Fali Nariman, a beacon of moral courage when Emergency was proclaimed

The day after Emergency was imposed, Fali S. Nariman, then serving as Additional Solicitor General (ASG), tendered his resignation in protest.

The political challenge posed by a movement led by Jayaprakash Narayan was a precursor to the national emergency imposed by the then Prime Minister Indira Gandhi in June 1975. But what ultimately forced Gandhi to impose Emergency on the midnight of 25th June was the Supreme Court’s interim order passed by vacation judge, Justice VR Krishna Iyer on June 24. The order was in an appeal filed by Gandhi against the Allahabad High Court judgment which held Gandhi guilty of ‘electoral malpractices’ and disqualified her from holding public office for six years.

Justice Iyer allowed Gandhi to continue as Prime Minister and as a Member of Parliament (MP) in the Lok Sabha, and even draw a salary in her capacity as PM. But at the same time, the order barred her from participating in the proceedings of Parliament and voting as an MP.

What started as a political challenge turned into a legal crisis for Gandhi. And some of the sharpest responses came from the legal circle against her decision to impose an emergency.

Integrity to say no

The day after Emergency was imposed, Fali S. Nariman, then serving as Additional Solicitor General (ASG), tendered his resignation in protest. Equally notable was the decision of Nani Palkhivala, who returned his brief in the case challenging the validity of Indira Gandhi’s election, refusing to defend a political move that subverted democratic norms.

Nariman has vividly recounted this period in his memoir ‘Before Memory Fades’. Nariman calls the night of 26 June the “most important turning point in his professional career”. On June 27, Nariman resigned from the post of ASG. Nariman recounts that, as there was censorship, the news of his resignation was suppressed. Ironically, it was thought that he had resigned to appear for Indira Gandhi in her election case.

He writes: “At the end of June 1975, I made my first appearance in a private litigation in the court of the chief justice of Bombay. It was before a bench of Chief Justice Kantawalla and Justice V. D. Tulzapurkar (then a judge in Bombay; in September 1977, he was appointed judge of the Supreme Court of India). On seeing me, I heard Chief Justice Kantawalla loudly whisper to Tulzapurkar, ‘Nariman has resigned as law officer.’ Tulzapurkar – a fine, brave judge – audibly told Kantawalla (who was quite deaf in one ear), ‘I don’t quite know. I believe he has resigned in order to appear for Mrs Gandhi.’

This speculation was driven by the fact that Nani Palkhivala had returned her brief in the Supreme Court against the judgment of the Allahabad High Court in her election case.

The pitfall of removing legal restraints on the Executive

The reminiscences of Nariman provide testimony to the complete breakdown of Constitutional safeguards provided to the citizens during that period. He recounts a story in this regard to show the absolute impunity with which the State and its officials functioned at that time.

Before Emergency was declared, Nariman had accepted an invitation to preside over a lawyers' conference in Rajahmundry, Andhra Pradesh. After resigning from his official post, he was still requested to attend in his private capacity.

Despite Emergency and absolute curtailment of free speech and expression, about 2,000 lawyers gathered at the event. Upon reaching the venue, Nariman was informed by the organiser, who was a senior lawyer of the district, that his son —a law student—had been arrested under the draconian MISA law. His son’s only crime was that he had objected to a pro-government student march, suggesting it be held on a non-working day.

Nariman writes that though the detention order was eventually revoked through the intervention of the state law minister, who was one of the principal guests at the conference, the student remained untraceable for three weeks and was later found in a distant jail.

Nariman made a pertinent point when he writes, “No one in Delhi instructed the district magistrate to act as he did. In fact, South Block would have been aghast at such irresponsible behaviour. But the point of this true story is that once laws are passed which enable officials to act irresponsibly, then in this country (and possibly in other countries as well) they will act–with hobnailed boots!”

Emergency wasn’t a spontaneous decision

Nariman’s account sheds light on the courage displayed by some other legal stalwarts in opposing the emergency, and one such person was legal ‘maverick’ Ram Jethmalani. After Emergency was imposed Jethmalani made a hard-hitting speech at Palghat (in Kerala) against the imposition of the Emergency, and as a result was sought after by police officers around the country.

“Some of his friends filed a petition in the Bombay High Court for a stay of his arrest. What was uncommon about that case was not its subject matter or the result, but that 200 practising lawyers put their names down as appearing for him,” wrote Nariman.

Fali Nariman recounts an incident that hints the Emergency was not a spontaneous response to Justice Krishna Iyer’s order but had been in the works for some time. He notes that Indira Gandhi’s stay application was argued by Nani Palkhivala before Justice Iyer on 22 June 1975 and the order was reserved. The very next day, while travelling to Bombay, Nariman read in the Evening News that Home Secretary Nirmal Mukherjee had been abruptly replaced by S. L. Khurana from Rajasthan, suggesting premeditated administrative reshuffling ahead of the Emergency.

Nariman makes an interesting observation: “In retrospect, it was apparent that preparations were afoot (unknown to all but those closest to Indira Gandhi) to make firm contingency plans in the event of an absolute stay being declined by the Supreme Court.”

Nariman also lauds many important persons like Somnath Chatterjee, former speaker of Lok Sabha, Indian Express founder Ramnath Goenka and Cusrow Irani of the Statesman of Calcutta as “bravest of the brave in those hard times: when judicial power under our Constitution was at its lowest ebb.”

Nariman was one of the very first people holding a high government post to oppose the imposition of emergency, not just in words but through actions. His book highlights how all constitutional functionaries—ministers of government, members of Parliament, judges of the Supreme Court, even the President of India failed us.