Emergency’s useful scars

The Shah Commission report should be made compulsory

reading in schools and colleges.
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A determined political class, most of which was imprisoned, enacted the 44th Amendment to
the Constitution, which ensured that the fundamental rights of people could not be completely
submerged, or trampled, by a proclaimed state of emergency. (Illustration: C R Sasikumar)

Those born in or after 1975-77 will have little or no idea about the dark chapter of the
Emergency. But we must never be allowed to forget that our Constitution still allows for the
imposition of emergency and martial law. And, even today, millions of impoverished Indian
citizens live under a state of undeclared emergency, amidst the myths and rituals of state
sovereignty and civil society suzerainty. “The tradition of the oppressed,” wrote Walter
Benjamin, “teaches us that the ‘state of emergency’ in which we live is not the exception but
the rule.’’

Is India Emergency Proof?

  The return of the shadow
 ‘All they wanted were men. Any man’
 How artists and individuals creatively resisted Emergency
 Big Picture - ‘Why did they kill me, ammi?’
 Emergency had a reason

No doubt, partisan politics will continue to attack and appropriate the Emergency on its 40th
anniversary. No one today defends it. Even the Congress, through its president, has found
ways of saying “sorry” and the president of India (an erstwhile Congress senior leader) has
recently admitted that it was a sad “mistake”. But few make the wider point that what is
really wrong is the not-so-secret desire of all political leaders to rule by states of emergency,
mostly undeclared but no less real. Democracy is now said to be in the DNA of the Indian
people. But should not all of us be reading My Experiments with Truth, rather than Mein
Kampf? Have the wielders of power fully internalised, beyond competitive politics, the
lessons of the Emergency?

The Justice J.C. Shah Commission report, today all but forgotten, on the Emergency’s
excesses should be compulsory reading in our schools and colleges, for our political parties
and leaders. It gives us a full judicial picture of how despotic power can be constitutionally
acquired, and how dictatorial powers are actually misused.

While the political detention of party members, leaders, students and related others was
repressively commonplace, a recent study of the “scrutiny” files of detention suggests that it
was more frequent in the south (321 of 477 in Karnataka, 709 of 1,017 in Tamil Nadu). A
non-political approach dominated many states (Uttar Pradesh recorded only 19.5 per cent
politically motivated detentions (1,405/7,185), and 25.4 per cent in Bihar (593/2,333). Most
detentions were for “general types of criminal and antisocial behaviour, or any behaviour that
would bring individuals into conflict with the district magistrate”. “It is impossible to escape
the conclusion,” writes political scientist Alexander Lee, “that the district officials were
detaining people simply for making their job more difficult,” suggesting as more probable the
thesis that for the bureaucracy, the Emergency was more a liberation than an imposition.

The Shah Commission also found that the target of 4.3 million sterilisations set by the
government of India was exceeded by 190 per cent. And despite Emma Tarlo’s
anthropological study, the lament is sadly true that the troubled relation between gender and
power has yet to be fully studied; the acute and tragic enormity of this cruellest experiment at
governance is perhaps best understood by reading Rohinton Mistry’s A Fine Balance and
Mahasweta Devi’s short but haunting Draupadi. And today, under the rubric of
“development”, we continue to invent new forms of the biopower and biopolitics that began
with the Emergency.

No constitution or country is emergency-proof. That is the message of recent history, from

the Czech Republic to the Arab Spring. India is exceptional among the global South because
it has had only the experience of internal emergency from June 1975 to March 1977. The
Emergency was terrible, but the scars it left were also useful. It radicalised the middle classes
as no other event since Independence did. This “never again” syndrome was a great gain of
the Emergency. Not that we did not have it
before, but investigative journalism and a media that dares to speak truth to power were truly
born in the aftermath of the Emergency. Ramnath Goenka personified the freedom of the
media and gave a timeless motto to The Indian Express because the “truth concerns us all”.

A determined political class, most of which was imprisoned then, enacted the 44th
Amendment to the Constitution, which ensured that the fundamental rights of the people
could not be completely submerged, or trampled, by a proclaimed state of emergency. There
was an attempt to outlive the shame of ADM Jabalpur vs Shivkant Shukla, which repudiated
nine high court rulings that had restored some core human rights to detainees. The Praful
Bhagwati era witnessed a truly charismatic moment in social action litigation, and the
Supreme Court of India became the Supreme Court for all Indians. And Justice Krishna Iyer
(who famously refused to stay the order unseating Indira Gandhi) insisted that we must take
human and social suffering seriously if we are to take human rights seriously.

Human rights and social action movements began to flourish, and vigorous dissent became
the norm. Soon, it wasn’t merely the demosprudence (democracy-reinforcing) justices who
wished to be counted among the defenders of democracy, but noted lawyers also espoused
the pursuit of human rights as a good governance project. Two founders of this shift should at
least be recalled: Gobinda Mukhoty (PUDR) and V.M. Tarkunde (PUCL). Rajni Kothari,
joined by other stalwarts, tried to formulate a new agenda for India. We must pause to recall
that every activist judge and social activist remains a lineal descendent of Jayaprakash
Narayan, whose Total Revolution movement and well-guarded call to the police and army not
to obey manifestly unjust orders apparently triggered the Emergency.

The Emergency is the vast graveyard of many a reputation, some unjustly so. The uncouth
practices of competitive politics — either you are for us or against us — that make truth
ultrahazardous have developed much since then. We need to keep at bay the assassins of
memory, even while keeping alive the sins of memory.

Milan Kundera said that the struggle of men (and I add women) is a struggle of memory over
forgetfulness. On the contrary, public memory is not short; rather, it is made short by the
forces and practices of domination, which equate power with control over public memory and
its reorganisation to suit the ends of governance and development. If so, a prime task of the
people’s struggle is to recover the embodied memory and reflexively learn from the misery,
and the tyranny, of the time.

The writer is emeritus professor of law, University of Warwick

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