Read This!- Its an Emergency!

Article for Blog Post Writing Competition 2011 | by Vikrant Shetty

April 8th, 20118:20 pm

Who among us are not familiar with the Emergency declared by our former Prime Minister, Indira Gandhi? When her election to the Lok Sabha was declared void by Justice Sinha, Justice Krishna Iyer gave a conditional stay to allowing her to remain a Member of Parliament, but disallowing her to take part in the proceedings of the Lok Sabha on June 24th 1975. Mrs. Gandhi moved quickly and had an emergency declared, which lasted for 2 years, just two days after the judgment.

During an emergency, our fundamental rights are suspended; this includes the ‘right to life’ as well as our ‘freedom to speech, assembly and movement’. No appeal can be made in the High Courts to enforce them and all pending cases are put on a stand still. Almost anyone without trial or without reason may be detained. This power was given by and under the Maintenance of Internal Security Act, 1971. It is a power that may be misused easily but is, as felt by few, a necessary power. Many ethical points and the unconstitutionality of these provisions were discussed in a landmark case known as Additional District Magistrate of Jabalpur v. Shiv Kant Shukla [1976 AIR 1207 1976 SCR 172 1976 SCC (2) 521]. This is indeed the most well-known case among members in the legal profession, law students and members of judiciary and is popularly known as the ‘Habeas Corpus’ case. Habeas corpus which in Latin means “you are to have the body” is a writ, or legal action, through which a prisoner can be released from unlawful detention. This right is given to a citizen of India under Article 21- the ‘Right to life’, the sole repository of life and liberty.

During the case, Justice Khanna asked the Attorney General Niren De: “Life is also mentioned in Article 21 and would Government argument extend to it also?”  De answered, “Even if life was taken away illegally, courts are helpless”. This was a large issue, as without the right to life, killing during the Emergency would also be unquestionable.

The majority judgment passed at the end of the case was 4:1 in favour of unquestionable powers of detention during emergency. Justices, P. N. Bhagwati, A. N. Ray, Y. V. Chandrachud, and M.H.Beg, stated in the majority decision: Due to the Presidential Order, no person has any locus to move any writ petition under Art.226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention.

There are still reasons as to why Chandrachud and Bhagwati decided as they did. They referred to the principle ‘If the nation dies, who lives?’ and held security of the nation to be of more vital importance than individual liberty. For their conclusion, they relied on the single most important case of Liversidge vs Anderson (1942), wherein the House of Lords in England by majority (the only dissenter was Lord Atkin) had held that the Home Secretary’s opinion that a person’s detainment was final and not renewable by the court.

The disapproval of the Liversidge judgment had been available in various Law Quarterly reviews since the judgment had been passed. A review available in Law Quarterly Review (1970) clearly stated out how humiliating the decision in Liversidge was becoming for the English judiciary. And yet our Supreme Court of India surprisingly chose to follow the majority view. The humiliation was becoming more and more intolerable as time went on. That is why Lord Diplock in 1979 was forced to rule “For my part I think the time has come to acknowledge openly that the majority… in Liversidge v. Anderson were expedient and, at that time, wrong and the dissenting right.” And Lord Scarman sealed it by saying that “the ghost of that decision need no longer haunt law.”

It was, however, Justice Khanna’s minority opinion in the Jabalpur case that had a huge impact. He stated in the case that – “Law of preventive detention, of detention without trial is an anathema to all those who love personal liberty. Such a law makes deep inroads into basic human freedoms which we all cherish and which occupy prime position among the higher values of life. It is” therefore not surprising that those who have an abiding faith ill the rule of law and sanctity of personal liberty do not easily reconcile themselves with a law under which persons can be detained for long periods without trial. The proper forum for bringing to book those alleged to be guilty of the infraction of law and commission of crime, according to them, is the court of law where the correctness of the allegations can be gone into in the light of the evidence adduced at the trial. The vesting of power of detention without trial in the executive, the assert, has the effect of making the same authority both the prosecutor as well as the judge and is bound to result in arbitrariness.”

Justice Khanna had expressed similar views in Kesavananda Bharati v. the State of Kerala, where he stated that the basic structure of the constitution could not be amended even by Parliament. Before delivering this dissenting opinion, Justice Khanna said to his sister: I have prepared my judgment, which is going to cost me the Chief Justice-ship of India.True to his apprehensions, his junior, M. H. Beg, was appointed Chief Justice in December 1977. This was against legal tradition of the Indian Government and was widely protested by bar associations and the legal community. Justice Khanna resigned on the same day. In fact, it was felt that the other judges may have gone along for this very reason. Justice Khanna remains a legendary figure and an icon of justice among the legal fraternity in India for this decision and is spoken about with the utmost respect. His judgment can be called nothing less than ‘heroic’.

The New York Times wrote:

If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H R Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings… The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society; and the Indian Supreme Court’s decision appears close to utter surrender.

All these factors pressurized the judiciary to strengthen the doctrine of basic structure and judicial review system. Judicial review is the doctrine under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary and it  was supported in Minerva Mills Ltd. v. Union of India [1980 AIR 1789 1981 SCR (1) 206 1980 SCC (3) 625]. The principle was based on the judgment passed in Marbury v. Madison, in the Supreme Court of the United States of America 1801.

After Indira Gandhi lost elections in 1977, the new government of Morarji Desai, and particularly former law minister Shanti Bhushan (who had previously argued for the victims of detention in the Habeas Corpus case), brought a number of amendments making it more difficult to declare and sustain an emergency, and reinstated much of the power to the Supreme Court.

But we are still under the threat that someday our not only constitutional but also God given rights may be taken away from us.

Image courtesy-


Article by-

Vikrant Shetty, First year student

Rizvi Law College, Mumbai

[Submitted as an entry for the Blog Post Writing Competition, 2011]


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