Emergency: A half-learnt lesson

Our hard experiences teach us lessons. But, India hasn't learnt its full lesson from the State of emergency clamped by the then Prime Minister Mrs Indira Gandhi on 25th June 1975, to save herself from disqualification after the historic judgement of Allahabad High Court. After the emergency was lifted, the 44th Amendment to the Constitution of India diluted the rigors Art 352 and cognate provision Art 353 and Art 359 that had wreaked havoc during the emergency. But still, these trimmed provisions can pose danger to constitutional democracy.

Also Read: Pre and Post 44th Amendment: How to Declare a National Emergency

What is this emergency and how must we retell it to benefit our younger generation?

In 1972, Indian National Congress (INC) led by the charming Mrs Gandhi scored a spectacular victory in the general election to the Lok Sabha on her famous slogan Garibi Hatao. However, soon India faced a serious situation of refugees from East Pakistan driven away by the autocratic rulers of West Pakistan. Mrs Gandhi adroitly handled the situation by declaring war against Pakistan. Her tactful decision led to a break up of East Pakistan from West Pakistan and the emergence of the independent nation of Bangladesh; while Mrs Gandhi emerged as Durga. Feelings of nationalism ran high in the common man. The grand success of her strategies led to her arrogance as she felt invincible. However, soon things took a dramatic turn.

" ……emergence of the independent nation of Bangladesh; while Mrs Gandhi emerged as Durga."

The very next year, India witnessed one of the worst droughts due to the abject failure of rains. The Govt was forced to spend to save people from starvation. Both the war and drought drained the Govt coffers. This lead to a huge deficit in budget and inflation shot up to as high as 20%. The urban middle class, which bore the brunt of the situation, came out openly to protest in the streets. Leaders such as Jayaprakash Narayan in Bihar and Morarji Desai in Gujarat led the protesting people and the protests soon spread around India. In these troubled waters, her son Sanjay Gandhi tried to fish in an attempt to take over the INC by holding rallies and shows across the nation. This further fuelled anger among people as an imposition of dynastic politics.

Also Read: The Judge who unseated a Prime Minister

At this time when the people were highly incensed against the ruling establishment, Justice JML Sinha of Allahabad High Court gave his historic judgment on 12th June 1975 and held Mrs Gandhi guilty of corrupt electoral practices. The High Court struck down her election to Lok Sabha in 1971 and disqualified her for six years. The judgment came as shot in the arm for agitating youths in the streets. The Supreme Court didn't fully come to the rescue either. In its emergent interim order passed by vacation judge Justice Krishna Iyer, Mrs Gandhi was permitted to continue attending the Parliament but restrained from voting. Thus the call for the resignation of the lame duck Prime Minister gained momentum across the nation.

"When the going became grim for Mrs Gandhi, evil advice appeared at her door step."

When the going became grim for Mrs Gandhi, evil advice appeared at her door step. Why not impose state of emergency under Art 352 and curb all political dissent. The INC, which led the freedom movement successfully, should have shot it down at once and the proposer should have been taken to task. But, unfortunately, it found acceptance in Mrs Gandhi's wisdom, who then hurriedly imposed the State of Emergency on 25th June, 1975. The most obliging President Fakhruddin Ahmed Ali, who had served as Advocate General of Assam, didn't blink his eyes. He signed the proclamation under Art 352 of the Constitution imposing the State of Emergency on the frivolous grounds of "internal disturbance". He didn't even insist on a cabinet decision, and probably treated the declaration as a mere administrative matter which could be ratified by the cabinet later.

"The INC, which led the freedom movement successfully, should have shot it down at once and the proposer should have been taken to task. But, unfortunately, it found acceptance in Mrs Gandhi's wisdom….."

Once the Emergency was imposed, the consequences of  Art 353 and Art 359 of the Constitution came into effect. The Govt swung into action and arrested all opposition leaders and detained them under draconian maintenance of internal security Act  (MISA) without trial. Nearly about 1.5 lakhs individuals were detained over a period. The freedom of press was gagged by censorship. The civil liberties were banished from the system. Even casual talks against the government became a risk. The term of Lok Sabha, which expired in 1976, was extended by one year. Mrs Gandhi's election was sought to be legally buried by the 39th amendment of the Constitution. Her son Sanjay Gandhi went around holding sterilisation camps to sterilise people and control population.

Also Read: Close shave in August 1975

The authoritarian regime under the color of Emergency flourished till January 1977, when Mrs Gandhi decided to revoke the State of emergency and hold elections. But, why did she turn around and decide to hold elections is still a mystery. Expectedly, the election was INCs Waterloo. People silently reacted against the undemocratic governance unleashed by Mrs Gandhi. Soon, the victorious party headed by congress veteran Morarji Desai formed Government. They decided to fix Art 352 and allied provisions of Art 353 and Art 359 of the Constitution, to prevent such manipulation for political gains in the future. Thus, the 44th amendment to the Constitution – amending Art 352, Art 353, and Art 359- was enacted in 1979.

Did we really learn a lesson from the emergency?

It seems, obviously not. The power to order a state of Emergency has remained on the statute book. What was corrected were only the grounds for invocation of Art 352 by substituting the words "armed rebellion" for "internal disturbance", which was cited as a ground for proclaiming emergency on 25th June, 1975. The other grounds available for invoking Art 352 namely threat to the security of India by war or external aggression remain. Moreover, the existence of a "grave emergency" is based on subjective satisfaction. The western Indian borders have always been at risk of invasion by the perpetually unfriendly Pakistan. Now, even eastern borders are at risk due to unwarranted belligerence of China and Nepal. This can be argued to be a sufficient excuse for invoking a state of Emergency and turning constitutional governance on its head in India.

"Moreover, the existence of a "grave emergency" is based on subjective satisfaction."

The public emergency in essence is a constitutional subversion of democracy by the executive. It's an imposition of civil martial law administration. Therefore, it's invocation should be permitted only under grave circumstances affecting the life or very existence of the nation. International Covenant on Civil and Political Rights (ICCPR), that India is a party to, in Art 4 (1)  contemplates public emergency only when there is a real threat to the  "life of the nation". Even judicial review cannot guarantee sufficient protection against the misuse of Art 352. It can intervene to say that the proclamation suffers from malafide intentions and consideration of irrelevant material. However, the court cannot rule on the sufficiency or correctness of the relevant matter. Therefore, India lost an opportunity in 1978 by failing to fully address the dangers of misuse of Art 352 for political gains as it happened in 1975.

Also Read: Are We Condemned To Repeat History?

The 44th Amendment didn't go the whole hog even with regard to suspension of fundamental rights guaranteed under Part III. It only barred suspension of Art 20 and Art 21 which guarantees against arbitrary arrests and detentions. But, the remaining fundamental right from Article 14 to Article 30 can be put in cold storage by their suspension during a period of Emergency. What justification can one give to denying equality during an emergency? Why should the executive have carte blanche to discriminate, during an emergency, between two citizens in respect of matters pertaining to service conditions or admissions in educational institutions of higher learning? Why should there be gender discrimination during Emergency? What purpose would be served in protecting national security if religious freedom and free speech are denied? It's necessary to recall that, Art 4 (1) of the ICCPR considers discrimination on the ground of sex or religion and denial of religious freedom and free speech [Art 4(2) read with Art 18] as non-derogable rights.

"What justification can one give to denying equality during an emergency?"

Summing up, the experiences of emergency in 1975 which led to the arbitrary arrest of thousands of opposition leaders, censorship, suppression of political dissent and destruction democratic values should have been sufficient for Indian political establishment to address more seriously on Art 352 and its allied provisions Art 353 and Art 359. However, we failed to act from these valuable lessons learned by not responding with adequate changes.  The 44th amendment made a half hearted attempt at changes, that really offer no guarantee of repeating the Emergency and authoritarian regime in India. The emergency remains a half learned lesson for India.