By Pratham Gupta
Backdrop of the Emergency
In the landmark case of State of Uttar Pradesh v. Raj Narain[1], which addressed an election petition filed by Raj Narain, the judiciary found Indira Gandhi culpable of engaging in corrupt electoral practices. Consequently, she was disqualified from holding any public office for a duration of six years commencing from the date of the judgment.
Subsequently, an ex parte application led to the High Court temporarily staying the execution of this order for a period of 20 days. This afforded the Congress Party a 20-day window to identify a suitable replacement for Indira Gandhi in her role as Prime Minister.
Indira Gandhi subsequently appealed the judgment to the Supreme Court. Notably, this appeal took place during the summer vacation period, and it was presented before the vacation judge, Justice Krishna Iyer. On June 24, 1975, Justice Krishna Iyer rendered his judgment. Representing Indira Gandhi's interests was the renowned lawyer Nani Palkhivala. Meanwhile, Shanti Bhushan, appearing for Raj Narain, argued that Indira Gandhi approached the Court with 'unclean hands,' alleging that her legal representation had misrepresented facts to secure an unconditional 20-day stay order from the Allahabad High Court. This contention was dismissed by Justice Krishna Iyer, who granted a conditional stay while clarifying that there was no legal impediment to Indira Gandhi continuing as Prime Minister during this period.
Against the backdrop of the Emergency period, it is vital to contextualize the socio-economic challenges that afflicted India between 1972 and 1975. These encompassed the strain on the economy due to two wars, the influx of eight million refugees from Bangladesh, steep increases in oil and commodity prices, soaring inflation rates, and the critical issues of sluggish industrial growth and heightened unemployment.[2]
Simultaneously, several parallel developments occurred during this period. Noteworthy among these were the Nav Nirman movement in Gujarat, spearheaded by the Akhil Bhartiya Vidyarthi Parishad (ABVP), the Sampoorna Kranti (total revolution) agitation led by Jayaprakash Narayan (JP), and a national strike orchestrated by the Railway Workers Union.[3]
At precisely 9:30 pm on June 25, 1975, the Proclamation of Emergency was dispatched to President Fakhruddin Ali Ahmed. Subsequently, at midnight, Prime Minister Indira Gandhi invoked Article 352[4] of the Constitution, citing 'internal disturbance,' and imposed a national Emergency. This phase witnessed the detention of opposition leaders from the Jansangh, censorship on the press and other forms of media, suspension of fundamental rights, widespread incidents of torture, and the announcement of bans on various organizations, including the Rashtriya Swayamsewak Sangh (RSS).
It is essential to scrutinize the role of President Fakhruddin Ali Ahmed during the declaration and imposition of the Emergency. The President's actions, including the suspension of fundamental rights under Article 359[5] and his reluctance to question the constitutional procedure, raise pertinent questions about the independence and assertiveness of the constitutional office.
Autocratic Constitutional Amendments (38th to 42nd)
During this tumultuous period, the Indian Constitution underwent significant changes through a series of constitutional amendments, spanning from the 38th to the 42nd. The 42nd amendment, often dubbed the "mini Constitution," was particularly notable. However, it is pertinent to note that a substantial portion of these amendments was subsequently invalidated by succeeding governments and the judiciary.
A closer examination of the pivotal constitutional amendments enacted during Mrs. Gandhi's tenure reveals a concerning erosion of democratic principles. The 38th Constitutional Amendment, which accorded finality and non-justiciability to the President's satisfaction concerning the promulgation of ordinances and the declaration of Emergency, merits examination for its constitutional ramifications.
The amendment effectively precluded judicial review of emergency proclamations, centralising power within the executive. Subsequently, the judiciary lost its jurisdiction to entertain election petitions, thus shielding Mrs. Gandhi's vulnerable position in Rae Bareli. Moreover, the 41st amendment conferred absolute immunity from criminal liability upon the President, Prime Minister, and provincial governors.
The 39th Constitutional Amendment was promulgated with the explicit intention of overturning the judgment delivered by the Allahabad High Court, which had nullified Mrs. Indira Gandhi's election. This amendment stipulated that elections to either House of Parliament, involving a person in the capacity of Prime Minister at the time of the election or appointed subsequently, were beyond legal challenge, except through procedures established by parliamentary law. Essentially, it excluded such elections from judicial oversight, reversing the courts' previously held authority. This amendment not only sought to reverse the Allahabad High Court's verdict but also shielded the election of a single individual, Mrs. Indira Gandhi, from legal contestation. It is imperative to stress that this amendment was widely perceived as a flagrant abuse of legislative authority, straying from the tenets of parliamentary democracy and the rule of law.
The final amendment enacted during the Emergency period, the 42nd amendment, was a comprehensive legislative endeavor, spanning a formidable 20 pages. Its primary objective was to centralize political authority and virtually negate the possibility of judicial review. This amendment further buttressed the government's position, securing Mrs. Gandhi's tenuous grip on power.
Throughout this phase, the Indian Parliament, regrettably, failed to fulfill its constitutional duty as outlined in Section XVIII of the constitution, which mandated a rigorous examination of justifications for emergency powers.
In summation, Mrs. Gandhi's administration harnessed a succession of constitutional amendments, shepherded through a pliant Parliament, to stymie legal challenges to the state of emergency and consolidate her political authority. These amendments engendered fundamental alterations to the constitutional fabric, constraining democratic checks and balances. Above all, the 42nd amendment served as a linchpin in this process, effectively sidelining judicial oversight and solidifying executive supremacy.
The Maintenance of Internal Security Act
When a Proclamation of Emergency is in effect, the President is empowered under Article 359 of the Constitution to issue an order suspending the right to approach any court for the enforcement of civil liberties. The government further fortified its already formidable legal arsenal during the period of preventive detention. The Maintenance of Internal Security Act (MISA)[6], enacted in 1971, played a pivotal role during the Emergency period as a tool for the government to detain and incarcerate dissenters. MISA endowed law enforcement agencies with sweeping powers, including indefinite preventive detention, authority for searches and seizures without the need for warrants, surveillance, and wiretapping.
It is noteworthy that the government did not employ the full extent of its machinery during the Emergency; military intervention was conspicuously absent. Article 358[7] of the Indian Constitution suspended the fundamental rights of citizens, notably the "right to freedom of speech and expression," the "right to form associations or unions," and the "right to assemble peacefully without arms," all guaranteed by Article 19[8]. The 42nd Constitutional amendment broadly defined 'anti-national activities' or 'anti-social associations' to encompass any 'anti-governmental movement.'
MISA granted the government of Prime Minister Indira Gandhi and Indian law enforcement agencies extraordinary powers. These powers included indefinite "preventive" detention of individuals, the authority to conduct searches and seize property without warrants, and the ability to engage in wiretapping. These powers were primarily aimed at managing civil and political unrest in India and countering foreign-inspired threats to public security. It should be noted that external aggression was not the sole basis for the applicability of this Act; it was also intended to address internal disturbances.[9]
MISA disregarded established legal and constitutional safeguards of civil liberties. If authorities were 'satisfied' that the Act was necessary to 'effectively deal with the emergency,' the detained individual could be held for a period of one year.
Under MISA, individuals arrested under Article 16(A)[10] (or otherwise) were deprived not only of their fundamental legal protections but also notably of their right to appeal against the decision. The concept of preventive detentions became highly discretionary, granting administrative authorities the power to arrest individuals at will for extended periods. The extensive seizures and detentions carried out by the government following the declaration of the internal emergency on June 25th, 1975, led to a multitude of writ petitions being filed with the High Courts of India.[11] Several High Courts ruled, following the principles established in the Makhan Singh[12] case, that they had jurisdiction under Article 226[13] to issue writs of habeas corpus in cases where detention orders were ultra vires or mala fide.
In the case of M.M. Damnoo v. State of Jammu and Kashmir[14], the court ruled that when someone is detained under preventive detention laws, it's necessary for the State Government to provide the grounds for detention. This allows the court to ensure that the detention is relevant to the security of the State. The judgment also emphasized that any law preventing the disclosure of these grounds or hindering the court from reviewing them would violate Article 226 of the Indian Constitution.
The ADM Jabalpur Case
In the midst of the 1976 Emergency, the Supreme Court delivered a stunning judgment in the habeas corpus case known as ADM Jabalpur[15], which left the nation astounded. a significant legal debate unfolded regarding the locus of citizens to approach High Courts under Article 226 of the Constitution for recourse through writ jurisdiction. Most High Courts upheld the view that even during the Emergency, citizens could avail themselves of this constitutional remedy. However, this stance was overturned by the Supreme Court in the infamous case, where a majority decision of 4:1 held otherwise.
The then Solicitor General of India, Niren De, centered his argument on the notion of 'freedom' as enshrined in Article 21[16] of the Constitution. His central contention was that since the right to seek remedy from any court had been suspended, the detainees had no legal standing, and their writ petitions were consequently deemed to be dismissed.[17]
The Supreme Court's decision in the ADM Jabalpur case has been widely acknowledged as one of the gravest errors in its history. Notably, the lone dissenting opinion of Justice Khanna assumes heightened significance when contrasted with the majority judgment, including that of the then Chief Justice. The government's intentions became evident when Justice Khanna posed a challenging question: "Does the Government's argument extend to the taking of life as well, given that 'life' is also mentioned in Article 21?" This query left no room for equivocation. Niren De, the Solicitor General of India, delivered an unequivocal response: "Even if life were taken away illegally, courts are helpless." This exchange underscored the profound gravity of the situation.[18]
The majority ruling in ADM Jabalpur relied on the wartime decision of the majority of the House of Lords in Liversidge vs. Anderson[19], while dismissing the dissenting opinion of Lord Atkins. Notably, Justice HR Khanna, the lone dissenter in the ADM Jabalpur case, faced consequences for his principled stance and was denied the post of Chief Justice of India. It is important to emphasize that the ADM Jabalpur decision has since been overruled by the Supreme Court in the KS Puttaswamy case.
The High Courts demonstrated remarkable courage during this period, consistently upholding the rights of detainees, whether related to their right to medical treatment, family visits, legal consultations, or even challenging the discretionary transfer of High Court judges. However, the Supreme Court's posture appeared subservient by comparison.
Supreme Court's Interpretation of Article 21
The Supreme Court made a pivotal observation regarding Article 21 of the Indian Constitution. It affirmed that Article 21 embodies the right to life and personal liberty, safeguarding citizens against their unlawful deprivation by the State. This constitutional provision is fundamental to the protection of individual freedoms and has a profound impact on the principles of justice and liberty within the Indian legal framework.[20]
A critical aspect addressed by the Supreme Court in ADM Jabalpur was the suspension of Article 21 during a state of Emergency under Article 359. It concluded that during such times, when Article 21 is explicitly suspended, the judiciary is precluded from scrutinizing or challenging the authority or legality of the State's decisions.[21] This interpretation significantly curtailed the role of the judiciary in upholding fundamental rights during Emergency periods.
Distinguishing Article 358 and Article 359
It is imperative to differentiate between Article 358[22] and Article 359[23] in this context. Article 358[24] assumes a more expansive role compared to Article 359[25], as it entails the suspension of fundamental rights in their entirety. In contrast, Article 359[26] does not entail the suspension of any specific rights. Notably, Article 359(1)[27] bestows unique powers and status upon the Executive during an Emergency. However, crucially, these powers do not erode the fundamental principles of the separation of powers, a bedrock of the Indian democratic system. This separation of powers establishes checks and balances while circumscribing Executive authority. Therefore, it is paramount to refrain from characterizing this suspension as an inherent "power" of the Executive or a right vested therein. It is crucial to maintain a strict adherence to legal boundaries, as any departure could facilitate the enactment of legislation contravening fundamental rights. Consequently, such suspension should not be perceived as a unilateral augmentation of the State's authority under Article 162[28]. It is noteworthy that the State's power of arrest is contingent upon whether the alleged act aligns with Section 3[29] of the Act and whether all prescribed conditions are met. If any conditions remain unfulfilled, detention falls outside the purview of the State's authority.
Impact on the Balance of Power
One of the key concerns arising from the suspension of fundamental rights during an Emergency is its potential to alter the delicate balance of power between the State and its citizens. The nexus between the State and the Executive branch can become problematic when rights are suspended, as it might empower the legislature to enact laws that infringe upon fundamental rights. The ADM Jabalpur judgment raised questions about whether this suspension merely represents a "power" of the Executive or a right of the Executive.
The authority to appoint judges to High Courts and the Supreme Court of India primarily rested with the higher echelons of power, often revered as the 'architects of the constitution.' The executive branch adeptly exploited this mechanism, promoting certain judges to the position of Chief Justice, often overlooking more senior judges who possessed greater competence and suitability for the role. A glaring instance of this occurred when Justice Beg was appointed Chief Justice of India over Justice H.R. Khanna, despite the latter's renowned dissenting opinion in the 4:1 judgment, even though Justice Khanna was senior to Justice Beg.
There were instances when it became apparent, and at times quite overt, that the executive was exerting influence over the decisions of the Supreme Court. These episodes placed immense pressure on the judiciary. What was striking in these instances was the court's inability to take action against the government due to a lack of effective mechanisms for enforcing its orders, particularly when the administration had control over the police force. Justices Khanna, Beg, Chandrachud, and Bhagwati displayed remarkable courage within the courtroom but faced repercussions for their independent stances in the habeas corpus case.[30]
Post Emergency Analysis
The period following the Emergency, India witnessed significant shifts in the interpretation and application of constitutional provisions, particularly those related to fundamental rights and the suspension of these rights during emergencies. One of the key legal developments during this time was the Supreme Court's decision in Maneka Gandhi v. Union of India[31], which fundamentally altered the understanding of Article 21 of the Indian Constitution.
In the Maneka Gandhi[32] case, the Supreme Court established a critical link between Articles 14[33], 19[34], and 21[35] of the Constitution. This linkage had been previously denied in the A.K. Gopalan[36] case, particularly in relation to Articles 19 and 21. The Court emphasized that these articles are not separate or exclusive of each other; rather, they are interrelated and mutually reinforcing. This shift in perspective marked a departure from earlier jurisprudence and laid the foundation for a more holistic approach to the protection of fundamental rights.
Following these legal developments, it became clear that the enforcement of Article 20[37] (protection in respect of conviction for offenses) and Article 21[38] (protection of life and personal liberty) could not be suspended in any situation. The Court affirmed that Article 21[39] bound not only the executive but also the legislature. This clarification corrected the earlier perception that the suspension of Article 21[40] relieved the legislature of its constraints while the executive still needed lawful authority for depriving an individual of their life and liberty.
The judgment in Maneka Gandhi also addressed the nature and purpose of Presidential orders issued under Article 359 of the Constitution. It was argued that the primary objective of such orders was to eliminate legal obstacles and facilitate the enactment of laws that might infringe upon fundamental rights. However, the Court clarified that while Article 21 could be suspended during an emergency, the suspension did not automatically entail the suspension of the rule of law. The government remained obligated to act within the confines of the law.
Building on the principles established in the ADM Jabalpur case, the Supreme Court in Union of India v. Bhanudas Krishna Gawde[41] went further by asserting that Presidential orders issued under Article 359 were not subject to limitations or conditions. These orders imposed a blanket ban on judicial inquiries into the validity of any order depriving an individual of their liberty, regardless of its origin or the conditions of detention. However, it is important to note that the majority view in the Shivkant Shukla case was later invalidated by the 44th Amendment to the Constitution and subsequent judicial interpretations. As a result, it is no longer considered valid law.
The 44th Amendment to the Indian Constitution marked a significant turning point in the country's legal and constitutional history, particularly in response to the events of the Emergency period. This amendment introduced crucial changes to prevent future misuse of constitutional provisions, strengthen individual rights, and enhance the system of checks and balances within the government.
One of the most prominent changes brought about by the 44th Amendment was the replacement of the term "internal disturbance" with "armed rebellion" in the provisions governing the proclamation of Emergency. This amendment made it more stringent to declare an Emergency, as it required a situation of armed rebellion rather than a mere internal disturbance. The intention behind this change was to prevent the misuse of emergency powers by future governments and to ensure that extraordinary measures would only be invoked in genuinely dire circumstances.
The 44th Amendment Act effectively nullified the majority view in the ADM Jabalpur case, which had upheld the suspension of fundamental rights during the Emergency. The subsequent judicial interpretations and judgments, including those related to the 44th Amendment, rendered the majority view of the ADM Jabalpur case obsolete and unenforceable. It is now widely recognized that Articles 20 and 21 cannot be suspended in any condition.
The 44th Amendment Act also redefined the process for declaring an Emergency. It stipulated that the President could no longer declare an Emergency solely on the advice of the Prime Minister. Instead, the President was required to act on the written advice of the Cabinet. While the President could ask the Cabinet to reconsider its decision once, thereafter, the President was bound to act in accordance with ministerial advice. This change aimed to ensure that such a significant decision would involve collective deliberation and not be based solely on the Prime Minister's counsel. Additionally, the Parliament was empowered to check the validity of an Emergency and had the authority to revoke it at any time. This shift in power distribution was intended to prevent unilateral decisions and enhance parliamentary oversight.
The lessons drawn from the traumatic experience of the 1975 Emergency were enshrined in the Constitution through the 44th Constitutional Amendment Act. It served as a safeguard against the arbitrary use of emergency powers and the infringement of fundamental rights, particularly the Right to Life and Personal Liberty (Article 21). The amendment also reflected the importance of media and public opinion as instruments for holding the government accountable. The 44th Amendment was aimed to restore the trust and faith of the public in the democratic institutions of the country.
Contemporary Position
The Proclamation of Emergency in 1975, accompanied by the arbitrary exercise of state power and the erosion of personal liberties, stands as one of the most egregious judicial missteps in India's history. The Supreme Court's verdict in the ADM Jabalpur case, which upheld the suspension of fundamental rights during the Emergency, continues to be viewed as a grave error by jurists and legal experts. In hindsight, several judges involved in the ADM Jabalpur case have expressed profound remorse for the monumental errors committed. Justice Bhagwati, for instance, publicly admitted in 2011, "I was wrong. The majority judgment was not the correct judgment." He further revealed that he initially dissented from the majority view but was eventually swayed by persuasion. Such candid admissions by judges underscore the gravity of the situation at the time and the enduring impact it had on India's legal and constitutional landscape.
The judgment's dire implications prompted the Supreme Court to subsequently expound upon the interpretation of Article 21 and introduce the concept of Public Interest Litigation (PIL). These developments were an attempt to regain public trust and legitimacy after the Court faced intense criticism for the damaging consequences of its earlier ruling. The initial erroneous interpretation of the law resulted in the wanton infringement of fundamental rights, driven by the whims and fancies of a political figure intent on fulfilling her agenda.
Overruling in the KS Puttaswamy Case
Despite widespread acknowledgment of the judgment's mistake, both within the legal fraternity and among the apex court's own ranks, it had not been formally overruled for a long time. This glaring oversight has been noted by legal scholars and a bench comprising Justice Ashok Ganguly and Justice Aftab Alam.[42]
However, it is crucial to acknowledge that this historical judgment was eventually overruled in a landmark case that centered on the right to privacy, the KS Puttaswamy[43] case. Justice D.Y. Chandrachud, while delivering the verdict, made a resounding declaration by overturning his father's decision and the judgment of the ADM Jabalpur case. He eloquently expressed that certain judicial decisions ought to be consigned to the annals of history, reflective of what should never have been. Justice Chandrachud underscored that the right to life and liberty is intrinsic and predates the constitution itself, rendering it immune to suspension or waiver under any provision.
The Relevance of Dicey's Rule of Law
In the present context, the principles of Dicey's Rule of Law[44], as elucidated by Justice Khanna, carry even greater weight than they did in 1976. The need for a clear, formal overruling of the ADM Jabalpur judgment is apparent to expound upon the theoretical underpinnings of the Rule of Law and its applicability in the Indian justice system. Moreover, it is imperative to introduce additional provisions that safeguard against the potential misuse of constitutional provisions to further personal or political agendas. These provisions should act as a bulwark against any attempts to overshadow the rights of justice and equity for all citizens.
In conclusion, the ADM Jabalpur case remains a stark reminder of the critical importance of upholding justice, liberty, and fairness. While the verdict in this case has been recognized as a grave error and overruled in subsequent jurisprudence, it is imperative to formally overturn it to rectify this historical lapse and reaffirm the fundamental values of democracy and the Rule of Law in India.
The author of this article is Pratham Gupta, a third-year BBALB student at Jindal Global Law School, Sonipat.
[1] 1975 AIR 865, 1975 SCR (3) 333
[2] A.D.M. 1975-77 and A.D.M. 1975-77, A.D.M. Jabalpur Vs. Shukla And The Emergency Of 1975-77 (India Opines, 2017)
[3] Saxena N, ‘45 Years since the Emergency: The Effects on the Socio-Political Scenario in India’ (Bar and Bench - Indian Legal news) <https://www.barandbench.com/columns/45-years-since-the-emergency-few-highlights> accessed 1 October 2023
[4] The Constitution of India 1950 (TCI 1950) s 352.
[5] TCI 1950, s 359.
[6] The Maintenance of Internal Security Act 1971 (MISA 1971)
[7] TCI 1950, s 358.
[8] TCI 1950, s 19.
[9] Hardgrave RL and Kochanek SA, India: Government and Politics in a Developing Nation (Thomson/Wadsworth 2008)
[10] MISA 1971.
[11] Zins MJ, Strains on Indian Democracy: Reflections on India’s Political and Institutional Crisis (ABC publ House 1988)
[12] Makkhan Singh v. State of Punjab 1964 AIR 381, 1964 SCR (4) 797
[13] TCI 1950, s 226.
[14] 1972 AIR 963, 1972 SCR (2) 1014
[15] ADM Jabalpur (n 1).
[16] TCI 1950, s 21.
[17] Jos. Peter D ‘Souza, When the Supreme Court Struck Down the Habeas Corpus (PUCL Bulletin June 2011).
[18] ADM Jabalpur (n 1).
[19] Liversidge v Anderson [1942] AC 206
[20] ADM Jabalpur (n 1).
[21] ibid.
[22] TCI 1950, s 358.
[23] TCI 1950, s 359.
[24] TCI 1950, s 358.
[25] TCI 1950, s 359.
[26] ibid.
[27] ibid.
[28] TCI 1950, s 162.
[29] MISA 1971.
[30] Standard B, ‘Verdict “violated” Fundamental Rights during Emergency: SC’ (Business Standard, 2 January 2011) <https://www.business-standard.com/article/economy-policy/verdict-violated-fundamental-rights-during-emergency-sc-111010300071_1.html> accessed 2 October 2023
[31] 1978 AIR 597, 1978 SCR (2) 621
[32] ibid.
[33] TCI 1950, s 14.
[34] TCI 1950, s 19.
[35] TCI 1950, s 21.
[36] A.K. Gopalan v. State of Madras 1950 AIR 27, 1950 SCR 88
[37] TCI 1950, s 20.
[38] TCI 1950, s 21.
[39] ibid.
[40] Ibid.
[41] 1977 AIR 1027, 1977 SCR (2) 719
[42] Standard B, ‘Verdict “violated” Fundamental Rights during Emergency: SC’ (Business Standard, 2 January 2011) <https://www.business-standard.com/article/economy-policy/verdict-violated-fundamental-rights-during-emergency-sc-111010300071_1.html> accessed 2 October 2023
[43] K.S. Puttaswamy and Anr. vs. Union of India (2017) 10 SCC 1
[44] A.V. Dicey, Introduction to the study of Law and Constitution (Macmillian & Co., London, 1885)
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