All eyes on the judiciary

The period from June 1975 to March 1977 was undoubtedly the darkest in independent India's history. Till the midnight of June 26, 1975, Indians could take pride in being the citizens of a free country in spite of the prevailing poverty.

However, when they woke up the next morning, they found themselves in chains. The metaphor was real because from then on, for the next 21 months, they realised that they could not read or hear as before the observations and voices of any of the opposition leaders in the newspapers or on the radio (television was a rarity), for they were all behind bars.

Among them was the tallest of the opposition leaders of the time, Jayaprakash Narayan, who wrote to Indira Gandhi (for her eyes only as the country was under censorship): "Please do not destroy the foundations that the Father of the Nation, and your noble father, had laid down …You inherited a great tradition and noble values of a working democracy. Do not leave behind a miserable wreck of that. It would take a long time to put all that together again. For it would be put together again, I have no doubt."

Indeed, it was put together, but the credit for that achievement did not go to the judiciary, but to the noble people of India who showed the wannabe dictators that India did not attain freedom from colonial rule to become a banana republic.

The 1975-77 period, therefore, was a dark one not only for the ruling politicians of the time, all of whom succumbed to the dictates of their self-serving instincts with no compunctions about trampling over civil liberties, but also the bureaucracy and the judiciary.

The Supreme Court subsequently acknowledged as "erroneous" the 1976 verdict upholding the suspension of basic rights. A former chief justice of the court, MN Venkatachalliah, also said that the Emergency-era judgment, which The New York Times described as an "utter surrender" to an absolutist government, should be "confined to the dustbin of history".

If the judiciary's role in 1975-77 left much to be desired, it didn't redeem itself subsequently either, for instance, after the 2002 Gujarat riots, when the "closure" of as many as 2,000 cases against rapists and arsonists were allowed by the high court for lack of evidence, which is a euphemism for the police's "failure" under political pressure to nail the guilty. Some of the cases had to be transferred out of Gujarat so that justice could prevail.

After the "surrender" of 1975-77 and the failures of 2002, Kashmir is now on the Supreme Court's anvil. Here, too, civil liberties are under stress with politicians and activists in detention.

The government's charge that they pose a threat to national security because of their covert links with Pakistan recalls Indira Gandhi's references to the ubiquitous "foreign hand" and the perils posed to the government by Jayaprakash Narayan's advice to the police not to obey illegal orders.

If the emergency saw censorship of the media, Kashmir is seeing a shutdown of the Internet and mobile telephones on the grounds that these may be used by the terrorists to organise themselves. However, the argument is not unlike the Nazi-era burning of books since they might contain subversive material.

If the emergency had followed an adverse court verdict on Indira Gandhi, which the London Times likened to a parking offence, the crackdown on Kashmir has been in the making since the death in 1953 of Syama Prasad Mookerjee, the founder of Jan Sangh, the BJP's earlier avatar.

While the emergency for Indira Gandhi was a matter of holding on to power by hook or crook, the abrogation of the constitutional provision for Kashmir's special status has been an article of faith for the Hindutva brotherhood ever since Mookerjee gave the call for one nation, one Vidhan (Constitution), one pradhan (chief), which is not dissimilar to the Third Reich's motto of einvolk, einreich, ein fuehrer. Mookerjee's grouse was against Kashmir's pre-1953 autonomy which entitled it to a separate flag, separate constitution and separate prime minister.

But, irrespective of whether the ambition of a beleaguered politician or the ideological objective of a party with a large parliamentary majority is behind a government's pre-emptive move which restricts movement and creates an atmosphere of fear and intimidation with the posting of troops at every street corner, it is the curtailment of personal freedoms which is the moot point.

Since the government depends on propaganda which tends to depict its opponents as anti-nationals, it is up to the judiciary to test the veracity of the claim of ruling politicians that they acted solely in the national interest.

In 1977, the falseness of such an assertion was rejected by the electorate. Will Kashmir also have to wait for elections to know whether the deletion of Article 370 was "erroneous" or not, or will the apex court set their doubts at rest much sooner?

(The views expressed are strictly personal)