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SUPREME COURT OF INDIA ON LAW OF PREVENTIVE
DETENTION 1950 TILL DATE
Introduction:
India became free in 1947 and the Constitution was adopted in 1950. It is extraordinary that the tramers of the Indian Constitution, who suffered most because of the Preventive Detention Laws, did not hesitate to give Constitutional sanctity to the Preventive Detention Laws and that too in the Fundamental Rights chapter of the Constitution. Some parts of Article 22 are not Fundamental Rights but are Fundamental Dangers to the citizens of India for whom and allegedly by whom the Constitution was framed, to usher in a new society, with freedom of expression and freedom of association available to all. In 1950 itself, a Prevention Detention Act was piloted by Sardar Patel, who said that he had several '"sleepless nights'" before he could decide that it was necessary to introduce such a Bill. And in 1950, under this Act, ordinary disturbers of order and peace were not arrested, but a political leader of A.K. Gopalan's eminence was an-estcd. Even from that initial action, it was evident that these Acts were meant to curb political dissent, and that legacy has been and is being followed. From the time the country secured its Independence till 1977, except for a period of nearly two years from 1969-1971, free India had the dubious distinction of having these extraordinary, mischievous and 'unlawful' laws throughout. It is worth bearing in mind that no other civilized country, including Britain which brought Preventive Detention laws here, felt compelled to introduce such laws during peace time. Even during the last World War, most European countries and the USA, who were all directly involved in the war, had no such law. During the War, England introduced a Preventive Detention Law to the effect that a person could be detained only on the subjective satisfaction of the Home Minister of Great Britain and not on the subjective satisfaction of a puny magistrate, as it the case here. Further, only one person. Sir Osward Mosley, a rabid Nazi, was detained under this Act. In 1971, because of tremendous political tumioil which resulted in assassinations and destruction all over Ireland, the British Government introduced PD Act for Ireland. But it immediately fornied a committee headed by Lord Gardiner to probe and to find out if it was necessary to have such an Act even in Ireland. The Gardiner Committee Report reads: '" Preventive Detention can only be tolerated in any democratic society
in the most extreme circumstances. It must be used with the utmost restraint and retained only so long as it is strictly necessary" Our Constitution, since its enactment, has had a peculiar feature; the fundamental rights guaranteed under it allow preventive detention without trial. Article 22 after providing that any person an^ested must be produced before a court within 24 hours of airest tenders this almost nugatory by pennitting the state to preventively detain persons without any judicial scrutiny. The debates in the Constituent Assembly shows that the need to provide for preventive detention was generally accepted, albeit reluctantly. The observations of Alladi Kjishnaswamy Ayyar, a distinguished jurist, are typical: he described preventive detention a necessary evil because, in his view, there were people detemiined to undemiine the sanctity of the Constitution, the security of the State and even individual liberty. What the members tried to do was not to prohibit preventive detention but to incorporate safeguards against its abuse in the Constitution by limiting the period, by giving effective powers to the advisory board to review detention orders, etc. This they failed to get. It was left to Parliament to prescribe the period and even that limit was flouted in spirit by the device, often adopted, of serving a fresh detention order a few hours after releasing the detenu, advisory boards had no power to go into the merits of the detention. The solution is simple; scrap all laws of preventive detention. It is, however, difficult to see that happening in the near future. I would suggest a first step which would remove some of the more undesirable features of preventive detention. The only justification for preventive detention is to safeguard society from persons who are out to destroy it. If that is the justification and that is the only justification officially given, let it be provided that all those detained under any detenfion law be kept either in the ordinary jails or in special detention centres run by the jail authorities. Such a change does not require fresh legislafion. Both the National Security Act and Cofeposa authorise the State to specify the place and conditions of detenfion. The state must be directed to ensure that detenus must be taken to ordinary jails within 24 hour of detention and be kept there. In the past that was the pattern of preventive detention. Thousands of nationalists rounded up by the British during the Indenendence movement were so detained.
Protection against Arrest and Detention:
Article 22 of the Constitution of India is as below: (1) No person who is an-ested shall be detained in custody without being infonned, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such airest excluding the time necessary for the journey from the place of airest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of Magistrate. (3) Nothing in Cls. (1) and (2) shall apply- (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless and Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the period of two months that there is in its opinion sufficient cause for such detention: Provided that an Advisory Board shall consist of a Chaimian and not less than two other members and the Chainnan shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judges of any High Court. Provided further, that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (a) of CI. (7).
Explanation - In this clause "appropriate High Court" means -
(i) in the case of the detention of a person in pursuance of an order of detention made by the Government of India or an officer or authority subordinate to that Government, the High Court for the union tenitory of Delhi. (ii) In the case of the detention of person in pursuance of an order of detention made by the Government of any State (other than a Union Territory) the High Court for that State; and (iii) In case of detention made by the administrator of a union territory or an officer or authority subordinate to such administrator, such High Court as may be specified by or under any law made by Pariiament in this behalf
(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority malcing the order shall, as soon as may be, communicate to such person the gi'ounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. (6) Nothing in CI. (5) shall require the authority making such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose. (7) Parliament shall by law prescribe - (a) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (b) the procedure to be followed by an Advisory Board in an inquiry under CI. (4)".
- Constitutional changes - Clause (4) of this Article has been substituted for the original CI. (4); and the original sub-clause (a) of CI. (7) omitted, and the original sub- clauses (b) and (c) thereof re-lettered as (a) and (b); and the words CI. (4)" occurring at end of sub-clause (b) thereof, have been substituted for the original words "sub- clause (a) of CI. (4)" by Sec. 3 of the Constitution (Forty-Amendment) Act, 1978.
- Analogous Provisions - Analogous to Article 22, are the following provisions in other Constitutions: DANZIN: Article 74 (4) - The liberty of the person shall be inviolable. No limitation or deprivation of personal liberty may be imposed by the public authority, except by virtue of the law. Persons who have been deprived of their liberty must be infomied at the latest on the following day on what authority and on what grounds the deprivation of liberty has been ordered. Opportunity must immediately be given them to lodge objections against such deprivation of liberty. EIRE: Section 40 - (1) The State guarantees in its law to respect, and as far as practicable by its laws to defend and vindicate the personal rights of the citizen. (2) The State shall by its laws protect as best it may, from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.
Clause (3) of Art. 22 however expressly take away the safeguards of clauses (1) and (2) of Article 22 in respect of a person arrested or detained under a law providing for PD. In its place the detenu under PD has the somewhat niggardly substitute protection as provided by clauses (4) and (5) of Article 22. Collectively these clauses provide that in case of PD: (i) The detenu shall not be detained beyond 3 months unless the Advisory Board (duly constituted) reports prior to the expiration of 3 months that there is in its opinion sufficient cause for such detention (as against production within 24 hours before a magistrate). (ii) The detenu is to be furnished, as soon as may be, the grounds for his detention. (iii) The detenu is to be provided the earliest opportunity of making a presentation against the order of detention (as against the right of consulting and being defended by a legal practitioner). As we pointed out earlier, the Preventive Detention Act, 1950 (PDA) continued to be on the statute book till 1970, being re-enacted seven times in the process. In 1971 the Maintenance of Internal Security Act, (MISA) began its reign, and gained considerable notoriety till it was finally repealed in 1977. During the period 1977 to 1980, for the first time there was no central law of PD in the Indian Republic. Once again in 1980 the National Security Ordinance was promulgated and the reign of PD laws was re-established over the Republic. In December, 1980, the NSA was enacted and consequently the ordinance was repealed. Secfion 3 of NSA gives the Central Government the power to detain any person if the government is 'satisfied' that it is 'necessary' to do so with a view to prevent him from acting in any manner prejudicial to any one or more of the following interests of the State: (i) Defence of the State (ii) Relation of the State with foreign power (iii) Security of the State (iv) Public order; and (v) Maintenance of supply of services essential to the community.
Since none of these concepts are capable of being defined with any great degree of certainty and definiteness, the scope of abuse is admittedly colossal. Section 8 of the NSA states that the grounds of detenfion must be communicated to the detenu, in no case later than ten days from his arrest. Secfion 9 deals with the
constitution of the Advisory Boards contemplated in Article 22. This also raises a question of some concern. The Constitution (44"' Amendment) Act, 1978, sought to amend clause (4) of Article 22 to provide that an Advisory Board shall be constituted, in accordance of the recommendations of the Chief Justice of the appropriate High Court. The Advisory Board was to consist of a Chairman, and two other members. The amendment proposed further that the Chaimian shall be a serving judge of the appropriate High Court, and the other members may be either the serving or retired High Court Judges'. The amendment seeks to amend clause (4) of Article 22 and to reduce the period of detention without obtaining the approval of the Advisory Board, from the present three months to only two months. Though the amendment was passed on June 10, 1979 it remains un-notified and has not yet been brought into force. Section 8 of the NSA which was enacted after this constitutional amendment was passed, contemplates a composition of the Advisory Board in which even those persons who were never appointed judges of the High Court may be members, and where the Chief Justice of the appropriate High Court has no role to play in constituting the Advisory Board. Section 8 is therefore clearly in disharmony with the Constitutional Amendment. Surely bringing into force the relevant provisions of the Constitutional Amendment will not weaken the hands of the State in its quest for maintaining security and public order. And, more importantly, it will prove to be a crucial check on the possibility of Executive lawlessness in applying the NSA. Like the NSA itself, both the amendments made to the NSA have been made by promulgating ordinances, which were issued in April and June 1984. This again is cause for concern. To begin with, it is not contemplated under the scheme of our Constitution that ordinances should be used as a supplant for the legislative power of the Parliament. On the contrary, such an exercise of ordinance making power is quite opposed to the ideals and spirit of the Constitution. We believe that the President who promulgates ordinances as a supplant for the legislative power of the Parliament violates his 'Oath of Office' under Aiticle 60 of the Constitution, by violating his solemn promise that he will endeavour to the best of (his) ability to preserve, protect and defend the Constitutions. Equally, such a President also violates his Fundamental Duties as a citizen of the Republic under clause (a) of Article 51A of the Constitution, namely, the duty to abide by the Constitution and respect its ideals and institutions.
Smuggling Activities Act, 1974 (COFEPOSA). These two amendments introduced by the June Ordinance need special mention.
Preventive Detention in India is a Constitutional Tyranny
India is one of the few countz'ies in the word whose Constitution allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights. For example, the European Court of Human Rights has long held that preventive detention, as contemplated in the Indian Constitution, is illegal under the European Convention on Human Rights regardless of the safeguards embodied in the law. South Asia Human Rights Documentation Centre (SAHRDC), in its submission to the NCRWC in August 2000, recommended deleting those provisions of the Constitution of India that explicitly pemiit preventive detention.' Specifically, under Article 22, preventive detention may be implemented and infinitum - whether in peacetime, non-emergency situafions or otherwise. The Constitution expressly allows an individual to be detained - without charge or trial - for up to three months and denies detainees the rights to legal representation, cross- examination, timely or periodic review, access to the courts or compensation for unlawful arrest or detention. In short, preventive detention as enshrined under Article 22 strikes a devastafing blow to personal liberties. It also runs afoul of international standards. Article 4 of the Intemafional Covenant on Civil and Political Rights (ICCPR) - which India has ratified - admittedly permits derogation from guaranteeing certain personal liberties during a state of emergency. The Government, however, has not invoked this privilege, nor could it, as the current situation in India does not safisfy with standards set forth in Article 4. If preventive detention is to remain a part of India's ConstituUon, it is imperative that its use be confined to specified, limited circumstances and include adequate safeguards to protect the fiandamental rights of detainees. Particular procedural protections are urgently needed (i) to reduce detainees' vulnerability to torture and discriminatory treatment (ii) to prevent officials misusing preventive detention to punish dissent from Government or from majority practices; and (iii) to prevent overzealous government prosecutors from subverting the criminal process. In
- Human Rights Features voice of Asia Pacific Human Rights Network
pursuit of these goals, SAHRDC made the following recommendations in its submission to the NCRWC. First, Entry 3 of List III of the Constitution of hidia, which allows Parliament and state legislatures to pass preventive detention laws in times of peace for "the maintenance of public order or maintenance of supply and services essential to the community", should be deleted. Assuming that preventive detention could be justified in the interest of national security as identified in Entry 9 of List I of the Constitution, there is still no compelling reason to allow this extraordinary measure in the circumstances identified in Entry 3 of List III. Second, lacking clear guidance from the Constitution, courts have apphed vague and toothless standards - such as the subjective "satisfaction" of the detaining authority test - to govern the implementation of preventive detention laws. If preventive detention is to remain in the Constitution, constitutional provisions must include well-defined criteria specifying limited circumstances in which preventive detention powers may be exercised - and these standards must be designed to allow meaningful judicial review of official's actions. Third, under Article 22 (2) every arrested person must be produced before a magistrate within 24 hours after arrest. However, Article 22 (3) (b) excepts preventive detention detainees from Clause (2) and, as a consequence, it should be repealed in the interest of human rights. AT present, detainees held under preventive detention laws may be kept in detention without any fonn of review for up to three months, an unconscionably long period in custody especially given the real threat of torture. At the very least, the Government should finally bring Section 3 of the Forty-fourth Amendment Act, 1978 into effect, thereby reducing the pemiitted period of detention to two months. Though still a violation of international human rights law, this step would at least reduce the incidents of torture significantly. Fourth, the Advisory Board review procedure prescribed by the Constitution involved executive review of executive decision-making. The absence of judicial involvement violates detainees' right to appear before an "independent and impartial tribunal", in direct contravention of international human rights law including the ICCPR (Article 14 (1) and the Universal Declaration of Human Rights (Article 10). The Constitution must be amended to include clear criteria for officials to follow, and subject compliance with those standards to judicial review.
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India should promptly withdraw its reservation of Article 9 (5) of the ICCPR and include a Constitutional provision guaranteeing the right to compensation, at lest for unlawful detention during peacetime. In keeping with the overriding spirit of the Constitution and with minimum standards of international human rights law, it is essential that the Constitutional refomis discussed above be adopted. The process set in motion by establishing the NCRWC provides a unique opportunity for such an important realignment of India's Constitution with prevailing international human rights standards. The key will be political willpower and the commitment to seeing justice done. Brief Facts of the Case were as under: Consequent on the Pakistani aggression, the President issued a Proclamation of Emergency on 3.12.1971 on the ground that the security of India was threatened by external aggression. By an order dated 5.12.1971 issued u/Art. 359 (1) of the Constitution, the right of 'foreigners' to move any Court for the enforcement of rights conferred by Arts. 14, 21 & 22 was suspended. In September 1974 the MISA was amended by Ordinance II of 1974 to include sub-section (c) in Sec. 3 (1) by which the right to detain was given as against smugglers and offenders under the Foreign Exchange Regulation Act, 1947. On 16.11.1974 the President issued a Declaration u/Art. 359 (1) suspending the right of persons detained u/s 3 (1) (c) of the MISA to move for enforcement of the rights confeiTed by Arts. 14, 21 and Cls. (4), (5), (6), (7) of Art. 22 of the Constitution. On 25/6/1975 in exercise of powers conferted by CI. (1) of Art. 359 the President declared that the right of any person including a foreigner to move any court for the enforcement of the rights conferted by Arts. 14, 21 & 22 and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamations of Emergency made under Article 352 (1) on 3.12.1971 and on 25/6/1975 are both in force. The Presidential order of 27.6.1975 further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order u/Article 359 (1). The President promulgated the amending Ordinances No. 4 & 7 of 1975, were replaced by the Maintenance of Internal Security (Amending Act), 1975 introducing a new Sec. 16-A and giving a deemed effect to Sec. 7 of the Act was on 25.6.1975. A new Sec. 18 was also inserted w.e.f 25.6.1975.
By the Constitution (Thirty-eighth Amendment) Act, 1975, Article 123, 213, 239 (b), 352, 356, 359 & 368 were amended. Cls. (4) & (5) were added in Article 352. The above Amendment renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any question in any Court on any ground. The Constitution (Thirty-ninth Amendment) Act was published on 10.8.1975, amending Arts. 71, 329 & 329 (A) and added Entries after Entry 86 in the 9" Schedule and also the Maintenance of Internal Security Act, 1971 as item 92 in the above Schedule. All the amendments made by the Ordinance were given retrospective effect for the purpose of validating all acts done previously. On 25.1.1976 the said Ordinances were published as the Maintenance of Internal Security (Amendment) Act
Various persons detained u/s 3 (1) of MISA filed petifions in different HCs for the issue of the writ of Habeas Corpus. Also challenged the vires of the Ordinance issued by the President on 27.6.1975, as unconstitutional and inoperative in law and prayed for setting aside of the order and for directing their release immediately. In some of the cases, the petitioners challenged the validity of the Thirty-eighth and Thirty-ninth Constitution Amendment Acts. When those petitions came up for hearing, the Government raised a preliminary objection to their maintainability on the ground that in asking for release by issuance of a writ of habeas corpus the detenus were in substance claiming that they had been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them u/Article 21 only. The right to move for enforcement of the right confeired by the Article having been suspended by the Presidential order dated 27.6.1975 the pefitions, according to the Government were liable to be dismissed at the threshold. The preliminary objections have been rejected for one reason or another by the HCs of Allahabad, Bombay, Delhi, Kamataka, M.P., Punjab and Rajasthan. Broadly, these HCs have taken the view that despite the Presidenfial order it is open to the detenus to challenge their detention on the ground that it is ultra vires, as e.g., by showing that the order on the face of it is passed by an authority not empowered to pass it, or it is in excess of the power delegated to the authority, or that the power has been exercised in breach of the conditions prescribed in that behalf by the Act. Some of these HCs have further held that the detenus can attack the order of detenfion on the ground that it is malajide, as for example, by showing that the detaining authority
The width and amphtude of the power of detention u/s 3 of the Act is to be adjudged in the context of the emergency proclaimed by the President. The Court cannot compel the detaining authority to give the particulars of the grounds on which he had reasonable, cause to believe that it was necessary to exercise this control. An investigation into facts or allegations of facts based on mala fides is not permissible because such a course will involve advertence to the grounds of detention and materials constituting those grounds which is not competent in the context of the emergency.
- In view of the Presidential Order dated 27.6.1975 under CI. (1) of Article 359 of our Constitution no person has locus standi to move any writ petition u/Article 226 before a HC for Habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or mala fide.
- Article 21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ oi habeas corpus is enforcement of Article 21 and is therefore, barred by the Presidential order.
- Section 16-A (9) of the Act is valid. It is a rule of evidence and it is not open either to the detenus or to the Court to ask for grounds of detention.
- It is not competent for any Court to go into questions of mala fiides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority. The appeals are accepted. The judgements of the High Courts are set aside.
Justice Khann's dissent:
A dispassionate analysis of the habeas corpus case reveals that the quintessence of the case lies with the dissent of IClianna J. and the decisions of the nine High Courts. Certainly the dissenting opinions will serve to the posterity as beacon lights in their strides towards the search and maintenance of the rule of law vi--a-vis rule of men. Shri Jayaprakash Narain had commented that the judgment in the habeas corpus case had put out the last flickering candle of individual liberty. Shri M.C. Chagla characterised the decision as '"the worst in the history of Indian Supreme Court". Shri V.M. Tarkunde, a former judge of the Bombay High Court and a leading member of the Supreme Court Bar labelled it as "judicial suicide". The majority could have taken a different view as was done by nine High Courts and the dissent of Shri Justice KJianna when they upheld the right of personal liberty and ruled that even in the absence of Fundamental Rights, "the state has got no power to deprive a person of his life and personal liberty without the authority of law. That is
the essential postulate and the basic assumption of the rule of law in every civilised society"." Justice Khanna's dissent aroused international interest in view of its importance and far reaching impact on the biggest democracy of the world. The foreign press and jurists acclaimed his dissent. The New York Times commented that 'it deserved to be engraved in letters of gold'. A typical view was expressed by the same Newspaper as foliows: "Indian democrats are likely to remember in infamy the four judges who obediently overturned the decisions of more than half a dozen lower (High) courts who had ruled in defiance of the Government that the writ of the habeas corpus could not be suspended even during emergency But they will long cherish the lonely grounds, but it could have exposed in a limited way the procedural laxity, the arbitrary manner and the partisan motivations which appear by all accounts to have accompanied the mindless exercise of the draconian powers of detention". It should not be difficult to agree with the above views because in the absence of Article 21 in the Constitution, it would not mean that people of India have no right to live which is a natural right. Article 21 merely lays down that this right can be taken away by the State only according to law. If the State is allowed the arbitrary decision in this matter then the very purpose of incorporating it in the Constitution will stand self-defeated. Analysing and appreciating Justice Khanna's Judgement, Professor Raghavan commented: "the path breaking tone of the dissent is refreshing not only for the reason that it affirms the continidng validity of the Makhan Singh decision of the court inspite of the fact that the Presidential Order of June 1975 was in terms unconditional or absolute, but it sets our vision high enough to permit a wider and more informed perspective of the Constitutional commitment to defend basic freedoms.''. With this dissenting judgement, like Lord Atkin's dissent in the famous English case, Justice IClianna has come to be placed in the galaxy of celebrated judges who had always held dear the rule of law as against the pressures and temptations of the Government. It is well known that this judgement cost him the Chief Justiceship of the country. It can, therefore, be con-ectly assumed that this dissent will serve as a trend-setter in the Indian Administrative law and democratic jurisprudence. Nani A Palkhiwaia - Opposes Emergency: Nani A Palkhiwaia was the Counsel of Mrs. Indira Gandhi and he argued her case Indira Gandhi v. Shri Raj Narain and obtained a conditional order from the
- AIR 1976 SC 1241-
- Dr. L.M. Singhvi, "The Times of India", February 15,
- C.G. Raghvan, "Indian Constitution: Trends and Issues", p. 271 (ILI, 1978)
Only next to Jayaprakash, I would place Ramnath Goenka as the most feared opponent of the Emergency. Most newspapers, like most people, capitulated. The two national English papers which stood up were the Indian Express and the Statesman. Every newspaper had a Censor installed in the office who masqueraded as the editor and decided what should or shoidd not be published. I vividly recall the day, early in the Emergency, when Mr. V.K. Narasimhan, the Editor of the Indian Express, had written an editorial which the Censor did not allow to be published. Mr.'Narasimhan, with the concurrence and support of Ramnathji, published the paper with the space for the editorial left blank, so that the discerning reader might understand what was happening in the newspaper world. During the Emergency, I used to meet Ramnathji ojf and on. And I can say quite truthfully that I have never met a proprietor of a newspaper who had the courage and the public spirit of Ramnathji. He was a dedicated citizen who used his enormous power, as the proprietor of a national newspaper, for what he believed to be the good of the country. He acted on his conviction that the press shoidd never be a poodle of the establishment, but should act as the watchdog of democracy. He believed that a courageous and idependent press is the noblest servant of society, along with a coiwageous and independeitt judiciary. Ramnathji was against any form of tyranny by the state. He always adhered to the unshakable belief which he shared with Bernard Levin, that barbed wires will rust, stone walls will crumble, and the tyrant's club will shatter in his first. During the 21 months of the Emergency, when most papers and journals capitulated, Ramnathji asserted his independence at colossal personal cost. The Government laimched innumerable criminal prosecutions against him and his companies in different courts of India; but he faced the onslaught with terror-like tenacity. To the best of my memory, about 166,000 persons were detained without a trial in different parts of India for an indefinite period. Even their close relatives were not told about the place where they were detained. The people detained without a trial included prominent figures like Jayaprakhas Naraya, Morarji Desai and Kuldip Nayyar - and the humble and nameless who will never be known to gthe roll-call of honour. A hundred thousand petty tyrants mushroomed all over the country. I come to the next question. What has happened before - can it happen again? The answer is - undoubtedly yes. No period in the history of our Republic is of more educative value than 1975 to 1977. George Santayana said "Progress far from consisting in change, depends on retentiveness. Those who cannot remember the past are col^demned to repeat it". If our basic freedoms are to survive, it is of vital importai7ce that we remember the happenings during the Emergency when the freedoms were suspended Coimtries which were integral parts of India in the days gone by - Pakistan, Bangladesh and Burma (Myanmar) - have gone through periods of authoritarian rule; atid so have highly advanced coimtries like Germany which had a Constitution which guaranteed freedoms of the type we still enjoy today. (Hitler amended the German Constitution just as Mrs. Gandhi did in India and deprived the people of their freedoms).
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Self-knowledge would dictate that we recognise three defects in our national character - lack of discipline and public spirit, lack of sense of justice and fairness, and lack of a sense of moderation and tolerance. It is these three defects in our character which made a cultured Prime Minister like Rjive Gandhi say publicly, more than once, that he would not hesitate to reimpose the Emergency if the circumstances demanded such a course of action, although it must be said to his credit that during the dark days of the Emergency, he kept himself totally aloof from the tyranny which stalked the land. The danger of a re-imposition of the Emergency is greater for a country like India where the society is feudal and caste ridden. I do not think casteism was ever more pronounced in the history of our Republic than during the recent past Today, India presents a picture of a great nation in a state of moral decay. The noble processes of our Constitution have been trivialised by the power-holders, the power-brokers and the power-seekers. Elections have been reduced to a horse race by contesting politicians- the difference being that the horse is highly trained. When we look around India today, we can hardly recognised it to be the same country in winch a dozen different civilizations of incredible nobility flourished over the last 50 centuries. This is the only country known to history where men of knowledge and learning had precedence over kings. What a sad contrast between Sri Aurobindo 's vision (Mother India is not a piece of earth, she is a Power, a Godhead) and the cesspool of degradation to which professionalpoliticiatis have reduced this country. I should like to reaffirm my finn conviction that it is not the Constitution which has failed the people, but it is our chosen representatives who have failed the Constitution. Dr. B.R. Ambedkar poignantly remarked in the Constituent Assembly that, if the Constitution which was given by the people imlo themselves in November 1949 did not work satisfactorily at any future time, we should have to say, not that the Constitution had failed, but that man was vile. Kuldip Naya/\ who to prison during Emergency, gave a description of tortures inflicted on political prisoners during Emergency. To quote from his book "The Judgment" -• f t ' "Tortures of various types were carried out - stamping on the bare body with heeled 'ammunition' boots; severe beating on the soles of feet; rolling of heavy police lathis over shinbones, with a constable sitting on the lathi; making the victim crouch for hours in a fixed position; beating on the spine slapping both ears till the victim lost consciousness; beating with the butt of riffle; inserting live electric wires in the crevices of the body; stripping and making satyagrahis lie on slabs of ice, burning the skin with cigarettes or wax candles; denying food, water and sleep, and making the victim drink his own urine; suspending him in the air with his wrists tied at the back and putting him up s an 'aeroplane'. (The victim's hands were tied behind the back with a rope which was taken over a pulley attached to the ceiling and the victim was pulled up a few feet
- Mainstream, November 1979
