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An 'Emergency' Constitutional Crisis

On the point of curve at which the end learns to justify the means

Vaidushya Parth 06 Aug 2020

modi

 

“Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding”

[Olmstead v. U.S., 227 U.S. 438 (1928) (dissenting)]

To the unending ignominy of the Supreme Court, four out of five judges, in the egregious “Habeas Corpus” case (April 28, 1976), endorsing a dictatorial and totalitarian regime, solemnly observed and dictated:

"Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law: ‘Omina praesumuntur rite esse acts', which means that all official acts are presumed to have been rightly and regularly done"

Another bizarre presumption taken in the Habeas Corpus case that: ‘[t] he care and concern lavished ... by the State is almost maternal' overrode a plain prospect – that a judge ought to have a distrust of authority, and of the institution that wields it.  (Authors of the judgement were A Ray, (CJI), HR Khanna, Hans Raj, Beg, M. Hameedullah, YV Chandrachud, PN Bhagwati)

The puzzling view of the four men, however, was not in vacuum or surprising. Somehow, the narrative of Indian constitutional courts – with a few deviations – is the record of judgements that have been intuitively convenient with seats of power, and uncomfortable with those seeking to resist or disrupt it.

Nevertheless, nearly four decades later, the Supreme Court was prompt in rejecting the Habeas Corpus line of reasoning when the court observed that: ‘ADM Jabalpur must be buried ten fathoms deep with no chance of resurrection' (August 2017). Yet, “[t] he ghost of the judgment ... [still] seems to stalk the land, despite being ‘buried ten fathoms deep',” argues Navroz Seervai in his article titled “Are we Condemned to Repeat History” (The Leaflet, June 25, 2020). I, too, shall examine his claim later in the article.

Before I proceed with the underpinnings of constitutional provisions and legal schemes of specified modus operandi for judiciary and executive at the time of a declared ‘emergency’, in the words of KG Kannabiran (in his book, Wages of Impunity), "... the fundamental question is, what means do you adopt to secure what ends? That was the big debate in those [Emergency] days," let us remind ourselves that it is the ‘means’ sought to reach the ‘end’ goal that distinguishes a constitutional democratic country from totalitarian rule.

These words of Kannabiran lay the edifice for the argument of this article: that in a constitutional democracy ‘means’ are as sacred as the ‘ends’. But how do we recognise a situation where the means are (persistently) being flouted to achieve the ends, and to what extent? To answer this question, I begin with Gunter Frankenberg's important insight: Emergency situations arouse the ultimate challenge for the magic of constitutions because necessity tends to brush aside constitutional qualms. And justifying exceptional powers is likely to command a higher dose of deceit.’  As the country is undergoing a pandemic – a health emergency (Note: The Indian Constitution has no provision for public health Emergency)  – I shall argue that the excessive use of power by the State, under the garb of colonial-era, pre-constitutional legislations, has unleashed a disproportionate force to attain the legitimate objective – something which the Constitution sought to repudiate. In his famous remark, Lord Akton, (Source: Hanover History Education Courses),, observed:

 “[...] Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you super-add the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it. That is the point at which ... the end learns to justify the means.”

Therefore, the question: whether the ‘means’ today have become irrelevant in order to achieve the ‘end’ in the name of ‘unprecedented situation’; ‘emergency’; ‘greater good'; ‘national security’ – the terms that have never been subjected to scrutiny – defying the constitutional  process, thereby resulting into the continuing colonial paradigm of Banana Republic and Kangaroo Courts? 

The record, when scrutinised, is revealing. Consider these illustrations:

The concomitant effect of over-arching legislation

The time is late evening, nearly four hours before midnight, March 24, 2002. The scene is a Covid-19 affected nation with the second largest population in world. This nation has a written Constitution, the basis of which is the rule of law, parliamentary democracy, independent judiciary, and above all, constitutional supremacy. The head of the government appears on TV screen and imposes a ‘nationwide lockdown’ without any prior notice, bypassing Parliament and with no consultation with the States of the Union. Moreover, the announcement was made without any scientific (rational/expert) study backing the feasibility of such a centralised lockdown in a developing country of 130 billion.  At the time of the announcement, 80 % of the total Covid-19 cases were in only five states.

To impose the lockdown, the government used Section 10 of the National Disaster Management Act – along with the complete movement restrictions, closure of shops among others with an exception of ‘essential services'. The said section of the NDMA sanctions the National Disaster Management Authority to issue binding instructions and directions to the various state governments. The concomitant effects, however, have been devastating.

In pursuance of maintaining law and order to contain the contagious coronavirus, the memo stating that ‘the essential services are to remain operational', appears to have been seemingly forgotten (or ignored) by the law and order machinery. There have been nationwide accounts of policemen stooping to frequent lathi-charge in order to cordon off the streets, with the horrendous report of an individual in West Bengal dying as a result of such a lathi charge (New Indian Express, March 26, 2020).  It is not an isolated episode, yet another case of father-son duo, Jayraj and Benni,  tortured and killed in police custody in Tamil Nadu (Indian Express) that shocked the conscience of the entire nation. The outrage against the indiscriminate police assault has been countrywide. It remains a fact that the lathi charge still remains the default method to ‘control’ crowds in democratic India.   The question, therefore, arises whether the situation necessitates the use of colonial-era methods to cordon off the streets, sanctioning errant cops to a brazen misuse of their power.

At the outset, the law dealing with the above problem needs to be made clear. Basically, the power or authority to use force for ‘Maintenance of Public Order and Tranquillity’ comes from the Section 129 of CrPC.

The rationale behind (the use) of 129 CrPC has been iterated by judgements of several High Courts and also the Supreme Court. In the case of Karam Singh vs Hardayal Singh And Ors (August 8, 1979), the Punjab-Haryana High Court stated that before using any kind of force, three pre-conditions must be fulfilled. First, there should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of the public peace. Second, such an assembly (must be first) vocally ordered to disperse; third, despite such orders, if such an assembly does not disperse, only then is the use of force justified.

With none of the conditions being followed in the instances reported from countrywide reports, these actions of the police in many states were a clear-cut contempt of court and violation of stated (and accepted) legal principles.

Besides this, the other methods amounting to violation of rights and basic human dignity have been the use of ink stamps for identification, stigmatised institutional quarantines, publishing of personal information in public (reports in Indian Express and Hindu) without any robust data protection laws in existence.

However, the purpose of this article is not to go into the detail of each such point of violation, since they have been extensively discussed in many other articles. The broader point, nevertheless, that I intend to convey through these smaller points is the compliance of proportionality test as laid down by the Supreme Court in the Aadhaar case. It requires the following four prongs: (a) requirement of a law, with a legitimate State aim; (b) a rational nexus between the impugned measures and the aim; (c) that the impugned measure be the least restrictive method of achieving the aim and (d) that there must be a balance between the extent to which rights are infringed, and the State’s legitimate purpose.

The position is similar at the state level. Here, the law in force is: the Epidemic Disease Act – colonial regime legislation. Primarily, the power to seal specific areas and ban congregations have been derived from this Act with no check, accountability, transparency or balance. Under the Section 2 of the EDA governments may pass any direction that they might deem “necessary to prevent the outbreak or spread” of an epidemic disease. 

These facts, as stated, are matters of significant public concern, especially as they pertain to both the crucial issue of personal liberty and the wider public interest. Public or society have an indispensable dividend in the enforcement or non-enforcement of the said legislations and orders, initiated to curb the epidemic because it co-laterally affects them. The order or legislation, nevertheless, seeking to fulfil its objective must consider the quintessential balance between the incongruous interests of personal liberty and the larger public good. The motive of legislations and orders should be to dovetail two incongruous interests – on the one hand, to shield public from the hazards of spreading the epidemic (pandemic) and on the other hand, respecting and maintaining the sanctitude of personal liberty and basic human dignity as a fundamental right.

It is thus clear that there has been no rational nexus between the means (excessive and arbitrary instrumentalities) to achieve the end (curbing the spread of disease), in the excessive measures taken by the government. Like their louche history, this has often been echoed in the use of the phrase-- ‘that of a doctor who sees a patient with high fever and says the only way to bring down the fever is to kill the patient’. The vague and over-broad character of these pre-constitutional era legislations have unleashed a sweeping discretionary power and evidently the use of disproportionate force with arbitrary enforcement. All this has been done in the name of ‘necessary steps to prevent the outbreak or spread of a pandemic” – with no intervention of, or discussion in, in Parliament. In short, the life and liberty of an individual is at the mercy and whims of executive magistrates, legitimised through the lockdown and likely to be normalised thereafter. The centralisation of power with greater force, it is argued, by proponents and supporters of state power and authority, is that it is necessary for the ‘larger public interest' at the time of ‘emergencies’ or ‘disaster’ as “a war cannot be fought on the principles of Magna Carta”. A constitutional republic with guaranteed fundamental rights, nevertheless, ought to have been reminded time and again, the words of poet WH Auden:

 “The Ogre does what ogres can,

Deeds quite impossible for Man,

But one prize is beyond his reach:

The Ogre cannot master speech.

 

About a subjugated plain,

Among it’s desperate and slain,

The Ogre stalks with hands on hips,

While drivel gushes from his lips.”

The Supreme Court: In response

Since India has adopted the principle of constitutional supremacy, every executive order or the decisions of any constitutional functionary must be in consonance with the Constitution. The body to adjudicate on this aspect is the judiciary. By adopting the means of ‘executive decree’, the government had already side-lined the role of Parliament, where, if its decisions had been discussed, there could have been a check on its decisions and functioning. To make the situation worse, the Supreme Court has not been of a significant help either. Admittedly, the restricted resources and limited framework stops the Court to monitor the policies of the government but here the Court has given up its fundamental role of ‘sentinel on the qui vive'. On many an occasion it has only tried to maintain the status quo.

I shall use two legal precedents to strengthen my claim.

Lord Atkin, in his dissenting opinion of Liversidge v Anderson (1941) while demolishing the uncontrolled power enjoyed by the executive at the behest of deliberate vague and strained words used in legislations and orders, went on to recite the Humpty Dumpty story:

“...‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be the master, that's all.’ After all this long discussion the question is whether the words ‘If a man has' can mean ‘If a man thinks he has'. I have an opinion that they cannot and the case should be decided accordingly.”

Today, when extraordinary powers rest in the hands of government, by employing the ‘Rule by Executive Order’, there is a high probability that the government will canvass the Humpty Dumpty interpretation of its orders – allowing themselves to stipulate the definition of words to be what they would like them to mean. Of late, the case of Aarogya Setu app has been yet another replication of the Humpty Dumpty story, like that of the earlier Aadhaar card controversy. In both cases, the only authority to decide the meaning of terms ‘voluntary’ and ‘mandatory’ has been the Humpty Dumpty. This piece, however, does not endeavour to go into the technical aspects of data privacy concerns since it has already been discussed extensively (see here). Unfortunately, Humpty Dumpty is perpetual; Lord Atkin ain’t!

The other crucial issue, a brutal consequence of the lockdown has been the migrant exodus in search of food, shelter, and wages. The response of the Supreme Court was telling. Hearing a batch of PILs, the CJI is reported to have remarked, “If they are being provided meals, then why do they need money?” in response to a plea for payment of wages to labourers.

Now, if we proceed on to examine the oft-quoted remark of Justice Beg, made during the Emergency that ‘the care and concern bestowed by the State ... is almost maternal' with the remark of CJI Bobde (2020)  ‘How can you say the government is not doing anything when you have not seen the status report of the government?’ one sees the striking similarity.

It was in this context that senior counsel, Navroz Seervai, therefore, wrote: “the ghost of the [ADM Jabalpur or Habeas Corpus] ... [still] seems to stalk the land, despite being ‘buried ten fathoms deep'”.

The good news, of course, is that there can be a course correction. There have been several aborted attempts to sabotage both institutions and fundamental rights. A lesson, therefore, to learn from the Emergency is this: When one fights against the government, a citizen has to be lucky only once; the government, on the other hand, has to be lucky every time. So hang in, hang in, hang in there and battle on.....you never know when the tide turns!!

The author is a law student presently reading for a law grad. degree at Narsee Monjee Institute of Management Studies (NMIMS) School of Law, Mumbai; can be contacted at vparth1729@gmail.com )

An 'Emergency' Constitutional Crisis

On the point of curve at which the end learns to justify the means

modi

 

“Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding”

[Olmstead v. U.S., 227 U.S. 438 (1928) (dissenting)]

To the unending ignominy of the Supreme Court, four out of five judges, in the egregious “Habeas Corpus” case (April 28, 1976), endorsing a dictatorial and totalitarian regime, solemnly observed and dictated:

"Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law: ‘Omina praesumuntur rite esse acts', which means that all official acts are presumed to have been rightly and regularly done"

Another bizarre presumption taken in the Habeas Corpus case that: ‘[t] he care and concern lavished ... by the State is almost maternal' overrode a plain prospect – that a judge ought to have a distrust of authority, and of the institution that wields it.  (Authors of the judgement were A Ray, (CJI), HR Khanna, Hans Raj, Beg, M. Hameedullah, YV Chandrachud, PN Bhagwati)

The puzzling view of the four men, however, was not in vacuum or surprising. Somehow, the narrative of Indian constitutional courts – with a few deviations – is the record of judgements that have been intuitively convenient with seats of power, and uncomfortable with those seeking to resist or disrupt it.

Nevertheless, nearly four decades later, the Supreme Court was prompt in rejecting the Habeas Corpus line of reasoning when the court observed that: ‘ADM Jabalpur must be buried ten fathoms deep with no chance of resurrection' (August 2017). Yet, “[t] he ghost of the judgment ... [still] seems to stalk the land, despite being ‘buried ten fathoms deep',” argues Navroz Seervai in his article titled “Are we Condemned to Repeat History” (The Leaflet, June 25, 2020). I, too, shall examine his claim later in the article.

Before I proceed with the underpinnings of constitutional provisions and legal schemes of specified modus operandi for judiciary and executive at the time of a declared ‘emergency’, in the words of KG Kannabiran (in his book, Wages of Impunity), "... the fundamental question is, what means do you adopt to secure what ends? That was the big debate in those [Emergency] days," let us remind ourselves that it is the ‘means’ sought to reach the ‘end’ goal that distinguishes a constitutional democratic country from totalitarian rule.

These words of Kannabiran lay the edifice for the argument of this article: that in a constitutional democracy ‘means’ are as sacred as the ‘ends’. But how do we recognise a situation where the means are (persistently) being flouted to achieve the ends, and to what extent? To answer this question, I begin with Gunter Frankenberg's important insight: Emergency situations arouse the ultimate challenge for the magic of constitutions because necessity tends to brush aside constitutional qualms. And justifying exceptional powers is likely to command a higher dose of deceit.’  As the country is undergoing a pandemic – a health emergency (Note: The Indian Constitution has no provision for public health Emergency)  – I shall argue that the excessive use of power by the State, under the garb of colonial-era, pre-constitutional legislations, has unleashed a disproportionate force to attain the legitimate objective – something which the Constitution sought to repudiate. In his famous remark, Lord Akton, (Source: Hanover History Education Courses),, observed:

 “[...] Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you super-add the tendency or the certainty of corruption by authority. There is no worse heresy than that the office sanctifies the holder of it. That is the point at which ... the end learns to justify the means.”

Therefore, the question: whether the ‘means’ today have become irrelevant in order to achieve the ‘end’ in the name of ‘unprecedented situation’; ‘emergency’; ‘greater good'; ‘national security’ – the terms that have never been subjected to scrutiny – defying the constitutional  process, thereby resulting into the continuing colonial paradigm of Banana Republic and Kangaroo Courts? 

The record, when scrutinised, is revealing. Consider these illustrations:

The concomitant effect of over-arching legislation

The time is late evening, nearly four hours before midnight, March 24, 2002. The scene is a Covid-19 affected nation with the second largest population in world. This nation has a written Constitution, the basis of which is the rule of law, parliamentary democracy, independent judiciary, and above all, constitutional supremacy. The head of the government appears on TV screen and imposes a ‘nationwide lockdown’ without any prior notice, bypassing Parliament and with no consultation with the States of the Union. Moreover, the announcement was made without any scientific (rational/expert) study backing the feasibility of such a centralised lockdown in a developing country of 130 billion.  At the time of the announcement, 80 % of the total Covid-19 cases were in only five states.

To impose the lockdown, the government used Section 10 of the National Disaster Management Act – along with the complete movement restrictions, closure of shops among others with an exception of ‘essential services'. The said section of the NDMA sanctions the National Disaster Management Authority to issue binding instructions and directions to the various state governments. The concomitant effects, however, have been devastating.

In pursuance of maintaining law and order to contain the contagious coronavirus, the memo stating that ‘the essential services are to remain operational', appears to have been seemingly forgotten (or ignored) by the law and order machinery. There have been nationwide accounts of policemen stooping to frequent lathi-charge in order to cordon off the streets, with the horrendous report of an individual in West Bengal dying as a result of such a lathi charge (New Indian Express, March 26, 2020).  It is not an isolated episode, yet another case of father-son duo, Jayraj and Benni,  tortured and killed in police custody in Tamil Nadu (Indian Express) that shocked the conscience of the entire nation. The outrage against the indiscriminate police assault has been countrywide. It remains a fact that the lathi charge still remains the default method to ‘control’ crowds in democratic India.   The question, therefore, arises whether the situation necessitates the use of colonial-era methods to cordon off the streets, sanctioning errant cops to a brazen misuse of their power.

At the outset, the law dealing with the above problem needs to be made clear. Basically, the power or authority to use force for ‘Maintenance of Public Order and Tranquillity’ comes from the Section 129 of CrPC.

The rationale behind (the use) of 129 CrPC has been iterated by judgements of several High Courts and also the Supreme Court. In the case of Karam Singh vs Hardayal Singh And Ors (August 8, 1979), the Punjab-Haryana High Court stated that before using any kind of force, three pre-conditions must be fulfilled. First, there should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of the public peace. Second, such an assembly (must be first) vocally ordered to disperse; third, despite such orders, if such an assembly does not disperse, only then is the use of force justified.

With none of the conditions being followed in the instances reported from countrywide reports, these actions of the police in many states were a clear-cut contempt of court and violation of stated (and accepted) legal principles.

Besides this, the other methods amounting to violation of rights and basic human dignity have been the use of ink stamps for identification, stigmatised institutional quarantines, publishing of personal information in public (reports in Indian Express and Hindu) without any robust data protection laws in existence.

However, the purpose of this article is not to go into the detail of each such point of violation, since they have been extensively discussed in many other articles. The broader point, nevertheless, that I intend to convey through these smaller points is the compliance of proportionality test as laid down by the Supreme Court in the Aadhaar case. It requires the following four prongs: (a) requirement of a law, with a legitimate State aim; (b) a rational nexus between the impugned measures and the aim; (c) that the impugned measure be the least restrictive method of achieving the aim and (d) that there must be a balance between the extent to which rights are infringed, and the State’s legitimate purpose.

The position is similar at the state level. Here, the law in force is: the Epidemic Disease Act – colonial regime legislation. Primarily, the power to seal specific areas and ban congregations have been derived from this Act with no check, accountability, transparency or balance. Under the Section 2 of the EDA governments may pass any direction that they might deem “necessary to prevent the outbreak or spread” of an epidemic disease. 

These facts, as stated, are matters of significant public concern, especially as they pertain to both the crucial issue of personal liberty and the wider public interest. Public or society have an indispensable dividend in the enforcement or non-enforcement of the said legislations and orders, initiated to curb the epidemic because it co-laterally affects them. The order or legislation, nevertheless, seeking to fulfil its objective must consider the quintessential balance between the incongruous interests of personal liberty and the larger public good. The motive of legislations and orders should be to dovetail two incongruous interests – on the one hand, to shield public from the hazards of spreading the epidemic (pandemic) and on the other hand, respecting and maintaining the sanctitude of personal liberty and basic human dignity as a fundamental right.

It is thus clear that there has been no rational nexus between the means (excessive and arbitrary instrumentalities) to achieve the end (curbing the spread of disease), in the excessive measures taken by the government. Like their louche history, this has often been echoed in the use of the phrase-- ‘that of a doctor who sees a patient with high fever and says the only way to bring down the fever is to kill the patient’. The vague and over-broad character of these pre-constitutional era legislations have unleashed a sweeping discretionary power and evidently the use of disproportionate force with arbitrary enforcement. All this has been done in the name of ‘necessary steps to prevent the outbreak or spread of a pandemic” – with no intervention of, or discussion in, in Parliament. In short, the life and liberty of an individual is at the mercy and whims of executive magistrates, legitimised through the lockdown and likely to be normalised thereafter. The centralisation of power with greater force, it is argued, by proponents and supporters of state power and authority, is that it is necessary for the ‘larger public interest' at the time of ‘emergencies’ or ‘disaster’ as “a war cannot be fought on the principles of Magna Carta”. A constitutional republic with guaranteed fundamental rights, nevertheless, ought to have been reminded time and again, the words of poet WH Auden:

 “The Ogre does what ogres can,

Deeds quite impossible for Man,

But one prize is beyond his reach:

The Ogre cannot master speech.

 

About a subjugated plain,

Among it’s desperate and slain,

The Ogre stalks with hands on hips,

While drivel gushes from his lips.”

The Supreme Court: In response

Since India has adopted the principle of constitutional supremacy, every executive order or the decisions of any constitutional functionary must be in consonance with the Constitution. The body to adjudicate on this aspect is the judiciary. By adopting the means of ‘executive decree’, the government had already side-lined the role of Parliament, where, if its decisions had been discussed, there could have been a check on its decisions and functioning. To make the situation worse, the Supreme Court has not been of a significant help either. Admittedly, the restricted resources and limited framework stops the Court to monitor the policies of the government but here the Court has given up its fundamental role of ‘sentinel on the qui vive'. On many an occasion it has only tried to maintain the status quo.

I shall use two legal precedents to strengthen my claim.

Lord Atkin, in his dissenting opinion of Liversidge v Anderson (1941) while demolishing the uncontrolled power enjoyed by the executive at the behest of deliberate vague and strained words used in legislations and orders, went on to recite the Humpty Dumpty story:

“...‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be the master, that's all.’ After all this long discussion the question is whether the words ‘If a man has' can mean ‘If a man thinks he has'. I have an opinion that they cannot and the case should be decided accordingly.”

Today, when extraordinary powers rest in the hands of government, by employing the ‘Rule by Executive Order’, there is a high probability that the government will canvass the Humpty Dumpty interpretation of its orders – allowing themselves to stipulate the definition of words to be what they would like them to mean. Of late, the case of Aarogya Setu app has been yet another replication of the Humpty Dumpty story, like that of the earlier Aadhaar card controversy. In both cases, the only authority to decide the meaning of terms ‘voluntary’ and ‘mandatory’ has been the Humpty Dumpty. This piece, however, does not endeavour to go into the technical aspects of data privacy concerns since it has already been discussed extensively (see here). Unfortunately, Humpty Dumpty is perpetual; Lord Atkin ain’t!

The other crucial issue, a brutal consequence of the lockdown has been the migrant exodus in search of food, shelter, and wages. The response of the Supreme Court was telling. Hearing a batch of PILs, the CJI is reported to have remarked, “If they are being provided meals, then why do they need money?” in response to a plea for payment of wages to labourers.

Now, if we proceed on to examine the oft-quoted remark of Justice Beg, made during the Emergency that ‘the care and concern bestowed by the State ... is almost maternal' with the remark of CJI Bobde (2020)  ‘How can you say the government is not doing anything when you have not seen the status report of the government?’ one sees the striking similarity.

It was in this context that senior counsel, Navroz Seervai, therefore, wrote: “the ghost of the [ADM Jabalpur or Habeas Corpus] ... [still] seems to stalk the land, despite being ‘buried ten fathoms deep'”.

The good news, of course, is that there can be a course correction. There have been several aborted attempts to sabotage both institutions and fundamental rights. A lesson, therefore, to learn from the Emergency is this: When one fights against the government, a citizen has to be lucky only once; the government, on the other hand, has to be lucky every time. So hang in, hang in, hang in there and battle on.....you never know when the tide turns!!

The author is a law student presently reading for a law grad. degree at Narsee Monjee Institute of Management Studies (NMIMS) School of Law, Mumbai; can be contacted at vparth1729@gmail.com )

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