According to the Union government, June 25, the day on which the third national Emergency was proclaimed, will be observed as Samvidhan Hatya Diwas. The new parliament session also revived thoughts on India’s 1975 Emergency that lasted for about 21 months. Sugata Srinivasaraju has reflected on the topic in a recent article in this newspaper. The discourse requires to be taken forward.
India’s first two proclamations—in 1962 and 1971—were justified by the exigencies of the Indo-China and Indo-Pak wars, respectively. The third one, however, was clearly a political decision taken by Prime Minister Indira Gandhi alleging internal disturbance. The text of the Constitution, coupled with the context of the political and economic challenges in the country during that time, enabled the regime to take the extreme step. As per Article 352 of the Constitution as it stood then, a perception of ‘internal disturbance’ was enough for the executive to undo democracy and to suspend the fundamental rights of the people. Dissent became an offence and thousands were incarcerated during these dark days, often without trial.
Emergency powers are essentially constitutional safeguards to maintain the sovereignty of the nation. The purpose is to protect the nation, and not the government or the rulers of the day. Yet, across the world those in power have invoked such provisions, which are either statutory or constitutional, to remain in power. In India, though it was “constitutional”, it resulted in patently unconstitutional results. It was an instance of ‘constitutional dictatorship’, as Christophe Jaffrelot and Pratinav Anil put it.
The people of India voted against it and voted out the Congress. The subsequent Janata government changed the text of Article 352. According to the amended provision, which came into force on June 20, 1979, apart from war or external aggression, only armed rebellion could be the reason for proclamation of Emergency. Parliament imposed more riders on the executive’s Emergency powers. According to the amended Article 358, restriction on freedoms under Article 19 could be made only on the grounds of war or external aggression. Article 359 indicates that right to move the court for enforcement of rights as per Article 20 (protection in respect of conviction for offence) and Article 21 (protection of life and personal liberty) cannot be suspended at all. This was a parliamentary course correction.
When the present regime invokes the Emergency again, an analysis of its own track record in preserving the country’s constitutional values and fundamental rights is clearly due. There is a striking hypocrisy in the anti-Emergency rhetoric of some right-wing groups that even compromised their position by surrendering before Indira Gandhi’s dictatorship during the relevant period.
Many think that from 2014 to the 2024 elections, India was under an “undeclared Emergency”. Such a simplified version of the political process is neither correct nor accurate. Merely because of the common factors of abuse of power and suppression of dissent or dissidents, it does not follow that what prevailed after 2014 was a de facto Emergency.
It was a different process—may be with some common traits. It is essential not to confuse an abuse of the constitutional provision on Emergency powers with a systematic destabilisation of the Constitution. To understand this dissimilarity, one needs to note that they happened on two different occasions, in two different political scenarios, at the behest of two different dispensations that believed in two contrasting ideologies.
During the 1975 Emergency, the State did not attempt to create a massive communal polarisation to damage the constitutional value of fraternity. A large-scale division among the people on religious, linguistic or regional grounds was not attempted. It was the consequence of an individualistic obstinacy for power that tried to perpetuate an Indian Bonapartism. Whereas the situation during 2014-24 was the natural consequence of a regime that seemingly questioned the full Constitution’s legitimacy. Emergency 1975 was not the outcome of any absolutist project, whereas the process of ‘deconstitutionalisation’ was. While the Congress was apologetic about the Emergency, the BJP remains stubborn about its track record.
During 1975-77, the institutional damage was not as lasting as happened after 2014. The collaboration between political power and economic monopolies during the Emergency was not as glaring as it has been in the recent past. The deconstitutionalisation that has occurred over the last decade has many global parallels, with bigotry creating illiberal-yet-populist regimes in many countries. India’s third national Emergency did not display itself as part of any such global phenomenon.
The Emergency curtailed human rights in massive way. But the way governance in the country suffered during 1975-77 was different than the way it has happened over the last decade. The opposition does not fail to remind us that the government repeatedly failed on managing the pandemic, introducing demonetisation, maintaining public structures, running competitive exams, and ensuring youth employment and market fairness. Given that more than two-thirds of the constitutional provisions relate to governance, these features are peculiar to a process of deconstitutionalisation, and not to a state of Emergency.
Let it be emphasised that deconstitutionalisation has enormously impacted the nation’s democracy. Draconian laws were used to threaten the freedom of not only some fringe elements, but also that of elected CMs. Often, harassment of minorities became the new normal. The Constitution had an outward appearance, yet in substance it ceased to be the people’s experience. Institutions remained structurally intact, though often not functionally. Thus, the present regime’s reminder of the third Emergency has lost its moral capital.
As a political experience, the Emergency should motivate us not only to avoid the repetition of what happened in 1975, but also to avert the destabilisation of democracy. The only safeguard against authoritarianism is the politics of coalition, accommodation and inclusiveness. It should be a politics for the future that upholds egalitarianism and fraternity. A discourse on the Emergency becomes complete and meaningful only when it happens with a genuine understanding of constitutionalism.
(kaleeswaramraj@gmail.com)
(Views are personal)
Kaleeswaram Raj | Lawyer, Supreme Court of India