Remembering black deeds of Emergency
By Dr. Makkhan Lal
Mrs. Indira Gandhi'srecord in dealing with the people of her country is dismal. The Emergency was not a sudden act of desperation but the culmination of a long term plan of the ruling party to enslave the people, tie their hands to their back, and their speech silenced.
In the Constitution, Fundamental Rights of citizens and the independent judiciary have been considered as the most sacred and precious. Safeguards for the both have been provided in it. The Constitution provides that no amendment could be made in the Fundamental Rights of citizens and any amendment in the Constitution be subjected to the judicial scrutiny. In order to acquire unlimited power and stifle the voice of dissent, Mrs. Gandhi and her government contended that under Article 368 the Parliament has unlimited power to amend any part of Constitution, including Part III. However, in the Golaknath vs. Govt. of Punjab State, the Supreme Court ruled that the power of Parliament regarding amending the Constitution is not unlimited. And that the Parliament could not amend the Constitution in such a way that the Fundamental Rights of citizens could get affected.
After the Golaknath case, the Mrs. Gandhi resorted to the most unprecedented move and introduced 24th Amendment to the Constitution in 1971 so that Part III of the Constitution dealing with the Fundamental Rights of people could also be amended so that the people could be enslaved and dissenting voices banished.
Once again a few courageous people and the judiciary came to the rescue of the citizens, and the Constitution. This entire effort is best known as Keshavanand Bharati vs Kerala Government case in the Supreme Court of India. The Keshavanand Bharati case is considered as one of the greatest contributions of the Republic of India to the constitutional jurisprudence. In view of 24th and 25th Amendment, overturning Golaknath case, three points were urged in Keshwanand Bharati case:
a) Golaknath case was rightly decided and Parliament should be held not to have the power to abridge any fundamental rights, having regard to article 13 as it stood before the amendment. The 24th amendment that made article 13 subject to article 368 is invalid.
b) Whole of art. 31C (which was added in 25th amendment, excluding judiciary from scrutiny) abrogate for certain purpose the Fundamental Rights in articles 14, 19 and 31 of the constitution is invalid.
c) In any event, Parliament in exercise of its amending power cannot alter or destroy the basic structure or the framework of the constitution so as to make the constitution lose its identity and the later part of the article 31C which excludes judicial scrutiny is invalid.
The above three points, very clearly, dealt with (a) Fundamental Rights of the citizens; (b) the basic structure of the constitution; and (c) the role of judiciary in the event of (a) and (b) being destroyed by Parliament. In a monumental judgement the Supreme Court ruled that Parliament does not have the power to destroy the basic structure of the Constitution, and in the event of any amendment judicial scrutiny can be done, if required.
In August 1975 when all the opposition members in Parliament were in jails, voices were silenced and papers were not allowed to print freely, 41st amendment bill was passed. The elected rulers of India put themselves above the law.
Mrs. Gandhi'sgovernment also filed a writ petition in the Supreme Court to overturn/overrule its own previous judgement in Keshavanand Bharati'scase because it was this judgement that the government of the day was finding difficult to reconcile with; because this judgement was not allowing them to make this country as their fiefdom and people their slaves. Mr. Nani Palkhiwala filed a seven-page proposition in opposition to Government'splea. The nation owes it to Nani Palkhiwala and his colleagues that the design of the then government did not succeed and the 13-judge bench constituted to hear the Government'sappeal was dissolved after hearing the arguments for two days and attempts of the government of the day to confer upon itself an unlimited power and escaping the judicial scrutiny happily failed.
Had Mrs. Gandhi and the Congress party succeeded in its design what would have happen to the people of this country can be glimpsed from the arguments given by Government Council before the Bombay High Court in Bhanudas Krishna Gawde case. Here is the argument as quoted in the judgment:
?In fact, (counsel) went so far as to suggest that if the Conditions of Detention Order contained a clause that detenus are not to be allowed to eat any food, it could not be challenged and the petitioner would have no remedy by way of a petition under art. 226 as long as the Presidential Order suspending the enforcement of the Fundamental Right under art. 21, of which the right to eat is a part, is in force. Emboldened by this proposition of (Counsel), which we cannot help observing is a startling proposition, the learned Government Pleader interposed and said that even if the Conditions of Detention Order were to authorize that the detenu should be shot, such a clause could not be challenged during the subsistence of the Presidential Order?