Kerala HC seeks Centre’s response on Emergency victims’ plea

The Kerala High Court has sought response from the Central government on the plea of the Association of Emergency Victims that they be considered as freedom fighters. The association has sought the intervention of the court to compensate for the crimes and inhuman torture meted out to the people of India during the Emergency by the State and the Central government agencies.

According to the petition, Emergency was the darkest period in the history of India. Therefore, the fight against the Emergency is akin to Freedom struggle and should be treated as the second freedom struggle.

“The association consists of the victims and the legal heirs of the victims now no more, who scarified everything precious in their personal and family life for securing the freedom of the people of India by re-establishing their inherent, natural and fundamental rights which they lost in Emergency,” said the plea.

The petition talks about how then Prime Minister Indira Gandhi had controlled judiciary as well when she found it was coming in her way.  She chose Justice Ray as the Chief Justice of India by superseding more senior judges Justice J.M Shelat, Justice Grover and Justice KS Hegde.

The Congress was defeated in Gujarat by the Jan Morcha. Jayprakash Narain (JP) called for ‘Total Revolution’, asking students, peasants, and labour organisations to transform Indian society through non-violent means. Lucknow High Court set aside her election on a poll petition filed by Raj Narain and she was de-barred from contesting election for a period of 6 years. The Supreme Court on an appeal passed an interim order allowing Indira Gandhi only to act as a member of parliament, as the Prime Minister of India without voting power. Hence, Indira Gandhi got Fakhruddin Ali Ahammad, the then President to proclaim the Emergency.

The petition speaks vividly of the helplessness of the captive judicial system prevailed then. The Presidential order was stated to be an absolute bar to the judicial scrutiny of the detention orders.

This contention did not find favour with high courts and they held that despite the said Presidential order the petitions were maintainable and could be proceeded with.  The judgments of a few high courts were challenged before the Supreme Court.  The case was heard by the Constitution Bench of the Supreme Court consisted of Chief Justice AN. Ray, HR Khanna, MH Beg, YV Chandrachud and PN Bhagavati. The majority of the judges except Justice HR.Khanna held that:  “In view of the Presidential Order dated 27 June, 1975 under clause (1) of Art.359 of our Constitution no person has locus standi to move any writ petition under Art.226 before a high court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the Act on the grounds that the order of detention or the continued detention is for any reason not under or in compliance with the Act or is illegal or mala fide.

Second. Art.21 is the sole repository of rights to life and personal liberty against the State. Any claim to a writ of habeas corpus is enforcement of Art.21 and, is, therefore, barred by the Presidential Order.

Third. S.16A(9) of the Act is valid. It is a rule of evidence and it is not open either to the detenu or to the court to ask for grounds of detention.

Fourth. It is not competent for any court to go into questions of mala fides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority. (citation AIR 1976 SC 1207 : 1976 (2) SCC 521 : 1976 KHC 753 : 1976 Crl.L.J 945)

Because of the  majority view in the said case, all the draconian laws got acceptability and Indira mercilessly implemented those laws against the state governments and the leaders, who were against the autocratic rule by totally annihilating the fundamental rights of the citizens of this country.

With unrestricted power, Indira dismissed the DMK government headed by M. Karunanidhi in Tamil Nadu on relatively flimsy grounds and the leaders of the DMK were arrested and incarcerated. Babubhai Patel’s Janata Morcha government, had lost its majority, thanks to defections. President’s Rule was imposed for six months. After this, Madhavsing Solanki from the Congress (I) was installed as chief minister.

It was in this scenario under the stern leadership, guidance and blessings of Jayaprakash Narain, the leaders of all political parties except a few launched struggle for freedom and for ending the lawlessness in the country.

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