In the passing of Kuldip Nayar, India has lost a brilliant journalist, a wonderful syndicated columnist and unparalleled human rights activist. He was like Vidura, of Mahabharata, who was a paragon of truth and impartial in judgement. He protested against the imposition of pre-censorship during the Emergency, just as Vidura did when Draupadi was being dishonoured in the Kaurava court.
Nayar came to Utkal University in April 1975, just before the Emergency was imposed. He was bitter the way free speech and expression was being throttled in India. Nayar rekindled our unshakable faith in freedom of speech & expression and the importance of durable democratic values.
Nayar was arrested July 24, 1975, and put in the Tihar jail under MISA regulation, as being a threat to ‘maintenance of public order’. His articles in the ‘Statesman’ were acerbic and critical of the Emergency. His wife approached the Delhi High Court under Article 226, invoking ‘habeas corpus’ against the illegal detention. Nayar had no history of indulging in ‘unlawful activities’. He was released September 12; 3 days before the due date of the judgement.
Justice S Rangarajan of the Delhi High Court while noting that no further direction to the state is required, had famously observed: “Courtesy to the court demands that it was apprised about intended action before it was actually taken.” The judge asked the government to explain the circumstances under which Nayar was arrested. Indira Gandhi was extremely sore about this postscript and transferred Justice Rangarajan to the Gauhati High Court.
Nayar was at the forefront of many peoples’ movements. He openly supported Anna Hazare and his campaign for Lokpal. As a nominated member of the Rajya Sabha, he challenged validity of amendment to Sections 59, 94 and 128 of Representation of the People Act of 1951, which introduced the concept of open ballot in place of secret ballot for election of MPs in to the Council of States.
He had contended that right of secrecy in the election of Rajya Sabha is a part of free and fair election and thus violated the fundamental rights under Article 19(1) (a) of the Constitution and Universal Declaration of Human Rights.
In the face of overwhelming argument in favour of free will and secret vote, the Supreme Court made a distinction between fair election and pure elections. In Court’s assessment, purity and secrecy of elections should normally coexist. However, if secrecy becomes a source of corruption and horse trading, then it’s better to have open ballot, and let in ‘sunlight and transparency’. The court also viewed such a construct is within the ambit of reasonable restriction of Article 19(2), which can be imposed by the state to maintain integrity of our democratic set up. This remains a vexed issue even today.
Responding to the judgement, Nayar wrote in his autobiography ‘Beyond the Lines’: “A state legislature is not an auction house, where a show of hands decides who had voted.” He was of the view that the judges had opened “the doors of Rajya Sabha to money bags. It will become the hunting ground for those with deep pockets.” He could be very acerbic of both the political establishment and the judiciary. He was not afraid of being hauled up for contempt of court.
Nayar was born in Sialkot and was an intrepid advocate for improving Indo-Pak relationship and people to people contact between the two nations. He used to light candles midnight of August 14 on the Attari Wagah border, to mark the independence of both India and Pakistan. He was accused of fostering anti-national conspiracy theories.
With his passing, possibly the flame to be lit at the stroke of midnight on the Attari border would not be as bright. That would indeed be a serious disservice to a journalist. He could never be accused of ‘paid journalism’, nor of looking at national issues through a binary lens.
The writer teaches constitutional law. e-Mail: firstname.lastname@example.org.