How Emergency '75 Tried To Distort The Constitution Of India

News18

7 hours ago

It was this provision that the then-President Fakhruddin Ali Ahmed depended upon while proclaiming the Emergency on the night of June 25, 1975. 'Internal disturbance" lent itself to a wide-ranging interpretation, including political and civil society movements. The original article contained no proviso that the proclamation of the emergency should be restricted to only affected parts of India. Thus it was proclaimed for the whole of India, even if that were not necessary.
Also, in a glaring lapse of parliamentary procedure, President Ahmed's proclamation preceded the cabinet meeting approving the emergency.
The proclamation of emergency, Kuldip Nayar informs, was signed at 11.45 pm on June 25, 1975. Indira Gandhi decided to call the meeting of the cabinet at 6 pm on June 26 after returning from the Rashtrapati Bhawan (The Judgement: Inside Story of the Emergency in India, P. 39-41).
The proclamation was placed before the cabinet that met at 1, Safdarjung Road—the Prime Minister's official residence—for ex-post facto approval.
The arrest of the opposition leaders, as well as the journalists, had gone on with ruthless efficiency in the intervening period.
Article 352 has been altered since then, raising the constitutional bar against the sweeping imposition of emergency countrywide as in 1975.
Paradoxically, even Indira Gandhi's government has a role in it through the 42nd amendment of the Constitution (1976).
The 44th amendment brought in by the Janata Party's government (1978) further conditioned the imposition of emergency.
Thus, from the constitutional viewpoint, the imposition of emergency became more difficult.
Further, Article 359, which was related to the suspension of the enforcement of the rights conferred by Part III during emergencies, no longer applied to Articles 20 and 21.
This meant that the constitutional provisions with regard to protection in respect of conviction of offences, and protection of life and personal liberty, could not be abridged under any circumstances (even if other fundamental rights are suspended under emergency). These changes will be described ahead.
II
The events described as the causes of the Emergency '75, e.g. students' movement spearheaded by Jay Prakash Narayan, the Allahabad High Court's judgment declaring Indira Gandhi's election from Raebareli parliamentary constituency (1971) as void, etc, were at best immediate causes.
Immediate causes only ignite the stockpile of explosive materials already present. The underlying cause of the Emergency '75 was Indira Gandhi's authoritarian style of functioning, which she equated with efficiency. This imbalanced the harmony conceived by the framers of the Constitution, between the legislature, executive, and judiciary. However, a more impersonal reading of the situation was that it represented a 'mid-life crisis of the Constitution" itself.
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Indira Gandhi prioritised directive principles over fundamental rights. She vouched for 'parliamentary supremacy" in sorting out constitutional provisions (which, according to her, impeded the development of India) over judicial interpretation. She felt 'parliamentary supremacy" was necessary to prevent the Constitution from becoming atrophied.
Parliament of India must have unlimited authority to amend the Constitution with a two-thirds majority as and when needed.
There was a sudden acceleration in Constitution amendments during her second tenure.
During the first two decades of its operation, the Constitution had been amended on 23 occasions.
The Constitution (Twenty-third Amendment) Act, 1969, was notified on January 23, 1970, and came into force the same day.
There was no other amendment during the rest of the year, which also witnessed the premature dissolution of the Fourth Lok Sabha.
In the Fifth Lok Sabha elections, 1971, Indira Gandhi returned with a huge mandate.
During this tenure, which included the Emergency '75 period, the Constitution was amended on 19 occasions.
advetisement
Her magnum opus enactment was the Constitution (Forty-second Amendment) Act, 1976, which had often been described as a mini-Constitution.
Several of its unwelcome provisions were later neutralised through the 43rd and 44th amendments brought by the Janata Party government.
Indira launched her strike with the Constitution (Twenty-fourth Amendment) Bill, 1971, which was later passed as the Constitution (Twenty-fourth Amendment) Act, 1971.
Herein, her target was the Supreme Court's landmark judgment in the IC Golaknath and Ors v State of Punjab (1967) that had denied Parliament the right to amend the Part III (Fundamental Rights) of the Constitution even while exercising its powers under Article 368. It was the first time that any authority had held that any portion of the Constitution was impervious to amendment.
Indira Gandhi naturally did not appreciate this judicial embargo and wanted to get rid of it at the earliest. However, she could not have the last laugh in the matter.
advetisement
In Keshavananda Bharati v. State of Kerala (1973), the Supreme Court laid down the concept of 'basic structure" of the Constitution that exercised a cap on Parliament's unlimited amending power.
In effect, the 24th Amendment made the provisions of Article 13 subject to the provisions of Article 368 as invalid.
The apex court held that the whole of Article 31 C, which abrogates for certain purposes the fundamental rights in Articles 14, 19, and 31 of the Constitution, is invalid.
The court stated that while ordinarily it had no power to review a constitutional amendment, it could do so if the amendment destroyed or damaged the basic structure of the Constitution.
Basic feature, however, is not a finite or quantifiable concept but depends on the merit of the case.
III
Less than five months after the Emergency '75 had been declared–on November 10, 1975–the Supreme Court constituted a 13-judge bench to hear a plea of the Government of India that the Keshavananda Bharati verdict should be overruled.
It was evidently a quid pro quo by Chief Justice AN Ray, who had been elevated to the top position by Indira Gandhi, by superseding three senior-most judges, who resigned in protest (April 1973).
Legal luminary Nani A Palkhivala filed a petition against this government plea on the ground that the Keshavananda Bharati judgment was delivered by a full bench of the Supreme Court with proceedings lasting for five months. It would set a wrong precedent whereby even this full bench's judgment might be reconsidered by another full bench in future.
Moreover, the time was least opportune, when fundamental rights of the citizens stood abrogated, there was no effective opposition inside Parliament, and most important leaders of the opposition parties were languishing in jail.
Nobody could write or speak anything in public that was not acceptable to the government (We, The People P. 187).
Due to Palkhivala's forceful advocacy, the bench was dissolved within two days of argument, though nothing was reported in the media due to censorship. Yet, it was a victory, no doubt, which saved the prestige of the judiciary.
Having failed to regain unlimited amending power through the legal route and dissatisfied with the tardiness of the parliamentary process, Indira Gandhi contemplated a change in the form of government. The French system appealed best to Indira. Her notorious younger son, Sanjay, overtly pitched for a presidential system, which gave all the power to one person, without the curb of Parliament (The Judgement, P. 114).
The Swaran Singh Committee was set up by the AICC to consider suitable changes in the Constitution. Swaran Singh, the former external affairs minister, came out with proposals for extensive changes in the Constitution.
'It would have been worse if I were not there," Swaran Singh later told Kuldip Nayar, 'we buried the presidential system once and for all" (The Judgement, P. 148).
The Swaran Singh Committee proposals became the basis of the Constitution (Forty-fourth Amendment) Bill, 1976, which, on enactment, became the Constitution (Forty-second Amendment) Act, 1976.
It was an extensive piece of legislation that sought to (a) amend the Preamble (inserting the expression Socialist Secular) and the Seventh Schedule in addition to around 36 separate articles (b) substitute four articles with new ones, (c) insert two new Parts viz. IVA and XIVA and eleven new articles.
Palkhivala describes the legislation as a 'devastating attack on the Constitution". It is a pity that the exercise was undertaken under the guise of the Emergency.
When the Janata Party came to power as a result of the Sixth Lok Sabha elections, 1977, it enacted the Constitution (Forty-third Amendment) Act, 1977, and the Constitution (Forty-fourth Amendment) Act, 1978, which aimed at reversing many of the capricious and detrimental amendments.
By a legislative 'surgical strike", to use a present-day popular phrase, the Janata Party government removed the root cause of confusion that had exposed fundamental rights to repeated parliamentary assaults.
The 44th amendment did away with 'Article 31: Compulsory Acquisition of Property" in Part III (Fundamental Rights). The Right to Property to another part of the Constitution viz. Part XII thus making it a legal right. The presence of Right to Property (which was actually about land acquisition by the government) in Part III had actually made Fundamental Rights unsafe. The problem was fixed for all times to come.
This churning led to an important result. The imposition of emergency under Article 352 became more difficult and conditional. Both Indira Gandhi and the Janata Party contributed to the process.
The 42nd amendment made it possible, or desirable, that any emergency was restricted to the affected parts of India rather than being imposed on the whole of India as provided in the original Constitution. The 44th amendment replaced the word 'internal disturbance" with 'armed rebellion". Thus, any civilian protest movement, even if it became violent, could not be used as an excuse to impose emergency.
Article 352 (1) now reads as – 'If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression, or armed rebellion, he may, by Proclamation, make a declaration to the effect in respect of whole of India or such part of the territory thereof as may be specified in the Proclamation.
Through the 44th amendment, it now became necessary for both Houses of Parliament to approve the emergency by a two-thirds majority of members present and voting before the expiration of one month of Proclamation. Previously, the approval was by simple majority before the expiration of two months.
Soli Sorabjee, the then Additional Solicitor General of India, made an insightful observation on the abnormalities in Indira Gandhi's approach to the Constitution amendment. Appearing on All India Radio Spotlight programme on September 23, 1978, Sorabjee stated: 'Our Constitution conceives of the State as existing for its citizens and not the citizens for the State. It recognises the infinite worth of every individual soul because it believes that in a world of variables, it is the individual alone who is timeless. Accordingly, our Constitution ordains that justice — social, economic and political, be achieved without stifling basic freedoms and the dignity of the individual. In other words, without depriving the people of India of their basic human rights."
This priceless statement of Soli Sorabjee should be remembered by every government as the key to our constitutional ethos.