Professor Satya Narayan Misra in Bhubaneswar, July 1, 2023: National emergency was invoked 48 years back on this day, to counter the enormously popular JP Movement to root out corruption in India’s political system & snuff out life & liberty without judicial review.

Though a very popular leader Mrs. Gandhi was unable to muster popular support and therefore had to rely on state overreach to implement the 20-point program in a ruthless manner. Several political leaders were incarcerated including journalists, who dared to speak against the government.

One such journalist was SP Shukla who was arrested without a warrant. When his wife approached the court for issuing habeas corpus against the state in order to have a fair trial of her husband, four judges of the Supreme Court decided in SP Shukla Vs ADM Jabalpur Case (1976), that right to life and liberty stand suspended during the promulgation of the emergency.

The lone dissenter was Justice H.R. Khanna who observed “the constitution and the laws of India don’t permit life and liberty to be at the mercy of the absolute power of the executive. What is at stake is the rule of law. “He further averred that detention without trial is an anathema to all those who love personal liberty.

During his interrogation of the Attorney General Niren Dey, Justice Khanna asked: whether there is any remedy if a police officer, solely because of a personal enmity puts an end to the life of a law abiding citizen during the emergency. To which the AG replied: Unfortunately, that is the constitutional position during emergency. Justice Khanna also said “sanctity of life is not the gift of the constitution. Illegal detention will be subjected to judicial review.”

Justice Khanna writes in his book “Making of India’s Constitution (1981): “a constitution is not a parchment of paper, it’s a way of life. Eternal vigilance is the price of liberty and in the final analysis; its only keepers are the people. The imbecility of men, history teaches us, always invites the impudence of power.”

Justice Khanna was aware that he would be superseded because of this dissenting judgment. And true to his apprehension he was denied the post of CJI six months later. It’s interesting to note that both Justice Chandrachud and Justice Bhagawati, who were the part of the majority judgment, later regretted their decision.

Pondering over the strange majority opinion, the eminent jurist Granvile Austin metaphorically observes in his book “Working a Democratic Constitution” (1999), “the judges would have been hung separately if they had hung together”. In defence of his dissent, Justice Khanna quoted Evan Hughes: “A dissent is an appeal to the brooding spirit of law, intelligence of a future day, when a later decision may correct the error into which the dissenting judge believes the court to have been betrayed.”

It is a small tribute to the brooding spirit of a fearless judge like Justice H R Khanna, that 42years later in the Puttaswamy case, the Supreme Court in a unanimous verdict, overruled the ADM Jabalpur judgment. Interestingly it’s a unique judgment where a son (Justice DY Chandrachud) overruled the father Just YV Chandrachud. To quote Justice DY Chandrachud, “when histories of nation are written and critiqued, there are judicial decisions at the forefront of liberty. Yet, others have to be consigned to the archives. ADM Jabalpur must be and is accordingly overruled.”

The Shah commission was constituted in 1997, to look into the abuses during the emergency years. It was particularly critical of the role of the civil servants. To quote “even the cream of the talent in the country in the administrative field collapsed at the slightest pressure, forging records and fabricating the ground of detention. The overall picture was that the civil servant felt that they had to show loyalty to the party in power to advance their carriers.’

One of the most disturbing examples of ruthlessness was displayed by DIG Paddikal in Kerala. On 1st March 1976, P Rajan, an engineering student of REC, Calicut was picked up from college on trumped up charges of indulging in Naxal activities and was tortured to death in police custody.

His father Prof. Varrier ran from pillar to post, but couldn’t save his son from the new form of torture being practiced by Paddikal. In a heart wrenching book, “Memories of a father”, Prof. Varrier writes ‘why are you making my son, standing in the realm even after his death. Let my son know that his father never shut the door on him.’ For a father like Prof Warrior and his wife Radha, who died of shock apprehending death of their only child.

No soothing word can obliterate or mollify their indescribable loss; nor can they erase the icy hands of ruthless political dictatorship, and administrative complicity during the dark years of emergency when life & dissent were passé. In a recent book “India’s Undeclared Emergency” (2022), Arvind Narrain, an eminent lawyer writes that in India today, there is a systematic attack on the rule of law that hits at the foundation of democracy and its Constitution.

Preventive detention, lynching of minorities and attacks on journalists, love-jihad are all manifestation of state excesses, human rights violation to promote Hindu ideology. He also writes that Unlike the Congress government of 1975, the Modi government draws on popular support and raises the dangerous possibility that today’s authoritarian regime could become tomorrow’s totalitarian state.

President Obama on 22nd June during Mr Modi’s US visit has also observed that India may pull apart, if the rights of religious and ethnic minority are not upheld. Economic success he believes will depend on unity across faith on communal lines.

Will the history of emergency repeat itself? The civil liberty activist K Balgopal wrote that arrest of Binayak Sen under the sedition law was fundamentally to send a message that dissent has costs and make people afraid that they could be arrested. In a constitutional democracy the power of the political executive is kept in check by an independent judiciary, political opposition, the media and civil society.

The Supreme Court is sadly succumbing to the political executive by failing to hear key matters such as abrogation of Article 370 & the constitutionality of Citizenship Amendment Act (CAA). Given the trend of complicit media, which is manufacturing consent, the way it did in the USA in the 70S (Noam Chomsky). It is only through a vigilant civil society, respect for responsible dissent, ethos of multi-culturalism and fraternity can flourish in India & the dark clouds of emergency will not envelope India yet again.