Beyond the Lines: An Autobiography

by Kuldip Nayar

  Life in jail was a curious experience. Straight from an air-conditioned room I was transported to a ward which had a room with 24 beds and one ceiling fan. The most difficult thing was coming to terms with the dry latrine. Subsequently, a long-term convict, my namesake, serving as a sweeper, sympathized with my plight. He would wake me up after cleaning the latrine. This exclusive facility did not last long because other detainees would rush to the latrine as soon as they saw Kuldip approaching my bed.

  I often recall my first meal in jail. I was still speaking to other inmates when there was a sound of a spoon being beaten against a plate. This was a call for lunch. I reached for the food while it was sufficiently hot to keep the flies at bay. Someone however stopped me, ‘Wait, there will be mantras first’. It was the prayer that the RSS recited at its shakhas. Hands were then stretched towards the food. This time I stopped them. I had spotted three Muslims whom I knew, and it was with them that I had spent a week after the Hindu–Muslim riots in Delhi’s Kishangunj area a year earlier to find out from them what they had gone through. Theirs had been a harrowing experience, as I had then written in the Statesman.

  I asked them, ‘Don’t you say Bismillah?’

  ‘Yes, but only among ourselves,’ they said.

  ‘Say it loudly,’ I said, and from that day onward, the Hindu prayer was followed by the Muslim one before every meal.

  The dal was watery and the chappatis half made. When a second helping of dal was doled out I could see a few flies floating on the surface. I was horrified, but the person sitting next to me said, ‘Don’t worry, you will get used to them’. He was right. After a few days I became so accustomed to the flies that I would simply fish them out and begin eating without hesitation.

  The following day I saw my father-in-law, Bhim Sen Sachar, walking in. I thought he had come to deliver the bedding which I had not brought along, and he permitted my delusion to continue for a while. When I thanked him for his effort, he said with a smile, ‘You had left many things behind and I thought I would meet you and give them to you.’ Little did I realize then that such a meeting (mulaquat) can take place only at the phatak (main gate) and that no ‘outsider’, apart from a member of the staff, was allowed into the jail.

  My fellow prisoners were aware of this and they spoke amongst themselves, saying that it was now the turn of Gandhians to be arrested. My father-in-law had been a supporter of Gandhi since 1919 when he abandoned his studies to respond to his call for non-cooperation with the British. One prisoner remarked that if Indira Gandhi could go to the extent of arresting a person who had been chief minister of Punjab, governor of Orissa and Andhra Pradesh, and India’s high commissioner to Sri Lanka, she was capable of going to any lengths.

  My father-in-law told me how he and seven of his colleagues in Lajpat Bhawan had written to the prime minister to protest against the detentions and the press restrictions. Their letter too quoted Nehru’s words, as I had done when alluding to the freedom of press. Indira Gandhi suspected, as I learnt later, that I had provided them with the relevant quotation.

  The drudgery of jail was nerve-wracking. The long day was followed by a long night. One night I was awoken by the noise of children not far from where I was sleeping. To my horror I discovered a barred cell with bolted doors in which there were scores of boys crying loudly. I spoke to a few to find out why they were there but couldn’t make any head or tail of what they said. In the morning I found the cell empty.

  I asked the warden about the boys. He laughed at my inquiry. The boys, he said, had been in prison for years, without trial. They were not registered when they were brought in. They were picked up from the roadside to be used as helpers. Their number rose when there were more prisoners. Very few boys were released because they were needed in one jail or another in the country and were transferred wherever the need arose. The warden told me that some of them had been there for six to seven years. As they came from poor families, they were not easily returned.

  After speaking to one of the boys, our helper, I found that he had been brought to the jail only three days ago. His employer who lived in Defence Colony had sent him to bring a pan at around 9:00 p.m. The prowling police picked him up and handed him over to the jail authorities. Justice Krishna Iyer wrote about their plight in a judgement after reading my book entitled In Jail (1978). I am sure the practice continues in some form or another to this day despite tall claims about jail reforms.

  I experienced a miracle in jail. One night I dreamt of the pir. He was sitting on a wooden chair near the grave in the garden of our house in Sialkot. I could recognize both the grave and the chair. This was the pir to whom we had bade farewell before leaving our house in Sialkot. Even today I can feel his presence: an aged individual with a tasbi in his hand and a green cloth covering his chest and shoulder. His face, with a long white beard, radiated a glow. All he said was that I would be released the following Thursday (jumeraat). He disappeared and I abruptly woke up and found some of my ward’s inmates saying their prayers. It was dawn.

  I thought the dream reflected my desire to be released soon. The profile of the pir was something which I had probably imagined after reading books in Persian and Urdu, but I was keen to find out whether what he had said would prove to be true.

  The following day was the day of mulakat (meeting), once in fortnight, when my wife and my brother-in-law, Rajinder Sachar, came to meet me. I didn’t tell them about my dream but asked them about the fate of the habeas corpus petition which my wife had filed at the Delhi High Court. Rajinder, who was then chief justice of Sikkim High Court, told me that the petition would not succeed because the judiciary was itself panic-stricken. The various inquiries, he said, had revealed that I would be released along with other leaders. I asked my wife to send me a quilt, a table lamp, and some books because it appeared that it would be a long sojourn.

  At an earlier meeting, my wife and younger son Rajiv had brought with them Chinese food which they knew I enjoyed. The superintendent sat watching us. What could one say when one’s heart was full? We tried to make small conversation. I inquired about Sudhir, my eldest son. Bharti said that he was waiting outside, as only two persons were allowed in. I looked through the barred window and saw him standing on the road, and when I shouted his name he waved. He had come by train all the way from Kanpur, where he was working, to meet me, and looked wretched at not having been allowed to accompany my wife and Rajiv.

  After Rajinder’s visit I was edgy. Three days later, on Thursday, I was agog with expectation. My eyes were fixed on the gate waiting for someone to come with an order for my release. Nothing of the kind happened. After dinner, the jailer came to say that someone wanted to meet me. I followed him. A young man greeted me outside the ward and introduced himself as the deputy commissioner of Delhi. He said that on his way to the jail, Dhawan had telephoned to convey to him that Indira Gandhi had enquired about my health. I told him that there was nothing wrong with my health apart from the fact that the jail was overcrowded and dirty. He explained that the jail was intended to accommodate only a couple of hundred prisoners, but had four or five times that number. I discovered he was the son-in-law of a colleague of mine in the PIB. It was almost 11 p.m. when he left. I wondered about his visit, and particularly the pir’s assurance that I would be released on Thursday. Nothing of that kind had however transpired.

  The jailor woke me up the following morning to convey the government’s order for my unconditional release. He wanted me to collect my things and leave in the taxi he had summoned to drop me home. I was keen to learn when the order was received. He said that it had been signed by the deputy commissioner a day before, on Thursday (jumeraat), but it was so late that he (the jailer) had decided to release me the following morning. I was humbled. The pir’s prophecy had proved to be true. I have never experienced the same kind of presence again. There have been so many problems in my life when I have begged him for advice but he has never reappeared.

  Bidding goodbye t
o my jail-mates, even if for only three months, was sad. I felt as if I was leaving a part of my heart behind. They wanted me to meet Sheikh Abdullah and persuade him to raise his voice against the Emergency. They expected me to resume my weekly column. Some of them said they would remain in touch with me after their release. None did, except the convict Kuldip after he had served his term.

  My release was not a surprise for my wife and children because Giri Lal Jain, editor of the Times of India, had told them about the government’s advice not to publish the news of my release. It had been tough on my family because no relative or journalist or personal friends of mine had dared to contact them during the three months I was in jail. Giri was at least frank. He said he was afraid but his wife had been in touch with mine. A couple of her close friends, however, visited every day.

  My paper, the Indian Express, had challenged my detention and found for my defence Dr V.M. Tarkunde, formerly judge at Bombay High Court and a great defender of civil rights. He volunteered to take up my case and Soli Sorabji came from Bombay where he was practising, neither charging any fees. It was a habeas corpus petition on behalf of my wife.

  Hearing of this in jail I became hopeful of an early release. Raj Narain, who used to go to the court for his case against Indira Gandhi’s election, told me that there were bright prospects that my case would succeed. Fear, I thought, had infected the judiciary too, but the judges hearing my case were bold and courageous. The division bench comprising Justices S. Rangarajan and R.N. Aggarwal said in their judgement that here was a person who had not been attached to any political party and yet been arrested just for performing his duty as a journalist. The constitution permitted freedom of the press and he was within his right to criticize the government.

  Justice Rangarajan said that Kuldip Nayar ‘has been a dedicated journalist with no affiliation to any political party. He has been the member of Press Council of India. He only wrote a weekly column, so how could he be considered a subversive element?’ The court also complained that it had not been supplied any material on the basis of which the decision to detain Kuldip Nayar had been taken, nor had the court been told about the ‘specific’ act that had led to his detention. The two-bench judge ordered that the grounds for which I had been detained be ‘quashed and the detenue is directed to be set at liberty’.

  I was in the court when the government stated that as I had been released there was no necessity for a judgement to be pronounced. Justice Rangarajan however told the authorities that he had asked them on many occasions that if Kuldip Nayar was to be released the bench would not write the judgement, but now that they had written it, they wanted to pronounce it. I got up from my seat to request the bench to pronounce the verdict.

  The government was vindictive. It did not touch me again but took action against the two judges Rangarajan and Agarwal. Rangarajan was transferred to Guwahati where he proved to be the best judge the court ever had. Agarwal, acting high court judge, was reverted to his position as a sessions judge. He indeed paid a very heavy price for his judgement.

  The case on the validity of the Emergency was still pending in the Supreme Court, it came up for hearing in December 1975. The verdict was considered so important that former Attorney General C.K. Daftary, president of the Bar Association, approached the Chief Justice of India A.N. Ray to set up a bench of the five seniormost judges to hear habeas corpus petitions. Ray did so, although he was surprised at the request. The seniormost judges on the bench were: H.R. Khanna, M.H. Beg, Y.V. Chandrachud, and P.N. Bhagwati, apart from the chief justice.

  The government raised a preliminary objection: the president had suspended Article 21 when he imposed the Emergency and therefore no action could be brought relating to it. Daftary argued that the right to freedom did not arise from any particular Article of the constitution but from the inherent compulsion arising from the principle of rule of law. The executive was obliged to honour the principle because the right to freedom, a basic feature of the constitution, was central to the system.

  The suspension of the right to enforce Article 21, said Daftary, did not automatically entail the suspension of the rule of law. Even during the Emergency, ‘the rule of law was not and cannot be suspended’. Daftary’s case was that Article 21 was the sole repository to the right to life, personal liberty, and even the right to move any court. If enforcement of the right was suspended, the detainees had no locus standi.

  A brilliant lawyer from Bombay, Nani Palkhivala, said India should bid farewell to democracy if the basic freedoms guaranteed by the constitution were to be snuffed out by the executive. Fundamental rights were not at the mercy of any government’s fiat, but a product of people’s struggle for Independence, he said.

  Justice Khanna was visibly upset over the government’s defence that the suspension of fundamental rights was justified during the Emergency, and agreed with Daftary. Bhagwati and Chandrachud too appeared distraught and tended to side with Khanna. However, the scenario rapidly changed. Bhagwati was the first to go over to the government side, Beg was already with Ray. This meant that the case was already going in favour of the government. A few days later, even Chandrachud changed sides, leaving Khanna isolated.

  Why did Bhagwati and Chandrachud change their views? Was it the fear that the misuse of powers under the Emergency had generated or was it sheer self-interest? Whatever the compulsions of Bhagwati and Chandrachud, the then law minister H.R. Gokhale was happy. All the habeas corpus petitions were rejected by 4–1 (when Palkhivala and Soli Sorabji received a cryptic message, four to one, they presumed it was a victory: 4 in their favour 1 against, but to their horror the judgement went the other way around).

  Many years later, I asked H.R. Bharadwaj, close to Indira Gandhi, why and how Bhagwati and Chandrachud came to the government side and joined hands with Chief Justice Ray and Justice Beg. Bharadwaj said:

  Bhagwati, as you know, was neither here nor there, oscillating between the government and judicial compulsion. Therefore, he was not a problem. Chandrachud was managed through the Brahmin lobby, headed by law minister Gokhale. It took some time but he came along.

  Chief Justice Ray said in his judgement that when there was a public threat, the protective law which provided everyone security had to give way to the interests of the state. Beg said that if the locus standi of detainees was suspended, no one was entitled to get the right enforced on their behalf. Chandrachud avoided any comment on the merit of the case. He said that president’s proclamation of Emergency was final, conclusive, and non-justiciable. Bhagwati, an exponent of human rights, enunciated the weakest opinion. He said that in the ultimate analysis, protection of personal liberty and the supremacy of law must be governed by the constitution itself and as persons had been detained in accordance with the law, they had no remedy.

  Khanna’s dissenting judgement was devastating. He said the question was not whether there could be curtailment of personal liberty but whether the law, speaking through the authority of the courts, could be absolutely silenced and rendered mute because of such a threat. He ruled that ‘even during an Emergency the state has no power to deprive a person of his life or personal liberty without the authority of law. That is the essential postulate and basic assumption of the rule of law in every civilized society’. Khanna wrote the judgement long before he delivered it, well aware that Bhagwati and Chandrachud had changed their stance and that his verdict would cost him the office of chief justice.

  Khanna’s judgement raised the hope of those who had seen even the tallest in the country caving in. Palkhivala wrote in an article in the New York Times after the judgement that statues of Khanna should be raised throughout the country because he had dared to speak the truth in the face of all manner of danger. We in the Indian Express reproduced the article, daring the government, but there was no word from the chief censor.

  Sure enough, the government superseded Khanna and appointed his junior, Beg, as the chief justice of India. Khanna did not oblige the government by
resigning and stayed on to be a ray of hope in an otherwise dismal showing on the part of the judiciary.

  When the Emergency was lifted (on 21 March 1977), Chandrachud was the first to express his regrets. He could not explain why he had sided with the government. But what use was his regret because he had not stood up when he needed to stand up to be counted. Bhagwati was now most critical of the excesses committed during the Emergency but did not say anything about his judgement. He tried to atone for his sins by pronouncing pro-labour and pro-liberty judgements. No one was however willing to forgive him. Both of them remained in the doghouse for as long as they were on the bench. The Supreme Court Bar Association passed a resolution against the two for having delivered the judgement.

  Ray did not stop at the judgement, justifying the suspension of fundamental rights. He wanted to rescind the verdict on the inviolate nature of the basic structure of the constitution. At his own initiative, he set up a bench of eleven judges to review the thesis of basic structure. Palkhivala probably touched the heights which no other lawyer had done in defending the concept of basic structure. He said this was the soul of the constitution which no one could violate. He asked Ray on whose authority he had constituted the bench to review the basic structure which was the very essence of the constitutional system. Ray said that some state attorney generals had requested him to do so. The attorney general from Tamil Nadu contradicted Ray, saying that no state attorney general had made such a request. Ray had no choice other than to dissolve the bench.

  Chandrachud faced some difficulties in his appointment as chief justice because when his turn came the Janata Party government had been voted in, defeating Indira Gandhi. He was saved by Morarji Desai, the then prime minister, who was a stickler for form. Morarji did not favour Chandrachud’s supersession, although he was fully aware of the judgement he had delivered. The then president, N. Sanjiva Reddy, also played a role because he too felt that traditions were far more important than punishment. He did not want to follow Indira Gandhi’s example of destroying the institution.