Its authors sought to dismiss the June 1975 Emergency as an event of no consequence in four famous words: “not a dog barked”. The bench and the bar, which are regarded as the fair and fearless custodians of the fundamental rights of citizens were ridiculed as spineless. Coincidentally, on the 35th anniversary of the Emergency — June 2010 — Fali S Nariman, the legal luminary, lifts the dark veil from the facts long shielded from public view in his autobiography Before Memory Fades. Nariman serves us shining examples of the exceptions, both of the bench and the bar.
Nariman recalls for the younger generation the sweep of the proclamation of Emergency of June 26, 1975. Under Article 352 of the Constitution, the Presidential Order issued the next day under Article 359 suspended the right of all detenues to enforce any of the rights conferred by Article 14 (the equality clause) and Articles 21 and 22 (safeguard of personal liberty). All rights conferred by Article 19 (right to freedom) stood automatically suspended with the declaration of Emergency.
Now the shining examples. Foremost — as many as nine high courts across the country, including those of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan, held that notwithstanding the imposition of the Emergency and the Presidential Order, courts were empowered to examine whether orders of detention were in accordance with the Maintenance of Internal Security Act (MISA) under which the detenues were detained. In their celebrated judgment, the nine high courts ruled that they could issue writs of habeas corpus (literally, a writ commanding a person to be brought before a judge to investigate the lawfulness of his or her detention).
Notwithstanding the fact that their judgments were overturned subsequently by the Supreme Court, the high courts did “bark” and broke open the locks clamped on personal liberty et al by the proclamation of Emergency. What is missing in Nariman’s narration, however, is the list of names of the judges in the nine high courts at the relevant time. Hope someone will fill this gap.
As for the bar, despite the internal Emergency, about 2,000 lawyers of Andhra Pradesh attended a public conference in Rajamundhry.
Nariman underscores that a few of our judges were at their best. One of the most notable of them was H R Khanna, a judge of the Supreme Court, with his lone dissent in what Nariman describes as the infamous Emergency case relating to the ADM, Jabalpur. Khanna knew when he signed his dissenting judgment that he was signing away his future chief justiceship which was only a few yards away.
One of the lessons of the Emergency Nariman dins into our bones is not to rely on constitutional functionaries who, in his view, failed the people — ministers of government, members of Parliament, most of the judges of the Supreme Court, barring the honourable exception of Justice H R Khanna. The saddest example Nariman highlights is that of the President of India who readily agreed to sign the proclamation in the night of June 25, 1975, even before the Cabinet knew about it.
Three years later, after the Emergency was erased by the popular will of the electorate in March 1977, the 44th constitutional amendment was deliberately enacted to declare that the president could not sign a proclamation of Emergency unless the decision of the Council of Ministers was communicated to him in writing! Nariman adds that he has always thought that this amendment on June 20, 1979, was an avowed expression of parliamentary distrust of India’s highest functionary — the president.
Nariman has certainly ensured that it will not fade in our memories, as his own evolution as a member of the legal fraternity reveals how important it is to have an environment which is not polluted with jealousies and flea-biting-flea.
Fleeing from Burma, his parents walked, took boat rides and donkey rides into India with their only son. He moved from school to college in what could be seen as an ad hoc manner. He did not do well, but this is the lesson from the autobiography — an atmosphere of the elders nurturing, mentoring and nudging along the young enabled the flowering of a person, which must have been a wonderful cocoon in his growth and his ethics.
The Parsi community comes out for its integrity and its sense of community …from the time his parents arrived in Delhi to his moving to Mumbai and then back to Delhi, it is the Parsis who have been the facilitating hands.
And it is the extraordinary integrity of this community which still shows the character that has moulded an extraordinary Indian.
“The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.”
BEFORE MEMORY FADES
Fali S Nariman
Hay House India, 2010
459 pages; Rs 599