Thursday, June 25, 2015


Internal emergency was imposed 40 years ago. My father VKS Chaudhary was first detained under DIR then under MISA. He was released after emergency was lifted. Here are some lessons from that time.
My father, VKS Chaudhery, was detained during emergency. He was released after emergency. Here he is being brought after he was released from jail.

Internal emergency was imposed on 25th June, 1975. It lasted till 21st March, 1977.  It was a difficult period for the country as well as for us.

My father, VKS Chaudhary, is a Senior Advocate of the Allahabad High Court. Immediately after declaration of internal emergency, he was first arrested under Defence of India Rules (DIR).  He was granted bail; some refused to furnish bail bonds for him.  But when we managed to get the bail bonds furnished, he was not released; instead a detention order under Maintenance of Internal Security Act (MISA) was passed.  

Against my father's illegal detention, we filed a Habeas Corpus petition in July 1975 in the Allahabad High Court.  At that time, right to move to the Court for enforcement of Articles 14, 19, 21 and 22 were suspended. We filed habeas corpus petition for my father's release.  The High Court first heard arguments on the preliminary point regarding maintainability of the petition.  We won  in the High Court on the preliminary point but lost before the Supreme Court. 

My father spent twenty-one months, the entire period of emergency, in jail. He was released after Mrs. Gandhi lost her election and emergency was lifted.

Jagdish Swarup, former Solicitor General of India, appeared for my father in the High Court. One day, he came over to our house and wanted my mother to perform puja of Lord Shiva. This was for my father’s release. My mother, who had faith in God but not in the rituals or puja, politely declined. She came from Arya Samaj background.   I feel proud of her, she didn't do, what she did not believe. 

I took my law degree in 1973 and was enrolled with the UP Bar Council in the same year. I practised for a year at Banda under my two uncles―Yogendra Kumar Singh Chaudhary and Gyanendra Kumar Singh Chaudhary and then for a year at Kanpur under Barrister Narendrajit Singh.  I was supposed to start practising law with my father from July 1975 but before I could do that, he was  arrested.   We had little money and I hadn't started earning.   We were ignored by many: they were afraid of being arrested. 

I did many bail applications under DIR and Habeas Corpus petitions, during internal emergency. It was not because I had any experience, but because I did them without charging any fees.  We and other arrested persons as well as their families were in the same boat. I had appeared in all cases mentioned in this chapter. 

Today, with democracy deeply rooted, it is difficult to imagine the terror and the state of affairs during the emergency. In a letter (see page-1 here and page-2 here) to me, Nani Palkhivala describes the mood at that time, 
'It was a time of total despair to be a witness to the wrongs that were done to the people'. 

I had penned my experience of emergency in the articles 'The Habeas Corpus Case' 'Liversidge Vs Anderson' 'Log-Book 109-111'. They were published in the book 'A Lawyer's World and Childhood Dreams'. Justice SD Agarwala, Former Chief Justice, Punjab & Haryana High Court penned his thoughts about them. He says, 
'The experience...written in black and white … of the Emergency will go down in the history of the judiciary and will ever remind the citizens of the country, the manner in which the people were dealt with during the said period.'

The High Court Judges did administer law boldly without fear or favour.  But this may not be said about the majority judges in the Habeas Corpus case.  So was true for high constitutional functionaries and lawyers.  

VKS Chaudhary in the dinner organised by Allahabad Bar Association to honour him. Also in the picture AP Mishra (later judge Supreme Court, Shanti Bhusan, SD Agarwala (later Chief justice Punjab and Haryana High Court)

Fali S Nariman was Additional Solicitor General during emergency. He resigned as a protest at that time. In his book 'The State of Nation', he sums up (Page 170),  
'One of the lessons of the internal Emergency (which lasted till 21 March 1977) has been not to place excessive reliance on constitutional functionaries. They failed us—the president, ministers of the government, most of the Members of Parliament and even senior judges of our Supreme Court: the latter for their majority judgment (4:1) delivered in April 1976 in ADM Jabalpur―upholding the Proclamation of internal Emergency. Nine high Court in the country had struck down the Proclamation but all their judgments were overturned in ADM Jabalpur.
It was because President Fakhurddin Ali Ahmed so readily agreed to sign the Proclamation of Emergency on the night of 25 Judge 1975, even before the cabinet knew anything abut it, that three years later (after revocation of the Emergency in March 1977), a Constitutional Amendment was enacted by the newly elected Parliament—the Constitution (44th Amendment) Act 1978—which declared that in the future, a president was not empowered to sign a Proclamation of Emergency unless the decision of the Council of Ministers was communicated to him in writing!'  
There is another lesson from the emergency. In the words of Nariman, in the same book (page 179 – 180): 
'High Courts in the states (there are 22 high courts for the 28 states and seven union territories) are empowered under the Constitution to issue all manner of writs, orders and directions not only for enforcement of the wide range of Fundamental Rights guaranteed under Part III of the Constitution, but also for 'any other purpose' (Article 226).  This great 'searchlight'  provision of our Constitution was attempted to be dimmed during the dark days of the internal Emergency (25 June 1975 to 21 March 1977).  A Constitution Committee, which included three prominent lawyers, was set up by the Centre to clip the wings of the high courts by proposing drastic changes in Article 226:  Power of high courts to issue certain writs 'to any person or authority' for the enforcement of Fundamental Rights or for any other purpose.  The committee chairman, Swaran Singh (a minister in Indira Gandhi's government), told his colleagues that when he was himself a minister in Punjab, he found that, as minister, it was just not possible to render justice in individual cases because of the pressures and pulls of party politics, and that it was better that courts were left to do the job, and that was why Article 226 was best left to remain in the Constitution.  Swaran Singh was the one person—a non-practising lawyer—who set his face against the abolition of Article 226, not when times were good, but when times were bad! And we should all be grateful to him for having saved the writ jurisdiction of the high courts.  It is a sad commentary of our times that it was the practising lawyer-politicians on the Constitution Committee who so fervently wanted not just to amend, but to scrap, Article 226 in obedience to the wishes of the high command.  The moral of the story is that we should avoid relying on high-profile lawyers (who have political interests or ambitions), to guide our destinies, because it is they with their argumentative skills who are able to rationalise anything—including all forms of tyranny!'  (Page 179-180).
At another place he says,
'constitutional functionaries fail to function in the manner they are expected to, especially when times are bad.  In India, politics begets power, but the men and women in power assume that they owe no responsibility to the people who elected them till election time comes around once again!   The connivance in, and the acceptance of, the internal Emergency imposed on 25 June 1975 by constitutional functionaries in high places can only be explained on this basis. They may be forgiven, but the lesson they have taught us must never be forgotten' (Page 259).
I would like to place on record that Jagdish Swarup who appeared for my father in the High Court and Soli Sorabji in the Supreme Court did not charge any fee for their appearances. 

VKS Chaudhary being facilitated in a function by Bar Association after his release.  Jagdish Swarup is on the left. 

In those difficult times, Professor Rajendra Singh (see 'Rajju Bhaiya as I knew him') not only helped us emotionally but also financially. He could not keep the money in the banks for the fear of it being confiscated.   It was given to us.  But, when my father was released, my mother returned the money together with the interest. 

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