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