The legislative legacy of Emergency in India
Since 1947, emergency in India under Article 352 of the Indian Constitution has been declared thrice in 1962, 1971 and 1975. But most people just know about emergency declared on 25th June, 1975. It was the first and the last time that the emergency was declared on the pretext of internal disturbance (the 44th Amendment of the Constitution had substituted the word ‘internal disturbance’ with ‘armed rebellion’). The period of emergency from June’75 to March’77 was arguably the darkest phase in the post-independence India. The government assumed draconian powers, enforcement of fundamental rights was suspended, most opposition leaders were jailed and freedom of the press was taken away.
This was counterproductive for Congress(I) and Mrs. Indira Gandhi. Many leaders who supported the decisions and actions of Indira Gandhi government during the emergency distanced themselves from them after the emergency was lifted. Devkanta Barua, president of the Congress during the emergency who coined the popular term ‘India is Indira, Indira is India’ and Babu Jagjivan Ram, virtual number two in the cabinet were some of the most loyal supporters of Indira who joined the anti-Indira Congress post-emergency.
Post-emergency, the national mood (especially in the northern parts of the country) was against the Congress and it lost more than 200 seats in the 1977 elections. The newly launched Janata Party formed the first non-Congress government in post-independence India in 1977. It’s been more than 40 years since the national emergency was imposed and the political discourse today is against the emergency and executive decisions taken during that period. The Congress party has distanced itself from the excesses committed during the emergency. The ‘Iron Lady of India’, Indira Gandhi herself had apologized to the country for the emergency.
“The Janata government which came to power in 1977 had enacted constitutional amendments 43rd amendment (1977) and 44th amendment (1978). However, the Amendments could only undo a fraction of the changes to the constitution of India. The 42nd Amendment, which is also known as the mini revision of the constitution alone affected more than 40 Articles of the Indian Constitution.”
But, it is surprising that there is almost no discourse on the legislative impact of the emergency on the country. Changes made during the period of emergency still exist in the Constitution of India and continue to shape and affect the political, social and cultural discourse in the country. They continue to affect the daily lives of the common man. The Janata government which came to power in 1977 had enacted constitutional amendments 43rd amendment (1977) and 44th amendment (1978). These amendments were aimed to undo the changes to the constitution of India made during the emergency.
However, the Amendments could only undo a fraction of the changes to the constitution of India. The 42nd Amendment, which is also known as the mini revision of the constitution alone affected more than 40 Articles of the Indian Constitution. The enhanced ordinance making powers of the President and the Governors are a result of the first constitutional amendment (38th C.A) during the emergency. Today, there is a huge debate against the ordinance making powers of the President under article 123 of the Indian constitution. While the activists, scholars, legal luminaries and academics protest the ordinance making powers of President and the executive defends them, maybe the history of enhancement of the powers should also be the part of the debate.
“The changes made to the constitution of India during emergency can’t be called fundamentally correct. They were made in an environment which was authoritarian and undemocratic, to say the least.”
The changes made to the constitution of India during emergency can’t be called fundamentally correct. They were made in an environment which was authoritarian and undemocratic, to say the least. Crushing of dissent and making the citizens subservient to wishes of the state and by extension wishes of the executive was one of the aims of the laws made during an emergency. One of the objectives of the 42nd Amendment (1976) read, “to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed to be relied upon to frustrate socio-economic reforms for implementing the directive principles. It is also proposed to specify the fundamental duties of the citizens and make special provisions for dealing with anti-national activities, whether by individuals or associations.”
"Some of the laws were made to give the executive more power and decrease the powers of Indian judiciary like the 39th amendment, which put restrictions on judicial scrutiny of the post of prime minister."
Some of the laws were made to give the executive more power and decrease the powers of Indian judiciary like the 39th amendment, which put restrictions on judicial scrutiny of the post of prime minister. These amendments and laws were passed with hardly any opposition in the Parliament and Legislative Assemblies because more than half of the lawmakers had been detained and jailed during the emergency. Debates in law making bodies by peoples’ representatives is at heart of a democracy and if that process is interfered with to benefit a person (39th amendment), then the resultant laws can’t be deemed fit for a democratic country.
The Morarji Desai government and the judiciary (Minerva mills vs Union of India 1980 and others) might have removed some of the anomalies inserted in the constitution during the emergency but some still remain and continue to function in body and spirit. In fact, Until the I. R. Coelho v. State of Tamil Nadu judgement of Supreme court in 2007, the Ninth schedule was not even open to judicial scrutiny. Around 47 laws were added to the ninth schedule during emergency including draconian and colonial laws like Maintenance of Internal security act and Monopolies and Restrictive Trade Practices act.
One could argue that some of the amendments during the emergency, like adding the words ‘socialist and secular’ to the Preamble or taking control of exclusive economic zone was right. But the question is must they not require a larger scrutiny? Some may consider the insertion of fundamental duties during the emergency to be right if they believe in a hard state and think state is allowed to dictate terms for the larger benefit while a person who believes in a soft state and considers that state’s role to more of a facilitator may completely disagree. Hence, it is important is that this legislative impact of emergency should be a part of the larger discourse that deals with the excesses of the government during the emergency from 1975-77.
Views expressed are personal.
About the writer
Ayush is a student of Public Policy at OP Jindal University. He holds an hons degree in political science from Kirorimal College, Delhi University. He has worked with the Public Health Foundation of India and Pratham among others.