Indira Gandhi & Hitler Abrogated the Constitution: Arun Jaitley

Mrs Gandhi herself called for the graduation of India from a democracy to a “disciplined democracy,” writes Jaitley.

(Photo: Shruti Mathur/The Quint)

(This is Part 2 of Union Minister Arun Jaitley’s three-part blog on Emergency.)

Having imposed Emergency on 26 June, 1975, Indira Gandhi got issued a proclamation under Article 359, suspending fundamental rights.

As a result of this, the right to free speech and personal liberty was gone. Only censored news was available. On 29 June, in order to deflect attention from the suspension of democracy in India, she announced a Twenty-Point Programme for the revival of India’s economy.

In fact, large number of these twenty points were also retrograde economic measures which had to be reversed in the post 1991 economic reforms. Thousands of political detenues, journalists and academics were detained all over the country. The jails were overcrowded, where conditions were horrible.

I was lodged in Delhi’s Tihar Jail for a week. Thereafter, along with twenty other detenues, I was shifted to the Ambala Central Jail. Under the conditions of detention rules, we were allowed a daily ration in which we had to manage all the meals. The budget available per detenu for the daily food was Rs 3. Thus, if there were twenty detenues in a ward, from morning tea, breakfast, lunch, evening tea and dinner, they had to manage food for twenty people within sixty rupees.

After months of agitation, this amount was enhanced to rupees five per detenue. For the initial few months, no meetings with family members were allowed. After a few months, your family members could meet you for a few minutes once every month, which was subsequently increased to once every week.

I was, at that stage, a student of the law faculty with my final year still to clear. A number of detenues filed petitions for quashing their detention. I also filed a similar petition.

Subsequently, I moved to court on several occasions for permission to write my law final year exams from jail, but the Delhi University was asked to change the rules to the effect that personal presence in the examination centre became essential to write the exam.

My plea that I be taken to centre under police custody to write my exam was rejected by the government on the ground that my presence in the examination centre was a threat to public order. During nineteen months of detention, I, therefore, lost one academic year and was in the danger of losing the second. Due to this litigation, I managed to get transferred back to Tihar Jail from Ambala.

An atmosphere of fear and terror prevailed in the country outside. Political activity had come to a grinding halt. The dissenters were mainly political workers of the opposition party and the RSS.

They kept repeatedly organising Satyagrahas where a number of people courted arrest. It goes to the credit of the Shiromani Akali Dal that it offered its cadres for Satyagraha every day throughout the Emergency outside the Golden Temple and courted arrest. This earned Akali Dal great respect in the entire country. The RSS, which was unfairly banned, also provided a large cadre for Satyagraha.

The press was completely terrorised.

Most editors and journalists surrendered and reconciled with the idea of living in dictatorship. The Congress party’s newspaper, “National Herald”, editorially commented that time had come for India to evolve into a single party democracy.

Mrs Gandhi herself called for the graduation of India from a democracy to a “disciplined democracy”.

To give it credibility at the cost of losing his own, Acharya Vinoba Bhave called the Emergency “Anushasan Parva”. There were, however, dissenters in the media. The Indian Express and The Statesmen played a legendary role in letting their dissent against the Emergency known.

Ram Nath Goenka, CR Irani and editor Kuldeep Nayar became symbols of press freedom during the Emergency.

Was the Script of Emergency Prepared in Advance?

Journalist Coomi Kapoor’s book on Emergency published in 2015 contains handwritten document in the writing of Siddhartha Shankar Ray where he requests Mrs Gandhi to prepare lists of persons proposed to be arrested and outlines various other steps which were required to be taken.

The document is dated as 8 January 1975.

Curiously, around the same time in January 1975 “Motherland”, a daily newspaper edited by KR Malkani, had published a front page article based on the astrological prediction by Dr Vasanth Kumar Pandit, a Jan Sangh MP and astrologer, predicting proclamation of Emergency, arrest of all entire opposition members, censorship on media and India becoming an autocratic state.

When published, I found it difficult to believe this astrological prediction. During the Emergency, one of my co-detenues in prison was KR Malkani himself.

Malkani told me that when arrested on the midnight of 26 June, while others were straightway taken to Rohtak Jail, he was, for three days, kept in a guest house in Haryana and taken to the jail after three days.

During those three days, he was grilled by the intelligence agencies as to his source of information on the basis of which that article predicting the Emergency had been published. The agencies thought this was a major leak in the government and were investigating the matter.

Malkani, however, consistently maintained that this was only an astrological prediction. Cumulatively, it was these facts that persuaded me to believe that the script for the Emergency was prepared sometime in January, 1975.

The immediate trigger would have been the Allahabad High Court judgement and the insecurity caused by it to Mrs Gandhi’s position.

Was This Script Inspired by What Happened in Nazi Germany in 1933?

Hitler became the Chancellor of Germany on 30 January 1933.

He did not have an absolute majority in parliament. On 28 February, he got his president to invoke Article 48 of the (German) Constitution which gave emergency powers for the ‘protection of the people in the State’.

The decree giving emergency powers put restrictions on personal liberty, free speech, right of assembly, association, violation of privacy, home searches and promoted restrictions on property and all other rights.

The pretext for imposition of Emergency was that on 27 February, the German Parliament House, known as “Reichstag”, had been set on fire. Hitler claimed that it was a communist conspiracy to burn government buildings and museums. Thirteen years later, in the Nuremberg trials, it was established that Reichstag fire was the handiwork of Nazis and Goebbels had conceived it.

Hitler continued to maintain that his actions were within the four corners of the Constitution.

Mrs Gandhi imposed the Emergency under Article 352, suspended fundamental rights under Article 359 and claimed that “disorder was planned by the opposition in the country”.

The security forces were being asked to disobey illegal orders and, therefore, in the larger interest of the nation, India had to become a “disciplined democracy”.

Both Hitler and Mrs Gandhi never abrogated the Constitution. They used a republican Constitution to transform democracy into dictatorship.

Hitler arrested most of the opposition members of parliament and, therefore, converted his minority government in parliament into a government which had two-third majority of members present and voting.

He, therefore, brought detailed Constitutional amendments, vesting all power to one person. Mrs Indira Gandhi arrested most opposition members of parliament and, therefore, procured, through their absence, a two-third majority of members present and voting and enabling the passage of several obnoxious provisions through Constitutional amendments.

The 42nd Amendment diluted the power of High Courts to issue writ petitions, a power which Dr Ambedkar had called the very heart and soul of India’s Constitution. They also amended Article 368 so that a Constitutional amendment was beyond judicial review.

There were a few things that Hitler did not do which Mrs Gandhi did. She prohibited the publication of parliamentary proceeding in the media. The law which gave mandate to the media for publishing parliamentary proceedings was popularly known as the Feroze Gandhi Bill, because late Shri Feroze Gandhi had singularly campaigned for it after the Haridas Mundhra scandal, which was raised by him in parliament.

Since Hitler’s own election had been set aside, he had no change to make in this regard. Mrs Gandhi amended both the Constitution and the Representation of People Act.

The Constitutional amendment made the election of the prime minister non-justiciable before a court. The Representation of People Act was retrospectively amended to insert those provisions so that the invalid election of Mrs. Gandhi could be validated by changes in law. Unlike Hitler, Mrs Gandhi went ahead to transform India into a ‘dynastic Democracy’.

Goebbels claimed that the “German Revolution has just begun”. All Indian Ambassadors and High Commissioners were asked to propagate that what was happening in India now was nothing short of a revolution. The press censorship laws imposed in India and in Germany were almost similar. You had effectively a one party system in play.

Nazi leader Joachim Ribbentrop, who later became Hitler’s external affairs minister, spoke on the need for a new legal system.

He argued that the system needed to be replaced because “Adolf Hitler too, like any other common mortal, could be tried under the same paragraph of penal law.”

Indira Gandhi’s 39th amendment to the Constitution making the election of the prime minister non-challengeable and a prime minister non-prosecutable actually implemented this suggestion. The Swaran Singh Committee brought in several changes in the Constitution through the 42nd Constitution Amendment.

The most objectionable change was to extend the life of parliament by two years.

The Indian Lok Sabha is elected under the Constitution for a maximum period of five years. It is the grantee of a limited jurisdiction by the Sovereign – the people. It cannot perpetuate its existence, but it was done.

In fact, from 1971 to 1977, the Lok Sabha lasted for six years. This amendment was subsequently reversed by the Janata party government.

A Nazi leader proclaimed, “There is in Germany today only one authority and that is the authority of Fuehrer.”

The AICC President, Devakanta Barua proclaimed “Indira is India and India is Indira”.

In a letter to Mrs Gandhi from his detention, JP wrote, “Do not equate yourself with the nation. India is immortal, you are not.” The most startling similarity in the script was that orders were issued to the effect that the Gestapo’s action could not be made subject to judicial review.

Gestapo was Hitler’s secret police. When we detenues filed petitions in the nature of habeas corpus before the high court, the government argued that the sole repository of the right to life and liberty was Article 21.

If Article 21 was suspended, there was neither a right to life or liberty. Even if there was an illegal deprivation of life and liberty, a citizen had no remedy. The High Courts decided in the citizens’ favour. When this argument was voiced in appeal before the Supreme Court, Justice HR Khanna on the bench, asked Niren De, the Attorney General, if a person is threatened with illegal killing, does he have a remedy in law during Emergency?

Niren De promptly answered, “My reply shocks my own conscience. It will shock your conscience too. But the natural corollary of my arguments is that he had no remedy in law.”

Justice Khanna, years after his retirement, told me that when this reply came, he looked at his four other colleagues hoping that their conscience would have been shocked. But when the four others chose to look the other way, Justice Khanna realised which way they were going to write the judgement.

Eventually, the unanimous verdict of all High Courts was reversed by the Supreme Court, accepting the non-sustainable argument of Niren De with Justice Khanna dissenting.

Justice Khanna became a living legend after his dissent. He had written that his dissent was a challenge to the brooding spirit of law and the intelligence of the future generations which could correct the error into which the majority had fallen.

The error was legislatively corrected by Janata government through the 44th amendment, which made Article 21 non-sustainable but the intelligence of the future generations led to a current Supreme Court Judge Dhananjay Chandrachud reversing the majority opinion and in particular overruling his own father’s judgement in the habeas corpus case.

The Election Case

The election case turned out to be another judicial monstrosity. Both the Constitution and the Representation of People Act were amended retrospectively in order to legislatively validate Mrs Gandhi’s election.

The laborious Shanti Bhushan did not give up. He argued that a free and fair election was a part of the basic structure of the Constitution and validating an invalid election would violate the basic structure of the Constitution.

But Supreme Court created a legal jigsaw to help Mrs Gandhi. The basic structure theory could be used only to test a Constitutional amendment and not an ordinary law.

So they struck down the 39th Amendment to the Constitution, but held that ordinary legislation could not be tested on the touchstone of the basic structure. Therefore, the amended Representation of People Act would apply to Mrs Gandhi and, therefore, her election stood valid under the retrospective amendment.

What Parliament could not do by a two-third majority, it could do by a simple majority. Even this proposition of law was subsequently overruled.

Absolute Power Corrupts Absolutely

Vesting absolute power, the government unleashed tyranny on every institution. The country witnessed the silence of a graveyard. The only protest came from die-hard opposition workers.

The High Court stood firm, but the Supreme Court capitulated. Fourteen independent judges were transferred out of their respective High Courts.

Sanjay Gandhi, the younger son of Mrs Gandhi, took over the reins of the Congress Party and the Youth Congress. The Youth Congress became a law into its own-self. Its functioning terrorised the society.

Hitler had announced a Twenty-five point economic programme. Mrs Gandhi had announced twenty. To cover up the gap, Sanjay announced his five point economic and social programme.

Dissent became a sin and sycophancy the rule. Film actors and singers and playback singers were asked to join Youth Congress and its allies. If they refused, the then I&B Minister, Vidya Charan Shukla, would threaten them.

Kishore Kumar, the noted playback singer, was blacklisted by the All India Radio and his songs were never played on All India Radio for refusing to sing at Youth Congress rallies. Dev Anand records in his autobiography that when he and Dilip Kumar refused to join a Youth Congress rally, Vidya Charan Shukla threatened both of them. But both of them stood firm.

Gulzar’s celebrated film “Aandhi” was banned. Since absolute power corrupts absolutely, a tyranny regime thinks they can get away with every atrocity. Large scale demolitions of houses and business establishments were happening all over the country. Since population control was Sanjay Gandhi’s slogan, forced sterilisation was taking place.

When a police jeep entered a village, the youth of the village fearing forced sterilisation would spend their nights in the farm rather than their house. The common man who did not understand the political consequence of dictatorship, understood it because of forced sterilisation. As someone aptly put:

दाद देता हूँ मैं मर्द-ए-हिंदुस्तान की, सर कटा सकते हैं लेकिन नस कटा सकते नहीं l (I have great respect for the men in India, they will opt for death before vasectomy.)

Little did this dictatorial regime realise that each act was alienating the people. The government had a single source feedback that they were getting very popular and that there was no opposition.

If you curb free speech and allow only propaganda, you become the first victim of propaganda because you start believing that your own propaganda is the truth and the full truth.

(This article was originally published on Arun Jaitley’s Facebook page.)