Emergency showed extent of executive power. 50 years on, it's still embedded in Constitution

The Print

5 days ago

The Constitution itself was designed at a time of immense political, social, and economic upheaval. There were a multitude of challenges around secession, religious integration and communalism because of Partition, the integration of 550 princely states, which made up two-fifths of India, and widespread poverty. The resulting constitutional setup gave the Union government sweeping powers to convert the country into a unitary state. The State, consequently, while giving fundamental rights and freedoms to citizens, could also revoke these through emergency provisions, the office of the governor, money bills, ordinances and in some cases, just ordinary legislation.
However, it may not be an aberration, but a logical conclusion of executive power, given the structure and setup of the Indian state itself. The declaration, which was accorded through vague wording within the Constitution in Article 352, was compounded by a flurry of legislation to support the implementation of a dictatorial state. It underscores the ease with which the Union could legally override the separation of powers and curb fundamental rights with limited judicial, legal or citizen oversight. Fifty years on, the broader legacy of the Emergency is the fragility of rights, and checks and balances. If anything, India's democratic successes may be viewed as a miracle, stemming from well-meaning actors, rather than legislation and policy action itself.
About 50 years ago, on 28 June 1975, a small, 22-word obituary in The Times of India read, 'O'Casey, D.E.M., beloved husband of T. Ruth, loving father of L.I. Bertie, brother of Faith, Hope and Justicia, expired on June 26,' highlighting a fundamental shift in India's fledgling experiment with democracy. The Emergency was indeed a watershed moment in India's history, and viewed by many as a blot on India's largely democratic traditions.
When the Constitution was controversially amended for the first time in 1951, impositions were placed on fundamental rights and free speech. It also enshrined a mechanism, the 9th Schedule. Laws placed in this schedule are not subject to judicial review, a feature used to override unfavourable judicial decisions and to shield the executive from scrutiny. Indira Gandhi used this schedule to overturn her suspension as a member of parliament.
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Existing provisions
Throughout India's early years, wars with Pakistan and China allowed the government to declare states of 'external emergency,' which worked to suspend fundamental rights. They were backed by laws that expanded state power, from the Defence of India Act to the Preventive Detention Act. Christoffe Jaffrelot and Pratinav Anil in India's First Dictatorship: The Emergency, 1975-1977, and Srinath Raghavan in Indira Gandhi and the Years that Transformed India, highlight the emphasis Indira Gandhi put on making sure all emergency provisions and actions had a veneer of legality attached to them to reiterate the legitimacy of her actions.
She did not need to introduce new laws to give the Emergency teeth; such provisions already existed. The Sedition provision (Section 124A of the Indian Penal Code), the Defence of India Act 1962 (DIA), and the Maintenance of Internal Security Act 1971 (MISA) all expanded the government's ability to suspend fundamental rights or harass dissidents. The DIA and MISA conferred on the government a wide range of powers to detain and arrest individuals, and limit their ability to challenge their detention in the courts. These also allowed warrantless searches and wiretapping to occur. The government could determine 'protected areas' and 'prohibited places,' limiting the movement of people, and violating the right to free movement and protest. These laws notwithstanding, the executive made the process the punishment, a feature that has dominated the Indian state since. Coomi Kapoor, in The Emergency: A Personal History, noted, 'an ugly feature of arrests and detentions under DIA [and MISA] was the immediate rearrest of persons released on bail.'
Once the Emergency was lifted in 1977, Indira Gandhi lost power, and a motley coalition under the Janata Party introduced the 43rd and 44th amendments to raise the threshold to declare an emergency, and repealed some of the other controversial legislation enabling Indira Gandhi's hold on power. However, other features still remained in force, allowing the executive to expand its power.
In times of crisis, emergency powers may be helpful to respond quickly, but the Constitution does not always provide clear opportunities for oversight from other branches of government that are critical to ensure accountability. During Covid-19, the Union was able to bypass the federal structure by unilaterally imposing a lockdown through ordinary legislation, rather than declaring an emergency (which would have required parliamentary oversight). This was partly because India lacks a dedicated framework to regulate public health emergencies. Containment measures became convenient tools of control and an excuse to suspend civil liberties, as seen with dwindling protests and arrests. The right to privacy was surrendered in the name of containment and contact tracing. This is not to say that such measures were unnecessary, but their legal basis matters. By using laws like the Disaster Management Act 2005, which was not designed for pandemics and is not subject to prior parliamentary review, the Union was able to suspend the freedom of movement and derive secondary powers to amend other laws like the Essential Commodities Act without any legislative or judicial oversight.
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Legacy of Emergency
Another key feature of the Indian Constitution is its quasi-federal nature, according power to states over certain issues, while allowing the Union to take control if needed. Under Article 356, the Union government can override state rights by dismissing a state government and imposing President's Rule. Since 1947, it has been invoked more than 130 times, with the greatest number of instances being when Indira Gandhi was in power (50 times between 1966-1977 and 1980-1984), followed by the Janata Party (20 times between 1977-1980). It finally took a 1994 Supreme Court judgment to curtail the scope of President's rule. Nonetheless, the Union has been able to exert power over states through fiscal centralisation and the governor's office.
Over the past decade, fiscal centralisation via delays in GST compensation, non-shared cesses, and discretionary transfers has undermined state capacity and made states more dependent on the Union, as seen in Kerala, Tamil Nadu, and Punjab. Though fully legal, such measures do undermine state rights. Fiscal centralisation has been accompanied by political standoffs. Governors have, of late, withheld assent on key bills passed by state legislatures, or blocked state appointments using powers accorded in the Constitution itself. Ongoing issues between non-NDA ruled states and the Union stem from the fact that governors, who are appointed by the Union, could employ a pocket veto on legislation by not assenting to it or forwarding it to the President for a decision. It took a Supreme Court judgment earlier this year to build timelines and processes into how long a governor or the President can block legislation passed by a state government.
There are other areas where state control undermines the democratic ethos of the Constitution, especially when weaponised. Anti-terror and preventive detention laws—a hallmark of India's history since Independence—have had their powers expanded with the UAPA, PMLA, and earlier with TADA. This is not to say every government has unjustly used these laws, but to highlight the ease with which civil rights can be taken away if desired.
Executive power has ebbed and flowed since the Emergency. During the coalition era from 1989–2014, a weaker Union allowed for cooperative federalism to emerge. States had a stronger say, and key initiatives to decentralise power away from the Union were introduced, from the 73rd and 74th constitutional amendments, to the Right to Information Act. Even as the Union yielded some of its power, anti-terror laws and financial regulation shifted power away from the citizen back to the state, and fiscal centralisation has become a weapon to use against non-NDA-ruled states. If the Emergency showed the extent of executive power, it is clear that the source of such power is embedded in India's constitutional setup; this is the legacy that India must contend with, 50 years on.
Vibhav Mariwala writes about political economy, history, and the institutions that shape our world. He works on public policy and global macro between London and Mumbai and tweets @VibhavMariwala.Views are personal.
(Edited by Theres Sudeep)