By Inder Jit
(Released on 4 April 1978)
What many have felt all along has now been confirmed by the Shah Commission in its thought-provoking Interim Report. The greatest excess committed by Mrs Indira Gandhi and her regime was the proclamation of the Emergency itself. A careful narration of the facts emerging from the evidence tendered by top government functionaries before the Commission, together with relevant material culled from official records, leads to one inescapable conclusion: the proclamation was mala fide and was designed solely to enable Mrs Gandhi to impose personal rule on the country and become the de facto Empress of India. The Constitution was wantonly subverted and a dictatorship established through a hush hush, pre-meditated coup. Indeed, a veritable war was unleashed on the innocent and unsuspecting people of India.
The Interim Report, which runs into less than a hundred printed pages, is expected to be made available to Parliament by about the middle of the month. At one stage, it appeared as though the report might be presented to the Lok Sabha before it adjourned briefly for Good Friday and Holi. But the presentation was postponed when some Cabinet Ministers insisted at a meeting on March 23 for time to examine the report carefully. They also cautioned against getting into another flap. A suggestion that the report be tabled with the announcement that it was being referred to the Secretaries Committee for processing and necessary action was found unacceptable. Under the Commission of Inquiries Act, the Government cannot merely present a report within a six-month deadline of its receipt. It is simultaneously required to indicate the action it proposes to take on the report.
A small committee, headed by the Cabinet Secretary, is now examining the report and will recommend to the Cabinet follow-up action relating broadly to two categories. First, issues concerning specific matters such as the abuse of authority and short-circuiting of procedures. Second, long-term issues such as the control of intelligence agencies and their role: exception is particularly taken to the report submitted by the then Intelligence chief to Mrs Gandhi on developments within the Congress Party. The Shah Commission, for instance, feels that there is need to provide built-in safeguards to prevent intelligence agencies from being exploited by any individual for political spying — as was strongly demanded in the U.S.A. during the aftermath of Watergate. However, the committee’s principal concern will be devoted to the question of preventing another over-ambitious leader from imposing personal dictatorship.
What are the broad facts relating to the proclamation of the Emergency? First and foremost, the entire operation was put through surreptitiously by Mrs Gandhi and her hand-picked accomplices almost in the style of a cloak-and-dagger conspiracy. Neither the Cabinet Secretary, nor the Home Secretary nor the Prime Minister’s own Secretary, Prof P.N. Dhar were anywhere in the picture. Mrs Gandhi put through the operation with the help of her chosen loyalists. Mr R.K. Dhawan, her additional Private Secretary, personally took the proclamation to the President, Mr Fakhruddin Ali Ahmed, and quietly got it signed by him around 11.30 p.m., notwithstanding the advice of Mr Balachandran, Secretary to the President. Mr Balachandran had earlier taken the stand that the President should sign the proclamation only in case the Council of Ministers advised him to do so and not otherwise.
Mrs Gandhi advised the President to sign the proclamation entirely on her own. In doing so, she invoked Rule 12 of the Government’s Transaction of Business Riles on the plea that there was unfortunately no time to call a meeting of the Cabinet. (This rule is said to empower the Prime Minister to permit or condone a departure from rules in any case.) Once the proclamation was signed by the President “Operation Emergency” was launched beginning with countrywide arrests. The Cabinet Secretary was thereafter pulled out of bed at about 4.30 a.m. and asked to convene an emergent meeting of the Cabinet at 6 a.m. (Under the rules, a Cabinet meeting can be summoned at a notice of one hour.) The Cabinet met at 6 a.m. — about six and a half hours after the proclamation was signed — and the proclamation approved post facto, leading Mrs Gandhi to claim that the procedure adopted was entirely constitutional.
Three questions arise. First, what is the Constitutional requirement in regard to the proclamation of Emergency? Second, does resort to Rule 12 empower the Prime Minister to over-ride the Constitution itself? Third, did Mrs Gandhi really have no time to convene a meeting of the Cabinet before approaching the President? Insofar as the Constitution is concerned, Article 352 stipulates: “If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect.” As pointed out by Mr Balachandran to the late Mr Fakhruddin Ali Ahmed, the President’s satisfaction was not personal. It was governed by Article 74 which provides: “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions.”
Constitutional experts question Mrs Gandhi’s claim that resort to Rule 12 empowered her to by-pass the Cabinet. It is pointed out that Government rules regarding transaction of routine business could not conceivably be applied to a matter as grave as the proclamation of Emergency and one to which the Constitution devotes a whole part. In support, attention is drawn to the section in Conduct of Government Business and specifically to the wording of Article 77(3) which provides: “The President shall make rules for the more convenient transaction of the business of the Government of India and for the allocation among Ministers of the said business.” The experts also argue that Rule 12 only empowers the Prime Minister “to permit and condone” the action of third persons, namely his colleagues, and not his own. Significantly, the Transaction of Business Rules include a schedule that lists Proclamation of Emergency and other subjects mandatorily required to be taken before the Cabinet.
Three questions arise. First, what is the Constitutional requirement in regard to the proclamation of Emergency? Second, does resort to Rule 12 empower the Prime Minister to over-ride the Constitution itself? Third, did Mrs Gandhi really have no time to convene a meeting of the Cabinet before approaching the President?
The Shah Commission’s Interim Report leaves no scope for any doubt on the third point. Mrs Gandhi could have easily called an emergent meeting of the Cabinet on the night of June 25 prior to approaching the President on her own. As the evidence adduced before the Commission shows, heavens would not have fallen had she decided to wait for a day, indeed many more. In fact, the question that needs to be put is: Did Mrs Gandhi at all wish to take the Cabinet into confidence prior to the fell act? Or, did she calculatedly choose not to take any chance and conveniently get post-facto Cabinet approval virtually at gun point? What is more, an Emergency was already in operation. She could easily have availed of the powers thereunder to deal with the situation instead of imposing something unnecessary, unwarranted and illegal. At one point, Mr Justice Shah is believed to have expressed doubt even about the legality of the second Emergency when the first was already in operation.
To cut a long story short, Mrs. Gandhi and her key advisers appear to have been subsequently haunted by “a guilty conscience” and fear of exposure. A special exercise was thereupon launched to cover up the track and plug loopholes. Two specific provisions were inserted for the purpose in the Constitution in the notorious 42nd Amendment, which have their own tale to tell. The first added a new clause IV to Article 77 in regard to Conduct of Government Business which provides: “No court or other authority shall be entitled to require the production of any rule made under Clause III for the more convenient transaction of the business of the Government.” Further, anticipating possible trouble about the legality of the Emergency proclaimed on June 25, the second amendment significantly added a new Clouse IV to Article 352 relating to Proclamation of Emergency. This clause states: “The power conferred on the President by this article shall include the power to issue different proclamations on different grounds… whether or not there is a proclamation already issued…”
The entire operation was put through surreptitiously by Mrs Gandhi and her hand-picked accomplices almost in the style of a cloak-and-dagger conspiracy. Neither the Cabinet Secretary, nor the Home Secretary nor the Prime Minister’s own Secretary, Prof P.N. Dhar were anywhere in the picture. Mrs Gandhi put through the operation with the help of her chosen loyalists. Mr R.K. Dhawan, her additional Private Secretary, personally took the proclamation to the President, Mr Fakhruddin Ali Ahmed, and quietly got it signed by him around 11.30 p.m.
Where do we go from here? Should Mrs Gandhi be punished or not? The Janata leaders are generally agreed that the Constitution was wantonly subverted by Mrs Gandhi for personal ends. A few even talk in accents reminiscent of the days of Bishop Rochester when his cook was ordered “to be boiled to death” for poisoning his master. But we are not living in medieval times or those of Charles I when the British Parliament first sought to impeach Lord Stafford for subverting the system and imposing despotic rule but eventually voted a one-line resolution that he be beheaded. The Janata leaders are eager to uphold the rule of law, which creates its own difficulties, including one posed by Article 20(1) of the Constitution which provides: “No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”
Mrs. Gandhi and her key advisers appeared to have been subsequently haunted by “a guilty conscience” and fear of exposure. A special exercise was thereupon launched to cover up the track and plug loopholes.
Some among the doves argue that Mrs Gandhi has already been punished adequately by the people and, in the changed situation, she should only be fought politically. But the hawks sharply disagree and are frantically trying to find some way to punish Mrs Gandhi adequately. Said one Janata leader: “The former Prime Minister’s crime against the people may be unprecedented. It may not have been foreseen by the Constitution makers. But it must not go unpunished.” Another leader said: “If necessary, we should enact a special law and set up a special court. Yes, we can get the law through Parliament, if necessary at a joint sitting of the two houses. Perhaps the Citizenship Act, 1955, provides a possible way out. Clause 10(2) provides that the Central Government may, by order, deprive any citizen of Indian citizenship if it is satisfied that (b) “that citizen has shown himself by act or speech to be disloyal or disaffected towards the Constitution of India as by law established.”— INFA