Emergency had a reason

But it is time now to turn the page and abolish emergency provisions in the Constitution.

Written by G Mohan Gopal | Published:July 4, 2015 12:51 am
emergency, indira gandhi, internal emergency, Constitution, Constituent Assembly,1975 emergency, imposition of emergency,  emergency anniversary, indian express column, ie column, G. Mohan Gopal column Indira Gandhi

Borrowed from the ill-fated German Weimar Constitution, the inclusion of emergency powers was accepted by the Constituent Assembly because of widespread apprehension at the time that, without such powers, the new republic would not survive the powerful attacks that lurked in its future. The apprehension was not misplaced. Attacks took place, covert and overt. The emergency power was used. The republic survived.

In the 65 years since the Constitution came into effect, the republic has put down deep democratic roots. In the 40 years since the 1975 internal Emergency, public support for the ideals of the republic has significantly increased and the risk of the republic suffering a crippling attack has greatly reduced. Irrespective of what position one may take on the 1975 imposition of a state of internal Emergency, the continued retention of emergency powers in the Constitution at this stage in our political history — even in its current more diluted form after the post-Emergency amendments to the Constitution — is unnecessary and undesirable. The time has come for all democratic forces in India to join in a clear stand — all exigency should be dealt with within the well-developed framework of law and jurisprudence we now have nationally and globally on democratic freedoms and human rights. There should never be a state of emergency in the country again. The time has come to turn the constitutional page and delete the emergency powers provisions in their entirety.

Emergency provisions need to be deleted from the Constitution, first, because they are not needed any more. Post-1977, the legislatures and courts have become more flexible in allowing extraordinary powers to the executive (such as Afspa that gives the armed forces, in defined circumstances, the right to kill unarmed civilians). We, today, have a massive panoply of laws — including draconian anti-terrorist, penal and security laws — that confer extremely broad powers to the state, even without the declaration of an emergency.

Emergency provisions need to be deleted from the Constitution, second, because they will most likely be misused by rightwing forces to destroy the republic. What was intended as a protective armour against attack has become a lethal vulnerability for the republic.

In 1975, emergency powers were used primarily against rightwing forces that sought to effect regime-change through violent civil disturbances in defiance of the Constitution. Today, emergency powers will likely be used by the rightwing against the republic. The rightwing will not — and cannot — rest until the republic is destroyed because it is the torchbearer of what they consider the most dangerous ideas to their vision of India. The moderate and reasonable Ramakrishna Mission says on its website, for example, “the greatest challenge Indian society ever faced came from Western culture in the 18th and 19th centuries. Western culture posed three major challenges to Indian society: (a) modern rational thought and science, (b) an open society which values freedom and social justice, (c) the idea of a saviour God who identifies himself with the poor, the sick and the fallen.” Replace “saviour God” with “welfare state” and you have the Preamble to the Constitution of India — as the greatest challenge to Indian society! Any use of emergency powers now will be directed against these “dangerous ideas” and will aim to establish a Talibanic, monochromatic Hindu raj in India.

Any state of emergency imposed today would have a low likelihood of being reversed. Even if democracy were restored, the chances of a free and fair election would be poor. The chances of those detained being freed are unlikely to be high. In contrast, the 1975 state of Emergency was lifted and Indira Gandhi voluntarily restored democracy once the movement to force regime-change by unconstitutional means had subsided. The Congress lost the elections held in 1977 under Indira Gandhi’s government, demonstrating their fairness. There was a peaceful transfer of power. Those in detention were freed. Democratic elections have gone on smoothly since. Democracy emerged stronger than ever before. None of this is likely in 2015.

The 1960s and ’70s were a period in which the US and other dominant powers were actively engaged in coups in many countries. Salvador Allende, a socialist leader of Chile, had been murdered in 1973 with the active support of the US. Mujibur Rahman, the father of Bangladesh, was murdered in 1975 — possibly with the involvement of the CIA according to JP, as quoted by M.G. Devasahayam in his book on JP. Like Allende and Mujib, Indira Gandhi, too ,eventually had to pay the ultimate price for standing up to hegemonic forces at home and abroad — the declaration of Emergency had only managed to postpone her assassination by a brief nine-year period. But she had saved the constitutional order from being overthrown — unlike in Chile, Bangladesh, Argentina, Nigeria and Turkey. In 2015, national and global vested economic interests would welcome the imposition of an emergency that would facilitate unhindered corporate access to India’s economic resources without the troublesome interference of democracy — a la Turkey and Egypt.

There is an additional point. The post-World War II Fundamental Law of the Federal Republic of Germany does not vest emergency powers in the state as the Weimar Constitution had done. Instead, it provides that “All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available”(Article 20). This provision mirrors the “Declaration of the Rights of Man and the Citizen” of the French Constitution of 1793 that contains several “right[s] of revolution” and says, movingly, “There is oppression against the social body when a single one of its members is oppressed. There is oppression against every member when the social body is oppressed. When the government violates the rights of the people, insurrection is for the people, and for every portion thereof, the most sacred of rights and the most indispensable of duties.” Hasn’t the time come for us to borrow again from Germany, this time to establish in our Constitution, instead of emergency powers, the inalienable right to resist any violation of our inviolable rights — through peaceful means?

The writer is director, Rajiv Gandhi Institute for Contemporary Studies, and former director of National Judicial Academy and National Law School of India University, Bangalore. Views are personal

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  1. M
    mundukraj
    Jul 4, 2015 at 6:22 pm
    The writer is a Candra. There is no likelihood of any Emergency being declared at least by this Government. The article alludes covertly that E could be declared in 2015, and this is not surprising considering the connections of the writer with RGF
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    1. S
      Satyam
      Jul 4, 2015 at 8:45 pm
      Wow!!!!! Its amazing ...only IE can publish such stuff
      Reply
      1. T
        TIHAEwale
        Jul 4, 2015 at 2:57 pm
        As a quite a few readers want to show Emergency and Indira hi were hated words but the fact was South India elected no more than 6 opposition candidates with Kerala with 20 seats didnot return a single opposition candidate during 1977 LS polls. Emergency meant discipline and South India wanted it. Today again if Emergency can deliver India an economic muscle like China in say 7-8 years it better to have Emergency. Remember there is no terror attack in China where as democracies like India, U.S, U.K. all faced it with heavy casualities
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        1. T
          TIHAEwale
          Jul 4, 2015 at 2:50 pm
          Emergency was the need of the hour. One should remember
          Reply
          1. V
            Vamsi
            Jul 8, 2015 at 12:43 am
            Author is Ziad Hamid of India. Just replace army with Indira.
            Reply
            1. A
              Achuta Bhat
              Jul 4, 2015 at 4:16 pm
              An article supporting 'emergency' in SRI RAM NATH GOENKA's news paper!
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              1. S
                syomynona
                Jul 5, 2015 at 2:03 am
                I'm not at all surprised that this the nature of views of a lawyer trained on a framework built entirely on Christian theology (see S.N.Balaganghadhara's works). Well done, traitors of the land ! You've kept us down long enough. Ramnath Goenka would've been sad to see the Indian Express turned into another useless lefty rag.
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                1. S
                  syomynona
                  Jul 5, 2015 at 2:08 am
                  They'll publish anything if it's against the current Govt :D
                  Reply
                  1. K
                    Kamalakanta
                    Jul 4, 2015 at 12:50 pm
                    An admirable , factual article from a learned man. But we the lay general public failed to imilate all the logic
                    Reply
                    1. A
                      Anil Maheshwari
                      Jul 4, 2015 at 11:36 am
                      Had the learned legal scholar contained himself from justifying the unjustifiable imposition of the internal emergency by Mrs. Indira hi, the article would have served the purpose of pointing out the apprehension of the authoritarian rule, lurking large over the country in the wake of unprecedented surveillance during the present political dispensation.
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                        Anil Tandale
                        Jul 4, 2015 at 8:05 am
                        "Emergency provisions likely to be misused by right wing forces", is the refrain of the writer pleading for deletion. It was very good if left leaning, left supported misused the provisions to incarcerate non-left political leaders and countless other citizens. If any real need arises, the government in office will have to impose emergency to meet external aggression or internal armed rebellion. The writer is sympathetic to saboteurs, and wants them to grow, prosper and corrode the republic.
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                        1. A
                          Anuj Kapoor
                          Jul 4, 2015 at 5:03 pm
                          Congratulations Mr Gopal .. you have just scaled new heights of sycophancy... may I suggest that you take a print of this article and show it to all the loyalists to the dynasty. the queen is dead... long live the queen
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                          1. R
                            R S
                            Jul 4, 2015 at 7:19 pm
                            It is ridiculous to call JP a right wing force. To say that a BJP emergency is dangerous, unlike a Congress emergency, is equally ridiculous. The emergency power was used for selfish reasons as everyone knows.
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                            1. R
                              R S
                              Jul 4, 2015 at 7:13 pm
                              Rubbish. There are lots of terror attacks in China by Uighurs.
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                              1. M
                                Mouli
                                Jul 4, 2015 at 6:41 am
                                The author umes that IG was asinated for standing up against hegemonic forces in india and abroad while there is no clear explanation on this statement. What makes the author to think that today emergency can be used to establish hindu raj? Is the author disturbed by the fact that june 21 was made a yoga day? Current political scenario clearly doesn't encourage the idea of deleting the emergency provision from the consution as there is always danger of corruption lurking in every bureaucratic level.
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                                1. I
                                  I_want Truth
                                  Jul 10, 2015 at 5:55 pm
                                  WOW. fantastic article. Sir, next year please do better. Write an article that would convey that emergency was imposed to actually jail madam Indira and she was the victim of the emergency. Sycophant would be completed fully.
                                  Reply
                                  1. D
                                    dinesh
                                    Jul 5, 2015 at 10:24 am
                                    Very poor arguments have been put by M Gopal in defence of emergency as well as removal of provisions of emergency from the consution. Does he understand the effects of suppression of fundamental rights of individuals on the society and future generations? The moot question remains - was it really needed?
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                                    1. S
                                      Sam
                                      Jul 4, 2015 at 1:50 pm
                                      Really! You are blaming the right for the Emergency. Can't believe it! I am not a rightist, nor a fan of Mr. Modi, but this pathetic and weak attempt to justify the Emergency is an insult to all those who fought against it. And, not that a learned man like you needs a reminder, but JP and many of the socialists cannot be clified as right by any stretch of imagination. Emergency was declared because of power-drunk politicians and their moronic, sycophantic advisors, not to uphold some lofty principles or to prevent the country from sliding into anarchy because of the so-called right threat. Your argument to prevent another Emergency would have been credible if only you had not exposed your leaning so openly. Unfortunate that such sycophantic and twisted pieces can be written by scholars. Indian Express, your readers deserve better than this.
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                                      1. G
                                        gopa
                                        Jul 4, 2015 at 6:06 pm
                                        Credit musty be given where it is due. During emergency, people did not like Sanjay hi for abuse of powers. But the trains were running on time, people did not have to pay bribes, and all babus, big and small, were on their chairs before time.
                                        Reply
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                                          Hanamant Kulkarni
                                          Jul 4, 2015 at 5:06 pm
                                          His Masters' Voice. It is shameful that this left wing hi family loyalist is supporting emergency of 1975-1977. Further he is twisting matter against Govt. of the day.
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                                            Indiana Jones
                                            Jul 5, 2015 at 9:59 pm
                                            A supposedly legal expert should not be using incorrect words while explaining AFSPA. AFSPA is not a licence to kill unarmed CIVILIANS, as circastically put forth by the author! In layman's language, it's a legal cover, already available to the civil police, extended to defence forces when tasked to operate in areas where civil police can't operate. If the pseudo liberals have a problem with AFSPA, the best solution is to not employ defense forces for internal security matters. Finally I would like to add "IF YOU CAN'T STAND BEHIND YOUR ARMED FORCES, PLEASE FEEL FREE TO STAND INFRONT OF THEM".
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