Friday, July 03, 2015

Fwd: Least resistance - A question about the Emergency left unaddressed

relevant to rajan case #emergency75 

---------- Forwarded message ----------
From: Capt
Friday , July 3 , 2015
Swapan Dasgupta

At a function in New Delhi to mark the 40th anniversary of the Emergency, the finance minister, Arun Jaitley, recounted a conversation he had with the former Supreme Court judge, H.R. Khanna - the dissenting judge in the infamous habeas corpus case - during the course of a leisurely morning walk sometime in the late-1990s. Khanna apparently told him that the astonishing admission of the attorney general, Niren De, that the Emergency regulations meant that the right to life was at the mercy of the State was prompted by a leading question he asked from the bench.

To drive home the point that natural justice was above the suspension of fundamental rights, Khanna asked the government counsel whether the Emergency could deny someone the right to life as also mentioned in Article 21. The question was as much aimed at the attorney general as the brother judges. However, as Khanna lamented, the rest of the bench headed by the then chief justice, A.N. Ray, sat there stony-faced and expressionless. "It was at that point I knew which way the verdict would go."

The 4-1 judgment of the Supreme Court in 1976 legitimizing the suspension of all human rights during the term of the Emergency has often been described as the "darkest chapter" of India's judicial history. The alacrity with which the Supreme Court went out of its way to ingratiate itself to the political executive was shameful, and may explain why the institution has subsequently been so anxious to bend the stick in the other direction as an act of atonement. That this was a bespoke judgment has been confirmed by the subsequent, post-retirement admissions of grave error by the former judges, Y.V. Chandrachud and P.N. Bhagwati, the luminaries from whom a show of spinelessness was not expected.

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