Keeping the flickering flame of justice alive

April 28 marks the 32nd anniversary of a little known but landmark moment in the history of India and of the world's legal system.

For 21 months, between June 25, 1975 and March 21, 1977, President Fakhruddin Ali Ahmed, on request by then-Prime Minister Indira Gandhi, declared a State of Emergency under Article 352 of the Constitution of India. This in effect gave Gandhi the power to rule by decree, suspend elections and civil liberties.

It was then that the Indian Supreme Court was called to rule in the Jabalpur vs Shivkant Shukla case. The case centered on the legality of imprisoning people without court ruling. In a four-to-one decision, the court ruled that there was no recourse to courts in case a person was detained during emergency rule.

The contrarian voice, a thunder in the darkness of subservience to political power, was that of Justice Hans Raj Khanna, who passed away in February of this year at the age of 95.

Justice Khanna wrote in his dissenting opinion that the door of justice could never be shut for citizens, not even during the state of emergency. His courage and moral rectitude cost him the promotion to Chief Justice. When in January 1977 he was superseded for the post of Chief Justice, Khanna resigned.

In a brilliant essay entitled "Human Rights During Emergency" Soli J. Sorabjee, a former Attorney General of India, says that while civil rights may in exceptional circumstances be suspended, there are some fundamental rights, such as the right to life, the right to a fair trial and freedom from torture or cruel treatment, that cannot be suspended under any circumstances. Doing so "would destroy the basis of a civilized state and the rule of laws."

Let me quote the last paragraph of this essay: "It should never be forgotten that the ultimate justification for an emergency in a democratic State is to enable it to preserve vital values of a democratic society temporarily endangered on account of unexpected situations of exceptional gravity. Emergency cannot be declared for undermining the basis of democracy. […] In the absence of the Rule of Law, Lawlessness predominates, especially government lawlessness, when there is no authority to question government's action, no mechanism to control it and no institution to make it accountable and to check its excesses. However grave the emergency it should always be remembered that there exists an inseparable bond between legality, democratic institutions and the Rule of Law. Once that bond is severed, all ties with decent, civilised life have been severed and human beings become devoid of humanity."

On June 29, 2006, the U.S. Supreme Court ruled that the military commissions instituted by U.S. President George W. Bush to try terrorism suspects held at Guantanamo Bay were illegal. The administration turned to the Congress, which it controlled the time, to pass a law to allow the president to keep the commissions alive.

While the Supreme Court has so far been the only constraint for the Bush administration in its so-called "war on terror," it has refrained from ruling on the most controversial point: The legality of denying habeas corpus to the prisoners at Guantanamo.

Let's hope that the news of the passing away of Justice Khanna will remind the U.S. Supreme Court that their role is keep the flame of justice alive and put (belated and partial) remedy to one of the most shameful moments in U.S. history.