Disclaimer:  The views, opinions, and findings expressed in this article are those of the author and do not necessarily reflect the position or policy of the Editorial Board or Management of JLTP or the Governing Body of Young Lawyers Forum.

1. Introduction

On the night of June 25, 1975, just before the clock struck 12, President Fakhruddin Ali Ahmed signed a Presidential Order declaring a state of internal disturbance and on the advice of the Prime Minister, an Emergency was imposed. This move is to date widely debated and considered to be one of the darkest phases of Indian democracy. Indira Gandhi, the infamous woman behind the Emergency, remains a controversial figure. Many deem her to be a dictator for the plethora of constitutional amendments, policies and steps taken against the judgments given by the judiciary. Indira vs the Judiciary was an endless saga and Mrs Gandhi was not the one to budge.

The Indian National Congress, one of the oldest parties in India, was instrumental in the freedom struggle. Post-independence, it was the only party that was in power consistently, for many years. Indira Gandhi was born on November 19, 1917, in Allahabad, India, into the Nehru family. Her father, Jawaharlal Nehru, was a prominent Indian politician who later became the first Prime Minister of India. Indira Gandhi's political career began in the 1950s when she served as a member of the Congress Party. She was appointed as the Minister of Information and Broadcasting in the government of her father, Jawaharlal Nehru. She later served as the Minister of Finance in the government of Lal Bahadur Shastri.

After the sudden death of Lal Bahadur Shastri in 1966, Indira Gandhi was elected as the Prime Minister of India. During her tenure, she implemented many social and economic reforms, including nationalizing banks and abolishing the privileges of the princes. She also introduced policies to improve the lives of India's poor and marginalised communities.

Indira Gandhi's tenure as Prime Minister was marked by several controversies, including the declaration of a state of emergency in 1975, during which civil liberties were suspended and political opponents were arrested. She was also criticized for her way of handling the Khalistani movement, which sought to create a separate Sikh state in Punjab. Mrs Gandhi remains a controversial figure in Indian politics, with some regarding her as a strong and decisive leader who modernized India. In contrast, others criticize her for her authoritarian tendencies and the excesses committed during the Emergency period.

Articles 352 to 360 are Emergency provisions designated in the Indian Constitution. According to the Merriam-Webster dictionary, an emergency is "an unforeseen combination of circumstances or the resulting state that calls for immediate action." It can also refer to a serious, often dangerous situation that requires immediate action to prevent harm, damage, or loss. An emergency can be a medical crisis, a natural disaster, a fire, an accident, or any other situation that poses an immediate threat to life, health, property, or the environment. Emergencies often require a prompt and coordinated response from individuals, organizations, or government agencies to mitigate the impact of the crisis and protect people and assets. Thus, anytime an Emergency has been declared in the country, it is considered grave and extremely serious.

Emergency in India has been imposed thrice. Amongst these, the 1975 emergency is considered to be the most controversial. The paper will analyse the Emergency provisions available in the Constitution of India, and the events leading to and occurring during the 1975 Emergency. The different consequences of the emergency and whether it was necessary to impose an Emergency or a political power move to quench the thirst for supremacy shall also be summed up in the paper.

2. Research Problem and Question

As stated above, the 1975 emergency poses many questions. What was the reason for the chain of events to occur? What are the criteria to impose an Emergency? Is “internal disturbance” which was mentioned in Article 352, vague, open to varied interpretations and means to exploit the provision? The nature of the emergency and the person behind the emergency, their vendetta, and personal and political interests come to the fore.

But one of the major questions that arises is whether the Emergency was necessary. The paper will devote a research objective especially to answer that question. Furthermore, other questions like Were there any positive impacts of the episode on the country? Or was the Emergency a black spot in Indian Democracy?  will also be discussed in the paper.

3.  Review of Literature

In his journal article, The Emergency in India: Background and Rationale[1] by V.P Dutt, published in Asian Survey, Vol. 16, No. 12 (Dec. 1976), Jaya Prakash Narayan’s role in being one of the huge contributors to rebel against Mrs Gandhi was explained. In this article, Dutt explains that India should be viewed not just within the parameters of being a democratic nation. But also from two other important parameters, namely, the constraints of a developing country and the imperatives of a diverse society. Indian Democracy should be viewed and should in itself view these parameters or constraints and develop within those, which can be the summary of his view. His article states how Jaya Prakash Narayan’s Bihar protests against the government, inflation and economic crisis were intended to paralyze the Centre. 

Dutt presents a one-sided case on behalf of the Centre. He states that the inciting speeches and plan-of-actions made by JP Narayan, which included a boycott of schools, colleges and examinations for a year, a social boycott of MLAs and the formation of parallel assemblies were extra-constitutional methods that could not be reconciled with the normal functioning of the democracy. He also mentions George Fernandes’ speech during the railway protests where he implied that the railwaymen could unseat the Central government and believed that the railway protests were organised to attack and paralyze the Centre, again. These protests were gaining momentum which culminated in contributing to the “internal disturbance” reason on grounds of which Indira Gandhi wanted an Emergency to be imposed. He concludes by stating that in his opinion the Emergency was imposed not to stifle intellectual dissent but rather to control the fascist forces within the country which were causing a threat to democracy due to violent protests. What Dutt forgets here is that protesting against the government is an important feature of Democracy. It is safe to say that the protests were violent. But is imposing an Emergency the only way to control such violence? Were there no options available to stifle the violent “fascist” forces? Furthermore, imposing an Emergency did not strengthen or preserve Democracy in any way, as stated by Dutt. Citizens’ fundamental rights were suspended and opposition leaders were arrested without notice. This is a clear travesty of Democracy.

In the journal article Whose Emergency — India's or Indira's[2] written by W. H. Morris-Jones and published in The World Today, Vol. 31, No. 11 (Nov. 1975), the experience of Mrs Gandhi as a politician was questioned and the consequences of isolating herself against any sort of dissent were criticised by him. He uses the phrase “politics is the art of the possible”, which means the politician does what he or she can, based on the resources, goals and interests available to him or her. He goes on to explain the events just hours after the Emergency was proclaimed. 676 people including opposition politicians were arrested. By 18th July, 6,229 people were arrested, as per Amnesty International Reports. Newspapers failed to be circulated for 2 days as the power supply was cut from newspaper offices in Delhi. No newspaper could report the Emergency Proclamation on 26th June. The background events leading to the Emergency, including the Allahabad High Court decision against Indira Gandhi, are explained in this article. Should the Prime Minister be synonymous with the country? This was the question many were faced with as Indira Gandhi equated her agendas in line with the country. And she did not shy away from portraying that she was the country and the country was her. As written in the article, Congress went ahead and sloganised the “India-Indira and Indira-India” sentiment.

In the journal article EMERGENCY PROVISIONS IN THE INDIAN CONSTITUTION: A STUDY IN COMPARATIVE ANALYSIS[3], written by B.C Das, published in The Indian Journal of Political Science, Vol. 38, No. 2 (Apr.-June '77), the need for Emergency provisions in the Constitution is explained. Due to the varied communal rivalry between many communities, the presence of disintegrating and separatist forces within the country, the Kashmir issue, threats from neighbours, accession problems of Hyderabad and Junagadh and the presence of feudal elements (Zamindars) and their rebellion at that time could be taken as motivations for Article 352.

4.  Research Gap

While much has been discussed about the 1975 Emergency, and the events during and leading up to the Emergency, a major question that needs to be asked is how relevant and necessary it was and what political implications it had for generations to come. This paper will try to answer this question.

5. Research Objectives

Ø  An analysis of the Emergency Provisions in the Indian Constitution.

Ø  A study of the events leading to and happening during the Emergency.

Ø  Whether the imposition of the Emergency was necessary or not.

6.  Research Methodology

Analysis of the secondary source of data. A compilation of various journals, research papers and articles on the subject. The study sample consists of data collected from newspaper articles and editorial columns dating back to the Emergency times as well as the present time, along with opinionated blogs. The paper will employ a Qualitative research methodology.

7.  An Analysis of the Emergency Provisions in the Indian Constitution

The Indian Constitution is often known as a “bag of borrowings” as there are many provisions that have been incorporated from other world constitutions. The Emergency Provisions in our constitution mentioned in Part XVIII and discussed between Articles 352 and 360 were borrowed from the Weimar Constitution of Germany.

The constituent assembly debates regarding the Emergency provisions are noteworthy. There were heated discussions regarding the provisions and the kind of implications or impact they might have. H.V Kamath accused the Drafting Committee of plagiarising the entire Emergency Powers Act, 1920 of the United Kingdom and called these provisions “dangerous”. T. Krishnamachari defended the provisions stating that the purpose of this provision is to make sure that “all our efforts and all these years spent in Constitution-making may not go in vain”. Pandit Kunzru brought to the Committee’s attention that no constitution in the world enables the Central Government to declare an Emergency even if there is a failure of Constitutional Machinery in the State. Since the provision was taken from the German Constitution, H.V. Kamath drew comparisons to the German situations that arose from the impugned provisions. He stated that Hitler made use of the provisions to set up a dictatorship in Germany.

The power structure within the Indian Constitution is a quasi-federal setup with three organs of the government (the legislature, executive and judiciary). Federalism is a system of governance where the powers of authority are equally divided between the state and central governments with each government having sufficient autonomy, and integrity and working in their spheres without one government infringing upon the authority of the other. India is considered to be a federal nation with a unitary bias by many eminent political scholars. The Emergency Provisions are one such characteristic unitary feature that digresses from the federal features of the Constitution. The President shall proclaim an Emergency only if it is communicated to him or her by writing by the Union Cabinet, thus giving no say to the states regarding this matter. The Constituent Assembly were of the opinion that conferring powers to declare emergency only to the President would make him or her too powerful and there could be dictatorial abuse of such powers. Many believed that elected representatives would be in a much better position to assess the threat and declare an emergency through the President. The President, however, can revoke the Emergency at any time without prior approval from the Parliament.

Presently, the President can declare three types of Emergencies namely, National, State and Financial Emergencies. According to B.R Ambedkar, the Financial Emergency has been inspired by the United States National Recovery Act, of 1933, to mitigate the consequences of the Great Depression. The Act was eventually repealed by the United States Supreme Court and hence, B.R Ambedkar wanted to include the provisions in the Constitution.

• Article 352 deals with the National Emergency

• Article 356 deals with State Emergency or Presidential Rule

• Article 360 deals with Financial Emergency

7.1  National Emergency

Article 352(1) of the Indian Constitution states that, if the President is satisfied a grave emergency exists whereby the security of India or any part of the territory of the country is threatened by war or external aggression or armed rebellion, the President may make a Proclamation of Emergency. In this provision, special attention must be given to the words “war”, “external aggression” and “armed rebellion”. The term “internal disturbance” was a part of this provision which was later substituted by the term “armed rebellion” by the 44th Amendment Act, 1978 during the Morarji Desai government. This was done because the term “internal disturbance” could mean a varied number of scenarios including a simple protest.

Other than in 1975, this provision has been invoked twice. Such an emergency was declared in 1962 by then President Dr Sarvepalli Radhakrishnan during the Indo-China War and later in 1971 by then President V.V. Giri during the Indo-Pakistan War. In both these cases, the Emergency was invoked on the grounds of the “war” term provided in this clause.

Article 352(3) states that the President can issue a Proclamation only if the Union Cabinet, including the Prime Minister, communicate to him or her in writing that such a Proclamation is required. Clause 4 states that every Proclamation needs to be laid down before the Parliament, where it needs to be approved by a special majority (total membership of the house and 2/3rd of the members present and voting), or else the Proclamation ceases to operate at the expiration of one month.

Clause (5) states that the Proclamation after approval is effective for 6 months from the date of passing of the Resolution by the Parliament. If the House of People or the Lok Sabha passes a Resolution disapproving the Proclamation, the President shall revoke it as per Article 352(7). The President can issue the Proclamation on different grounds even if a Proclamation is already in operation or has already been issued.

7.2 State Emergency

Article 356 states that if the President of India receives a report from the Governor of a State explaining the situation of the State Government and how the administration cannot be carried on according to Constitutional provisions, or the dire failure of constitutional machinery in the State, the President may proclaim Emergency and take over the state administration, enabling the Parliament to make laws for the State as per Article 355, i.e. “It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.”

The case of S.R. Bommai v. Union of India[4] was a landmark case wherein the federal structure of the country was reinforced and reiterated. S.R. Bommai was the Chief Minister of Karnataka under the Janata Dal government from 1988 to 1989. He was dismissed when the President’s rule was imposed by the Centre on the grounds of mass defections engineered by the opposition. P Venkatasubbaiah, the governor, even denied the Chief Minister to prove his majority in the Assembly. The Supreme Court held that Presidential rule is subjected to judicial review and the power of the President to dismiss a state government is not absolute.

7.3 Financial Emergency

Article 360 of the Indian Constitution allows the President to make a Proclamation of Emergency if he or she is satisfied that there is any financial stability or credit of India or any part thereof is threatened. A financial emergency has never been imposed in India. A financial emergency continues indefinitely until it is revoked. It gives the Parliament power to reduce salaries and allowances of government employees.

This Article even though has not been imposed might become imperative to have the provision in case of a Great Recession or Depression of the economy in the future that the Government might land up. Looking at the trends across the globe post the COVID-19 pandemic, the Russia-Ukraine War of 2022[5], the Sri Lankan economic crisis of 2022[6] and the Pakistani economic crisis of 2023[7], the aforementioned article seems like an option to avail in the future if such circumstances befall India.

7.4 Other provisions

Article 353 states that the Union, within the ambit of its executive powers, can provide directions to States. It also enables the Union to make laws about any matter, even on subjects not enumerated under the Union list. Such laws and directions may apply to the entire country and not just the State or part of the country where an Emergency has been imposed. This Article is crucial as it removes the federal structure of the country and instils a unitary feature across the country during times of Emergency.

Article 357 of the Indian Constitution confers the Parliament with the powers to legislate laws on behalf of the State Legislature which has Presidential rule imposed on it. The Parliament has the competency to delegate such powers to the President as well. Such laws shall continue to remain in operation even after the Proclamation ceases to exist until a competent State Legislature amends, repeals or alters it.

Article 358 and Article 359 state that the fundamental rights conferred to citizens under Article 19 in Part III of the Indian Constitution, as well as other provisions under the same Part, except Article 20 and Article 21, as per the 44th Amendment Act, shall be discontinued. This means the State can make laws and issue executive orders even if they are violative of Article 19 or any other Article under Part III except Articles 20 and 21 that provide for the “conviction of a person based on the law and penalty in force at the time of the commission of the offence” and “right to personal liberty and life” respectively. But once the Emergency ceases to be operative, such laws or orders that are violative of Part III, to the extent of such incompetency shall cease to have an effect. This does not apply to laws or orders that are not a consequence of the Proclamation of Emergency.

7.5 The Critical Analysis of the ADM Jabalpur Case

In the case of ADM Jabalpur v. Shivkant Shukla[8], the issue concerned was whether the High Court can be approached under Article 226 if a person’s fundamental rights, with special emphasis on Article 14 the right to equality and Article 21, were infringed as Article 358 provides that Fundamental Rights ensured in Article 19 of the Constitution will remain suspended in the case of an Emergency. This case was filed during the Indira Gandhi Emergency questioning the detention of people. The main issue put forth before the court was whether the High Court could entertain Habeas Corpus Writ Petitions questioning the detention of people during an Emergency. In a nutshell, could a person’s fundamental rights be suspended during an Emergency? This case arose as a result of political opponents and dissenters of Indira Gandhi being arrested under the Maintenance of Internal Security Act (MISA).

A 5-judge constitutional bench comprising Chief Justice A.N Ray, Justices Y.V. Chandrachud, M.H. Beg, P.N. Bhagwati and Khanna gave a 4:1 judgement, with the dissenting opinion of Justice Khanna, favouring the suspension of all fundamental rights and held that remedy by way of filing a Habeas Corpus writ petition under Article 226 remains suspended during the Emergency[9]. Subsequently, the 44th Amendment Act, 1978 was introduced wherein the phrase “except Article 20 and Article 21” was inserted.

The majority judgment was written by Chief Justice A.N. Ray and has been criticised heavily for its narrow interpretation and complete disregard for fundamental rights. The scope of legislature influence on the judiciary has been debated after this case given the fact that Justice A.N. Ray was made the Chief Justice of India by Indira Gandhi sidestepping the tradition of appointing the seniormost Supreme Court Judge as Chief Justice after AN Ray was the lone dissenter who gave an opinion favouring Mrs. Gandhi in the Bank Nationalisation (R.C. Cooper v. Union of India[10]) case.

The Court held that during the Emergency, the State’s interests should always be put over individual interests. The law that gives man security in times of peace should give way to the interests of the State in times of grave danger. Chief Justice A.N. Ray also opined that Liberty is a gift of law and can be forfeited and abridged. The Court also upheld the validity of Section 16A (9) of MISA which states that details of a person who has been arrested under the Act remain “confidential information” and cannot be revealed to anybody.

Justice H.R. Khanna’s dissenting views acted as the sole voice of reason in the entire judgement. He believed that the imposition of Article 359 does not suspend the power of the High Courts to entertain Habeas Corpus Writ Petitions. He opined that Article 21 is not the sole provision to hold the repository to the Right of Life and Liberty. Liberty and Life were not values that were gifted to us by the Constitution but it was a corollary to the sanctity and dignity of life, liberty and nature. The Constitution cannot take away something that was not gifted or prescribed by it, was what Justice Khanna thought. Even if Article 21 loses its procedural value during an Emergency, it still holds substantive value and thus, the State can in no way deprive a person of his or her liberty and life.  

The judgment in this case was later overruled by K.S. Puttaswamy (Retd.) v. Union of India[11] wherein Justice Khanna’s opinion was appreciated by the Court and it was held that Writ of Habeas Corpus can be executed by Courts in cases of emergencies.

7.6 The reasons behind including Emergency Provisions in the Constitution

To understand the exact reasons why Emergency Provisions were included in the Indian Constitution, one must understand the chaotic events taking place during the time of Independence, around the same time the Constituent Assembly set out to frame India’s Constitution.

The colonial setup that prevailed in the newly independent India included a chasm between Muslims and Hindus and a deeply hierarchised caste system. Communal riots and disturbances engulfed the country coupled with mass migration of people from Pakistan, India’s new neighbour to India and vice-versa. India was tasked with fending for itself. There was a lot of chaos in terms of the organisation of states as well. Indigenous states like Junagarh, Hyderabad and princely state Jammu and Kashmir did not agree to accede to India initially. With Kashmir’s dilemma, Pakistan’s threat was imminent.

Other separatist movements like the Khalistani movements and communist rallies posed a threat to India’s integrity. There was also the demand for state reorganisation on linguistic grounds in the South. Owing to such conditions and envisioning the need in the future, emergency provisions were added to the Constitution.

7.7 Limitations to Proclaim Emergency

A President may declare a National Emergency only if all the prerequisites of Article 352 are met. The situation must be extraordinary to declare a National Emergency. The 38th Amendment of 1975 made the order of proclamation of a National Emergency immune to judicial review. This was removed by the 44th Amendment of 1978. In the case of Minerva Mills v. Union of India[12], it was held that any order of proclamation of emergency can be subjected to judicial review if malafide intent and irrelevant facts are the basis of such declaration.

8.  Events leading to and occurring during the Emergency

It wasn’t a single event that led to the Proclamation of Emergency. A slew of judgments from the courts and the increasing protests against the government were catalysts in invoking Article 352.

8.1 Nationalisation of Banks

In 1969, 14 banks were nationalised as per the Fourth Five-Year Plan. Nationalisation is the process where private entities are brought under government control and ownership. The reasoning behind this was to expand banks to regional areas and come up with social welfare policies and loan structures. Many shareholders and key investors of these banks were unhappy with this decision, as they had lost all their investments and shares in these entities to the government. The nationalisation was done similarly to the Emergency. An ordinance was hastily drafted, and signed by the President overnight, just two days before the Monsoon session of the Parliament, and announced on the radio the next morning. People like JRD Tata and the then Finance Minister, Morarji Desai were against the nationalisation. R.C. Cooper, a shareholder of the Central Bank of India, one of the 14 nationalised banks, contended this move of the government in the Supreme Court. In the case of R.C. Cooper v. Union of India, popularly known as the bank nationalisation case, the Supreme Court in an 11-judge bench verdict, with a ratio of 10:1 upheld that Article 14 was violated through this ordinance. Only 14 banks having a 50-crore deposit were nationalised. The court also held that the ordinance violated Article 31 (now repealed). Article 31 provided that no citizen of the nation can be kept away from owning their property by any power. The only exception was the authority of law. Any person would be eligible to receive compensation if their property was held for public purposes. However, according to the ordinance, the compensation the banks would receive was arbitrary and decided by the government. Thus, the ordinance was declared void.

8.2 The Privy Purse Case

There were close to 555 princely states when India gained independence. These states had the choice to either accede to India or Pakistan or remain independent. Most of the princely states[13], signed the Instrument of Accession to join India and many agreements were signed with these states, amongst which was the Privy Purse Agreement. Under Article 291 of the Indian Constitution, a certain sum of payment would be fixed, tax-free and would be guaranteed annually to the former rulers of the princely states and their successors. The amount would be determined by various factors like state revenue, the status of the state under British rule, etc.  This was known as the Privy Purse. Indira Gandhi was against this and wanted to abolish this system.

A Bill was introduced in the Lok Sabha to abolish the Privy Purse system. But it could not get passed in the Rajya Sabha. A few hours later, the President signed an Order, derecognising the rulers and their successors of princely states. The Supreme Court, in the case of H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Ors. v. Union of India and Anr.[14] held that the Order passed by the President was invalid.

The 24th Amendment however abolished the Articles relating to the Privy Purse and privileges conferred to the former rulers of erstwhile princely states.

8.3 The Economic Crisis of 1971[15]

In 1971, Indira Gandhi won the general elections again. The Chief Ministers of various states and the Cabinet Ministers were handpicked by Gandhi based on who favoured her. This was the year when the India-Pakistan War took place and India won the War, with the creation of Bangladesh. Indira Gandhi was hailed as Goddess Durga and the entire success of the War was attributed to her. The War had a terrible impact on the Indian Economy. Inflation was over 25 per cent. The prices of basic commodities skyrocketed. The cost of the war was over 200 crore a week. The economy grew by 0.9% in the financial year of 1971-72. Monsoons failed in the period of 1972-73 and the country was facing droughts. This led to failure in agricultural production and there was an acute shortage of foodgrains. India had to import food grains at high prices. Due to the failure of the agricultural sector, the demand for finished goods went down. Industries had to lay off people for survival. This led to rising unemployment.

8.4 Protests and Riots

The Nav Nirman Andolan[16], a political upheaval that started in Gujarat, in 1974 was one of the biggest protests post-independent India had ever seen. Students across Gujarat took to the streets to protest the rise in prices, inflation and rampant corruption in the Central as well as State governments. The Andolan could be classified into two phases. The first phase aimed at exacting a resignation from the Chief Minister of Gujarat, Chiman Patel due to the rise in prices of oil and food items which was alleged to be a consequence of corruption within the Congress Party and protest against the rising mess bill of Morbi Engineering College. A bandh was organised and schools and colleges were shut down as well. Eminent personalities like Morarji Desai supported the Andolan. The second phase aimed at dissolving the Legislative Assembly and introducing the President's rule over the State.  The movement was a major success. The Chief Minister had to resign just after being in office for a mere six months. Fresh elections took place and the Congress government failed to come back to power.

Inspired by the movement in Gujarat, Jaya Prakash Narayan, an activist and socialist political leader, organised another student’s agitation. The Bihar Movement, also popularly known as the JP Movement, was targeted at the Central and State governments. It was also known as the Sampoorn Kranti or Total Revolution Movement. The Movement asked for the resignation of the Ghafoor government in Bihar which ultimately led to asking for Indira’s resignation. But Gandhi did not budge. She did not want the Chief Minister of Bihar to resign just like Gujarat’s Chief Minister.

Around May 1974, 1.7 million railway employees went on a strike against the Government. This was spearheaded by George Fernandes, an Indian trade unionist and journalist. The strike was aimed at securing a basic minimum wage, an eight-hour daily work limit, and the formalisation of jobs and social security.

At the same time, Morarji Desai went on a hunger strike asking for elections which were continually delayed in Gujarat. The Allahabad High Court verdict was given around the same day as the Gujarat election results of Congress losing came out. Indira Gandhi appealed the High Court verdict to the Supreme Court and advised the President to appoint A.N. Ray, who had pronounced judgments in favour of Gandhi, as the Chief Justice of India, hoping the final verdict at the Supreme Court to be in her favour.

8.5 The Allahabad High Court verdict

The verdict given by the Allahabad High Court regarding The State of Uttar Pradesh v. Raj Narain[17] was the last straw. This was the push Gandhi needed to impose an Emergency. Indira was accused of election malpractices in the Rae Bareilly constituency in the 1971 elections by her opponent candidate, Mr Raj Narain. Gandhi had won a landslide victory with a 2:1 majority. Mr Raj Narain filed a petition accusing Gandhi of bribery, election malpractices and using undue influence to secure certain campaign perks. He alleged that she had Government vehicles for campaigning and had distributed liquor. The issue of whether the “Bluebook” that contained the guidelines for the safety travel of the Prime Minister could be produced before the Court under the Indian Evidence Act. The Court held that the Bluebook may be produced as key evidence if the public interest is in question. The High Court held that Indira Gandhi’s Lok Sabha election seat was null and void based on corrupt practices under Section 123 (7) of the Representation of People Act, 1951[18]. She was disqualified and barred from contesting in elections for 6 years. The Supreme Court, later, on 7th November 1975, set aside the judgment given by the Allahabad High Court.

8.6 The Declaration of Emergency

The Opposition started to rally against the Government and Indira Gandhi to step down. The Supreme Court, however, gave a conditional stay on the Allahabad High Court verdict that allowed Indira Gandhi to retain her Prime Minister’s chair till the Supreme Court gave a verdict. A few minutes before midnight of 25 June 1975, President Fakhruddin Ali declared a National Emergency, Gandhi stated that the protests and rioting were incited to paralyse the government and could thus be considered to be “internal disturbances”. The supply of electricity to major newspaper offices was cut so they would not carry the news of Emergency in the morning. Newspaper presses were raided and bundles of print material were seized. Publications were stopped for 2 days. On 28th June, The Times of India carried “an obituary to Democracy”[19],  “O’Cracy, D.E.M., beloved husband of T. Ruth, loving father of L.I. Bertie, brother of Faith, Hope and Justicia, expired on June 26.” The Indian Express carried a blank page while The Financial Express carried the Tagore poem “Where the mind is without fear”.

8.7 What Happened during the Emergency

Many believe that what unfurled after the imposition of the Emergency, was nothing short of blatant disregard for Democracy.

The Maintenance of Internal Security Act (MISA) was a law passed in 1971 that enabled the Central and state governments, District Magistrates and even Commissioners of Police to make orders concerning the detention of any person who is considered to be a potential threat to the country, without a trial. Section 16 of the Act stated that no person could initiate a suit or legal proceeding against the Central Government regarding the arrests made under this Act. The Act further provided the Central Government powers to decide the place, conditions, maintenance, transfer and punishment criteria of the person so detained. Many opposition leaders including L.K. Advani, Atal Bihari Vajpayee, Morarji Desai, Arun Jaitley and other dissenting voices were arrested under this Act. Subramaniam Swamy disguised himself as a Sikh and escaped to the United States. George Fernandes went underground to continue his resistance. However, the 44th Constitutional Amendment of 1978 later repealed the Act. But during the early days of the Emergency, this Act was used to imprison and detain every dissenting voice in the country. Twenty-six political organisations along with RSS (Rashtriya Swayamsevak Sangh) and Jamaat-e-Islami were banned.

Indira Gandhi and her son Sanjay Gandhi penned a “twenty-point programme[20]”. It included policies regarding poverty, unemployment, education, housing, health and agriculture. This situation was given the name “the discipline of the graveyard” due to the serious imprisonments and constitutional rights of people being suspended and yet the irony of the Government in coming up with a plan to tame a very subdued population whose voices were cut.

Since June 29, 1975, the government issued rules regarding the pre-censorship of newspapers. The newspapers were classified into friendly, hostile and neutral[21]. Payment for advertisements in friendly newspapers was high to make sure the finances of such newspapers were propped up. 

Forced Sterilization was another notorious policy introduced by Sanjay Gandhi. Millions of men across the nation were forced to get vasectomies. This was done against their will, as a population control measure. It was widely criticised as the consent of men was not taken and the surgical procedures were usually done hastily employing unsafe and unhygienic methods. The funding came to the government through foreign nations[22] and the World Bank. Closely 6.2 million men[23] were vasectomised and thousands died due to botched operations.

The most controversial constitutional amendment, the 42nd Amendment Act of 1976 was passed with a majority as most of the opposition leaders were in detention and no one was physically present to even oppose the Amendment. The Amendment[24] even came to be known as “mini-constitution” or “Indira’s Constitution”. The words “socialist” and “secular” were added to the Preamble. A wide range of topics was transferred from the State to the Centre and Concurrent List. Article 51A was inserted stating the Fundamental Duties of citizens. The Amendment reduced the President’s powers and made him act under the advice of the Cabinet. It also restricted the Judicial authority of courts. Provisions conferring free legal aid and healthier opportunities to children and securing forests and natural resources were added.

In 1977, all political detainees including Morarji Desai and L.K. Advani were ordered released. On All India Radio, a surprise announcement came the nation’s way. Indira Gandhi had decided to relax the Emergency Provisions and call for fresh elections. No one knew the reason why Indira decided to do so. Distinguished jurist Fali Sam Nariman too referred to this as a “tantalising mystery” and “the unsolved intractable problem of our times.” In a column written by Ravi Visvesvaraya Sharada Prasad, in Open Magazine, Indira Gandhi had confided in the author’s father, Ravi Visvesvaraya Sharada Prasad, the Information Advisor to Mrs Gandhi, that she knew she would lose the elections. But she wanted to do it fairly. In this article, the author goes ahead to give his hypotheses as to why Indira decided to end the Emergency and call for elections.

The Lok Sabha was dissolved on the 20th of January and fresh elections took place. Most opposition leaders united against Indira and formed the Janata Party, with their leader Morarji Desai. On 16th March, both Indira and Sanjay Gandhi lost their seats. The Janata Party came into power, and Morarji Desai was sworn in as the Prime Minister. The Emergency had come to an end.

8.8 A few positives of the Emergency

While the Emergency has been widely criticised by many, there have been a few positive developments during this period.

The Emergency brought a sense of calm and tranquillity concerning the education sector as the students returned to the classrooms after months of mass agitation. The economy of the country improved and inflation was controlled. The opposition was successfully silenced and the number of protests decreased. Mass sterilization led to a downfall in the population. The monsoons were back on track leading to a hike in agricultural productivity.

The Gross National Product at 1970-71 prices increased at a pace of 8.9% during the F.Y. 1975–1976, according to the Economic Report of the Government of India for the F.Y. 1978–99 (as opposed to a pitiful 0.8% during the prior FY).

As food grain production increased dramatically by 21%, agricultural production climbed at a rate of 15.6%. Similar to how exports increased by 21.4% while industrial production increased by an astounding 6.1%. In contrast to a huge increase of 25.2% the year before, wholesale prices showed a fall of 1.1% during the year. (Economic Survey, 1978–1979, as source)[25].

8.9 The Legal Implications of the 1975 Emergency

The Emergency brought forth a variety of legal impacts and phenomena to the fore. Amendments, detention, fundamental rights and freedom were key aspects of the Emergency. The courts had a major role to play in the fostering of conditions that led to the Emergency and also were silent spectators to the abuse of power meted on to the people of India as seen in the ADM Jabalpur case. In an article written in 2013 by Delhi High Court Chief Justice Rajinder Sachar[26], he wonders if the Emergency would have existed if the court had given an alternating judgment in the ADM Jabalpur case. Such an alternate judgment would lead to the release of detained “patriots” like Jayaprakash Narain, Morarji Desai, George Fernandes and many more which would subsequently lead to a big opposition movement consequently resulting in the stepping down of Indira Gandhi from the Prime Minister’s post.

However, the case judgment proved to be a major setback to the constitutional remedies given in the constitution to safeguard the fundamental rights of every person in India.  B.R. Ambedkar called Article 32 “the heart and soul of the Indian Constitution”. The very heart and soul of which was ripped by the courts in the aforementioned case. As rightly pointed out by Justice Khanna, revoking the most basic rights would lead to a diminishing distinction between a lawless society and a civil society governed by laws. His dissenting opinion later paved the way for the judgment pronounced in K.S Puttaswamy v. Union of India, wherein the judgment from the ADM Jabalpur case was overturned. The matter of utmost concern here is the influence and fear the judges probably had while delivering the judgment in the ADM Jabalpur case. Furthermore, three judges[27] (all of whom had favoured the suspension of Habeas Corpus during an emergency) out of the five-judge bench in the case went on to become Chief Justices of India in the years after the alarming judgment. All, except the sole dissenter Justice Khanna.

The Maintenance of Internal Security Act (MISA) of 1971 was the primary Act under which dissenters against the Indira Gandhi government were jailed or detained. The topic of preventive detention was widely debated and the draconian provisions of MISA were questioned in court. People were arrested unreasonably and many died in police custody because of the torture meted out on them. There have been stories of grit and determination born in the dark cellars of prisons at that time. Snehalata Reddy, a renowned actress in the Kannada film industry was arrested for her friendship with George Fernandes. She was hailed for introducing prison reforms and teaching other inmates games, songs and plays to keep their spirits up. As a patient with chronic asthma, she did not receive proper medical treatment in the prison and later succumbed to it. Hence, prisoner’s rights were another issue debated during the Emergency. Although the court upheld the validity of MISA in the ADM Jabalpur case, it was later repealed in 1977.

In a nutshell, the 1975 emergency gave rise to many precedents, jurisprudential aspects as well as legislations and amendments, some of which were later amended or repealed. Irrespective of whether they were deleted or changed later, it becomes prudent to understand the jurisprudential perspectives and reasoning of such laws and judgments. 

9.  Was the Emergency necessary?

To understand whether imposing an Emergency was necessary, the rationale behind including Emergency provisions needs to be thought of.

9.1 The Rationale and Reasoning

As discussed above, many constituent assembly members were sceptical of these provisions getting exploited. The idea of giving the Centre absolute power during an Emergency would make the whole structure of Federalism wither away and introduce a unitary setup. But B.R. Ambedkar was hopeful and stated that, “the occasion for invoking these powers under the relevant Article would be very rare and that they would remain a dead letter.”[28] The main reasoning behind including these provisions was to protect the country during adverse conditions and hope that the Centre would safeguard the interests of the states and its citizens. At the same time, the provisions probably conferred great power to the Centre.

Analysing the situation at that time, the tussle between Indira and the judiciary was evident. In an ideal democracy, should the Legislature or the Judiciary be given more powers? The perfect scenario would be for all three organs of the government to be given equal powers and for each of these organs to have checks and balances over the other organs. In reality, this is not possible. Each organ tries wholeheartedly to establish supremacy over the other.

The judiciary was constantly trying to undermine Indira’s authority. Be it the nationalisation of banks or the privy purse case. But Indira overturned or abrogated most of these judgments by introducing legislations or Amendments contrary to or against the judgments given by the courts. When the courts declared her Parliament seat null and void, it became imperative for Indira to protect her power and the Allahabad High Court decision became the major catalyst that influenced her to impose an Emergency.

The major contention, however, was the protests. There were many riots across industries, sectors and classes of people against the government. It was becoming increasingly difficult to contain the growing dissatisfaction against the Centre. Dissenting voices were consistently growing. This technically did amount to “internal disturbance”. The term “internal disturbance” was vague. Any protest that caused ripples in the administration could be classified as incidents promoting or instigating “internal disturbance”. But that is exactly the point of protests. Organised agitation or mass movement meant to address the flaws in the administration. It was meant to advance the needs and demands of people. Such protests are vital to democracy as they become the bridges that connect the people to the government. Without protests or demands, the government would never know what the masses are seeking and the conditions of the people. Protests are an important feature of Democracy.

9.2 Examining the Necessity

If there are numerous protests against the government, from all sections of society and multiple pressure groups, it is a sign that the government is not democratic in its function. It is a process exercised by the citizens to grab the government’s attention to problems and ask for immediate action from it. The Navnirman Andolan and the J.P. Movement were all large-scale protests that highlighted problems like high costs and rising inflation. These were major problems and most of the protestors were students who did not have independent sources of income to battle inflation.

Rather than battling the crisis at hand economically, more attention was given to quelling the rebellion. Attention was given to saving the power and title of the Prime Minister. Thus, the “internal disturbances” phrase was unfairly utilized. The vagueness of the term was used to the advantage of the Centre. The emergency was unnecessary.

Rather than imposing an Emergency, economic policies could have been introduced. Monetary and fiscal policies could have been bettered and help could have been sought from entities like the World Bank. It seemed a bit dubious and sketchy that foreign national entities funded the forced sterilisation programme while economic help could have been given to the government by international organisations.

Whenever an Emergency is imposed, the country is said to lose its federal nature and become unitary. However, the 1975 Emergency exhibited not just unitary features but also dictatorial features. People even voicing their opinions against the government were detained, the political opposition was detained, Amendments favouring the government were passed after making sure the opponents were jailed and no one would question these Amendments, people were sterilised forcefully and the press was heavily censored. These all seem like incidents happening under a dictator. Indian democracy was forgotten from 1975 to 1977.

9.3 Karl Lowenstein’s Characterization Power and Democracy; Does it Justify Indira’s Emergency?

Karl Lowenstein was a German-Jewish scholar who is known for the theory of militant democracy. His main focus was to deal with fascist regimes within a democracy and how representative democracies can respond to growing fascism. According to him, free and fair democratic elections where all sections of the masses vote to elect a representative allow leeway for the fostering of fascist regimes that can dismantle the representative democracy through democratic means. Thus, democracy needs to have militant safeguards to protect itself by sacrificing a few fundamental rights, freedom and principles of equality.

Applying this concept of Lowenstein’s militant democracy to the 1975 Emergency, Mrs Gandhi’s reasoning for curbing dissent using violent methods could be justified. The dissent and rebellions against the government could be conveniently labelled as “fascist movements” involving violence that were targeting the government to dismantle “representative democracy”. Thus, the usage of draconian laws like MISA and violence or police brutality against dissenters could be a way for the government or State to exercise the right of “self-defence” by safeguarding itself, using the principles of Lowenstein’s militant democracy.

The major flaw in Lowenstein’s ideology is that the phrase “militant democracy” is inherently an oxymoron. The main crux of democracy is free speech, freedom of religion, freedom to assemble and the right to a free trial. The principles of natural justice apply to democracy. The government is essentially the people, in a democracy. Thus, the interests of the government are synonymous with the interests of the people. It would make no sense for the government to use militancy on the people that gave it power. Dissent against government and expression of such dissent is in itself an exercise of democracy and using militia to curb it is a travesty of democracy.

9.4 Lessons from Indira’s Emergency and the Contemporary Relevance

There are ample lessons to be learnt from the 1975 Emergency. One is that the democratic spirit of India can never be crushed. India did lose its democratic character in those dark years of the Emergency. But to date, by criticising the Emergency, learning about the judicial precedents set and overturning the laws and judgments that violated India’s democracy, we kept it alive. Democracy came back to us slowly, one decision at a time.

The amendments post the 42nd Amendment, especially the 44th Amendment set out to rectify the grave errors and violations made in the previous Amendments during Emergency. It restored the judicial review powers of the Supreme Court and High Court. The government had by then understood the gravity of Article 352 and hence the term “internal disturbance” was replaced by “armed rebellion” in the National Emergency provision. While Parliamentary supremacy was the theme of the 42nd Amendment, the 44th Amendment provided for a balancing act between the Parliament and Democracy.

Discussing the contemporary relevance of the Emergency, it is of utmost importance to draw a comparison of the Maintenance of Internal Security Act (MISA) and UAPA (Unlawful Activities Prevention Act), the Preventive Detention Act that is still prevalent in 2023. MISA, however, was repealed in 1977, right after the emergency when the Janata government came into power. UAPA today is considered more draconian than MISA. While MISA had a sunset clause (a fixed period after which the Act would terminate and had to be renewed by the Parliament), UAPA has no such clause. The maximum term for which a person may be arrested under MISA is one year. However, due to the difficulty of obtaining bail under UAPA, people may be jailed for over 10 years under this Act. The Central government has immense power under this Act to designate any organisation, association and even an individual (after the 2019 amendment of the Act) as a terrorist or a terrorist organisation. This again sets a dangerous precedent for parliamentary supremacy and gives a chance for the government to impose the tag of a “terrorist” arbitrarily.

The usage of UAPA against anti-CAA (Citizenship Amendment Act) protestors and Bhima Koregaon dissenters alarmingly echoes the past. The arrest of 83-year-old Stan Swamy for his involvement in the 2018 Bhima Koregaon protests under UAPA also reminds us of the arrest of 82-year-old Bhim Sen Sachar during the Emergency. The massacre that Delhi saw during the anti-CAA protests was remindful of the massacre at the Turkman Gate wherein dissenters who were protesting the forceful mass sterilisation were violently quelled. 

One of the positives of the ADM Jabalpur judgment was the legacy of Justice Khanna’s dissenting opinion. His voice of disagreement was brave and bore a ray of hope in the dark times. Life and liberty were given an organic, abstract and natural meaning in his opinion and it ceased to be just restrained by the chains of law. His judgment was censored and even though he was the next in line to be the Chief Justice of India, he was overlooked. As a result, he resigned. But the legacy of his dissent continued. The majority judgment of the ADM Jabalpur case was criticised and Justice Khanna’s views were noted in Puttaswamy’s case.

The importance of Fundamental Rights and free media in a democratic society was learned in the Emergency. The censorship of media depicted a dystopian reality come true during the Emergency. In today’s day, the term media includes not just television broadcasts, radio and newspapers as in the erstwhile times. The ambit of media has widened to include cyberspace as well. With the rise in misinformation, there is also a rise in the number of people taking offence. Spreading propaganda and having social media cells for each party is the norm. The compliance or bias of Internet Service Providers (ISPs) to a particular party creates a platform that selectively embodies the ideals of free speech. This in itself coupled with government control over ISPs through laws creates a dangerous trend of selective free speech which is more dangerous than censorship.

10.  Conclusion

The thirst for power can never be quenched. History remembers a variety of leaders. Kings who killed for power, queens who fought for their motherland and leaders who were kind to their subjects. History also remembers Prime Ministers blinded by their greed for power to such an extent that they were ready to snatch the rights of the people.

Power is an amusing attribute. People covet it and fear it. Humans were wired to fight for power. But in a democratic country, is it an anomaly to fight for power that was conferred by the people, at the cost of the rights of the very same people? Indira Gandhi’s decision to impose the Emergency was undoubtedly motivated by many factors but the single most implication of most of these incidents was the loss of power. Loss of the Prime Minister’s office. And Indira Gandhi did not want that to happen. Was Gandhi right in not wanting to lose her power? Well, that is human nature. But the methods she employed to retain her power are questionable. The question should not be regarding the thirst for power but rather the means and extent to which a person can go to retain or gain it. And this is the lesson we must carry forward. As democracy progresses, the blunders of the past must be spoken about, debated about, and written about but should never be repeated.

References: 

[1] V.P. Dutt, The Emergency in India: Background and Rationale, 16(12) FOR E. SURVEY (1947)

[2] W.H. Morris-Jones, Whose Emergency — India’s or Indira’s?, 31(11) THE WORLD TODAY 451, 456 (1975)

[3] B.C. Das, Emergency Provisions in the Indian Constitution: A study in comparative analysis, 38(2) INDIAN J. POL. SCI. 237, 245-46 (1977)

[4] S.R Bommai v. Union of India, [1994] 2 SCR 644

[5] The UN and Ukraine: year-long war spreads global fallout, UN NEWS (Aug 03, 5:00 PM), https://news.un.org/en/story/2023/03/1134122#:~:text=Since%20the%20Russian%20invasion%20of,found%20evidence%20of%20war%20crimes

[6] Martin Raiser, Sri Lanka’s crisis offers an opportunity to reset its development model, WORLDBANK BLOGS (Aug 04, 3.30 PM), https://blogs.worldbank.org/endpovertyinsouthasia/sri-lankas-crisis-offers-opportunity-reset-its-development-model

[7] Annabelle Liang, Pakistan economic crisis forces malls and markets to close early, BBC NEWS (Aug 04, 2023, 4:30 PM), https://www.bbc.com/news/business-64159460

[8] ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207

[9] Id.

[10] RC Cooper v. Union of India, [1970] AIR 564

[11] K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161

[12] Minerva Mills v. Union of India, AIR 1980 SC 1789

[13] Except Hyderabad, Junagarh, Jammu and Kashmir

[14] Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Ors. v. Union of India and Anr,  1971 SCR (3) 9

[15] The Economy in 1972-73-An Overall View, INDIA BUDGET (Aug 06, 2023, 6:30 PM),

https://www.indiabudget.gov.in/budget_archive/es1972-73/1%20The%20Economy%20in%201972-73_An%20Overall%20View.pdf

[16] V Bhagat-Ganguly, Revisiting the Nav Nirman Andolan of Gujarat, 63(1), SOCIOLOGICAL BULLETIN 95, 101-102 (2014)

[17] State of Uttar Pradesh v. Raj Narain, 1975 SCR (3) 333

[18] The Representation of the People Act, 1951, § 123(7), No. 43, Acts of Parliament, 1951 (India)

[19] When a smartly worded obit exposed the death of democracy, TIMES OF INDIA (Aug 03, 5:35 PM), https://timesofindia.indiatimes.com/india/when-a-smartly-worded-obit-exposed-the-death-of-democracy/articleshow/47823701.cms

[20] January 15, 1982, Forty years ago: 20-point programme, INDIAN EXPRESS (Aug 03, 7:00 PM), https://indianexpress.com/article/opinion/editorials/forty-years-ago-gandhi-thatcher-makar-sankranti-7723803/

[21] V. Krishna Ananth, Predicament of the press during the Emergency, THE LEAFLET, (Aug 04, 2023, 6:30 PM), https://theleaflet.in/predicament-of-the-press-during-the-emergency/

[22] Dylan Matthews & Byrd Pinkerton, “The time of vasectomy”: how American foundations fueled a terrible atrocity in India, VOX (Aug 05, 5:00 PM),  https://www.vox.com/future-perfect/2019/6/5/18629801/emergency-in-india-1975-indira-gandhi-sterilization-ford-foundation

[23] Soutik Biswas, India’s dark history of sterilisation, BBC NEWS (Aug 05, 2023, 3:35 PM), https://www.bbc.com/news/world-asia-india-30040790

[24] 42nd Amendment of Indian Constitution, FINOLOGY BLOG (Aug 06, 2023, 4:35 PM), https://blog.finology.in/Legal-news/42nd-amendment-of-indian-constituion

[25] The Economic Situation in 1978-79, INDIA BUDGET (Aug 09, 2023, 6:00 PM),

https://www.indiabudget.gov.in/budget_archive/es1978-79/1%20The%20Economic%20Situation%20in%201978-79.pdf

[26] Shivam Vij, The shameful role of the Indian Supreme Court in the Emergency of 1975: Rajinder Sachar, KAFIA (Aug 10, 2023, 5:00 PM), https://kafila.online/2013/07/14/the-shameful-role-of-the-indian-supreme-court-in-the-emergency-of-1975-rajinder-sachar/

[27] Justices Y.V. Chandrachud, P.N. Bhagwati and H.M Beg.

[28] Chhyal Singh & Rishi Kumar, Constitutional Debates on Article 356 of Indian Constitution, 9 INT'L J. MULTIDISCIPLINARY EDUC. RSCH. (2020)