Safeguarding liberty: Lessons from the Emergency

Hindustan Times

30-06-2025

On June 25, 1975, the then President of India, Fakhruddin Ali Ahmed, issued a proclamation in exercise of powers under Article 352(1) of the Constitution of India, declaring an Emergency on the ground of internal disturbances. A letter has been displayed in the Pradhanmantri Sangrahalaya in New Delhi, addressed by the then Prime Minister, Indira Gandhi, to the President on June 25, 1975, making an earnest request to him to issue a proclamation under Article 352(1) of the Constitution on the same day. It records that there is 'an imminent danger to the security of India being threatened by internal disturbance.' A draft of the proclamation was forwarded along with the letter with a request that 'such a proclamation should be issued tonight'. The letter records the assurance of the Prime Minister to the President that 'I shall mention the matter to the Cabinet first thing tomorrow morning.' The Prime Minister stated in the letter that she was 'condoning or permitting a departure from the Government of India (Transaction of Business) Rules, 1961.' Accordingly, the then President issued the Proclamation that very night. The letter indicates that when the Emergency proclamation was issued, there was no cabinet recommendation for declaring the Emergency. Article 74(1) of the Constitution, as it stood before January 3, 1977, provided that the President should act in accordance with the advice of the Council of Ministers headed by the Prime Minister, and not the Prime Minister alone. Despite a slew of restrictions during the Emergency, acts of protest, though limited, emerged. (HT ARCHIVE)
On July 22, 1975, a bill to amend the Constitution was introduced and was passed by Parliament. The bill became the Constitution (38th Amendment) Act, 1975. This amendment was a drastic one, as it barred judicial review of the proclamation of an Emergency by incorporating clause (5) into Article 352.
The inclusion of clause (5) was a significant departure from the original constitutional provisions, as it effectively prevented the judiciary from reviewing the validity of the Emergency. Fortunately, clause (5) was deleted by the 44th amendment with effect from 20th June 1977, restoring the power of judicial review and reaffirming the principle of constitutional checks and balances.
When the Emergency was declared, I had just completed my school education and had joined a junior college. If I recall correctly, due to the disconnection of the supply of electricity on the night of June 25, 1975, some of the leading newspapers in Delhi could not be published on June 26 in the morning. Some newspapers published evening editions on June 26, 1975. I still remember that on June 27,1975, newspapers carried headlines that prominent leaders Jay Prakash Narayan, Morarji Desai, Atal Bihari Vajpayee, Chandra Shekhar, Ashok Mehta, Lal Krishna Advani and several other leaders as well as activists were put behind bars by the government by exercising the power of preventive detention under the Maintenance of Internal Security Act,1971 (the MISA). In addition to the arrest of the leaders, strict press censorship was imposed. An atmosphere of terror was created due to these events.
However, notwithstanding the police raj during the emergency, there were people who protested. I remember that immediately on the proclamation of Emergency, one of the leading national newspapers adopted a novel way of symbolic protest by keeping the editorial column blank. Some activists began an underground movement to protest against the Emergency. Due to censorship, the citizens were deprived of knowing what was happening in our country. Some activists started distributing handbills containing the uncensored news. There were some protests in the form of satyagrahas. As the Constitution was subverted by introducing drastic amendments beginning with the 38th Amendment, a situation was created by the rulers that ensured there were no large-scale protests.
The proclamation led to serious consequences. Immediately after the declaration of Emergency, many states imposed pre-censorship by exercising the powers under the Defence and Internal Security of India Rules, 1971. Clause (1) of Article 359 of the Constitution, as it stood then, conferred power on the President to declare that right to move any court for the enforcement of the fundamental rights conferred by Part III of the Constitution and proceedings pending in any court for enforcement of the rights so mentioned, shall remain suspended for the period within which the proclamation of Emergency is in force.
An order was made by the Hon'ble President on June 27, 1975, in exercise of the said power, declaring that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution shall remain suspended. Even pending proceedings in any court for the enforcement of the abovementioned fundamental rights were suspended. After about five months from the proclamation of Emergency, it was realised that a citizen could move any court for the enforcement of the rights conferred by Article 19 of the Constitution. Therefore, on January 8, 1976, the President again exercised the power under Clause (1) of Article 359 of the Constitution and declared that the right of any person to move any court for the enforcement of the fundamental rights conferred by Article 19 and all pending proceedings in any court for enforcement thereof, shall remain suspended during the proclamation of Emergency.
Writ petitions seeking writ of habeas corpus under Article 226 of the Constitution were filed in various high courts by the political leaders who were detained under the MISA. The defence taken by the government was that in view of the Presidential Order dated June 27, 1975, the right of any person to move any court for the enforcement of fundamental rights conferred by Article 14, 21 and 22 was suspended, and therefore, the habeas corpus petitions were not maintainable. There were high courts that were bold enough to take the view that, notwithstanding the Presidential Order, petitions seeking a writ of habeas corpus were maintainable. These high courts were of Allahabad, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab and Rajasthan. Some other high courts took a contrary view and held that writ petitions seeking writ of Habeas Corpus were not maintainable.
By a judgment of the Supreme Court pronounced on April 28, 1976, in the case of Additional District Magistrate, Jabalpur v. Shivakant Shukla, which showed the judiciary in poor light, the majority held that no person had locus standi to move any writ petition under Article 226 before high court for writ of Habeas Corpus or any other writ or order or direction to enforce the right of personal liberty of a person detained under MISA on the ground that the detention or the continued detention is for any reason not under or in compliance with MISA or is otherwise illegal or mala fide. As a result, a large number of detainees who were illegally detained were deprived of their remedies under the Constitution. There was a famous dissent in the said case by justice HR Khanna, who held that Article 21 cannot be considered the sole repository of the right to life and personal liberty. He held that notwithstanding the Presidential Order of June 27, 1975, maintainability of the habeas corpus petitions to question the legality of the preventive detention orders was not affected. Justice HR Khanna had to pay a considerable price for the dissent. He was superseded, and a judge junior to him was appointed as the Chief Justice of India. This led to justice Khanna's resignation.
This decision considerably damaged the reputation of the Supreme Court. It lost an excellent opportunity to give a clear and loud signal to the rulers that it will always uphold liberty at any cost. Unfortunately, the majority decision continued to hold the field for more than 40 years till it was overturned on 24th August 2017 in KS Puttaswamy's case by a larger bench.
Apart from justice H.R.Khanna, some great judges fearlessly upheld the rights of individuals before and after the decision of the Supreme Court in the ADM Jabalpur v. Shivakant Shukla. A significant judgment of the Bombay high court was before the verdict in ADM, Jabalpur v. Shivakant Shukla. It was by justice Vimal Dalal, who was heading a bench of the Bombay high court in the case of Bhanudas Krishna Gawde v. KG Paranjpe. This case arose out of a petition for habeas corpus filed by a detenu who was preventively detained under MISA. A very strong objection was raised based on the presidential declaration dated June 27, 1975, under Clause (1) of Article 359. Before justice Vimal Dalal, the counsel for the detainee stated that certain grounds based on violations of Articles 14 and 21 of the Constitution were waived. Still, the respondent raised an objection that the proceedings of the writ petition, based on the violation of fundamental rights guaranteed by Articles 14 and 21, which were pending on June 27, 1975, stood suspended and cannot be revived by such concessions made by the counsel for the petitioners. Justice Vimal Dalal held that this argument was of no substance. Interestingly, he observed that 'what is suspended is not dead'. Then came an argument on behalf of the State that the petitioner does not have any legal right which he could enforce by writ in the nature of Mandamus, other than the right of personal liberty under Article 21 of the Constitution.
Shockingly, the state government also argued that if the conditions of the detention order contained a clause stating that detainees were not allowed to eat any food, it still could not be challenged before the court by way of a petition under Article 226, so long as the Presidential Order dated June 27, 1975 was operational. The proclamation of Emergency emboldened the state counsel to make this shocking submission. Justice Vimal Dalal rejected the argument by holding that 'It is beyond doubt that by a writ of Mandamus the court can not only compel the performance of a statutory duty, but can also compel public authorities to forbear from acting in violation or breach of a statute……..'
Justice Vimal Dalal did not stop there, and he declared that if a detainee's liberty has been restricted in contravention of or in derogation from the law under which they were detained, the high court can issue an appropriate writ under Article 226 of the Constitution of India.
Another bold decision came on October 9, 1975, by justice C.S. Dharmadhikari of the Bombay high court; while heading a division bench, he decided a case of Krishna Madaorao Ghatate and Anr. v. The Union of India and others. This was again a petition for habeas corpus to challenge the order of preventive detention under MISA. After referring to the Presidential Order of June 27, 1975, justice Dharmadhikari held that an inference cannot be drawn that a person is not entitled to approach the high court under Article 226 of the Constitution for writ of habeas corpus. Justice Dharmadhikari proceeded to hold that 'even during the period of Emergency, absolute immunity cannot be claimed from the process of the court if the order is not supported by any valid legislation or a legal sanction…'
Even post the decision of ADM, Jabalpur v. Shivakant Shukla, a very important decision was pronounced by the Bombay high court on December 7, 1976 in the case of Shridhar Mahadeo Joshi v. The State of Maharashtra by justice V.D. Tulzapurkar. The petition was filed by the managing trustee of a very famous Marathi weekly, Sadhana. It was late Pandurang Sadashiv Sane, affectionately known as Sane Guruji, a freedom fighter, socialist activist, and a staunch follower of Mahatma Gandhi, who founded the Marathi weekly Sadhana.
He had always championed the cause of personal liberty. Even during the Emergency, certain articles were published in the weekly criticising the proclamation of Emergency. As a result, eight different orders were passed by the State of Maharashtra under Rule 47 of the Defence and Internal Security of India Rules, 1971. Under the said orders, issues of the weekly were proscribed and forfeited to the government on the ground that they contained prejudicial reports. Writ petitions were filed under Article 226 of the Constitution of India for quashing the penalty of proscription and forfeiture of 11 issues of the weekly. The bench, headed by justice Tulzapurkar, dealt with the Presidential Order dated January 8, 1976, which declared that the right of any person to move any court for the enforcement of rights conferred by Article 19 would remain suspended. The state made an argument that the fundamental right of freedom of speech and expression under Article 19(1)(a) was suspended and therefore, the petition was not maintainable. Justice Tulzapurkar referred to the majority opinion delivered by justice A.N.Ray in ADM, Jabalpur v. Shivakant Shukla, and held that criminal prosecution has been regarded as falling outside the purview of the Presidential Order of January 8, 1976. Ultimately, he held that, 'In our view, the petitions for challenging the levy of penalties by way of proscription and forfeiture of publications or by way of demand and forfeiture or security deposit or by way of closure of the press whereat such publications have been printed, would stand on the same footing as defending a criminal prosecution and cannot be regarded as any attempt at enforcement of fundamental right of freedom of speech and expression.'
Justice Tulzapurkar entertained the writ petitions under Article 226 of the Constitution and proceeded to set aside the impugned orders of proscription and forfeiture of the weekly magazine. By judicial craftsmanship, although remedies to enforce freedom of speech and expression were suspended, justice Tulzapurkar granted relief to the weekly, which was critical of the internal Emergency.
Fifty years after the internal Emergency of 1975, we must salute those fearless judges. We will always fondly remember justice H.R. Khanna, who fearlessly upheld the rights of the citizens during the dark days of the Emergency. When he did that, he fully knew that he was writing a dissenting opinion at the cost of inviting his supersession. These judges were true heroes.
After the 44th Amendment to the Constitution, an emergency cannot be declared on the grounds of 'internal emergency'. But that does not mean that there is no threat to the ideals and institutions under the Constitution. The Emergency taught us tough lessons. These lessons emphasised the importance of freedom of speech and expression, the necessity of a robust and independent judiciary, and the risks associated with unchecked executive power. Eventually, the citizens taught a lesson to the leaders in power who were responsible for declaring the emergency. After the Emergency proclamation was withdrawn, various political parties with differing ideologies came together to form the Janata Party. In the elections held in the first half of 1977, the voters ensured that the ruling party was defeated. This was the first defeat of the party in power, thirty years after India became independent. This part of the history serves as a glaring example of the power of the people in a democracy and their ability to effect change.
Dr. Ambedkar had warned the citizens of India in his last speech on November 25, 1949 before the Constituent Assembly that the success or failure of our Constitution depends on them. He placed a burden on the citizens to protect the Constitution, the institutions established by it, and the ideals enshrined in it. Dr. Ambedkar stated with great emphasis that bhakti, or hero worship, is a sure way to degradation and eventual dictatorship. Unfortunately, we, the people of India, have been ignoring this warning given by the father of the Constitution.
The Emergency of 1975 showed how the Constitution itself could be misused to curtail fundamental rights. As we reflect on this darkest chapter in the history of independent India, we must protect, at any cost, the fundamental rights guaranteed under the Constitution, the institutions created by the Constitution, and the ideals enshrined in our Constitution. There is always a tendency on the part of every party in power and the executive to attempt to curtail the fundamental rights guaranteed under the Constitution, which include the freedom of speech and expression, as well as the right to liberty under Article 21. This can be done even without the proclamation of an Emergency. Apart from the duty of citizens to protect the Constitution, the judicial fraternity, comprising judges and lawyers, bears a greater responsibility to safeguard the freedoms enshrined in the Constitution and its ideals.
(Justice Abhay S Oka is a former judge of the Supreme Court. The views expressed are personal)