On June 26, 2018, human rights organizations had assembled at the Gandhi Peace Foundation, Delhi, to remember the dark days of Emergency. This was an annual affair and Kuldip Nayar was a regular speaker in these meetings. This time, too, he came and spoke. But his speech was different; it came from his heart and was quite moving.
He ended by saying that the fight has not ended – there are issues much more serious than the Emergency and they have to be fought fearlessly with deep conviction, by listening to the voice of one’s own inner-self. Never give up on truth, was his message to the audience. I told him: ‘Today, you were different – very powerful!” He smilingly replied: ‘Today, you were more receptive!”
It was a long journey for him – 95 years, divided into pre- and post-Partition. His memories were full of the sad days of the Partition. He knew the price people have paid and, therefore, stood for the values India should have after independence. He wrote throughout his life relentlessly – as editor, writer, a columnist on every possible issue which he thought were relevant for the people and the nation.
His heart bled for the poor. He came out openly in support of all those people’s movements where he found tyranny and repression of human rights and civil liberties by the state. He was a staunch defender of the freedom of press and expression and, therefore, wrote fearlessly against the Emergency imposed by Indira Gandhi in 1975. He was detained in the Tihar jail under the MISA. His wife, Bharti Nayar, filed a Habeas Corpus petition in the Delhi High Court to quash his illegal detention.
The petition came up before Justice S Rangarajan, a brave and bold judge during the Emergency. After the judgment was reserved, the Government decided to release Kuldip Nayar and revoke his detention before the judgment was pronounced. Coomi Kapoor in her write-up (August 23, 2018, in the Indian Express) on Kuldip Nayar, recalls this story.
However, Justice Rangarajan not only delivered the judgment (BhartiNayar vs Union of India, dated September 15, 1975) but added a ‘post-script’ to it as to why he was delivering the judgment. He said that Habeas Corpus writ being a public law remedy after the judgment was reserved, ”courtesy to the court demanded that we were apprised about the intended action before it was actually taken.”
Indira Gandhi was quite upset with these remarks and the courage shown by the judge and, therefore, transferred him to Gauhati. After Justice Rangarajan retired, I joined law practice with him in 1982. He was quite proud of his judgment in Kuldip Nayar's case, which was praised, among others, by Lord Denning.
I read the judgment and was quite curious to know why he wrote the postscript. He replied that the day when he was going to pronounce the judgment, he felt some unease inside. He added: “I got up around at 3 am in the morning and typed myself the post-script on a manual typewriter. Thereafter, I felt relieved of the burden on my conscience.”
I did not know Kuldip Nayar at that time. Justice Rajinder Sachar introduced me to him after he had retired and joined the Supreme Court Bar. Since 1990, it was almost regular to see him in one meeting or the other with Justice Sachar or without him. In one of the conversations recently, I told him what Justice Rangarajan said about the 'post-script’. His response was: “Even during Emergency, there were judges who were guided by their conscience rather than the ambitions.”
I remember that he was very much upset when the domicile requirement under the Representation of Peoples Act,1961 was removed by an amendment with effect from August 28, 2003 for election as MP in the Rajya Sabha. It meant that one could be chosen as an MP from any place to represent that constituency in the Rajya Sabha, though he had no connection with the place.
He was of the view that this amendment would destroy the sacrosanct function of the legislature because the Rajya Sabha is a place where every bill has to be debated properly keeping in view federalism, interests of all the States and their peculiar problems. This amendment was challenged in the Supreme Court, and it was heard by a Constitution Bench.
Rajindar Sachar argued and I assisted him in the case. The Constitution Bench upheld the amendment (August 2006). Kuldip Nayar was very disturbed. He wrote as to how the judgment was wrong. Thereafter, whenever we met, he kept on reminding me that he would like to challenge the judgment before a larger bench of the Supreme Court. The last reminder was, when he spoke, as mentioned above, on the anniversary of the Emergency.
If there were meetings in Delhi on any human rights issue concerning people in general, everyone would expect Kuldipji (Kuldip Nayar) and Sacharji (Justice Rajinder Sachar) to come, as if they could command (out of regard and affection) their presence. Both of them would never disappoint, and it would be an exception not to find them there. We lost both in a short span. It appears as if a generation has gone: the generation, which represented a selfless breed of human beings on whom we could always depend for guidance.
As a young student, we were asked to memorize renowned authors and their works. I remember one such author was Kuldip Nayar and the book was ‘Between the Lines’. I did not understand it then – the meaning of the invisible gap between the lines. Now I see the gap and look at the great man who was incessantly searching between those visible lines, the invisible truth that spread ‘beyond the lines’ – over the wide canvass of his writings as an independent journalist- which truly he was till his last breath!
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*Advocate, Supreme Court, and national vice-president of People’s Union for Civil Liberties
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