Safeguarding liberty: Lessons from the Emergency

As India commemorates 50 years since the declaration of the Emergency, it is crucial to delve deeper into this dark chapter of the nation's history.

- Abhay S Oka

On June 25, 1975, then President Fakhruddin Ali Ahmed, acting on the urgent request of Prime Minister Indira Gandhi, issued a proclamation under Article 352(1) of the Constitution, citing internal disturbances as the threat to India's security. The letter is on display in the Pradhanmantri Sangrahalaya in New Delhi.

This unilateral decision, made without prior cabinet recommendation and based on an assurance given by then PM, highlighted a significant departure from established constitutional norms, particularly Article 74(1), which mandated the President act on the advice of the Council of Ministers. The letter from the PM to the President on June 25, 1975, explicitly records her "condoning or permitting a departure from the Government of India (Transaction of Business) Rules, 1961," a clear indication that the Emergency was declared without cabinet consultation. This immediate action on the very night of the request raises serious questions over regard for constitutional propriety.

The swiftness of the proclamation was followed by drastic legislative changes. The Constitution (38th Amendment) Act, 1975, introduced clause (5) into Article 352, effectively barring judicial review of Emergency proclamations. This move aimed to insulate the government's actions from judicial scrutiny, fundamentally undermining the principle of checks and balances. The inclusion of clause (5) was a significant departure from the original constitutional provisions, designed to prevent the judiciary from reviewing the validity of the Emergency. Fortunately, the 44th Amendment, effective June 20, 1977, later rectified this, deleting clause (5) and unequivocally restoring the judiciary's power of review, thereby reaffirming the principle of constitutional checks and balances.

Fear and Suppression