Are We Condemned To Repeat History?

On the 45th Anniversary of the declaration of the emergency, we recall the dark times when a few members of the legal fraternity and tenacious High Court judges upheld the independence of judiciary. However, we also remember in the instance of upholding fundamental rights, the independence of the Apex Court was subverted by political powers. In drawing a comparison with present-day affairs, the author calls upon the 'guardians of constitution' and society to learn a lesson from our past.

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"In our heart of hearts believing

Victory crowns the just,

And that braggarts must

Surely bite the dust,

Press we to the field ungrieving,

In our heart of hearts believing

Victory crowns the just."

Men Who March Away– Thomas Hardy.

On 25^th January 1945, that most dreaded of concentration camps of the Nazis, Auschwitz–Birkenau, was liberated by the Red Army that was by then sweeping through occupied Europe—an irresistible military drive that ended on 8^th May, 1945, with the fall of Hitler's Thousand  Year Reich.  In "The Ascent of Man" Jacob Bronowski movingly describes as he sinks onto his haunches and dips his hand into the crematorium pond at Auschwitz:

"This is the concentration camp and crematorium at Auschwitz. This is where people were turned into numbers. Into this pond were flushed the ashes of some four million people. And that was not done by gas. It was done by arrogance. It was done by dogma. It was done by ignorance. When people believe they have absolute knowledge, with no test in reality, this is how they behave. This is what men do when they aspire to the knowledge of gods….In the end the words were said by Oliver Cromwell: 'I beseech you, in the bowels of Christ, think it possible you may be mistaken'."

As the world commemorated the 75^th Anniversary of this event, it was reminded of the memorials that had been put up at various concentration camps which had disfigured and defiled Europe—memorials with the simple but powerful words: "Never Again". In 1948, Winston Churchill, in a speech in the House of Commons, while modifying the words of the philosopher George Santyana, memorably forewarned his and future generations: "Those who fail to learn from history, are condemned to repeat it."

Fast forward to 1975, and the 21 month Emergency unleashed on our country, and ask the question: who stood up to be counted, and who didn't? Many opposition politicians did. So too did students, professors, academics and writers.  The legal profession, with ignoble exceptions, also stepped forward in courageously fighting cases pro bono for political detenues, the press, transferred judges, etc. However, the contribution of the Bar would have been to no avail, but for the numerous courageous High Court judges, who true to their oath, dispensed justice fearlessly, uncaring of the consequences to themselves.

Also Read: The Judge who unseated a Prime Minister

It is to the everlasting credit of the High Courts that no less than 9 of them refused to bow to the government by accepting its astonishing arguments that with the suspension of the fundamental rights under Articles 14, 19 and 21, citizens of this country could be deprived of their life and liberty without recourse to the law. The rest is history – a history oft written about. To paraphrase Roosevelt's famous words: ADM Jabalpur is a case that will live in infamy.

"Never again an overbearing government that aspires to the knowledge of gods. Never again a pusillanimous press that bows and collaborates with those who believe they have absolute knowledge, untested by reality. And most importantly, never again an obsequious, compromised judiciary…."

After the lifting of the Emergency and the crushing defeat of Indira Gandhi's Congress in March 1977, a cry rose up throughout the country "Never Again!". Never again an overbearing government that aspires to the knowledge of gods. Never again a pusillanimous press that bows and collaborates with those who believe they have absolute knowledge, untested by reality. And most importantly, never again an obsequious, compromised judiciary which not only let down the people, but betrayed the constitutional ideals and aspirations of a free nation. It was "fondly hoped and fervently prayed" that the guilty ones of the Emergency had taken to heart the warning of Santyana and Churchill!  Never in our most dystopian nightmares did we dream that history was to be repeated, even without a declared Emergency.  And yet, that is what we are seemingly facing today.

Before we briefly consider, in the words of Keats, "Oh what doth ail thee knight at arms," let us remind ourselves of the role specifically assigned to the Supreme Court by the framers of our Constitution. It was in 1952 that the great Chief Justice, Patanjali Sastri, in State of Madras v. V. G. Row, first enunciated that the Supreme Court had been created as the guardian of the Constitution, employing that ubiquitous phrase "the sentinel on the qui vive." By and large, in the past 60 years or so, the Supreme Court had acquitted itself honorably in this role envisaged by Sastri. The crucial question— one that affects our country as a democratic, secular nation, is:  Does the Supreme Court continue to fulfill its role as the "sentinel on the qui vive"?  Before answering that question, it is worth remembering what Patanjali Sastri said:

"Before proceeding to consider this question, we think it right to point out what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the constitution, unlike as in America, where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted due process clause in the 5th and 14th Amendments. If then the courts in this country face up to such an important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusaders spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the fundamental rights as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new setup are out to seek clashes with the legislatures in the country."

I believe the answer to the question posed by me is in the negative. The Supreme Court has in the recent past (with few notable exceptions) failed to measure up to what I call the "Patanjali Sastri test." Regrettably, the Supreme Court has failed to uphold the rights conferred by Part III of our Constitution against the actions of an overbearing, authoritarian executive.  Not without cause did one of its own grade it's showing with an "F".  Not for nothing did other brother judges condemn its recent dismal performance.

"The crucial question— one that affects our country as a democratic, secular nation, is:  Does the Supreme Court continue to fulfill its role as the "sentinel on the qui vive"?"

The record, when examined is bleak. Consider the following:

Habeas Corpus writs, which historically have been heard, and indeed have to be heard, immediately, with orders being passed one way or the other, on the day of presentation, or the very next day, are inexplicably not taken up for months.

An entire State deprived of basic human and civil rights, not least that of liberty and freedom of speech. Essential means of communication through the internet cut off indefinitely, and draconian laws imposed on the inhabitants of that State. Yet the Bench hearing this matter has not only not passed orders granting any relief, but as brilliantly expounded by Mr. Arvind Datar in his article "The Dangers of Outsourcing Justice" completely dodged the issues at hand. Mr. Datar has rightly criticized the Court's unprecedented judgment, in the following words:

"By tossing this important writ petition into the lap of the executive, this Bench has achieved the unique distinction of converting judicial review of executive action into executive review of executive action. The judgment is even more remarkable as it does not set any timeline to complete this executive review and 'advise' the Government. Justice outsourced is justice denied."

Journalists are being victimized for exercising their right to the freedom of speech and expression under Article 19(1) (a) and obtaining no relief from the Court. A body blow, if ever there was one, is being thus delivered by the Court itself to the freedom of speech and expression—a cherished right which had been invariably upheld by the Supreme Court ever since the judgment in Romesh Thappar, way back in 1950.

Also Read: Close shave in August 1975

Burning questions such as those affecting the purity of our electoral system and transparency in the funding of political parties are conveniently deferred indefinitely. In the meantime, election after election takes place.

The petition challenging the legality of the disastrous demonetization, which was whimsically and unthinkingly imposed overnight to the immeasurable suffering of millions, and the ruin of the country's economy, is deliberately left to languish. A convenient way of ensuring that the executive does not have to answer for its actions, as the petition will in all probability be treated as infructuous or of purely academic interest– demonetization being a fait accompli –as and when the Court does finally choose to take it up.

Millions of the most vulnerable and poor of our country's humanity, the migrant workers were left to the sweet will and mercy of a callous and overbearing executive, whose falsehoods uttered in Court were, in the first instance, accepted as gospel; though the entire world knew the falsity of the assertions made. The rights of millions of the poorest of the poor, the fundamental rights under Articles 14 and 21 were trampled upon. It required an unprecedented outcry from all sections of society for the Court to belatedly pass orders, in the writs pleading the case of the migrants.

Perhaps the Supreme Court has decided to abandon its role as the "sentinel on the qui vive", almost 70 years after the judgment in V.G. Row's case, because it possibly thinks that in fulfilling its duty as the guardian of the Constitution it will be accused by an overbearing executive of seeking clashes with the legislatures, and the executive—something the Court now wants to avoid. What was obvious to Sastri appears to have been forgotten.

"The Supreme Court has however not just been a mute spectator to constitutional transgressions by the executive; it has emboldened it by abdicating its duties."

The Supreme Court by its inaction across these many instances has failed in its duty to test executive action on the touchstone of fundamental rights. In doing so it has failed to protect the individual citizens to whom these rights are secured. The Supreme Court has however not just been a mute spectator to constitutional transgressions by the executive; it has emboldened it by abdicating its duties. This was precisely the criticism of the Court through the dark 21 months of Emergency – that it allowed an executive to operate unchecked by constitutional restraints, and without regard to individual rights and freedoms- thereby enabling the terrible excesses that were to follow.

The ghost of the judgment "that will live in infamy," seems to stalk the land, despite being "buried ten fathoms deep." The supreme irony is that all this and more has transpired when there is no declared emergency to point to. Even as a fig- leaf, there has been no formal suspension of the fundamental right to life, liberty or freedom of speech, and yet here we are. We seem to have failed to learn from history. Are we as a nation condemned to repeat it? As each day passes, "Never Again" sounds like a cruel joke.

How has an institution which was the glory of our Constitution; which was the bulwark against the executive's arbitrariness, caprice, and tyranny; and was the ultimate repository of those precious fundamental rights which "We the People of India…." secured to ourselves, morphed into what we see today? Is the answer to be found in the words of the Greek philosopher Protagoras: "Man is the measure of all things"? Is it a combination of more complex factors? Frankly, the answer is not an easy one, and I certainly don't have a simple one to give.  I can however lament what I see and read, mournfully echoing the haunting words of John Greenleaf Whittier: "For all sad words of tongue and pen, the saddest are these, 'It might have been'."

(The author is a Senior Advocate at Bombay High Court. Views expressed are personal.)