Senior advocate Madhavi Divan described the Emergency as a stark reminder of colonial-era oppression. Speaking at a legal event, she emphasized how the suspension of democratic rights during that period mirrored authoritarian practices from India’s colonial past. Divan highlighted the need to safeguard constitutional freedoms to prevent such overreach. Her remarks highlighted the importance of vigilance in preserving democracy.
New Delhi: Former additional solicitor general and senior advocate Madhavi Divan emphasized on that the imposition of emergency represents the “most obvious” and “egregious echo of colonial repression.”
She made these remarks during the event “Decolonisation: Supreme Court Judgments and the Indian Constitution,” organized by the Adhivakta Parishad of the Supreme Court to commemorate Constitution Day 2024.
Divan explained that decolonization involves reclaiming the nation’s history and culture, describing it as a process of restorative justice that aims for cultural, economic, and psychological freedom to achieve indigenous sovereignty.
She stated,
“I would extend it to the eradication of a slavishly subservient mindset cultivated over centuries of subjugation; it’s about undoing a deeply ingrained sense of inferiority and a lack of self-belief that pervades our people,”
She noted that remnants of colonial rule still exist within the legal system.
Divan remarked,
“There are laws that persist, and even new laws have been introduced, which have been used and abused as instruments of tyranny against those whom the system is meant to serve. There is a certain subservience, if I may call it, an excess of obsequiousness, a continuing ‘maai-baap’ culture that we have yet to shake off,”
Divan pointed out that ancient India, at its height, was never a colonizer; rather, it influenced distant lands through the strength of its ideas. She highlighted the emergency as a clear echo of colonial repression, noting that the powers to impose it were largely borrowed from the Government of India Act of 1935.
She added,
“As we know, our courts at that time did not stand up for us,”
However, she acknowledged that the courts evolved over time, becoming more accessible to the public in the 1980s with the introduction of Public Interest Litigations (PILs), addressing issues affecting the poor, marginalized, and voiceless. This shift could be seen as a form of “judicial penance” for their role during the emergency.
Divan also pointed out that various aspects of colonial-era laws, such as sedition, criminal defamation, and contempt of court, still exist in the legal framework.
She stated,
“There is a recurring provision in the Indian Penal Code (IPC) and even in the new criminal law regarding outraging or insulting the modesty of a woman. This concept of modesty is a Victorian-era expression and does a disservice to women,”
She further mentioned that a universal civil code is intended to eliminate disparities, especially for women, who would likely be its primary beneficiaries regarding marriage, divorce, and inheritance.
Divan concluded,
“Similarly, the treatment of minority institutions by the Supreme Court poses challenges. While it’s important to support minority institutions, this should not be at the expense of majority institutions. Excessive restrictions should not lead to a situation where people are competing for minority status,”