censorship laws were in force, but where there was a will there was a way. The Indian Express was one of the rare exceptions which defied the censors frequently, especially after elections were called in January 1977. The Express founder, Ramnath Goenka, knew that he would have to forfeit his newspaper chain in case of Mrs. Gandhi returned to power, but he refused to bend.
Mrs. Gandhi imposed the Emergency as a sledgehammer. But dictatorship can also creep in slowly, silently and insidiously, without any formal announcement. History shows us that ruler alone is not accountable. Everyone who succumbs to authority is no less guilty. The oft-repeated question as to whether an Emergency could occur in India again is particularly relevant in 2020. A dangerous pandemic has weakened the institutions tasked with upholding the constitution. The COVID crisis can also provide a screen to keep reality from public gaze and assist rulers in arming themselves with more powers.
Because of the pandemic, justice has been delayed or diverted in from compelling human rights matters. A telling example is the habeas corpus petition filed by the wife of 82-year-old leader in Kashmir, Saifuddin Soz. The Supreme Court has put off the hearing till July. Soz was detained in August last year along with many others in Kashmir when Article 370 was nullified. He has yet to be informed of the reasons for his imprisonment.
While the courts are constrained from taking prompt action because of the pandemic, the Delhi Police, on the other hand, was hyperactive during the lockdown, arresting protestors demonstrating against the Citizenship (Amendment) Act (CAA).According to Delhi Police, most of the alleged trouble-makers are students and Muslims, all those who raised their voice against the rampant erosion of constitutional rights and the bringing into doubt their very status as citizens of India. Muslim residents and students of prominent Delhi-based universities like Jamia Millia Islamia and JNU have been charged with “unlawful activities” during the riots in Northeast Delhi in late February, even though it’s the Muslims of the area who suffered the biggest blows to their lives and properties. Now, even an NHRC report blames the students for “unlawful assembly” instead of finding the actual culprits.
Even those, whose inflammatory speeches and actions are a matter of record, such as local BJP leader Kapil Mishra, were not booked. When an arrested student recently approached a Delhi lower court, the court stated that because of the pandemic it was not in a position to ascertain whether due process of the law was being followed. In March, the Supreme Court rejected the anticipatory bail pleas of journalist Gautam Navlakha and Professor Anand Teltumbde, both respected civil right activists, accused of alleged involvement in the Bhima Koregaon violence of 2018. (It has been pointed out that both Navalakha and Teltumbde had nothing to do with the organization of the Bhima-Koregaon events.) Yet, the two have been detained under the notorious Unlawful Activities (Prevention) Act [UAPA] as amended in July 2019. It is the law meant for terrorists which makes securing bail difficult. It is the government’s discretion whom to designate a terrorist, a throwback to the Emergency-era MISA.
The pandemic has delayed the next session of Parliament and there is no indication as to when the Lok Sabha will be convened and in what form. Will meaningful debates on issues, such as handling of the pandemic or the Chinese intrusions, be possible? Or, will the house meet merely to rubber stamp government decisions, the social distancing norms providing a handy pretext to keep the session brief and business like?
Another Covid-19 victim is the fourth estate. An unfounded apprehension that newspapers can somehow be the carriers of the virus has led to a steep fall in print circulations. Several gated communities and apartment buildings have fuelled ill-informed paranoia. The economic consequences are devastating for the print media, one of the few credible sources of news in an age where social media is flooded with fake news and propaganda. Venerable language publications have shut shop; many newspapers groups have ruthlessly cut down on outstation editions and staff. A financially debilitated media will struggle for survival after the pandemic.
Another disturbing trend of late is FIRs to be filed on frivolous charges against journalists who ask inconvenient questions to state and central governments. Overzealous BJP bhakts, who instigate the police to slap such cases, seem to be following in the footsteps of Sanjay Gandhi’s storm troopers during the Emergency. A free media, one should remember, is the touch stone of a democracy.