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Post emergency: Expansion of fundamental rights

The Times of India, Jun 29 2015

Dhananjay Mahapatra

A little over 40 years ago on June 12, 1975, Justice Jag mohan Lal Sinha of Allahabad high court inflicted a stinging moral and mental blow to then PM Indira Gandhi. The HC annulled her election to Lok Sabha from Rae Bareli, taking away her authority to remain PM. She appealed in the Supreme Court. Celebrated lawyer Nani Palkhivala argued for interim relief before Justice Krishna Iyer on June 23, 1975.

Palkivala later wrote, “The interim order (passed on June 24, 1975) was that pending the hearing and final disposal of the appeal, Mrs Gandhi could continue to sit in the Lok Sabha and participate in the proceedings of that House like any other member. The only restriction on her was that she was not given the right to vote.

“The judge mentioned that this did not involve any hardship because Parliament was not in session at the time and that I (Palkhivala) could renew the application for the right to vote when Parliament re-assembled. The evening of that very day (June 24, 1975), I saw Mrs Gandhi at her residence and told her that I found the interim order very satisfactory and she should not worry about the case since the judgment of the trial court did not seem to be correct on the recorded evidence.“

He further said, “In less than 36 hours, Emergency was declared, invaluable fundamental rights of the people were suspended, and the PM virtually acquired all the powers of the leader of a totalitarian state. That was the black morning of June 26, 1975.“

What followed were dreadful days of Emergency . Overnight, protectors turned predators.They wantonly inflicted misery on citizens and settled personal scores. With impunity , they butchered fundamental rights of citizens and threw them into prison even for a murmur of protest.

Elected representatives either sided with the authoritarian ruler, went underground or were jailed. The citizens' sole refuge was the judiciary . Preventive detentions under Maintenance of Internal Security Act (MISA) were challenged in high courts through habeas corpus writs.

Fali S Nariman recounted in his autobiography `Before Memo ry Fades', “Nine high courts in the country , including the high courts of Allahabad, Bombay , Delhi, Karnataka, Madhya Pradesh, Punjab and Haryana, held that notwithstanding the imposition of Emergency and the Presidential Order, courts were empowered to examine whether orders of detention were in accordance with MISA under which detenus were detained.“

The HCs upheld the rule of law and those judges stood by their oath. The Centre and state governments challenged these HC decisions in the Supreme Court, the lead one being the infamous `ADM Jabalpur' case.

If the majority in bureaucracy and police either enjoyed the draconian power or acquiesced to implement patently illegal orders, four of the five judges of the SC in ADM Jabalpur case displayed lack of spine and delivered a skewed judgment -that even the most important right to life could be suspended during Emergency .

Those who lost their spine to the terror of Emergency and fear of Mrs Gandhi were then Chief Justice A N Ray and Justices M H Beg, Y V Chandrachud and P N Bhagwati. Standing upright against these four was the diminutive Justice Hans Raj Khanna, who in his dissenting judgment said come what may , right to life could never be suspended by a government order.

Soon after lifting of Emergency and India limping back to democracy , those judges who had succumbed to authoritarian terror quickly got back on the track of justice. Within years of ADM Jabalpur, they authored landmark judgments -Maneka Gandhi and Minerva Mills -eulogizing the preciousness of right to life and how life did not mean mere animal existence. Probably , these were judgments of repentance! So, Emergency did have some sobering effect on the highest judiciary , resulting in expansion of fundamental rights, especially the right to life, and giving them a cloak of inviolability . It is difficult to say whether these judgments would have been delivered had Emergency continued for a few more years.

BJP patriarch L K Advani often used to take a dig at journalists because of the lack of spine shown by their tribe during the troubled days by asking, “When they asked you to just bend, why did you crawl?“ But many did stand up to the tyranny and protested loudly .

Advani recently dreamt of the ghost of Emergency and said he could feel the stirring of demonic tendencies towards authoritarian rule. Most anti-BJP political leaders agreed with Advani. But finance minister Arun Jaitley ruled out return of Emergency , saying present day rapid communication networks were the best guard against authoritarian rule.

But during Emergency , India experienced the crumbling of elected representatives, bureaucracy , police and judiciary . So what could be the unshakable anchor for democracy when a seasoned politician like Advani expresses apprehensions? One can take solace in the words of Sachchidananda Sinha, who was provisional chairman, in the first session of Constituent Assembly on December 9, 1946, “(The Constitution) has been reared for immortality , if the work of man may justly aspire to such a title. It may , nevertheless, perish in an hour by the folly or corruption, or negligence of its only keepers, the people.“

Pursuing private claims abroad

Government has no obligation to pursue private claims abroad

Dec 05 2016: The Times of India

`Govt has no obligation to pursue pvt claims abroad'

The government has no obligation to pursue private claims of an Indian citizen over a dispute abroad, the Delhi high court has said. HC recently rejected the plea of the widow of a freedom fighter who sought return of money deposited by her husband in a Chinese post office when he served in Subhash Chandra Bose's Indian National Army . She wanted the money that her husband deposited as savings in Shanghai, she told the court, but HC maintained that the government can't be forced to pursue her claims.

“We are of the view that merely because the Government of India, on a representation being made, has for warded the claim of the petitioner to the Embassy of India at China, would not create an obligation on the Government of India to take any further steps in the matter,“ a bench of Chief Justice G Rohini and Justice Sangita Dhinra Sehgal observed.

The court further added, “The Government of India is under no obligation to raise a dispute with a foreign government qua the private claim of its citizens,“ dismissing an appeal filed by Harbhajan Kaur, the widow of the INA officer who died in 1979. Earlier a single judge had also rejected her plea for direction to the government to take ap propriate action for releasing the money deposited by her late husband in his accounts with Shanghai's General Post Office.

The Shanghai post office, in a letter to Kaur, made it clear that her claim stood abandoned for failing to register it within the assigned time after the issuance of the new policy of the Chinese government.

The single judge had declined relief on the ground that as on December 2015, her “petition is also highly belated“. Double bench affirmed the finding and noted that Kaur “was unable to provide us with any specific obligation under which the government has to pursue private claims of petitioner against a foreign government“.