Wednesday, September 05, 2018

The Emergency (1975-77) and the undeclared Emergency Now

The arrest of five prominent persons last Tuesday and the raids the same day on premises of many others has brought back the Emergency of 1975-77 into the discourse. From those who recall the dark times that India experienced 43 years ago (and they all happen to be past sixty years of age) to many who had only heard stories of those bad days from their teachers or elders at home trying to imagine that part of our recent past with images from the present.
                It is, apart from the eeriness that the arrests have spread across the country, an occasion to historicise the emergency once again. This has been done earlier and it makes sense to attempt it once again. History, as Benedito Croce put it, is an engagement with the past from the concerns of the present when he held that all history is contemporary history. The emergency (1975-77) is certainly an important marker in the short history of our Constitutional Democracy and it is not incorrect to invoke the past to explain the present.
                The 19 months during the Emergency (June 25, 1975 – March 21, 1977) was a period when the police could arrest anyone from anywhere, put them in jail for as long as they wanted. In one year after the Emergency was proclaimed, Amnesty International, had recorded that as many as 1,10,000 persons were arrested and detained in the jails across the country.  This included as many as 153 journalists held in the various jails by then. The point to stress here is that most of the 1,10,000 persons held in prisons were held there without any charges against them and most of them also spent as long as 19 months in jail  without charges.
                 This is where one could make sense of the expression ‘undeclared emergency’ now in vogue from some quarters to describe the present. During the Emergency, it was not necessary for the Inspector in-charge of a police station to labour hard and produce a charge-sheet with documents to prove before putting someone in jail for an indefinite period.  Let me stress here that the UAPA, a preventive detention law, lets the police to detain someone in jail for six months even before making out a charge-sheet and that is what the Pune police is trying to do now.
                The Emergency and the arrests then could be challenged, at least in the early days of the dark times, by resort to petitions seeking a writ of habeas corpus. This liberty, however, was short-lived and the penal transfer of as many as 16 High Court judges, in a short span of six weeks, in June-July 1976 rendered this remedy useless; all those who were transferred, to High Courts far away from where they were, happened to be those who ordered the writs of habeas corpus for admission. The Supreme Court, in its 4:1 verdict on the case (ADM Jabalpore vs. S.K.Shukla), killed whatever liberty was left and rendered the oppressive state into a constitutional entity. It ought to be added here that the Constitution (44th Amendment) Act, 1978 restored a semblance of democracy into the constitutional scheme that makes another emergency as a mirror image of the one in 1975-77 impossible.
                Well.  In the event of another emergency declared the liberty of moving a writ of habeas corpus will remain (unlike in the past) and this is conditional upon lawyers, who value the constitution, remaining free in that event. During the Emergency of 1975-77 too many lawyers who stood up against the regime, some of those like Ram Jethmalani also had resolutions moved and passed in the Bar, were not arrested. No one then nor anyone hitherto has attempted to ascertain why they were not arrested. Let this not detain us here because such immunity is no longer there for members of the Bar in recent times; and lawyers who spoke up have been arrested and one of them was also subjected to physical intimidation in his own chamber in the Supreme Court sometime ago.
                Let me now come to the most important aspect of the Emergency (1975-77) and try rest my case that the present is far more dangerous to the democratic polity than was the one earlier. And this has to do with the media now and the press then.  The Emergency regime then resorted to Constitutional provisions (Article 352 and consequently Article 358 and 359) to ensure that arrests and detention for an indefinite period is well within the legal frame of the context as well as provisions to restrict the free decimation of news of those arrests; pre-publication censorship was a legal resort then and the press, by and large, went silent on those. A few among the newspapers even went a step further to justify and celebrate such arrests as necessary but most of the newspapers simply went silent.
                This, indeed, is not the same now. Even without such formal notifications and orders that all news ought to be published only after it is scanned and cleared by the censors, we now are witness to a loud campaign in the media, particularly the TV channels, calling those arrested as accused (notwithstanding that the criminal law warrants a charge-sheet and commencement of the trial as the stage when someone is called the accused) and even present those who raise questions of law as culpable in the crime. This, indeed, is what makes the present far more inimical to Constitutional Democracy than during the emergency of 1975-77.
                There may, certainly, be some exceptions but then the rule seems to be where the media is bending over its back to paint the arrests as necessary. There appears to be a stage having come where the Constitution (44th Amendment) Act, 1978, a landmark that Constitutional scholars hold as a moment when the Constitutional scheme and the Democracy it guarantees was restored, was far less and insignificant before a political class that is committed to destroy democracy. I stress the Constitution (44th Amendment) Act, 1978 as a marker because it was an instance, the most important I should insist, among the many steps after the Emergency to put the nation back on the tracks towards a democracy.
                Hence I see the present as a context to historicise the Emergency and hold that the lessons, one thought were learnt, are far less and too little. The media, particularly the TV channels, are now not merely crawling (as L.K.Advani famously accused them of doing then when they were asked to bend) but pushing each other out in the scramble to defend acts of desperation. Indira Gandhi’s desperation in 1975, a few years after she won the hearts of the people and vanquished all those who opposed her in 1971, led to the Emergency. There appears a parallel.