SC verdict on Right to Privacy: In haste to take on BJP, Congress conveniently has forgotten the 1975 Emergency

The euphoric reaction of the Congress to the Supreme Court’s historic verdict on Right to Privacy on Thursday is the latest instance in India’s pot-calling-the-kettle-black politics.

Take a look at what Congress vice-president Rahul Gandhi said on Twitter: "Welcome the SC verdict upholding #RightToPrivacy as an intrinsic part of individual's liberty, freedom and dignity. A victory for every Indian."

Rahul’s mother and Congress president Sonia Gandhi said the verdict is a "blow to the government’s arrogant attempts at curbing individual liberties."

Rahul and Sonia have either not read the 547-page verdict of the nine-judge bench or missed what amounts to the highest court’s repudiation of the abuse of power during the Emergency. The judgment is as unequivocal in its assertion of privacy as a fundamental right as it is in its denunciation of the subversion of the citizen’s right to liberty and life by Indira Gandhi’s Emergency regime.

Congress president Sonia Gandhi and her deputy Rahul Gandhi. PTI

Congress president Sonia Gandhi and her deputy Rahul Gandhi. PTI

In his desperate haste and over reacting to the Supreme Court verdict, Rahul has inadvertently included his own grandmother among the "fascist forces" that he talks of in his tweet. A striking feature of the privacy verdict is that the court has, officially and formally for the first time, rubbished the infamous 28 April, 1976 judgment of the Supreme Court in the "ADM Jabalpur Vs Shukla case", also known as the habeas corpus case. The 1976 judgment had not only upheld Indira Gandhi’s right to toss anyone into prison and deny them the right to even question it in a court of law but also agreed that a citizen’s right to life stood abrogated during the Emergency.

ADM Jabalpur Vs Shukla case
It all began when on 12 June, 1975 when Justice Jagmohanlal Sinha of the Allahabad High Court held Indira Gandhi guilty of electoral malpractice.

He invalidated her election to the Lok Sabha from Rae Bareli in Uttar Pradesh, a seat she had won against Socialist leader Raj Narain in 1971.

On her appeal, the Supreme Court on 24 June, 1975 granted her a conditional stay, allowing her to continue as prime minister but barring her from participating in parliamentary proceedings.

The very next day, Indira Gandhi imposed on India a state of Emergency, which meant, among other things, suspension of a citizen’s Fundamental Right to Life and Liberty (Article 21) and Equality (Article 14). She threw behind bars political opponents including Atal Bihari Vajpayee, Jayaprakash Narayan, Morarji Desai and LK Advani under the dreaded MISA (Maintenance of Internal Security Act), denying them the right to even move courts to question their detention.

Many of the arrested filed a flurry of habeas corpus petitions under Article 226 in high courts across India.  As many as nine high courts — the high courts of Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab and Rajasthan — ruled in favour of the petitioners, despite the government’s argument that a presidential order had denied them that right.

On appeal by the government, the Supreme Court constituted a five-judge Constitution Bench comprising Chief Justice AN Ray, Justices MH Beg, YV Chandrachud, PN Bhagwati and HR Khanna. In a 4-1 majority judgment that was universally condemned for its blatant illegality, the apex court upheld the government’s contention.

It concluded that Article 21 was the "sole repository" of all rights to life and personal liberty and, when suspended, denied citizens those rights. Justice Khanna dissented. As punishment, he was superseded and his junior, Justice Beg, was appointed the Chief Justice of India on 28 January, 1977.

After Justice Khanna’s death in 2008, senior Supreme Court lawyer Anil Divan wrote in The Hindu: "His (Justice Khanna’s) dissent does the Indian judiciary and the legal profession proud. The doctrine of basic structure which is now firmly rooted in our constitutional jurisprudence is his great gift to posterity."

In a 30 April, 1976 editorial, The New York Times said: "If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to Justice HR Khanna..."

What the privacy verdict says

In the course of its verdict on the Right to Privacy, the apex court upheld the stand of Justice Khanna, who is seen as one of the bravest and fearless judges that India has ever seen. Justice Nariman said in Thursday's verdict that Justice Khanna's stand was the "correct enunciation of law". 

Chief Justice Khehar, Justices RK Agrawal, DY Chandrachud (the son of Justice YV Chandrachud, who had been party to the 1976 judgment) and Abdul Nazeer observed: "...the judgements rendered by all the four judges constituting the majority in ADM Jabalpur (case) are seriously flawed. Life and personal liberty are inalienable to human existence (Page 118) ... When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives...(Page 119)”.

Justice Khanna had said in his dissent: “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

For the two judges of the Supreme Court, that “future day” arrived in January 2011. They admitted that the 1976 verdict was "erroneous".

And 35 years after the case, Justice Bhagwati said in an interview to The Indian Express he was "sorry" that he had been party to the judgment which ruled that even the right to life stood abrogated during the Emergency.

And Congress takes ‘pride’?

But the Congress, of course, takes "pride" in the Supreme Court’s latest privacy verdict, which punches holes in the 1976 case and which, in other words, indicts the party’s erstwhile government for making a mockery of the citizen’s rights during the Emergency.

And in the words of Congress leader P Chidambaram, the Supreme Court’s privacy verdict has rendered Article 21 a new “magnificence”.

During the privacy case proceedings, the Supreme Court chided Attorney-General KK Venugopal for having described the right to privacy as an “elitist construct” that concerned only a few.

But let’s recall what the Congress government had said in 1976 about Article 21 in the 1976 case.

During the course of the Jabalpur case arguments, Justice Khanna had famously asked: “Life is also mentioned in Article 21, and would the government’s argument extend to it also?”

To this, Niren De, who was then the attorney-general, had come up with a hair-raising answer: "Even if life was taken away illegally, courts are helpless."

The questions that arise now are: What does the Congress take “pride” in?

And what happened to the “magnificence” of Article 21 in 1976?

The author tweets @sprasadindia

Updated Date: Aug 28, 2017 17:47 PM

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