Ambivalent to the core: How the judiciary capitulated – or resisted – during the Emergency

During the Emergency the apex court appeared to be rather pusillanimous as evident from the habeas corpus case. This case, which kept a five-judge bench busy for thirty-seven working days between December 1975 and February 1976, was probably the most important to be heard during the Emergency. The Supreme Court had to decide whether personal liberties needed to be upheld in the face of the executive in the context of the Emergency.

All the judges wrote separate judgments, but the result was that the court upheld the executive’s power to detain people, thereby denying citizens the right to move a habeas corpus petition in a High Court under Article 226 during Emergency rule. The advocates who argued the case, including Shanti Bhushan, Soli Sorabjee, and VN Tarkunde, found the verdict “appalling”. Their assessment is clearly supported by the manner in which judges justified their decision.

Chief Justice Ray went as far as to suggest that during a state of emergency the courts “have nothing before them to enforce.”

This was not unusual, he hastened to add, for “the rule of law must differ in shades of meaning and emphasis from time to time and country to country.” Justice Beg went much further when he said that the “care and concern bestowed by the state authorities upon the welfare of detenus who are well-housed, well-fed and well-treated is almost maternal”, akin to that of a parent who can justly take “preventive action against those children” who “threaten to burn down the house they live in.”

The positions of Justices Chandrachud and Bhagwati were more ambivalent but closer to Ray’s. The only dissenting judge, Justice Khanna, argued that “even in the absence of Article 21 [which guaranteed the right to life and personal liberty] in the Constitution, the state has no power to deprive a person of his life or liberty without the authority of law.”

The majority ruling was less vivid than Beg’s position, but equally unequivocal: “no person has any locus standi to move any writ petition under Article 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.” The detainees, then, remained in jail.

For his part, Justice Chandrachud conveniently came to show remorse later. Two months after he was controversially sworn in as chief justice by the Janata Party – large sections of the judiciary protested his appointment because of his habeas corpus ruling – in a speech to FICCI on 22 April 1978, he said: “I regret that I did not have the courage to lay down my office [sic] and tell the people: well, this is the law.”

Legal guilds, whose members were in a sense best positioned to understand the implications of the constitutional tweaking brought on by the state of emergency, were at the forefront of the protests. The Maharashtra High Court Bar Association issued a condemnation of the regime and its Delhi counterpart elected Pran Nath Lekhi, a lawyer serving time in Tihar, over a candidate backed by Sanjay [Gandhi], DD Chawla. The Congress retaliated in predictable fashion: the chambers of district- and sessions-court lawyers were razed to the ground in demolitions, and over a hundred attorneys were incarcerated.

All the same, some lawyers continued to speak their mind.

The former chairman of India’s Bar Council, Ram Jethmalani, compared the country’s leaders to Mussolini and Hitler. Fali S Nariman, an additional solicitor general who in May 1975 had had his term extended for three more years, resigned on 27 June to protest the change in dispensation.

A number of lawyers spoke at a convention in Ahmedabad on 12 October 1976 organised by the Citizens for Democracy. Among the speakers calling for the restoration of fundamental rights were Minoo Masani and two former chief justices, JC Shah, who went on to head the eponymous commission, and MC Chagla.

When the Congress attempted to shore up legal support for its constitutional dictatorship, the response it received was underwhelming. Just 600 of the 1800 invited lawyers showed up for the government-sponsored Karnataka State Lawyers Conference on 8 November. In the resolution that was to unanimously laud Mrs Gandhi’s successful appeal to the Supreme Court that tossed out the charges of electoral malversation, only ten votes were cast in her favour.

Still more important was the role of high courts, which in Emergency India became redoubts of the Rechtsstaat. In Allahabad, for example, the chief justice questioned gratuitous arrests. His Bombay peer spoke out against the ill treatment of prisoners and the police attempts to break up private meetings of lawyers. The Bombay High Court also ruled against censors who were trying to suppress the publication of Freedom First, a magazine run by lawyer and politician Minoo Masani. It struck down the Bombay police commissioner’s order prohibiting meetings of more than five people if their “intention” was to broach the topic of the Emergency.

The Delhi High Court, too, took up the cudgels for press freedom, preventing the municipal corporation from winding up the Statesman and the Indian Express, allegedly for tax evasion.

Its Gujarat equivalent did the same to prevent the shuttering of Bhoomiputra, a Gujarati daily that had published a speech on the importance of civil liberties by Mohammedali Currim Chagla, former foreign minister and Bombay chief justice.

The case of Murlidhar Dalmia, chief advisor at the Technological Institute of Textiles (TIT), Bhiwani, confirms that the courts were the most powerful institution to confront the regime head-on. Early on during the Emergency he had run afoul of Haryana chief minister Bansi Lal, who was trying to pack Kurukshetra University – to which the Bhiwani Institute belonged – with loyalists by firing some of its senior management. Dalmia, because of his tardiness in getting the TIT principal sacked, was falsely detained for “inciting” labourers at the institute and for being a “staunch follower of the RSS.”

His family entreated KK Birla – Dalmia knew the tycoon through the latter’s position as chairman of the Cotton Spinning and Weaving Mills – who then spoke to Lal to have him released; Birla’s aides also beseeched union ministers Gokhale, Reddy, Chavan, Ram, and Pant to do the same; and finally, Dalmia’s wife obtained an “interview” with Mrs Gandhi, who through their meeting uttered not a word to the despairing woman. The courts, then, were her last resort.

By pointing to “technical infirmities” in the MISA order that had in effect prevented Dalmia from exercising the writ of habeas corpus, the Delhi High Court came to his rescue twice, in November 1975 and February 1976, both times allowing him to evade arrest. Police attempts to arrest Dalmia from the steps of the court itself, too, failed, amidst much protest and drama. Nevertheless, with the Supreme Court’s 28 April 1976 habeas corpus ruling, Dalmia, along with many like him across the country, lost the right to battle the republic’s rulers with writs. He was arrested five days later.

In the event it was only to be expected that Delhi’s autocrats wanted to do away with the legal resistance plaguing their regime.

In the capital the minister of state for home affairs, Om Mehta, started transferring unamenable judges to the country’s peripheries. In early 1976 Mrs Gandhi refused to extend UR Lalit’s term and to elevate Additional Judge RN Aggarwal, who was due for promotion as a permanent judge, at the Bombay and Delhi high courts, respectively; the latter’s sin, evidently, was that he had been part of the two-member MISA bench that released Kuldip Nayar. The director of the Intelligence Bureau, SN Mathur, had thereafter outed him as an RSS sympathiser, soon after which Mrs Gandhi decided not to approve his promotion.

As for Justice S Rangarajan, the other half of the duo on that bench, he was transferred to Assam. All in all the prime minister was personally behind the transfer of at least sixteen judges in May and June 1976. Naturally, the threat of professional exile had its desired effect. Moreover, an escalation of violence remained on the cards, if only tacitly: a judge’s wife, for instance, recalls fearing that her husband would be “accidentally run over” while on his morning stroll.

Others dreaded the ostracism that Fali Nariman endured after his resignation: “no one except sincere and genuine well-wishers wanted to drop in (or to be seen dropping in) on us”, he later remembered.

Yet others would have chosen to censor themselves after recalling the fate that befell PM Mukhi, Bombay High Court judge, who suffered a heart attack on hearing that he was to be transferred to Calcutta. Even as his friend, Law Minister HR Gokhale, an alumnus of the same court, tried to repair the damage by having the order rescinded a few day later, Mukhi went into cardiac arrest at his residence once again, this time fatally.

The legal community put up a tough fight against the transfers regime. For instance SH Sheth, Gujarat High Court judge, challenged his transfer to Hyderabad and filed a writ petition against the government, which his High Court upheld, demanding the government quash the order. What can be surmised as political pressures impelled Sheth to later comply with the transfer order, but his case became a useful precedent for the courts: high courts across the country managed to prevent the transfers of forty-four judges in its wake.

In short, excluding the handful of supine justices of the Supreme Court, judges and lawyers alike at the middle and lower levels of the judicial pyramid staved off with a modest degree of success the trespassing hand of the executive.

Excerpted with permission from India’s First Dictatorship: The Emergency 1975-77, Christophe Jaffrelot and Pratinav Anil, HarperCollins India.