Constitutionality of the 1975 National Emergency and the 44th Amendment

On 24th June 1975, the then Prime Minister Smt. Indira Gandhi and her cabinet declared emergency. The fundamental rights were suspended by subsequent orders and several laws were made to detain citizens and opposition. The abuse of power of the office of the Prime Minister was at the peak and the democratic index was buried ten feet under. The rubber stamp on the abuse of power and curtailment of fundamental rights was given by the Hon’ble Supreme Court in the case of ADM Jabalpur v. Shivkant Shukla. Recently, a petitioner has approached the apex court with a plea to declare the 1975 Emergency as unconstitutional and asked for compensation as well. But the important question here is: Was the Emergency unconstitutional?

Constitution before and after the 44th Amendment

The emergency was declared in 1975 and the horrors of emergency were (somewhat) crucified by the 44th Amendment passed in 1978 by the subsequent government. Before the amendment, an emergency could be declared because of war, external aggression or ‘internal disturbance’ and the 1975 emergency was declared due to internal disturbance. It was the phrase used in the constitution which was vague and broad. It was kept open-ended as an internal disturbance was not defined. Hence, the abuse of power was a possibility. With the amendment, the phrase internal disturbance was replaced with armed rebellion which was more restrictive in its interpretation than the previous word. Earlier, the prime minister alone could have taken a decision with regard to emergency and there was no need to have the consent of all the cabinet ministers and there was no need to give the consent in writing to the president. This was done by Indira Gandhi where she overlooked the differing views of the ministers and many of the ministers were not even present when the decision was taken. But later, they were presented with a fait accompli. It is to avoid such a situation in future that Article 352(3) was introduced through the amendment.

 Furthermore, before the amendment, the emergency ceases to operate (except when it is a proclamation revoking the previous proclamation) at the expiration of two months [which is now one month]. The legislature keeps a check and balance on the executive, hence, the time period was reduced to one month. Another significant safeguard introduced by 44th amendment is to lay down that a resolution approving the proclamation of emergency has to be passed by each House by a majority of the total membership of each House and not less than two-thirds of the majority of the members present and voting in each House (Article 352(6)). It brought a wholesome safeguard. Moreover, through 44th amendment the question whether the emergency should continue in force or not must periodically come before both Houses which was not the case before as the executive could have extended the emergency based on its own whims and fancies. Another safeguard introduced by the 44th Amendment is that the President is obliged to revoke a proclamation of emergency issued under Article 352(1) if the House of People passes a resolution disapproving the same (Article 352(7)). Another invention that was incorporated was the clause 8 in Article 352: where a notice in writing, signed by not less than 1/10th of the total members of the Lok Sabha has been given, of their intention to move a resolution disapproving the proclamation of emergency, to the Speaker if the House is in session or to the President, if House is not in session, a special sitting of the House is to be held within 14 days from the date on which such notice is received by the Speaker or the President, as the case may be. The underlying idea behind amending Article 352 by the 44th amendment is to ensure that what happened in 1975 is not repeated again.

The horrors are put to bed by the amendment. Even exorcism of the phantom of ADM Jabalpur is done by the Puttaswamy Judgment.

Supreme Court and the hearing

On 14th December, Senior Advocate and the Queen’s Counsel appeared for the petitioner who filed the plea to declare the emergency as unconstitutional and had argued that “this abuse of power was so enormous, it has scarred our country. Your lordships must declare that the emergency proclamation was wrong”. It is correct that the abuse of power during the emergency was colossal but can the Court hold that what is done through the various articles of the constitution was unconstitutional? Indira Gandhi used the vaguely framed provisions of the Constitution to exploit the fundamental rights and the Court gave the stamp. The proclamation of emergency was according to the Constitution and it is interesting to witness what the Queen’s Counsel would argue in the Supreme Court of India. The violation of Fundamental Rights could have been prevented if the Court has not ruled that ‘Article 21 is the repository of Rights’ in the ADM Jabalpur.

Strangely, instead of dismissing the petition, the Court has issued a notice to the Government to “to see whether a simpliciter declaration, something which is feasible or desirable after a passage of time and issue, restricted to that aspect.” A declaration, if done, might complicate a lot of actions of the previous governments were which were later rectified by the subsequent amendments to the Constitution. It will lead to a number of petitions being filed in the Supreme Court. On the other hand, the Supreme Court already has a number of issues which are pending before it, for example, the case of the electoral bonds, abrogation of Article 370, CAA etc., but the Court chose to hear this case which has no impact whatsoever in contemporary times. The pending cases are important and are required to be heard with immediate effect. To conclude, the heavens will not fall if the Supreme Court will not hear this plea which seeks to declare the 1975 emergency as unconstitutional.