Human Rights Violation during the National Emergency of 1975

Introduction

Human beings are born independent with dignity and rights which is an inseparable and indivisible part. Human rights in particular are rights that are present to every human being irrespective of their colour, creed, caste, birth, nation, language, or any other status. Many misconceptions are there concerning this, that Human rights can be suspended in certain situations like During ‘the time of emergency’ or when someone was ‘detained as a prisoner in prison’. Human rights, as being fundamental in nature, cannot be suspended wholly in any situation. When a person is put into prison, he does not been deprived of his Fundamental Human rights, they are still available to them only right to liberty which is being enshrined under Article 21 of the Indian constitution gets derogated. The Same goes with the case of National emergency where people have a misconception that inter se most of the Human rights get suspended, people are not cognisant of this, that even during the emergency they still have the fundamental right to life and personal liberty enshrined under ‘Article 21’ and, Fundamental right to be protected in respect of conviction for offences enshrined under ‘Article 20’of the Indian constitution.

Emergency provisions In India

Emergency according to Black’s law dictionary is an ‘unforeseen combination of circumstances or the resulting state that calls for an immediate action’ [1]. The concept of emergency was taken from the constitution of Germany. Part XVIII of the Indian constitution deals with emergency provisions. There are 3 types of emergencies that can be proclaimed in India these are,

·       National emergency enshrined under Article 352,

·       State emergency enshrined under Article 356 and,

·       financial emergency enshrined under Article 360.

Why there is a need to suspend Human Rights during emergency in a State? It is lucid that during a national emergency most of the Human rights can either be derogated or suspended except ‘Right to life and liberty’ provided under Article 21 and ‘Protection in respect of conviction for offences’ provided under article 20 of the Indian constitution. A national emergency has been proclaimed on 3 occasions in India, the most debatable occasion was the emergency of 1975 imposed by the then Prime Minister of India Mrs. Indira Gandhi. The emergency was proclaimed on the ground of ‘Internal disturbance’ which was later amended and replaced with ‘Armed rebellion’ by the 44th amendment Act of the Indian constitution, this act also nullified various provisions of the 42nd Amendment act of 1976 which reduced the ability of India’s Supreme court and High court to proclaim laws as constitutional or unconstitutional passed by the Indian parliament.

It seems plausible for the state to suspend or derogate some or all Human rights in a state of emergency. Almost every constitution, convention, treaty, or statute deal with emergency provisions that allows a state to derogate some Human rights when there is a threat to the security of the state to protect the state and its citizens from grave emergencies.

1-     International convention on civil and political rights

The International convention on civil and political rights has provisions, which allow a state to derogate from its obligation of protecting civil and political rights during an emergency. However, it also has provisions for rights that cannot be derogated or suspended even during the time of emergency.

Article 4(1) of this convention states ‘In times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed the State Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination on the grounds of race, colour, sex, language, religion or social origin.’ From the above provision it is clear that during a state of emergency, a state party to the covenant is allowed to derogate from its obligation of protecting human rights. But the question arises, does the covenant allows a state to suspend or derogate every human right that was enshrined under the covenant? The answer is no Article 4(2) states the rights that cannot be suspended even during an emergency, it says, no derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16, and 18 may be made under this provision.

This means that, the right to life, freedom from inhuman or degrading treatment, freedom of aliens from arbitrary expulsions, freedom from imprisonment for inability to fulfill a contractual obligation, non-retroactive application of criminal law, right to recognition as a person before the law, and freedom of thought conscience and religion. According to the convention, these rights are indispensable and imperative for the survival of human beings, they cannot be derogated even when there is a threat to the security of the state as these rights have been identified as ‘core of essential human rights. Laws are not static they are dynamic in nature and therefore, certain additional rights may be added to the list of indispensable rights in the near future to provide better protection to the citizens of state parties.

Art. 4(3) states that ‘any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other State Parties to the present Covenant, through the intermediary of the Secretary General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was activated. A further communication shall be made through the same intermediary on the date on which it terminates such derogation. This put an obligation on the state that they have to inform the other members of the covenant about the date of enactment of emergency and the date of abolishment of emergency in that way the state will not act in an autocratic or tyrannical manner as they will be continuously monitored by the state parties and the secretary general of UN. [2] 

2-     international convention on economic, social and cultural rights-

This convention put an obligation on the state parties to protect the economic, social and cultural rights of their citizens, it is significant to note that the international convention on economic, social and cultural rights does not allow a state to derogate any of the rights which are being enshrined in the covenant during the state of emergency which threatens the life of the nation.

3-     American convention on Human rights

The American convention on Human rights have been adopted in 1969 by the organisation of American states and it was another landmark development in the protection of Human rights. As various declarations, conventions, statutes and treaties allows a state to derogate from its obligations during the state of emergency, Article 27(1) of the American convention on Human rights does the same it states, In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, colour, sex, language, religion, or social origin.

However, Article 27(2) states certain rights which are non-suspendable even during a state of emergency same as the ICCPR, it says ‘The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights’.

Further Article 27(3) talk about the responsibility of the state during emergency as the state party of the convention. It says, ‘any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension’. [3]

4-     European convention for the protection of Human rights and Fundamental freedoms

Article 15 of the European convention allows any ‘High contracting party’ to take measures to derogate from its obligation during war or other public emergency threatening the life of the nation to the extent strictly required by the exigencies of the situation, Article 15(3) makes it necessary to any derogation to the secretary general of the council of Europe of the measure and the reasons for them as well as the date of termination.[4]

The proclamation of the 1975 National Emergency

Till today, India have been through 3 emergencies the first one was invoked due to aggression from the side of China, it was imposed on 26th October 1962 and it lasted till 10th January 1968. The second emergency was imposed on 3rd December 1971 and lasted till 21st March 1977 the ground for imposing the second emergency is War with Pakistan, when this emergency was in existence another emergency was proclaimed on the ground of Internal disturbance which became the most debatable emergency in the history of India.

On the night of 25th June 1975, the President of India Fakhruddin Ali Ahmed signed a proclamation which says…

“I, President of India, by this proclamation declare that a grave emergency exists whereby the security of India is threatened by Internal disturbance.”

This become a case of double emergency, ‘when one type of emergency is in operation and another type of emergency declared parallel to it, then it is called double emergency’. As a proclamation of emergency was already active on the ground of “External aggression” and another emergency was imposed on the grounds of Internal disturbance.  The declaration of emergency was followed due to a growing anti-corruption campaign led by Gandhian ideology follower, Jaya Prakash Narayan and the Judgement by the High court of Allahabad in the actions brought against Ms. Indira Gandhi by her opponent in the 1971 elections, imputing electoral malpractices [5]. The imputations were proved right and Mrs Gandhi’s election to the parliament and Prime Minister was invalidated.  

Appeal was filed by Mrs. Gandhi in the supreme court and the court Validated her being the Prime Minister of India. A civil disobedience Movement was launched on June 29, 1975 to dislodge Ms. Gandhi from her office. The consequence of this was-

·      wide use of preventive detention laws against political opponents and economic offenders,

·      suspension of Fundamental rights to apply before a court,

·      Rigid press censorship,

·      suspension of “Article 14, Article 19, Article 20, Article 21, and Article 22 of the Indian constitution” through Article 359 of the Indian constitution.

The president amended the Maintenance of Internal security Act (MISA) and removed the detainee’s right to be informed of the grounds of arrest. A second amendment abolished the right to appeal in case of an illegal detention.

Incidents of human rights violations During the 1975 emergency

According to a report presented by Amnesty International, Under the controversial preventive detention laws such as Maintenance of Internal security Act, 1971(MISA) [6] and defence of India rules, around 40000 people were arrested and illegally detained without being provided with an opportunity to present before a court during the 21 Month long gruesome emergency. [7] The laws specifically MISA was revoked by Janata party Dal through the 44th Amendment act of 1978, it also removed MISA from the 9th schedule of the Indian Constitution that had provided it an immune status till date as there was no provision of judicial review under the said schedule. By being in the 9th schedule the act was given a precedence to Judicial review which was hampering the Basic structure doctrine. The shah commission which was created to investigate the complaints that arose out of the national emergency, submitted 3 reports, the most important and relevant one was their 3rd report which highlighted the wrongful confinement, torture, patently illegal detentions based on caprice, abuses of authority by public officials, indiscriminate demolition of houses, and unlawful implementation of family planning programmes.

When the new Government came into power on 24th March 1977, many reports were published in the Indian press Highlighting and condemning the large-scale tortures that were inflicted upon peoples during the Emergency, according to these reports prisoners were hung upside down and beaten with rods, their feet were being burned through lit candles, rats were released inside their trousers and various other type of scathing tortures were inflicted. In the state of Kerala “roller treatment” torture is used, which killed 1 person named P. Rajan who was an engineering student and was arrested on the basis of Naxalite activity. The state Government first denied the detention of P. Rajan, but after a Habeas Corpus petition, the Kerala High court directed the Chief Minister of Kerala to produce P. Rajan in the court. This led to the resignation of the Chief Minister and 4 other police officials who confirmed that P. Rajan died while in custody. A committee established by Jaya Prakash Narayan, president for citizens of democracy and headed by V.M Tarkunde, president of SC bar association, to investigate the death of left-wing political activist in Andhra Pradesh, found that the death was a result of police torture. The same committee also found that four other “Naxalities” who according to the official report died in “encounters” were actually shot by the police on the same day they were arrested. [8]

All these reports and committee’s highlight the abysmal torture that was inflicted upon the detainees that were illegally detained. Torture since the birth of Democracy is considered as the most gruesome and barbarous act against humans as it completely depraves a person of his Human rights. Freedom from torture or other cruel inhuman degrading treatment or punishment, is considered as a non-degradable Human right. The universal declarations of Human rights and international covenant on civil and political rights protect this Human right, apart from them, Article 2 of the declaration on protection of all persons being subjected to torture and other cruel, inhuman or degrading treatment or punishment, 1975 declares ‘torture’ in any form as an offence against Human dignity and as a violation of Human rights and fundamental freedoms enshrined under UDHR. Under this declaration states are being directed to not promote or involve in any form of torture even in conditions threatening the security of state such as war, threat of war, Internal political instability or National emergency. Article 4 put an obligation upon the states to abolish all forms of torture and Article 6 provided that the states are obliged to review the interrogation methods and practices for the custodial cases. Further The convention against torture and other cruel, inhuman or degrading treatment or punishment, adopted by the United Nations General assembly on Dec, 10th 1984, prohibits all forms of torture in any form and not allow states in any circumstances including war, public emergency or order from superior authority to derogate from their responsibility provided under this convention. [9]

Mass sterilization campaigns were also promoted through media as the media was not working under their own discretion. The forced sterilization propaganda was initiated by Sanjay Gandhi, progeny of Mrs. Indira Gandhi. In 1976 under this programme, it was made necessary for the Indian men to go through sterilization in order to limit the population of the country. [10] Sterilization, when performed without consent violates various Human rights of an individual such as right to dignity, Humane treatment, health, family, information, privacy etc. all of which are considered as non-degradable rights by various conventions, statutes and declarations. [11]

The response of Judiciary during the 1975 Emergency

In response to the emergency various Habeas corpus [12] writ were filed in various High courts of India. The detaining authorities raise the objection that the petitioners had no locus standi, because they are trying to enforce their fundamental right under Article 21 that is right to life and liberty. The High courts of 10 different states rejected this contention on the ground that even though the petitioner does not have the right to enforce their Fundamental right, they were entitled to show that the order of detention was not in compliance with the established procedure or Mala fide. This view was rejected by the Supreme court of India in the famous case of Habeas corpus[13] case. The court with a majority of 4:1 held that-

“Article 21 was the sole repository of the right conferred and that accordingly an order of preventive detention issued at a time when Article 21 was under suspension could not be challenged either in the High court or Supreme court, nor a writ of habeas corpus issued, either on the ground that the law was not in compliance with the law authorising it or was illegal or was vitiated by mala fides, factual or legal, or based on extraneous considerations”

In the next year [14] Supreme Court held that during an emergency Articles 21 and 22 are suspended and the detainees do not have the right to complain about prison conditions or rules regulating conditions, even if they were unreasonable. As in the unfortunate words of the then chief justice Ray:

“Liberty itself is the gift of the law and may by the law be forfeited or abridged”

What the supreme court failed to realize is that the Right to life and liberty provided under Article 21 of the Indian constitution is not the so-called ‘gift of the constitution of India’. Article 4 of the international convention on civil and political rights recognises the right to life and liberty as a non-degradable right that cannot be derogated even during a time when the security of the state is under a threat.

Conclusion

Even the country with the largest democracy in the world that is strongly committed to the rule of law with detailed constitutional provisions, a strong parliamentary and quasi-federal tradition, and a strong legal system, during an emergency can act beyond what is ‘strictly required by the exigencies of the situation. The risk of abuse of core essential Human rights is greater when the Government in power has a sufficient majority in the legislature. The first two emergencies proclaimed since the Independence, are justifiable as they are based on the grounds that were recognised by the international laws. The third emergency which was based upon a ground of ‘internal disturbance’ which, was never been touched by any international law, completely suspended the judicial control over the legislature which invariably permitted gross violations of fundamental Human rights by officials whose duty was to enforce the law. The third emergency has shown that when there is excess power granted there is a greater chance of abuse of power. Above all, the third emergency showed the importance of the writ of habeas corpus in protecting the life and liberty of a human being during an emergency.

Therefore, more safeguards are required to ensure that in no situation, however grave, the basic human rights should not be allowed to be derogated, because once there is a derogation there is always a possibility that the one who is conferring power during such a situation in order to increase their power and control will continue the derogation in the name of security of the state.

 References:

1. Black Law’s Dictionary, https://thelawdictionary.org/emergency

2. For Text of International Covenant on Civil and Political Rights New York 1966), entry into force 23.3.76 see Human Rights in International law. Basic Texts, published by the Directorate of Human Rights, Council of Europe, Strasbourg 1985 p. 28,29.

3. For Text of American Convention on Human Rights, (San Jose, 2. XI, 1967) see Human   Rights in International law. Basic Texts, Strasbourg 1985.

4. For Text of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ROME 1950 see Human Rights in International Law. Basic Texts pub by the Directorate of Human Rights, Council of Europe, Strasbourg 1985.

5. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1: AIR 1975 SC 2299

6. The Maintenance of Internal Security Act, 1971 (Act 26 of 1971) (hereinafter “MISA”).

7. Amnesty International Annual Report 1975 – 1976.

8. Amnesty International Annual Report 1977.

9. Art. 2 of the U.N. Convention against Torture, 1984.

10. Emergency in India during 1975: Atrocities and Acts during Emergency - India.com

11. https://ijrcenter.org/wp-content/uploads/2019/03/FS-IHRL-Developments-Summary-w-links.pdf

12. Article 32 of the Indian constitution Guarantees the right of every person to move to the supreme court of India for issuing the writs including the writ of habeas corpus. Article 226 empowers the High courts of every state to issue the same writs.

13. ADM, Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521: AIR 1976 SC 1207 (Supreme Court of India).

14. Union of India v. B. K. Gowda, A.I.R, 1977, S.C. 1027