WHEN the Indian parliament reassembled for its winter session on Nov 18, its upper house resounded with the cry of ‘where is Farooq?’, a reference to 82-year-old Kashmiri leader Farooq Abdullah’s house arrest since Aug 5, when the Modi government laid its unclean hands on Kashmir’s identity and its very existence.

The event is notable for two reasons. First, it was a rare occasion when New Delhi’s not­ables spoke up for the oppressed Kash­miris. In reality, though, the MPs were voicing a fear for their own rights. This brings me to the second question: is it open to the government to wipe out the opposition in parliament by put­­ting in prison opposition leaders without trial?

During the ‘emergency’, a euphemism for dictatorship, Indira Gandhi rushed through parliament the 42nd constitutional amendment when top opposition leaders had been put in jail without trial in June 1975. It recast the Indian polity radically and gave her wide powers to ban political parties.

Who is to be the judge of the misuse of parliamentary privilege?

The supreme court had rejected a challenge to imprisonment without trial. Earlier in 1952, the Madras High Court had expressed its helplessness. But it did raise the question about the legality of the mass arrest of opposition leaders as distinct from the arrest of an individual legislator. It said: “If a party in power detains a political opponent or continues his detention with the mala fide object of stifling opposition and prejudicing the party to which he belongs in a forthcoming election, there would be an undermining of the basis of the constitution.” The supreme court has expressed no such fears.

In 1933, Hitler imprisoned as many as 33 members of the Reichstag under emergency laws, in order to push through the Enabling Act which gave him sweeping powers to establish his dictatorship. The law disqualifies from membership of the legislature a person convicted of a criminal offence and sentenced to imprisonment for a specified term. But preventive detention is not punishment for a crime. It is preventive, not penal.

In 1969, the supreme court said: “It must be emphasised that a detenu is not a convict. Our constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual … tolerates, on account of peculiar conditions, legislation which is a neg­a­tion of the rule of law, equality and liberty.

“But it is implicit in the constitutional scheme that the power to detain is not a power to punish for offences which an executive authority in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exerci­sed in those rare cases when the larger int­e­­­­­re­­­st of the state demands that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions … must, consistently with the effectiveness of detention, be minimal”. This is flouted in Kashmir.

South Asia is yet to acknowledge the debt it owes to German jurist the late Dr Dieter Conrad. He wrote with learning and insight on constitutional developments in Pakistan, Bangladesh, Nepal and India and had friends in these countries. We relied on a British precedent — the case of Capt Ramsay, a member of the House of Common.

He was detained on the outbreak of the Second World War. He contended that the arrest and detention violated the immunity from arrest enjoyed by parliamentarians. The issue was referred to as the Committee of Privileges. Its report is the basis on which the law on the subject rests in Britain and India to this day.

Hard cases make bad law. In 1939, few had sympathy for Capt Ramsay, who was susp­e­c­ted of being a Fascist collaborator. The committee was swayed by precedents para­ded before it — mostly cases of Irish members.

The house was not unduly anxi­o­­us to extend its protection to Irish MPs. But none cared to go throu­­gh the report itself.

The home secretary stated on oath that Capt Ramsay had not been detained for anything said in parliament. He affirmed on affidavit that he was satisfied as to the grounds of detention.

The report observes: “If the real ground of internment had been that the member was likely to prove an embarrassment to the executive in parliament no such affidavit could have been sworn without the commission of gross perjury.”

Can anyone doubt for a moment that such “embarrassment to the executive in parliament” was the very reason why the MPs in India were arrested on June 26, 1975, and Farooq Abdullah in 2019?

The report conceded that “no express decision covering the point submitted to your committee has been taken”. It relied heavily on a 1641 resolution of the Commons that “privilege of parliament … is not to be used to the danger of the Commonwealth”. But who is to be the judge of the misuse: the courts or the executive?

That is also the law and practice in Europe. It is for the house alone to lift MPs’ immunity from arrest; not the government which had jailed him.

The writer is an author and lawyer based in Mumbai.

Published in Dawn, November 23rd, 2019