A book on a dark chapter

EMERGENCY, CONSTITUTION AND DEMOCRACY — An Indian Experience: N. M. Ghatate; Shipra Publications, LG 18-19, Pankaj Central Market, Patparganj, I.P. Extension, Delhi-110092. Rs. 700.   | Photo Credit: Scanned in Chennai R.K.Sridharan

The one good thing about excess is that it is not easily repeated. The infamous internal Emergency of 1975-77 demonstrated to the country how far the Emergency provisions in the Constitution could be abused for political ends and personal aggrandisement. Besides, it also proved politically costly to the Congress in the subsequent general election and remains a blot on its long history. It will take either extraordinary gumption or extreme perversity for any leader to proclaim internal Emergency again in India.

India was placed under Emergency thrice in the first three decades of independence, the first two instances in the wake of war or external aggression, but it was the third that cited “internal disturbance” as the reason. Even though draconian laws allowing preventive detention were also previously available and misused, it was the internal Emergency that brought out the enormous potential for constitutional dictatorship in the system, leading historians to conclude that this was the darkest period in the history of Indian democracy. The 1975 Emergency was accompanied not merely by the suspension of fundamental rights and resort to preventive arrests, but by brazen legislative adventurism — key provisions of the Constitution were rewritten to curtail constitutional freedoms and extend the tenure of the Lok Sabha by a year — and it took a massive electoral defeat for its proponents to realise the enormity of their actions.

Types of Emergency

This book scrutinises the nature of the constitutional power that enables the executive to declare a state of national emergency. It gives a detailed account of the Emergency provisions in the Constitution and other features that permit arbitrary use of discretionary powers. It also touches on legislations that arm the executive with sweeping powers of detention without trial. For those interested in history, the account begins with the Emergency provisions contained in the Government of India Act, 1935, under which the Governor-General could issue a proclamation of emergency, but it had to be approved by both Houses of British Parliament. The India Independence Act of 1947 removed the Governor-General's power to declare Emergency, but the framers of the Constitution incorporated Emergency provisions to safeguard the country's existence and to prevent democracy itself from being destroyed.

The Constitution envisages three types of emergency — one under Article 352 if the security of the country, or if any part of its territory, is threatened by war or external aggression or internal disturbance, secondly under Article 356, which may be invoked against a State government if there is a breakdown of constitutional machinery and, thirdly, under Article 360, which deals with ‘financial emergency'. However, financial emergency is a contingency that has never arisen since the inception of the Constitution, and the author suggests that the Article be deleted. Article 356, abused liberally in the first four decades of the working of the Constitution, has been effectively de-fanged, thanks to the landmark Supreme Court verdict in the Bommai case that has laid down that the imposition of President's rule should not be concurrently accompanied by dissolution of the Assembly. The book, however, desists from discussing Article 356 so that it can focus more on the core Emergency provisions.

A curious fact

Authored by a lawyer who appeared for leaders jailed during the Emergency, the book, naturally, has an exhaustive analysis of major cases that arose from the use of preventive detention. In particular, the narrative about the constitutional challenge to the proclamation of Emergency, and the arguments for and against it, make for interesting reading. The book is useful in refreshing one's memory about the circumstances leading to the declaration of internal Emergency. A curious fact is that the Emergency declared in the wake of the Bangladesh liberation war of 1971 was still in operation in 1975 when a fresh proclamation was issued on the ground of internal disturbance. And this was done first and the Cabinet met only the next day, June 26, to approve it. The proclamation itself could have been declared unconstitutional for want of advice from the Council of Ministers, but it was saved only because the Constitution bars courts from going into the question whether any, and if so what, advice was given to the President by the Cabinet.

The book is mainly of academic interest and in the absence of any trend that indicates that governments are inclined towards invoking the Emergency provisions it may not attract the general reader today. It also contains many avoidable errors of spelling and punctuation that prevent easy reading. In particular, a power deemed ‘justiciable' by the courts becomes ‘justifiable' in the book with alarming consistency.

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Printable version | Sep 24, 2021 4:21:37 AM |

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