The “tinkering” with the Constitution started much before the Emergency was imposed in 1975, Solicitor General of India Tushar Mehta said, citing various amendments and the consequent to and fro between the Parliament and the Supreme Court.
—
The Emergency imposed during 1975–77 was the “darkest period” of post-independence history, Solicitor General of India Tushar Mehta said during an event on Abuse of the Constitution during the Emergency in Delhi on Sunday.
Meanwhile, citizens today are living in the “safest of the possible constitutional scenarios”, he asserted.
Also read: The Emergency of 1975-77 and the long shadow it casts today
“We have been listening to certain phrases like ‘majoritarian regime’ and (that there is) arbitrariness in governance, there is no independence of the judiciary left. We must confront this kind of factually incorrect propaganda,” he continued, without explaining why such statements are factually incorrect or propaganda.
Mehta did not limit his address to the period of imposition of Emergency (1975–77), which was the proposition of the event. Rather, he listed the amendments to the the Constitution and the consequent judicial challenges to them that came to signify the to and fro scuffle between the Parliament and the higher judiciary.
“The abuse of the Constitution was not just during the Emergency, but it started much before,” Mehta averred.
Also read: Emergency message for Modi Regime: Don’t Take People for Granted
However, he made no correlation between the actions of the then Union government to the present one, either to draw similarities or disparities.
Darkest period
“The era of emergency was definitely the darkest period of post-independent democracy,” Mehta said, adding that 250 journalists were jailed, more than 30,000 arrests took place and 65–70 judges were transferred during the period of its imposition. About 200 lawyers were arrested and chambers of advocates in Tis Hazari Court in Delhi were demolished “only for protesting against the Emergency,” Mehta claimed.
“People used to be picked up and put behind bars. Whispering itself came with a sense of fear because of the possibility that the other person might be a stooge,” he continued.
“The constitution was really under threat. Democracy was really under threat. Independence of the judiciary was really under threat,” Mehta lamented. It was only after lawyers, judges, academics and journalists came together that the “dark period” ended, Mehta said.
Also read: The contemporary relevance of Internal Emergency 1975–77
Contrasting this to the present, he stated with a sense of relief, “We are in the safest of the possible constitutional scenarios. We are lucky citizens.”
Previously in his address, Mehta had put forward his belief that “When we inherit freedom, we take it for granted. Our generation inherited the second freedom that started from 1977,” which is when the Emergency was lifted.
In response to a question raised by an audience member on India’s slipping ranking in the 2023 World Press Freedom Index, Mehta said, “It depends upon the survey you rely upon” and that “no speech is being curtailed in the present scenario.”
In a report released in May by global media watchdog Reporters Without Borders (RSF), India was placed at rank 161 (out of 180 countries).
Also read: Union Government uses emergency powers to bury BBC documentary on the Prime Minister
“I can do a survey where I can put India at number 1,” Mehta said, questioning the credibility of non-State sponsored surveys. In his response, he echoed what he had stated before the Supreme Court on May 9 when asked by a Bench headed by retired Justice K.M. Joseph about the press freedom ranking of India.
Tinkering with the Constitution
“My attempt is to show how the Constitution was tinkered with,” Mehta said, before beginning to cite the Constitution (First) Amendment, 1951 which added the Ninth Schedule to the Constitution, among other things.
“If a law is added to the Ninth Schedule, even if it violates my fundamental rights I will have no remedy to go before the high court or the Supreme Court or any court,” Mehta noted.
Subsequently, in Sri Sankari Prasad Singh Deo versus Union Of India And State Of Bihar (1951), the Supreme Court upheld the amendment in stating that an amendment is not a ‘law’ within the meaning of Article 13 (Laws inconsistent with or in derogation of the fundamental rights) and therefore, even if it violates a fundamental right, it would not fall foul of the Constitution.
“Unfortunately, this position continued for 14 long years,” Mehta said. “Meanwhile, the Parliament kept on passing laws, including it in the 9th schedule, making it immune from judicial challenge.”
This position of law continued until 11 judges of the Supreme Court overruled the court’s earlier decision by holding that an amendment is also a ‘law’ as envisaged by Article 13 in the seminal case I.C. Golaknath and Ors versus State of Punjab and Anrs (1967).
“And there was an immediate response from the government, by which I mean the Parliament, because there was a substantial majority in the Parliament and, therefore, whatever law was proposed by the leader, used to get passed,”Mehta observed.
Also read: Revisiting the Emergency: A Primer
Through the Constitution (Twenty-fourth Amendment) Act, 1971, the Parliament amended Article 13 to state that “Nothing in this Article shall apply to any amendment of this Constitution made under Article 368 (Power of Parliament to amend the Constitution).”
“Politically, it was the worst thing that could have happened. But legally speaking, it was a smart move,” Mehta commented.
“The court was balancing the fundamental rights and the power of the Parliament to legislate. And the government of the day was continuously going ahead dumping the law laid down in favour of the people and coming out with amendments,” he added.
Subsequently, in Kesavananda Bharati Sripadagalvaru & Ors versus State of Kerala & Anr (1973), the Supreme Court asserted its right to strike down amendments to the Constitution that were in violation of the fundamental architecture of the Constitution.
Also read: Emergency : Who benefited from it?
In June 1975, the election of then Prime Minister Indira Gandhi was invalidated by the Allahabad High Court for electoral malpractices. Gandhi was banned from contesting elections for six years. Later that month, Article 352 (Proclamation of Emergency) was invoked by President Fakhruddin Ali Ahmed.
While Gandhi’s appeal was pending before the Supreme Court, the Parliament passed the Constitution (Thirty-ninth Amendment), 1975 placing the election of the President, the Vice President, the Prime Minister and the speaker of the Lok Sabha beyond judicial scrutiny, Mehta noted.
Major changes to the Constitution were undertaken through Constitution (Forty-second amendment), one of which was a declaration that the Parliament held unrestrained power to amend any parts of the Constitution, without judicial review.
Parts of the amendment were struck down later by the Supreme Court in Minerva Mills Ltd and Ors versus Union Of India and Ors (1980).
While the Bharatiya Janata Party (BJP), which currently heads the Union government, has not made any substantial changes to the Constitution since coming to power in 2014, except the abrogation of Article 370, there are concerns that it is bypassing the Constitution to institute fundamental and far-reaching changes in the body politic of India.
