Justice Badar Durrez Ahmed on the Emergency his father proclaimed 51 years ago

Few Indian judges carry a personal history as entangled with the country's constitutional fault lines as Justice Badar Durrez Ahmed. His father, Fakhruddin Ali Ahmed, was the President who proclaimed Emergency on the night of June 25, 1975.

His first legal mentor was one of the men who helped draft that very proclamation. And for nearly 50 years, a story has circulated about a private note his father is said to have written about that night and what became of it.

In this interview with Bar & Bench's Debayan Roy, Justice Ahmed corrects that story on the record. He also reflects on his Muslim heritage running through the Nawabs of Rampur and Mirza Ghalib, and discusses whether courts should interfere in matters of religion.

Edited excerpts follow.

Debayan Roy [DR]: Your father wrote a private note about the circumstances of signing the Emergency proclamation on the night of June 25, 1975. It is said that you destroyed it. That note could have been the most intimate record of that period. What made you decide that it should not exist?

Justice Badar Durrez Ahmed: There is an error in your question. First of all, he never wrote a note. Secondly, since he didn't write a note, I didn't destroy it. Third, he used to write a diary, which still exists.

DR: So nothing happened to the note?

Justice Ahmed: No, nothing happened to what he has written.

DR: You spent 15 years as a judge enforcing constitutional rights. Those very rights were suspended during the Emergency. Have you ever thought about that period and your judgeship era, and tried to reconcile the two?

Justice Ahmed: During the Emergency period, as you know, the President is bound by the decision of the Council of Ministers. So Emergency, once it is decided by the Council of Ministers, is proclaimed. At that period, I was a student and immediately thereafter I went off to Cambridge and I was in England.

I don't think that is a very happy period for India to have undergone Emergency in the manner in which it worked itself out - the arrest of opposition, arrest of students, etc. I don't think that was proper and I hope that it never happens again. But it never interfered with my functioning as a judge, because once I have taken the oath on the Constitution, which people tend to forget - that judges have taken an oath on the Constitution to decide without fear or favour, affection or ill-will - I think I lived up to that.

DR: Your father signed the Emergency proclamation as President of India on the night of 25th June 1975. Your first mentor in law, Siddhartha Shankar Ray, was one of the central figures who drafted the proclamation and advised Indira Gandhi on how democratic freedoms could be suspended. You worked in his chambers as a young lawyer from 1980 to 1983. Did you ever talk to him about what happened that night?

Justice Ahmed: No. I never needed to. He never spoke about it either. And what is interesting is that my mother tells me that when my father passed away, on February 11, 1977, she saw Siddhartha Shankar Ray leaning against a pillar and weeping. What emotions he had, I don't know, but this is what happened.

DR: : You have written scholarly articles on Muslim personal law and you have adjudicated cases where it was directly at issue. You carry a personal heritage rooted in the Muslim tradition through your family's connections to the Nawabs of Rampur and to Mirza Ghalib. You did all of this while being a judge upholding a secular constitutional framework. Where did you draw that line, and did it ever cost you anything?

Justice Ahmed: I don't know whether it cost me anything or not, but I never ever saw any conflict between the Constitution and my thinking as a Muslim, as a judge, as an Indian. I never let it interfere with my background, with my decision-making in the courtroom. I think I'm quite happy about that, and I sleep well.

DR: : We are all aware of issues that come up every now and then, whether the hijab issue, the lynching issue, and so on. Do you think the issues courts deal with today, compared with the constitutional framework you worked within, are worse off?

Justice Ahmed: Issues that are being presented to court because of general public behaviour are worse off. These kinds of incidents did not happen at that point of time and they are unfortunately happening. It's not just against one community or another community; generally it is happening. And courts are under greater pressure to decide these issues. I hope that they are up to the task.

DR: The Supreme Court's Triple Talaq judgment was celebrated in certain quarters and condemned in others. As a Muslim jurist who has studied this law academically and in depth, do you think the court got it right?

Justice Ahmed: Actually, if you ask me frankly, the Supreme Court need not have decided this issue, because there was already a decision of mine on this very issue. In fact, the Supreme Court, in the opinions given by Justice Khehar and Justice Joseph, referred to my judgment in the Delhi High Court. Justice Nariman, of course, went on a purely constitutional basis. That decision was already given, that triple talaq is invalid in any case. The instantaneous form of saying "talaq, talaq, talaq" is invalid even in Muslim law. But the fact that the Court entertained it showed that on the touchstone of fundamental rights being violated, the court can enter the domain of religious rights. Now there has been a flurry of petitions on several other aspects, because it has opened a window.

DR: This is important because the Supreme Court is deciding something similar in the Sabarimala case. Should courts decide religious issues which are held close to religious bodies?

Justice Ahmed: If there is a religious aspect which is against public order and morality, then the Constitution permits the courts to go into that question. I'll give you an example. Suppose sati was a practice which continued even today, could the courts not have banned it, even if there was no legislation? It could have.

So if there is a similar practice in any particular sect of people...which is opposed to public order and morality, in the sense that it is affecting others and also affecting those people or a part of those people, then the Supreme Court can definitely look into it. But in pure religious matters - for example the manner in which you pray, whether you go to a particular deity or you don't, whether you are a monotheist or a polytheist - these are matters in which the court cannot interfere, because the Preamble says everybody is free to believe whatever you want to believe, as long as it is subject to public law, order, morality.

So taking the question of hijab, how is it a matter of any public order? How is it anybody else's concern, how you dress? Suppose tomorrow somebody decides that he will roam naked on the streets, that may be an issue of public morality.

DR: But the Hijab judgment was based, if I go with Justice Hemant Gupta's opinion, on the premise that there has to be equality among students.

Justice Ahmed: I can understand that. If you are in a school where everybody has a uniform, you wear a uniform. But in a university, nobody has a uniform. So what's the problem? You can't tell a Sikh not to wear a turban. There have been instances in foreign countries where they have objected to it and they fought cases. And in some countries they won it also. That's a right of freedom of expression.