Dark days

A full and permanent record of the Emergency is provided in Era Sezhiyan's compilation of the reports of the Justice Shah Commission.

ERA SEZHIYAN'S labours for freedom during the Emergency have not received the recognition that is their due. As Member of Parliament he won respect for his studiousness and dignity. Recently, he wrote a fine study on the Member of Parliament Local Area Development Scheme (MPLADS) for the Institute of Social Sciences, New Delhi. It is very appropriate that he should have retrieved the three volumes of the Commission of Inquiry, headed by Justice J.C. Shah, on Indira Gandhi's proclamation of the fraudulent Emergency and the brutalities and the excesses that followed in its train and published them in full in this volume.

His preface explains why and how he undertook this task. He found on the Internet that Indira Gandhi had recalled copies of the report and had them destroyed. It was a tribute to the quality of its censures. The National Library of Australia had the third and last volume; the School of Oriental and African Studies in London had all three. That is not unprecedented. A student of the Kashmir dispute or the boundary dispute with China will have to seek the records since 1914 from the British Library in London. The National Archives of India will not provide them.

Era Sezhiyan had preserved his copies of the three reports. He has published them here in full as a permanent record of the Emergency, together with some of the important cases that Justice Shah had investigated and commented on and an introduction by Sezhiyan. He raises a pertinent question: Have the records of the Shah Commission been preserved in the National Archives under the Public Records Act, 1993? The commission had taped all the proceedings of the public hearings. A total of 234 tapes were handed over to the Union Home Ministry.

Sezhiyan has provided some details of Indira Gandhi's misstatement to enrol herself as a voter in the Doddaballapur Assembly Constituency in Karnataka in 1978. She contested and won the Chickmagalur byelection to the Lok Sabha. One hopes Sezhiyan will elaborate on that sorry episode in greater detail, especially the role of R.L. Jalappa. He reproduces in this volume a facsimile of Jalappa's letter to the Electoral Registration Officer.

Serious questions must be raised and answered on the Shah Commission, including Justice J.C. Shah. To his credit, he spoke during the Emergency to a packed audience at the K.C. College Hall in Mumbai to denounce the 42nd Amendment to the Constitution, a fruit of the Emergency. He ought not to have accepted the assignment to inquire into the Emergency and its excesses.

On December 28, 1979, Justice T.P.S. Chawla of the Delhi High Court delivered a 347-page judgment quashing the prosecution of Indira Gandhi and Pranab Mukherjee for refusing to testify before the Shah Commission. In some 50 pages, Justice Chawla considered the issues of judicial review of the Emergency and the relevance of the oath of office to a Minister's accountability to law. Those pages reek of error. However, he also questioned the procedure adopted by Justice Shah, and that is a matter which deserves greater attention than it has received. It calls for a thorough and objective study.

The Commissions of Inquiry Act, 1952, has two pertinent provisions. Section 5(2) empowers the commission to require any person to furnish information on such points or matters which in its opinion may be useful for or relevant to the inquiry. That person is legally bound to furnish the information on pain of punishment. This clearly applies to requisition for information on specific points which the commission requires. They must be set out in the notice itself.

In 1971, the Act was amended advisedly to ensure respect for the rules of natural justice. Section 8 (B) laid down that if the commission (a) considers it necessary to inquire into the conduct of any person; or (b) is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, it shall give to that person a reasonable opportunity of being heard in the inquiry. The commission can form that opinion at any stage of the inquiry.

In Indira Gandhi's case, clearly that stage was the very commencement of the inquiry. As Prime Minister she was directly involved. British Tribunals of Inquiry followed this practice. She was called to speak only after charges against her had been broadcast to the wide world day after day.

The Commission of Inquiry (Central) Rules, 1972, required, by Rule 5(2) (a), that the commission shall issue a notice to every person who in its opinion should be given an opportunity of being heard in the inquiry to furnish a statement on such matters as may be specified. This clearly applied to Indira Gandhi and applied at the very outset.

In Chapter III of the First Report, Justice Shah explained the procedure he adopted. In paragraph 3.13 he argued that a preliminary inquiry was necessary to identify that person to whom a notice under Rule 5(2) (a) was necessary. This was worse than absurd. It was disingenuous. The identity of the main suspect, then Prime Minister Indira Gandhi, was not secret. She should have been summoned and allowed to be represented by counsel from the very beginning.

It is not only Indira Gandhi's supporters who were unhappy with Justice Shah's conduct of the inquiry. None questioned the fairness of Justice A.C. Gupta's conduct of the Commission of Inquiry on the Maruti scandal. One grants that the issue raised here is debatable. Two views are possible. The proceedings of the Thakkar-Natarajan Commission and its unfairness to V.P. Singh brought home to many the errors that commissions of inquiry commit. A full study is called for.