Performance of the Indian Supreme Court during the emergency

Transcription

1 From the SelectedWorks of Tirthankar Das September, 2007 Performance of the Indian Supreme Court during the emergency Tirthankar Das, West Bengal National University of Juridical Sciences Available at:

2 CONSTITUTIONAL LAW-II THE SUPREME COURT S PERFORMANCE DURING THE PERIOD OF EMERGENCY FINAL DRAFT PREPARED BY TIRTHANKAR DAS

3 TABLE OF CONTENTS 1. INTRODUCTION. 2. HOW IT ALL BEGAN-THE INDIRA GANDHI ELECTION CASE 3. ATTEMPT TO DEMOLISM THE BASIC STRUCTURE -REVIEW OF KESHAVANANDA. 4. A LOST CAUSE- THE HABEAS CORPUS CASE-THE FINAL CHANCE OF SAVING THE INDIVIDUAL LIBERTY 5. CONCLUSION 2

4 INTRODUCTION The Emergency proved that when dictatorship takes over, the judiciary, the executive and the media could do little to save it. Democracy lies in the hearts of men and women. It was not our constitutional institutions which saved democracy. It was the 'little man' who in March 1977 voted a tyrannical regime out. -ARUN JAITELY 1 Much has been written about the emergency in the last 30 years, some writers condemning it others attempting to justify it, (with the former being the more heavy than the latter). The task of the researcher as is clear from the title is not to comment upon the rightness or the wrong ness of the this act (as the researcher will be moving on the assumption that the act of declaring emergency is wrong) but to more specifically look at, analyse and comment on the actions of the Supreme Court of India during this period (hereinafter referred to as the emergency). It is 30 years since an Internal Emergency was imposed on June 25, It is considered by many as the darkest chapter in Indian democracy in the post Independence era. More than half of the country's present population was born after A majority of Indians, therefore, do not have a first hand impression of what a democratically elected government can do can do by subverting a democratic Constitution. Historical Background to the Declaration Many eminent historians have commented upon the emergency of them the researcher has analysed mainly Bipin Chandra 2 who has in his work brought out the many possible causes for the imposition of the Emergency. 1 INDIAN EXPRESS, JUNE Considered widely as the most authoritative commentator on Modern Indian History. 3

5 Bipin Chandra starts of from the year 1972 i.e. a year after the Bangladesh victory where slowly the aftereffects of the war were surfacing. The economic situation was starting to look bleak, a combination of recession growing unemployment, rampant inflation and scarcity in foodstuffs resulted in serious crisis (which was partly created by the burden India took upon itself of feeding the 10 million refugees who had illegally entered India and partly by the lack of adequate rain fall in the ). The war had caused a large budgetary deficit draining all the foreign exchange reserves. The failed rains led to a drop in electricity production, drought and scarcity in food products which in turn resulted in a steep rise in prices of these commodities. there was fall in the production of manufactured goods due to which there was a rise in unemployment and to top all this there was a global oil shock in the year 1973 which increased the crude oil prices four fold. The drained foreign reserves further increased the budgetary deficit and steeped the economic recession. Mrs.Gandhi s popularily began to decline because of all this. Food riots sprung up in many places in the country, the unemployment led to an large scale industrial unrest culminating in the all India railway employees strike. The law and order situation in the country deteriorated because of all the strikes and lock outs, there was also a mini- mutiny in U.P by the Provincial Armed Constabulary, which was which was disciplined by the army. Congress was in a decline as an organization, it was steeped in corruption and hence could not handle the problem lying before it, the corruption had reached to the post of the Prime Minister as she is alleged to have allotted a deal of manufacturing of 50,000 maruthi cars to her younger son, Sanjay Gandhi. At the same time there were two strong movements which were arising in the Gujarat and Bihar, the movement in Bihar was particularly growing strong under the leadership of a former freedom fighter and a devout Gandhian Jaiprakash Narayan. But the one factor which gave immediate provocation was the judgment of the court in the Indira Gandhi Election case where Justice Iyer declined her a unconditional stay on the judgment of the Allahabad High Court which convicted her of electoral malpractices. The very next day the emergency was declared. 4

6 HOW IT ALL BEGAN- THE INDIRA GANDHI ELECTION CASE 3 THE POLITICAL BACKGROUND TO THE CASE The case was brought about by Raj Narain who had in the 1971 election stood against the then Prime Minister Indira Gandhi in her constituency of Rae Bareili in the state of U.P. Raj Narain was very confident of victory in the election, he went so far as to take out a victory rally before the results were declared. But he did not win the election, instead he lost with a huge margin. This made him bring out an election petition against Indira Gandhi alleging that she won the election by flouting the election laws. The suit was instituted against her in the Allahabad High Court. SITUATION IN THE ALLAHABAD HIGH COURT Raj Narain s primary contention was that Indira Gandhi had infringed the provisions of the Representation of People s Act, 1951 during her campaign as she had been assisted by a Gazetted government officer who was on duty, the police, the armed forces, used government vehicles, exceeded the prescribed limit on campaign expenditure and had also distributed liquor and clothing to the voters in the constituency. Hearing of the case began on 15 July 1971 before Justice B.N. Lokur, who rejected Raj Narain s request of the prime minister being called to depose before the court and also for certain government documents be placed before the court so as the court could take cognizance of them. Raj Narain did not admit defeat and moved the Supreme Court where a 3-judge bench heard his request and allowed the appeal. The case proceeded in the Allahabad High court until 1974 when Mrs. Gandhi filed an appeal in the Supreme Court requesting privilege for not having to produce the blue book 4 in the court as evidence. A bench of five Supreme Court judges allowed her appeal setting aside the 3 Due to the lack of research material the researcher has primarily relied on Grancille Austin s book Working a democratic constitution- the Indian expirience and Gobind Das s work Supreme Court a quest of Identity 4 The Blue Book contains the rules and the instructions for the tours and travel of the Prime Minster. 5

7 order of the High Court demanding the production of the Blue Book, and directed the case to the High Court this time to be heard by a single judge, Justice J.L.Sinha. The case was heard accordingly and the verdict was delivered 5 on the 12 th of June 1975 charging the Prime Minister Indira Gandhi to be guilty of corrupt practice for having used the government officers in her campaign and unseating her from the membership of the Lok Sabha. Justice Sinha also granted the respondent s a stay for 20 days on the verdict. JUSTICE KRISHNA IYER S JUDGMENT AND ITS FALL OUT. In the meantime respondents made preparations for an appeal in the Supreme Court 6. Justice Krishna Iyer presiding over a vacation bench of the Supreme Court heard the petition for an unconditional stay on the judgment of the High Court, it was submitted by Mr. Palkivala that the court should take cognizance of the political repercussions of not granting a stay which would include the possibility of external and internal danger. Opposing counsel demanded that the principles of law, equity and court practice should be applied to all equally and evenly and no weight age should be placed upon the appellant s alleged position as Prime Minister. After hearing both the sides on the matter the verdict was passd on the very next day, i.e. the fateful day of 25 th June 1975, the unconditional stay wa not granted, instead what the appellants got was that Indira Gandhi can stay as Prime Minister, but cannot participate 5 It is said that there was immense pressure on Justice Sinha while delivering the verdict in this case, rumors were alive at that point that the intelligence wing was trying to do everything to know the verdict beforehand, and that Justice Sinha would be sent to the Supreme Court if he decided the case in favour of Indira Gandhi. 6 The eminent lawyer N.A.Palkivala was approached, who after examination decided to take up the matter, the researcher here would like to briefly discuss about the Palkivala, he had in the past few years established himself as the best constitutional lawyer around, he fought and won many a famous legal battles in the Supreme Court, starting with the Bank Nationalisation and the Privy purses cases to the very recently decided epic the Keshavananda case (or the Fundamental Rights case as it is popularly called), he had fought all these cases against the government, and was for the first time taking up a case on behalf of the government ( Indira Gandhi cannot in strict terms be called a government but the truth is that she was). 6

8 in the sessions of the House nor shall she have the right to vote with regard to any matter in the house. The next day the emergency was declared on the ground of internal disturbance, Palkhivala opted out of the case as he thought the action of imposing the emergency was unjustified, Solicitor general Fali Nariman also laid down his office for the same reason. THE OUTRAGEOUS AMENDMENTS-DEVELOPMENTS WHILE THE PETITION WAS PENDING IN THE COURT. The wave which stuck the government was that the Prime Minister was elected by the people of the country and hence cannot be subjected to legal scrutiny. Hence the law on which the Allahabad High Court based its judgment had to be changed so as to allow the abovementioned idea to be possible. While the election petition was pending in the Supreme Court the centre using the favorable climate of the emergency 7 passed the Election Laws (Amendment) Act, 1975 through which certain amendments were made to the Representation of People Act, These amendments dealt with (a) definition of a candidate (b) corrupt practices as to the use of and appeal to, religious and national symbols, and (c) the corrupt practice of assistance by officers in the service of the government for the furtherance of the prospects of a candidate s election. Furthermore the Parliament in exercise of its constituent power brought about the Constitution (Thirty Ninth Amendment) Act, 1975, which brought changes in Art. 71 of the constitution by substituting a new article which said that parliament shall by law decide the matters relating to the election of the President and the Vice- President, the amendment further inserted Art.324A which made special provisions relating to the election of the Prime Minister and the Speaker. Sub clause (4) of the article stated that no 7 The climate was favorable as the civil liberties of the citizens were suspended, the power of the media was curtailed and most of the opposition was languishing in the jails, without a voice. The government s actions were unquestionable or so it thought. 7

9 law made by parliament before the commencement of the constitutional Amendment Act, in so far as it relates to election petitions and matters connected therewith can apply or ever have been deemed to apply to or in relation with the election of the Prime Minister, the speaker of either house of the Parliament and such election shall not be deemed to be void under any such law notwithstanding any judgment of any court. The amendment destroyed the election and the law relating to it; it took away a remedy from the defeated party in the election and was as many call it a legislative judgment to the Indira Election case and a direction to the Supreme Court to allow the appeal. CONTENTIONS RAISED AND JUDGMENT DELIVERED Raj Narain filed a cross appeal and challenged both the amendment to Representation of people Act and also the Thirty Ninth Constitutional Amendment Act, The appeal was argued by both sides on the basis that the case was governed by the majority in Keshavananda case i.e. the amendment power of the government did not extend to the altering the Basic Structure of the constitution. The grounds on which the challenge was based are as follows: The amendment was passed when several members of the Parliament were absent due to their arrest under preventive detention. The amendment destroys Judicial Review, and also Separation of Powers both of which form a part of the basic structure of the Constitution. Art.368 does not give the parliament the power to decide a private dispute through an amendment. Clause (4) of Art.324A is said to be in the exclusive domain of the Judiciary and which is not included in the constituent power under Art.368. The amendment destroys the notion of equality; there is no rational differentiation between persons holding high office and persons elected to the Parliament. 8

10 The ground of the constitution amendment being passed without the presence of a lot of opposition members was not accepted by any of the judges. But, the court through a majority i.e. Justice Khanna, Mathew, and Chandrachud held that Art. 324(4) struck the Basic Structure and hence is liable to be struck down; the reasons on which the judges reached this conclusion are varied. The court through majority also held the amendment in election laws to be valid, and allowed the appeal of Mrs. Gandhi. Justice Chandrachud in his judgment emphasised on the theory of Separation of Powers being a part of the Basic Structure of the Constitution, he held that the amending power under Art.368 does not include legislative executive and judicial powers. Justice Mathew held that without a judicial remedy elections would become a mockery. It would be difficult to decide as to who has been legitimately elected and who has usurped power. For the latter could then trample upon the privileges and liberties of people. Justice Khanna held that free and fair elections are an integral part of the Basic Structure of the Constitution and Art.324 (A) goes against the Basic Structure, furthermore as Art. 324(A) is not severable from the main Article the whole article is to be struck down. Justice Beg and Chief Justice Ray did not categorically hold Art. 324(A) to be violative of the basic structure, but they disagreed with the amendment in spirit. They held that free and fair elections did not form a part of the Basic Structure and that constituent power given to the Parliament by Art.368 included legislative, executive and judicial power. The case has the distinction of being the first case which is said to have been decided using the newly propounded doctrine of Basic Structure. The case is also credited to have broken new ground and had its effect on Keshavananda itself. 8 8 The case was dubbed as the first test to the doctrine of Basic Structure propounded in Keshavananda, and doctrine is said to have passed in flying colors. 9

11 ATTEMPT TO DEMOLISH-THE BASIC STRUCTURE-REVIEW OF KESHAVANANDA. 9 It was widely known that after the emergency was declared, all institutions of democracy crumbled, except for maybe the judiciary. Mrs. Gandhi was already very dissatisfied with the judiciary as it was not allowing her to take complete control of the situation, the acrimony started with her being implicated for corrupt practices during her election to the Lok Sabha and continued with the Supreme Court striking down a part of the 39 th Constitutional Amendment, 1975 as it contravened the doctrine of the Basic Structure of the Constitution. The surest way Mrs. Gandhi thought of taking control over the elusive institution called the Judiciary would be to demolish the concept of Basic Structure, as it is this concept which gives the Judiciary the power to review the constituent actions of the legislature and strike them down in the guise of Judicial Review. It is in pursuance of this intention that the application for the Review of the Keshavananda judgment was filed by the Attorney General Niren De in the guise of seeking a clarification on the doctrine of Basic Structure. MATERIAL FACTS OF THE CASE On 1 st September, 1975 the Attorney General Niren De and the Advocate General of the state of Tamil Nadu filed an application before the Supreme Court that it hear a number of Writ Petitions on the 10 th of November. These petitions dealt with law of land ceiling violating the Basic Structure of the constitution, the government wanted a clarification as to the doctrine of Basic Structure as it felt the concept was very vague and unclear. Another point which found prominent mention in the application is that the government demanded a review in the Bank Nationalisation case The researcher has mainly relied in the books Grancille Austin s book Working a democratic constitutionthe Indian expirience and Gobind Das s work Supreme Court a quest of Identity and for Palkhivala s arguments on his book We the People. 10

12 The Chief Justice set 10 th November as the date for the hearing of arguments from both the parties. ISSUES RAISED BEFORE THE COURT Attorney General Niren De opened the hearings on the 10 th of November and raised the issue of Basic structure of the constitution being unamendable and thereby creating a lot of difficulty and confusion. He contended that the every constitutional amendment was being questioned on this ground and the courts are differing in their interpretations of the Basic Structure and hence it was imperative that the court clarify the position with regard to Basic Structure. He further contended that the government was not able to implement many of its programs especially those relating to social-economic welfare of the people, as it was afraid they would fall under judicial scrutiny and would be declared unconstitutional. Nani Palkivala who represented the coal companies began his argument 11, he submitted that the court could not review the Keshavananda Judgment and gave ten reasons as to why the court could not do so, and the researcher shall examine the ten points in detail, the points are as follows 12 : Palkhivala s first contention was that the in the Keshavananda s case out of the three contentions 13 raised on behalf of citizens two were rejected and the third was accepted and hence if anybody it is the citizens who have the right to a review and not the government. 10 Where the government had previously tasted defeat. That case along with Keshavananda were argued by Palkhivala and hence the review of both these cases brings Palkhivala automatically into the picture. 11 This is widely considered to be the finest oration ever to be given in the Chief Justice s court. See, Generally Austin, G, Working A democratic Constitution-the Indian Expirience, Oxford University Press, New Delhi, For the contentions See, Palkhivala.N.A, We the People, article titlied Attacks on the Constitution during the Emergency. 13 The three contentions are as follows (1) Golaknath s case was rightly decided and parliament does not have the power abridge any fundamental right under part III of the constitution. The 24 th amendment which made Art. 13 subject to Art.368 is invalid. (2) the whole of Art.31(c) is invalid as it infringes upon other fundamental rights.(3) the Parliament cannot in exercise of its amending power cannot alter or destroy the basic structure of the constitution. From these three contentions only the third was ruled in the citizen s favour. 11

13 According to established case-law there are only two grounds on which a court can reconsider its earlier rulings and these grounds are (1) manifest error (2) baneful effects on the general interests of the public. Palkivala proved that both these grounds are not present in the instant case and hence the petition for reconsideration cannot be allowed. The election petition of Mrs. Gandhi was decided on the basis of the doctrine of Basic Structure and if this doctrine was reversed then the court would be contradicting itself and this would reduce the reputation of the court in the minds of the general public. Since the Keshavananda judgment nothing has happened which would justify a reconsideration of the judgment in fact there have been painful developments which would in public interest compel the Hon ble court not review the judgment. Since 1973, 58 acts have been put into the ninth schedule with a view of excluding the scrutiny of the court. He also submitted that constitutional amendment were being made which completely negate the rule of law and are against the essence of free democracy. He cites the Constitution Forty First Amendment act as an example. Keshavananda was arrived at after the largest bench ever constituted, sat for the longest time taken for any a verdict, with the vastest materials brought together to form the record. There is no justification in reviewing a judgment such as this. The present time is the most inopportune for the review as, the country is reeling under the emergency, the framers felt that there always would be an opposition to check the power of the government but, at present there is no opposition both inside Parliament and outside as most of the opposition members are languishing in the jails, the freedom of the Press has also been curtailed and they now run on the directions of the government not even being able to publish articles on judicial proceedings including this very case without the consent of the government, the people s freedom to protest has been taken away as there is total suspension of liberty. 12

14 The review of Keshavananda at this moment would set a bad precedent in law, and would have a dangerous effect on the continuity of law as another full bench would be set up to review the judgment of this full bench at an equally short notice. This should clearly not be allowed to be done as the impugned matter deals with the very future of freedom and rule of law and the very survival of the unity and integrity of the country are at stake. The Hon ble Court has not as yet applied its mind to the impugned amendments and hence should not hear submissions relating to the review of Keshavananda as it could be the case that the amendments could be disposed off without the need of going into the matter of review. The ninth argument is in the form of an Arguendo where Palkivala submits that if at all Keshavananda is to be reviewed it should be reviewed in full so that all the contentions raised in the original case 14 can be raised again and not just the part dealing with the basic Structure. Furthermore reviewing the whole case would mean the matter would take about the same time as that of the original case and the highest court of the country cannot repeatedly be occupied with one matter for such a long time and it would be prejudicial to public interest to do so. The final contention dealt with the bench strength, where Palkhivala questioned the strength of the bench to be able to overrule Keshavananda, the bench consisted of thirteen judges the equal number as that of Keshavananda. To overrule a judgment a bench should always be larger than the one in the original case. THE SURPRISE DECLARATION After counsels of both the parties made their initial submissions as to the maintainability of the petition, on the third day of the hearing the Chief Justice entered the courtroom and declared the Bench dissolved. 14 See, for all contentions of Keshavananda Supra n

15 Since then not many have written or tried to analyse the surprise declaration by the Chief Justice, but from available sources the researcher concludes this could be because of two reasons: The happenings in the court, where the petitioners the State of Tamil Nadu, the States of Gujarat and Jammu and Kashmir openly answered in court that they did not demand the review of Keshavananda. The happenings behind the scene where a misunderstanding between Justice Matthew and Justice Krishna Iyer 15 caused Chief Justice Ray to think that dissolution was the only way out. 15 Two days into the submissions when both the counsels had made their initial arguments, Justice Krishna Iyer Happened to tell Justice Matthew that the respondent counsel Mr.Palkhivala arguments seemed more logically and legally sound. This was wrongly understood by Justice Matthew who told Chief Justice Ray that Justice Krishna Iyer had ganged up a few judges on the bench to support Palkhivala. The Chief Justice then acted quickly and dissolved the bench. See Genally there are no secrets Mr.Nariman by Justice Krishna Iyer the Hindu, 14

16 A LOST CAUSE- THE HABEAS CORPUS CASE- THE FINAL CHANCE TO SAVE INDIVIDUAL LIBERTY 16 FACTS OF THE CASE Hundred of people were detained in several states under the provisions of the Maintenance of internal Security Act, petitions of Habeas Corpus for release of detenus was filed before various High Courts. The High Courts of Bombay Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan rejected the petitions raised by the concerned states that the Habeas corpus petitions were barred by the presidential order of 27 th June 1975, but other High Courts of Andhra Pradesh, Kerala, Madras upheld the detentions made by the state. The High Courts which rejected the contentions held that in spite of the presidential order suspending fundamental rights under art.14, 21 and 22, the court was still entitled to go through the order of detention and decide whether it was made in accordance with the provisions of the Maintenance of Internal Security Act (hereinafter MISA) as a persons right to freedom from arrest and detention could be exercised when such arrest was not in accordance with the provisions of the statute which formed the conditions precedent to the exercise of powers under the statute, but the courts declared that they would no go into the question of declaring the validity of the proclamation of emergency. To steer clear of the confusion which had arisen the Union Government along with the state government filed an appeal before the Supreme court, the Supreme Court considering the similarity in the arguments decide to hear the petitions jointly. 16 the researcher has primarily relied on the books Grancille Austin s book Working a democratic constitution - the Indian expirience and Gobind Das s work Supreme Court a quest of Identity and Shivraj Nakade s work Emergency in the Indian Constitution. 15

17 In the meantime the attention shifted to the composition of the bench of the Supreme Court, Chief Justice Ray who is to decide upon the composition had by then recoeved a lot of letters as requests from various lawyers and Bar associations to choose the bench according to the seniority. The feeling was that when chosen according to seniority the bench would include interalia Justice Chandrachud, Bagwati and Khanna who according to the popular belief were to side the detenus. The other members Chief Justice Ray and Justice Beg had a history of being pro-government 17. On behalf of the states the Attorney General Niren De put forward a simple argument before the court that the detenus had no locus standi to file writs petitions of Habeas Corpus. The court could only entertain them on the ground that the orders of detention on the face of it were bad i.e. they were passed by a different person than that required by the Act, or they were passed outside the purpose mentioned in Sec. 3(1) of the Act or they did not bear any signature at all. The counsels for the respondents advanced arguments that the suspension of the rights did not entail the suspension of rule of law during the emergency, the respondents suspension of art. 14,21 and 22 did not amount to suspension of right to personal liberty at common law and natural law as Art.21 is not the sole repository of the right of life and personal liberty. The respondents also contended that the Rule of Law is a part of the Basic Structure of the constitution and also challenged the newly added section 16A(9) of the MISA. Main questions involved in the case are ; 1. whether the Art.21 of the constitution is the sole repository of the right of the right to life and personal liberty 2. whether the rule of law could be suspended during the period of emergency, and 17 both these judges had decide in favour of the government in Keshavananda and also in the Indira Gandhi election case, Chief Justice Ray had delivered in favour of the government in the Bank Nationalisation and the Privy purses cases also 16

18 3. Could the powers of the High court to review Habeas Corpus petitions under article 226 be curtailed on the basis of the provisions of the statute, i.e. section 16(9) of MISA? (2) Presidential Order of June 1975 another important question which arose in the case was with regard to the presidential order of June The detenus relied upon the case of Makkan Singh v. the State of Punjab and submitted that the court could provide relief to the detenus despite the presidential order of The Makkan Singh case which was decided by the Supreme Court, It was held that the detenus had a right to file petitions under the writ of habeas corpus if the law under which they were detained was other than the Defense of India Act, The Chief Justice Ray rejecting this contention held that the presidential order of June 1975 was on the face of it unconditional and as such there was a clear diferance between the presidential order of 1962 and the presidential order of the government realizing from the experiences of the past deliberately made the 1975 order unconditional under art.359(1). Hence the ratio of Makkan Singh will not apply in the present case. (2) Art. 22 not the sole repository of the right to personal Liberty The attorney general raised the issue of Art. 21 being the sole repository of right to life and personal Liberty. He submitted that the right to personal liberty is available only within the four walls of the constitution, once presidential order suspends art. 21 it suspends right to personal liberty of the people. Hence this petition is not maintainable. Justice Beg and Chandrachud reasoned that the right to personal liberty and a certain other rights were elevated to the status of the Fundamental Rights so that they might not be tinkered and tampered with but the constitution itself gives the president the power 17

19 through an order to take away that right and hence a right to Personal Liberty cannot lie outside Art.21 of the constitution. Justice Bagwati held that Art.21 specifically that the executive cannot interfere with the Personal Liberty except according to the procedure established by law, the detenu has no right to challenge the legality of the presidential order. Justice Khanna in his dissent held that Art. 21 is not the sole repository of right to Life and personal liberty and that personal liberty is a common law right and is a principle of rule of law in all democratic states. He relied on the judgment of Lord Atkin in the case of Eshugbagi Eleko v. Officer administering the Government of Nigeria 18 to prove this point. He went further in explaining why Art. 21 is not the sole repository of the right to personal liberty and discussed the fatal consequences of declaring Art. 21 as the sole repository of Personal Liberty. Fatal because such a reading abdicates the government of all responsibility, which means the government, is then answerable to nobody not even the Judiciary. Justice Khanna s reading of the law is said to be in conformity with the spirit of the scheme of Part III and Part XVIII of the constitution; and also the Universal Declaration of Human Rights and the Covenant on Civil and Political rights. (3) Rule of Law and Internal Emergency Chief Justice Ray dealt with the question of Rule of Law and held that the rule of law did not mean of nature and principles consistent and invariable at all times and in all circumstances. Rule of law is certainty of law and liberty of individuals in confined and controlled by the law. He further ruled that in times of emergency there cannot be a rule of law outside the four walls of the constitution. 18 AIR 1931 P.C

20 Justice Beg in his judgment developed the concept of executive Justice and held that the detenus cannot argue about rule of law when they are deprived of their locus standi. Justice Chandrachud agreed with the reasoning of the other judges and held that the rule of law which can by its presence drown the emergency provisions. Justice Khanna in his dissent held that the rule of law is omnipotent and would be present even during the times of emergency, the executive should be able to justify himself whenever his action has been challenged by an aggrieved person. He stated that rule of law is a basic feature of the constitution and cannot be suspended by any kind of Presidential order. He further ruled that the rule of law is the antithesis of arbitrariness. THE AFTER EFFECTS The judgment not only shocked the legal fraternity but also shook the whole country. The government had now got the permission from the highest court in the land to carry out its atrocities. Jaiprakash Narayan s words after he heard the verdict of the Supreme Court in the Habeas Corpus case summarized the situation appropriately. Mr. Narayan said the last flickering candle of individual freedom has been put off and Mrs. Gandhi s dictatorship both in its personalized and institutionalized forms is complete. Justice Khanna s decision was hailed from all corners of the country; in fact the attorney general Niren De who argued the case of the government took Khanna aside and congratulated him for his action. The other judges also it has been observed have at some point in their careers felt bad about the verdict in the habeas corpus case. Justice Chandrachud reflected later in a speech he delivered that the he then did not have the courage to lay down his office and show to the government where the law lies. Justice Beg while deciding another case held that the verdict in the Habeas corpus case was misleading as it held that a citizen cannot invoke the courts for a remedy of personal liberty when the rights were suspended. 19

21 CONCLUSION It has been seen in the last three chapters how the Supreme Court behaved during the period of Emergency. In the first case that was discussed we saw a court which was assertive, strong. When the Indira Gandhi case came up before the vacation bench of the Supreme Court we see in Justice Krishna Iyer a strong judge who was not weighed down by the occasion and gave a decision which followed the legal precedents and found the Prime Minister guilty on corruption charges in spite of her eminent counsel Mr. Palkhivala reminding him that grave consequences might fall out if the court were not to grant an unconditional stay. Furthermore in the words of H.M.Seervai the court reached its finest hour when it struck down as unconstitutional the Thirty- Ninth amendment which purported to take away the power of Judicial Review from the courts. In the second case we see that the court is under pressure to review the doctrine of Basic Structure and it falls under the pressure, Chief Justice Ray forms the bench to review the Basic Structure without scrutinising the petitions properly and then realizes his mistake when the petitioners submit in court that they did not apply for a review of the doctrine. Here the doctrine survives but because of extraneous factors 19 independent of the court. In the third case we see that the Supreme Court takes the side of the government and disregards the Right to personal Liberty of the citizens, again to quote Seervai the court fails the citizens, according to him the emergency is a tale of two Supreme Courts the one that decided the Indira Gandhi Election case and the other that decided the Habeas Corpus case. He has in his work gone to a very great length to criticize the judgment in the Habeas Corpus case and made a direct call for the overruling of these judgments. 19 The extraneous factors are the Palkivala s brilliant arguments and the misunderstanding between the judge Iyer and Mattew. 20

22 BIBLIOGRAPHY Bakshi, P.M., THE CONSTITUTION OF INDIA, 1991, Universal Law Publishing Co. Pvt. Ltd. Basu, D.D., SHORTER CONSTITUTION OF INDIA, 12 th Edition, 1999, Wadhwa & Co. BLACKS LAW LEXICON, Seventh Edition, Bryan Garner, West group. Jain, M.P., INDIAN CONSTITUTIONAL LAW, Fourth Edition, 1987, Wadhwa & Co Seervai, H.M., CONSTITUTIONAL LAW OF INDIA, Fourth Edition, 1991, Universal Book Traders. Singh, M.P., V.N. SHUKLA S CONSTITUTION OF INDIA, Ninth Edition, 1998, Eastern Book Company Bhushan, S, THE CASE THAT SHOOK INDIA, Vikas Publishing House Pvt. Ltd., New Delhi,1978. Austin.G, WORKING OF A DEMOCRATIC CONSTITUTION-THE INDIAN EXPERIENCE, Oxford University Press,1999 Dhar.P.N, EMERGENCY EXCESSES-A DAYLIGHT ROBBERY OF THE HUMAN RIGHTS, Shourie. Arun, INDIRA GANDHI S SECOND REIGN, Vedam books, Delhi Chandra. Bipin, INDIA AFTER INDEPENDENCE , Oxford University Press, Nakade.S, EMERGENCY IN THE INDIAN CONSTITUTION, Cosmo publications, New Delhi,