At the stroke of midnight on 25th June 1975, India entered into its first national emergency. The author here explains what the constitution says about the declaration of emergency and how it changed after 44th amendment.
The national emergency in India was proclaimed under Article 352 of the Indian Constitution. Article 352 of the Constitution, prior to the 44th Amendment Act, laid that the President of the nation could proclaim an Emergency if she/he was satisfied of the persistence of a grave threat to the security of the whole of India or a territory of India, either by war, external aggression or internal disturbances.
As per Article 352, the Proclamation was issued by the President after a decision about the same was taken by Prime Minister Indira Gandhi and communicated to the President without consultation with her cabinet. Certainly, a day later the Cabinet Ministers of Indira Gandhi had ratified this decision. The proclamation was passed by both the houses of the Parliament by a simple majority. As per the earlier provision, the emergency could continue for as long as there was no fresh decision of the Parliament.
Here is the original gazetted declaration of the Emergency
The Emergency stayed on for over two years.
Why did Janata Dal amend the constitution?
Article 352, prior to the 44th Amendment, was rather vague and arbitrary. It concentrated too much power in the hands of the Prime Minister and cabinet. Thus, when the Janata Dal Alliance came in power, they decided to enact the 44th amendments to modify Article 352 in order to make it more transparent and increase the accountability of the ruling government during a national emergency under the Constitution.
“Unlike in 1975, it is no longer possible for the Prime Minister to unilaterally take a decision about the Proclamation of an emergency without any written explanation”
44th Constitutional Amendment: Procedure of declaration
Under the present form, under Article 352 of the Constitution, the President can only proclaim an emergency when she/he has a confirmation of the crisis situation by the Prime Minister and their Cabinet, presented to the President in written form. Under Article 74, the President can remit back the written dossier for Emergency proclamation to the Prime Minister and the Cabinet. However, if the Cabinet resends it, the President must oblige and proclaim an emergency. Unlike in 1975, it is no longer possible for the Prime Minister to unilaterally take a decision about the Proclamation of an emergency without any written explanation and transparency.
Similarly, a simple majority of the Parliament is no longer sufficient for the proclamation of Emergency. After the 44th Amendment, there is a need for a special majority for this. Each house of the Parliament has to approve the proclamation by a majority of its total membership and by a majority of not less than two-thirds of the members present and voting. Previously, the proclamation ceased to operate after two months in the absence of the majority approval of both the houses. However, after the 44th Amendment, this period has been reduced to just one month.
“Similarly, a simple majority of the Parliament is no longer sufficient for the proclamation of Emergency”
Parliamentary Review of Emergency
In 1975, there was no provision for a periodic review of the proclamation of emergency, after the decision was passed by the two houses of the Parliament. However, the 44th Amendment Act made it mandatory that the passage of the proclamation of emergency shall be reviewed after six months and in the absence of a renewed parliamentary approval, the emergency shall be suspended. The amendment further provided that 10 percent or more members of the Lok Sabha may requisition a meeting in order to consider a bill for disapproving the proclamation. Such a requisition shall be summoned within 14 days. If the specially summoned meeting, passes the bill by a simple majority, the emergency shall be revoked.
Ordinarily, the period of emergency shall be limited to one year. The right to publication of proceedings in the Parliament shall not be canceled during an emergency as per the 44th Amendment Act. Further, the 44th Amendment altered Article 359 and one can now approach the Supreme Court and the High Courts to issue writs in the nature of Habeas Corpus, which was not possible in the time of 975 Emergency. The Proclamation of emergency was made non-justiciable by the 38th Constitutional Amendment through Article 352(5). However, after the deletion of Clause 5, any citizen can now challenge any proclamation of Emergency in the Court with the grounds of mala fide intentions of the government.
“Our threshold of democratic dream is diminishing everyday.”
The rules around the Proclamation of Emergency were strictly modified and outlined after the Emergency in 1975. The Emergency was a cross road by which India graduated to the formation of stronger democracy. Rule of Law was re-asserted and the value of free speech and dissent reestablished. However, as we continue to remain in our formative stage of democracy, there are still many persisting questions, waiting to be answered.
Certainly, India is not under another official emergency. Yet, several dissenters, opposition leaders, scholars, students, and intellectuals continued to be picked up, tortured, and detained without trial under the Unlawful Activities (Prevention) Act. This Act allows the perpetual detention of accused persons without trial. The onus of proof is shifted to the accused. Poets, over 80 years of age, accused under the Act continue to struggle in jails for over 2 years despite threats of Covid-19 Pandemic
Contemporary India celebrates its freedom when a pregnant woman is granted bail on ‘humanitarian’ grounds after months of incarceration. Our threshold of a democratic dream is diminishing everyday. Forty five years ago, we had fought the demon of authoritarianism with our solidarity, conscience and collective resolve. With that legacy before us, there is afterall, still a long way before our democracy wakes up to the dawn of complete freedom and abundant justice.