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Sunday, July 25, 2021

How the Constitution was subverted during Emergency

Sushil Kumar Modi writes: Everyone seemed to be challenging Indira Gandhi’s authority. She opted to impose Emergency to silence her critics.

Written by Sushil Kumar Modi |
Updated: June 26, 2021 8:48:42 am
Former prime minister Indira Gandhi (Express Archives)

On the midnight of June 25-26, 1975, the President of India on the advice of Indira Gandhi and without the approval of her Cabinet, signed a proclamation to “declare that a grave emergency exists whereby the security of India is threatened by internal disturbances”. What was the need for a second Emergency when an Emergency due to the Indo-Pak war was already in existence since 1971? Was the security of India really threatened due to internal disturbances?

The immediate trigger for the imposition of Emergency was the judgment of the Allahabad HC on June 12, 1975, which found Mrs Gandhi guilty of corrupt electoral practices and disqualified her from holding public office for six years. On June 23, the Supreme Court Vacation Judge granted a partial stay but without granting her voting rights in Parliament.

Ego shattered, pride beaten, a united Opposition under Jayaprakash Narayan baying for her resignation, a loud media waiting for every opportunity to criticise her, a non-pliant judiciary that struck down bank nationalisation and the privy purses case and clipped the power of Parliament by propounding the basic structure doctrine in Kesavananda Bharati – everyone seemed to be challenging Indira Gandhi’s authority. She opted to impose Emergency to silence her critics.

More than one lakh political workers including JP, Morarji Desai, Atal Bihari Vajpayee and Charan Singh were arrested under the Defence of India Rules and MISA. Censorship was imposed on the media. The RSS was banned. All political activities were forbidden. Many newspapers carried blank editorials to protest censorship. One newspaper carried an obituary advertisement that read: “Died, D.E.M. OCRACY, Mother of Freedom, Daughter of L.I. Berty, on 26th June, 1975.”

Before the imposition of Emergency, the onslaught on the judiciary had begun. Mrs Gandhi superseded three judges who delivered the judgment in the Kesavananda Bharati case and appointed Justice A N Ray as Chief Justice of India. In another instance, Justice H R Khanna was superseded and Justice H M Beg was appointed as CJI. Fourteen high court judges who were found not to be pliable were transferred.

On June 27, 1975, a declaration was made under Article 359(1) whereby no person could move the courts for the enforcement of Articles 14, 19 and 21. The height of subversion was exemplified by then-Attorney General Niren De stating in open court that during Emergency, even if a person was threatened with death, he had no remedy in law. The Supreme Court overruled nine high courts that had given relief to detenus and held that persons arrested under MISA could not file writ petitions.

During this period, sycophancy was also at its peak. The Congress was sloganeering, “Indira is India and India is Indira”. With the entire Opposition in jail and the media gagged, governance through arrest, intimidation and terror became the norm.

The election disqualification case in the Supreme Court was scheduled for hearing from August 11, 1975. Indira Gandhi was in a tearing hurry to amend both the Constitution and the Representation of Peoples Act retrospectively to legislatively validate her election.

On July 21, Parliament was convened. By passing the 38th Constitution Amendment, imposition of Emergency was made non-justiciable as it involved “waste of public money”. On August 4, the Election Law (Amendment) Bill was introduced to retrospectively validate all the corrupt practices due to which Mrs Gandhi’s election had been challenged. By the 39th Constitution Amendment, the elections of the Prime Minister, President, Vice President and Speaker could not be called into question before any court. It also added that any order made by any court setting aside an election of these four functionaries would be deemed void.

Another deplorable amendment that eventually lapsed was the 41st Constitutional Amendment that sought to amend Article 361 and give lifelong immunity from criminal prosecution to the Prime Minister, governors and President for all acts done before the assumption of office and during their tenure. This meant that a person committing the most heinous crime could escape the law by becoming a governor even for a day.

The misuse of constitutional powers did not stop there. On August 28, 1976, the 42nd Constitution Amendment was introduced, which provided that the constitutionality of legislation could only be decided by no less than seven judges and any law could be struck down only by a two-thirds majority. To negate the principle of “basic structure”, the Bill provided that any constitutional amendment under Article 368 would be valid. The amendment also increased the tenure of the Lok Sabha to six years.

Thus, all the loopholes were plugged. The rules of the game were changed retrospectively. The outcome of the case in the Supreme Court was a foregone conclusion. Mrs Gandhi was acquitted on November 7, 1975, of all the charges.

Confident of victory, Mrs Gandhi called for early elections to take the Opposition by surprise. But in the 1977 general elections, the Janata Party stormed into power. Indira Gandhi was defeated by the same Raj Narain who had filed the election petition in the Allahabad High Court. Sanjay Gandhi, the illegitimate constitutional authority during Emergency, was also defeated. The Congress was wiped out from the Hindi heartland. The great upheaval of 1975 was finally reversed after the Janata Party introduced the 43rd and 44th amendments and restored the primacy of the Constitution and rule of law.

Forty-six years have passed since that horrid day, but the Emergency is a story that needs to be told and retold. Emergency strengthened democratic ideals of a free press, an independent judiciary and a transparent government. It was the people and their faith in democracy that emerged as the true winners.

This column first appeared in the print edition on June 26, 2021 under the title ‘A story that needs to be retold’. The writer is Member, Rajya Sabha and former Deputy Chief Minister of Bihar.

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