Citizens' Issues
The Emergency of 1975 and role played by the judiciary

The apex court accepted the Attorney General’s argument that if a policeman under orders of his superior was to shoot a person or even arrest a Supreme Court judge, it would be legal and no relief available. If only this view had been rejected, Emergency would have collapsed then and there

Nations, which do not remember their immediate past, are in danger of repeating the same tragedy. This thought came to me on 26 June 2013 (the Emergency day of 1975) when on random questioning of youth around 35 years old in the country (who are said to make up about half the population of the country) overwhelmingly of them did not know of any particular significance of the day—and more tragic, fairly large number of people above the age of 35 fared no better.

 

The reason was obvious. Most of the population in this age group got its information from newspapers, which with commercial angle in view never fail to remind us of Valentine’s Day. But on 26 June, the newspapers did not even have a small news item in their paper—leave apart on the front page. Even many opposition parties, which were the victims of Emergency, chose to keep low key. Even though PUCL and other civil liberties organizations, as usual held protest meetings, but TV and newspapers viciously avoided any mention, overwhelmed as they are with the government’s neo liberal policies. Or is it a sense of fear because the perpetrator of Emergency is the ruling party—so much for freedom of press. And yet tragically it was a day when India lost its democracy and the US president sarcastically boasted that America was now the largest democracy. It is a different matter that thankfully because of the sacrifices made by Indian people under the inspiring leadership of Jai Prakash Narain (JP), the boast of US president was to end, but only after 18 months.

 

But the wounds have remained—the danger of it being repeated in the same manner may have been eliminated but a clearly concealed kind of version by the governments in using the various security legislations against human right activists, trade unionists continue to haunt us.

 

Question often asked is why Emergency could have happened notwithstanding our Constitution giving us all the fundamental rights and democracy being a basic feature of the Constitution as so refreshingly held in the Kesavananda Bharati case as far back in 1973 by our Supreme Court.

 

It is not that there was no resistance to the Emergency. Thousands went to jail, which included ex- central ministers, ex-chief ministers, governors, lawyers, legislators and few brave journalists. Many human right activists went underground but there is a limit beyond which unarmed people can fight an intolerant and a near fascist state that India had become those days. A total fear had enveloped the country. And all this because rule of law had completely been eliminated by the Supreme Court ruling in the ADM Jabalpur case (April 1976), which overruled the view of nine high courts that the legality of detaining order passed by the governments could still be examined—in fact in some cases the high courts had ordered release of detenues. Had this view been upheld, Emergency would have collapsed. But to our shame the Supreme Court by a majority of four judges against one honourable exception (Khanna J) laid down a proposition of law, which forever will remain a hallmark of shame thus;

 

“In view of the Presidential Order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a high court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the round that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations.”

 

Is it not obvious that Emergency could not be fought in a legal and democratic manner because the Supreme Court accepted the Attorney General’s argument that if a policeman under orders of his superior was to shoot a person or even arrest a Supreme Court judge, it would be legal and no relief available. Naturally in this situation, no peaceful opposition to Emergency could continue. I am shocked how the majority decision could rely on Liversidge Vs Anderson given during wartime in 1942 by House of Lords, but with a (memorable dissent by Lord Atkin) when English courts subsequently felt so ashamed of that decision that a conscious effort was made to throw that decision in to a dung heap.

 

Lord Akin caustically remarked about judges who “show themselves more executive minded than the executive” and commented that such arguments which might have been addressed acceptably to the court of King’s Bench in the time of Charies-I. In fact justice Stable, a judge of the London High Court was so upset to say that the status of judiciary had been reduced “to mice squeaking under a chair in the Home office”.

 

In 1963 Lord Radcliff (HL) referred dismissively to the very peculiar case in Liversidge Vs Anderson and said “it should be confined apparently to a war time context and that it is already clear that the decision was regarded as an aberration”.

 

All this trenchant criticism of Liversidge judgment was available in various law quarterly reviews since the beginning. Law quarterly Review (1970) clearly spelled out how embarrassing the decision in Liversidge was becoming for English judiciary.

 

That is why Lord Diplock (HL) in 1979 was constrained to rule, “For my part I think the time has come to acknowledge openly that the majority view in Liversidge Vs Anderson were expediently and, at that time, wrong and the dissenting judgment right”.

 

And Lord Scarman laid final demise by saying that “the ghost of that decision need no longer haunt the law”.

 

Some commentators have ironically described majority in Liversidge case as the court’s contribution to the war effort of England—similarly many in this country are inclined to describe majority in the Jabalpur case as the Supreme Court’s contribution to the continuance of 1975 Emergency. Had the Supreme Court taken the same view as the nine high courts, the Emergency would have collapsed immediately, because no court could possibly have upheld the detention of stalwarts and patriots like Jayaprakash Narayan Ji, Morarji Desai, Raj Narain, George Fernandes, Madhu Limaye and thousands of others on the ground that they were a danger to the security of the country. The inevitable result would have been the immediate release of these leaders leading to an overwhelming opposition movement which would have swept away the Indira Gandhi government by mid 1976. Alas, how sometime fate of nations can be influenced by the pusillanimity of a few individuals—in this case embarrassingly by the highest judiciary which it can never live down.

 

(The writer is the former chief justice of the Delhi High Court)

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COMMENTS

sonia

3 years ago

Very interesting article. Justice Sachar is right: one must know about the Emergency to understand what is going on right now, in fact, because history seems to be repeating itself. I highly recommend the public read Era Sezhian’s Shah Commission Report Lost and Regained, and two of Kuldip Nayar’s books, Emergency Retold, and Beyond the Lines.

SuchindranathAiyerS

3 years ago

Without being egregious thereafter, India's judiciary has adhered to the precept of "balance of convenience" as the lode star of jurisprudence. Procrastination is even more convenient than finding the law too trivial to enforce..

Industrial output falls on contraction in mining and manufacturing sectors, says Nomura

Nomura expects high food inflation and external sector risks to force the RBI to stay on hold at the 30th July policy meeting

India’s industrial output growth fell -1.6% y-o-y in May from 1.9% in April, way below consensus expectations (1.5% y-o-y). Continued contraction in mining and manufacturing sectors offset the pickup in electricity output growth. While base effects were adverse, clearly domestic demand remains very sluggish with both consumption and investment demand slowing. Meanwhile, CPI (consumer price index) inflation surged to 9.9% y-o-y in June from 9.3% in May, above expectations (9.3%) led by a surge in seasonal food prices (vegetables), even as core CPI inflation moderated marginally.

 

Overall, even as demand remains very weak, Nomura expects high food inflation and external sector risks to force the central bank to stay on hold (at the 30th July policy meeting). As such, the brokerage expects growth to remain weak. It is below consensus on

FY14 growth at 5.6% y-o-y (Consensus: 5.9%) and sees downside risks to its forecast.

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The terror threat and Iran’s inroads in Latin America

As some in Congress question a State Department report downplaying Iranian influence, intelligence officials say covert Iranian cooperation with Venezuela has been a gateway for hostile activities in the region


Last year, Iranian President Mahmoud Ahmadinejad visited his ally President Hugo Chavez in Venezuela, where the firebrand leaders unleashed defiant rhetoric at the United States.
 

There was a quieter aspect to Ahmadinejad's visit in January 2012, according to Western intelligence officials. A senior officer in the Iranian Revolutionary Guards Corps (IRGC) traveled secretly with the presidential delegation and met with Venezuelan military and security chiefs. His mission: to set up a joint intelligence program between Iranian and Venezuelan spy agencies, according to the Western officials.
 

At the secret meeting, Venezuelan spymasters agreed to provide systematic help to Iran with intelligence infrastructure such as arms, identification documents, bank accounts and pipelines for moving operatives and equipment between Iran and Latin America, according to Western intelligence officials. Although suffering from cancer, Chavez took interest in the secret talks as part of his energetic embrace of Iran, an intelligence official told ProPublica.
 

The senior IRGC officer's meeting in Caracas has not been previously reported.
 

"The aim is to enable the IRGC to be able to distance itself from the criminal activities it is conducting in the region, removing the Iranian fingerprint," said the intelligence official, who requested anonymity because he is not authorized to speak publicly. "Since Chavez's early days in power, Iran and Venezuela have grown consistently closer, with Venezuela serving as a gateway to South America for the Iranians."
 

A year and a half later, Chavez has died and Ahmadinejad is no longer president. But the alliance they built is part of an Iranian expansion in the Americas that worries U.S., Latin American, Israeli and European security officials.
 

Experts cite public evidence: intensified Iranian diplomatic, military and commercial activity in the region; the sentencing this year of an Iranian-American terrorist in a plot to assassinate the Saudi ambassador in Washington; U.S. investigations alleging that Hezbollah, Iran's staunch ally, finances itself through cocaine trafficking; and a recent Argentine prosecutor's report describing Iran's South American spy web and its links to a 2007 plot to bomb New York's JFK airport.
 

There is considerable debate inside and outside the U.S. government about the extent and nature of Iran's activities, however. That debate dominated a U.S. congressional hearing this week about a new State Department report that assesses the Iranian threat in Latin America, a region made vulnerable by lawlessness and an increasingly anti-U.S. bloc of nations.
 

The report resulted from a bipartisan bill, the Countering Iran in the Western Hemisphere Act, signed into law by President Obama in January. That measure called for a comprehensive U.S. response to Iranian incursions and a study based on threat assessments by intelligence and law enforcement agencies. Most of the study is classified. A two-page unclassified section says that "Iran has increased its outreach to the region working to strengthen its political, economic, cultural and military ties."
 

Nonetheless, the State Department assessment concludes that "Iranian influence in Latin America and the Caribbean is waning" as a result of Western sanctions, U.S. cooperation with allies and "Iran's poor management of its foreign relations."
 

In a recent interview about the issue, a senior U.S. government official gave a measured assessment comparable to the new report.
 

"The countries of the region need to watch carefully for Iran as a threat within a spectrum of issues of concern in the region," said the official, who was not authorized to speak publicly. "I don't see it as a major threat now. This is worth watching. It is something there is legitimate attention to given Iran's history."
 

The law's sponsor, Rep. Jeff Duncan, R-S.C., criticized the State Department's findings Tuesday at a hearing of a House homeland security subcommittee that he chairs. Duncan does not think Iranian influence has declined so soon after a series of events and trends — including recent public warnings by intelligence and Pentagon chiefs — that brought about the passage of the Countering Iran Act.
 

"This administration refuses to see Iran's presence — so near U.S. borders —as a threat to U.S. security," Duncan said. "We know that there is no consensus on this issue, but I seriously question the administration's judgment to downplay the seriousness of Iran's presence here at home."
 

State Department officials contacted by ProPublica declined to respond because the report is classified. They said they will discuss the issue with legislators in private.
 

As a sign of growing Iranian influence in South America, Duncan cited the absence of a key witness at the hearing: Alberto Nisman, an Argentine special prosecutor.
 

In May, Nisman released a 502-page report as part of a long investigation of a car-bombing that killed 85 people at the AMIA Jewish community center in Buenos Aires in 1994 — the deadliest terror attack in the Americas before 2001. The report describes the evolution of Iranian spy networks in the region and shows their role in attacks in Argentina and the foiled New York airport plot.
 

Although Nisman had initially accepted the congressional invitation to discuss his investigation, last week his government abruptly barred him from traveling to Washington.
The Argentine attorney general said that the topic of the hearing "had no relation to the official mission of the [Attorney General's] office," Nisman wrote in a July 1 letter to Rep.
Michael McCaul, R-Texas, chairman of the House Committee on Homeland Security.
 

"The government of Argentina has silenced this prosecutor," McCaul declared at the hearing Tuesday. "I consider this to be a slap in the face of this committee and the U.S. Congress."
 

Expressing disappointment in a letter to Argentine President Cristina Fernández de Kirchner, McCaul and Duncan said the attorney general's decision "[calls] into question the authenticity of your intentions" to "pursue justice and truth on Iranian involvement in the AMIA bombing."
 

The context for the unusual move to block the testimony is Argentina's pro-Iranian shift. Argentina has had tense relations with Iran since the AMIA attack. A previous bombing in 1992 — also blamed on Iran — destroyed the Israeli embassy in Buenos Aires and killed 29 people.
 

In 2003, Nisman was appointed special prosecutor with a mandate to revive a probe that had bogged down in dysfunction and corruption. He indicted seven Iranian officials and a Hezbollah chief as the masterminds three years later, and Interpol issued arrest warrants for them. Iranian officials denied any role and described Nisman, who is Jewish, as "a Zionist."
 

But six months ago, the Fernández de Kirchner government agreed with Iran to form an independent "truth commission" about the AMIA case. Argentina's about-face was blasted by Jewish groups, the political opposition, the Israeli government and U.S. officials. Critics call it a political maneuver that makes justice even less likely at this late date. Argentina's growing ties to Iran coincide with an increasingly confrontational attitude toward the United States, Spain and other Western nations.
 

"The Argentine president has already made her decision to curtail DEA activities, publicly and repeatedly attack the United States as an imperialistic and warmongering nation, and reopen relations with Iran that make a mockery of the rule of law," Douglas Farah, president of the IBI Consultants national security consulting firm, testified at the hearing.
 

Duncan said in an interview that he believes Argentina's policy change results partly from economics. Iran-Argentine trade has increased by more than 500 percent to $1.2 billion annually in the past eight years, according to the testimony of Ilan Berman, vice president of the American Foreign Policy Council, a think-tank in Washington.
 

The attacks in Buenos Aires in the 1990s revealed the existence of Iranian terror networks in the Americas. The Argentine investigation connected the plots to hubs of criminal activity and Hezbollah operational and financing cells in lawless zones, such as the triple border of Argentina, Brazil and Paraguay and the border between Colombia and Venezuela.
 

Indicted AMIA plotter Mohsen Rabbani, an alleged spymaster using the cover of Iranian cultural attaché in Buenos Aires, oversaw the establishment of intelligence networks in embassies, front companies and religious and cultural centers in Argentina, Brazil, Colombia, Chile, Guyana, Paraguay and Uruguay, according to the Argentine prosecutor's report. The Iranian spies teamed with Hezbollah to carry out both bombings, according to Argentine, Israeli and U.S. investigators.
 

Today, the fugitive Rabbani is based in Iran and continues to play a key role in Latin American espionage, directing ideological and operational training for recruits who travel from the region, according to U.S. law enforcement officials and witnesses at the hearing.
 

The election of Ahmadinejad in 2005 spurred an Iranian outreach campaign in Latin America intended to find new allies and markets and counter Western pressure over Iran's nuclear ambitions, according to Berman. Iran increased the number of its embassies in the region from five to 11, launched a Spanish-language television channel and doubled its regional trade to $3.67 billion today, though many of its economic commitments have not materialized.
 

The Iranian expansion dovetailed with the rise of the Bolivarian Alliance for the Americas (known by the Spanish acronym as ALBA), a bloc of leftist, populist, anti-U.S. governments including Venezuela, Cuba, Bolivia, Ecuador and Nicaragua.
 

In 2008, the U.S. Treasury Department designated a Venezuelan diplomat and a Venezuelan businessman as terrorists for allegedly raising funds for Hezbollah, discussing terrorist operations with Hezbollah operatives, and aiding travel of militants from Venezuela to training sessions in Iran. In 2011, Iranian Defense Minister Ahmad Vahidi, who is wanted by Interpol for the AMIA bombing, attended the inauguration of ALBA's regional defense school in Bolivia, according to testimony at the hearing.
 

Director of National Intelligence James Clapper told a U.S. Senate hearing last year that Iran's alliances could pose "an immediate threat by giving Iran — directly through the IRGC, the Quds Force [an external unit of the IRGC] or its proxies like Hezbollah — a platform in the region to carry out attacks against the United States, our interests, and allies."
 

The aborted 2007 plot to attack JFK was an attempt to use that platform, according to the Argentine special prosecutor. A Guyanese-American Muslim who had once worked as a cargo handler conceived an idea to blow up jet fuel tanks at the airport. He formed a homegrown cell that first sought aid from al Qaida, then coalesced around Abdul Kadir, a Guyanese politician and Shiite Muslim leader.
 

The trial in New York federal court revealed that Kadir was a longtime intelligence operative for Iran, reporting to the Iranian ambassador in Caracas and communicating also with Rabbani, the accused AMIA plotter.
 

"Kadir agreed to participate in the conspiracy, committing himself to reach out to his contacts in Venezuela and the Islamic Republic of Iran," Nisman's report says. "The entry of Kadir into the conspiracy brought the involvement and the support of the intelligence station established in Guyana by the Islamic regime."
 

Police arrested Kadir as he prepared to fly to Iran to discuss the New York plot with Iranian officials. He was convicted and sentenced to life in prison.
 

The Argentine investigation unearthed other signs of Iranian terrorist activity. It cites the testimony of the former director of Colombia's intelligence agency, Fernando Tabares. He described a mission by an Iranian operative to Colombia via Venezuela in 2008 or 2009. Working with Iranian officials based at the embassy in Bogota, the operative "was looking at targets in order to carry out possible attacks here in Colombia," Tabares testified.
 

Witnesses at the House subcommittee hearing Tuesday described Venezuela as a gateway through which Iranian operatives travel to and from the region unmolested and obtain authentic Venezuelan documents to enhance their covers.
 

Witness Joseph Humire, a security expert, cited a report last year in which the Canadian Border Services Agency described Iran as the top source of illegal migrants to Canada, most of them coming through Latin America. Between 2009 and 2011, the majority of those Iranian migrants passed through Caracas, where airport and airline personnel were implicated in providing them with fraudulent documents, according to the Canadian border agency.
 

The allegations are consistent with interviews in recent years in which U.S., Latin American and Israeli security officials have told ProPublica about suspected Middle Eastern operatives and Latin American drug lords obtaining Venezuelan documents through corruption or ideological complicity.
 

"There seems to be an effort by the Venezuelan government to make sure that Iranians have full sets of credentials," a U.S. law enforcement official said.
 

Last year's secret talks between Iranian and Venezuelan spies intensified such cooperation, according to Western intelligence officials who described the meetings to ProPublica. The senior Iranian officer who traveled with the presidential entourage asked Venezuelan counterparts to ensure access to key officials in airport police, customs and other agencies and "permits for transferring cargo through airports and swiftly arranging various bureaucratic matters," the intelligence official said.
 

Venezuelan leaders have denied that their alliance with Iran has hostile intent. They have rejected concerns about flights that operated for years between Caracas and Tehran. The State Department and other U.S. agencies criticized Venezuela for failing to make public passenger and cargo manifests and other information about the secretive flights to Iran, raising the fear of a pipeline for clandestine movement of people and goods.

The flights have been discontinued, U.S. officials say.
 

State Department officials say the Iran report reflected a consensus among U.S. government agencies. In contrast, homeland security Chairman McCaul said the intelligence community is more concerned about the Iranian threat than the State Department.
 

The DEA and Treasury Department have been especially active on the issue. Recent indictments and enforcement actions have revealed a complex global network of cocaine trafficking and money laundering networks that allegedly poured millions of dollars into the coffers of Hezbollah in Lebanon. Those mafias, led by accused gangsters of Lebanese origin operating in Colombia, Venezuela and Panama, allegedly have links to the Iranian government as well, according to U.S. court documents.
 

The State Department says a concerted effort by diplomats, intelligence officers and law enforcement investigators has stymied Iran's advances. The end of the personal bond between Chavez and Ahmadinejad was another blow, officials say.
 

"The death of … Chavez and the election of a new president in Iran has changed the landscape of Iran's relationship in Venezuela and further weakened Iranian ties in the West," said Rep. Bennie Thompson, D-Miss., the ranking member of the Homeland Security Committee.
 

The foreign policy of new Venezuelan President Nicolas Maduro is a work in progress. But as Duncan and others pointed out this week, Maduro was a point man for the alliance with Iran when he led served as foreign minister from 2006 to 2012.
 

Courtesy: ProPublica.org

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