In India, "the Emergency" refers to a 21-month period from 1975 to 1977 when Prime Minister Indira Gandhi had a state of emergency declared across the country. Officially issued by President Fakhruddin Ali Ahmed under Article 352 of the Constitution because of the prevailing "internal disturbance", the Emergency was in effect from 25 June 1975 until its withdrawal on 21 March 1977.
The order bestowed upon the Prime Minister the authority to rule by decree, allowing elections to be suspended and civil liberties to be curbed. For much of the Emergency, most of Gandhi's political opponents were imprisoned and the press was censored. Several other human rights violations were reported from the time, including a forced mass-sterilization campaign spearheaded by Sanjay Gandhi, the Prime Minister's son. The Emergency is one of the most controversial periods of independent India's history.
The final decision to impose an emergency was proposed by Indira Gandhi, agreed upon by the president of India, and thereafter ratified by the cabinet and the parliament (from July to August 1975), based on the rationale that there were imminent internal and external threats to the Indian state.
The 42nd amendment to Constitution of India, officially known as The Constitution (Forty-second amendment) Act, 1976, was enacted during the Emergency (25 June 1975 – 21 March 1977) by the Indian National Congress government headed by Indira Gandhi. The 42nd Amendment is regarded as the most controversial constitutional amendment in Indian history. It attempted to reduce the power of the Supreme Court and High Courts to pronounce upon the constitutional validity of laws. It laid down the Fundamental Duties of Indian citizens to the nation. This amendment brought about the most widespread changes to the Constitution in its history, and is sometimes called a "mini-Constitution" or the "Constitution of Indira".
The amendment removed election disputes from the purview of the courts. The amendment's opponents described it as a "convenient camouflage".
Second, the amendment transferred more power from the state governments to the central government, eroding India's federal structure. The third purpose of the amendment was to give Parliament unrestrained power to amend any parts of the Constitution, without judicial review. The fourth purpose was to make any law passed in pursuance of a Directive Principle immune from scrutiny by the Supreme Court. Supporters of the measure said this would "make it difficult for the court to upset parliament's policy in regard to many matters".
Raj Narain, who had been defeated in the 1971 parliamentary election by Indira Gandhi, lodged cases of election fraud and use of state machinery for election purposes against her in the Allahabad High Court. Shanti Bhushan fought the case for Narain. Indira Gandhi was also cross-examined in the High Court which was the first such instance for an Indian Prime Minister.
On 12 June 1975, Justice Jagmohanlal Sinha of the Allahabad High Court found the prime minister guilty on the charge of misuse of government machinery for her election campaign. The court declared her election null and void and unseated her from her seat in the Lok Sabha. The court also banned her from contesting any election for an additional six years. Serious charges such as bribing voters and election malpractices were dropped and she was held responsible for misusing government machinery, and found guilty on charges such as using the state police to build a dais, availing herself of the services of a government officer, Yashpal Kapoor, during the elections before he had resigned from his position, and use of electricity from the state electricity department.
Because the court unseated her on comparatively frivolous charges, while she was acquitted on more serious charges, The Times described it as "firing the Prime Minister for a traffic ticket". Her supporters organized mass pro-Indira demonstrations in the streets of Delhi close to the Prime Minister's residence. The persistent efforts of Narain were praised worldwide as it took over four years for Justice Sinha to pass judgement against the prime minister.
Indira Gandhi challenged the High Court's decision in the Supreme Court. Justice V. R. Krishna Iyer, on 24 June 1975, upheld the High Court judgement and ordered all privileges Gandhi received as an MP be stopped, and that she be debarred from voting. However, she was allowed to continue as Prime Minister pending the resolution of her appeal.
JP Narayan and Morarji Desai called for daily anti-government protests. The next day, JP organised a large rally in Delhi, where he said that a police officer must reject the orders of government if the order is immoral and unethical as this was Mahatma Gandhi's motto during the freedom struggle.
Such a statement was taken as a sign of inciting rebellion in the country. Later that day, Indira Gandhi requested a compliant President Fakhruddin Ali Ahmed to issue a proclamation of a state of emergency. Within three hours, the electricity to all major newspapers was cut and the political opposition arrested. The proposal was sent without discussion with the Union Cabinet, who only learnt of it and ratified it the next morning.
The Government cited threats to national security, as a war with Pakistan had recently been concluded. Due to the war and additional challenges of drought and the 1973 oil crisis, the economy was in poor condition. The Government claimed that the strikes and protests had paralysed the government and hurt the economy of the country greatly. In the face of massive political opposition, desertion and disorder across the country and the party, Gandhi stuck to the advice of a few loyalists and her younger son Sanjay Gandhi, whose own power had grown considerably over the last few years to become an "extra-constitutional authority". Siddhartha Shankar Ray, the Chief Minister of West Bengal, proposed to the prime minister to impose an "internal emergency". He drafted a letter for the President to issue the proclamation on the basis of information Indira had received that "there is an imminent danger to the security of India being threatened by internal disturbances". He showed how democratic freedom could be suspended while remaining within the ambit of the Constitution.
After a quick question regarding a procedural matter, President Fakhruddin Ali Ahmed declared a state of internal emergency upon the prime minister's advice on the night of 25 June 1975, just a few minutes before the clock struck midnight.
As the constitution requires, Mrs. Gandhi advised and President Ahmed approved the continuation of Emergency over every six-month period until her decision to hold elections in 1977.
Invoking article 352 of the Indian Constitution, Gandhi granted herself extraordinary powers and launched a massive crackdown on civil liberties and political opposition. The Government used police forces across the country to place thousands of protestors and strike leaders under preventive detention. Vijayaraje Scindia, Jayaprakash Narayan, Raj Narain, Morarji Desai, Charan Singh, Jivatram Kripalani, Atal Bihari Vajpayee, Lal Krishna Advani, Arun Jaitley, Satyendra Narayan Sinha, Gayatri Devi, the dowager queen of Jaipur and other protest leaders were immediately arrested. Organisations like the Rashtriya Swayamsevak Sangh (RSS) and Jamaat-e-Islami along with some political parties were banned. Numerous Communist leaders were arrested along with many others involved with their party. Congress leaders who dissented the Emergency declaration and amendment to the constitution such as Mohan Dharia and Chandra Shekhar resigned their government and party positions and were arrested and placed under detention,
In Tamil Nadu, the M. Karunanidhi government was dissolved and the leaders of the DMK were incarcerated. In particular, Karunanidhi's son M. K. Stalin, was arrested under the Maintenance of Internal Security Act. At least nine High Courts pronounced that even after the declaration of an emergency, a person could challenge his detention. The Supreme Court, now under the Indira Gandhi-appointed Chief Justice A. N. Ray, overruled all of them, upholding the state's plea for power to detain a person without the necessity of informing him of the grounds for his arrest, or to suspend his personal liberties, or to deprive him of his right to life, in an absolute manner (the habeas corpus case'). Many political workers who were not arrested in the first wave, went 'underground' continuing organising protests.
Elections for the Parliament and state governments were postponed. Gandhi and her parliamentary majorities could rewrite the nation's laws, since her Congress party had the required mandate to do so – a two-thirds majority in the Parliament. And when she felt the existing laws were 'too slow', she got the President to issue 'Ordinances' – a law-making power in times of urgency, invoked sparingly – completely bypassing the Parliament, allowing her to rule by decree. Also, she had little trouble amending the Constitution that exonerated her from any culpability in her election-fraud case, imposing President's Rule in Gujarat and Tamil Nadu, where anti-Indira parties ruled (state legislatures were thereby dissolved and suspended indefinitely), and jailing thousands of opponents.
The 42nd Amendment, which brought about extensive changes to the letter and spirit of the Constitution, is one of the lasting legacies of the Emergency. In the conclusion of his Making of India's Constitution, Justice Khanna writes:
"If the Indian constitution is our heritage bequeathed to us by our founding fathers, no less are we, the people of India, the trustees and custodians of the values which pulsate within its provisions! A constitution is not a parchment of paper, it is a way of life and has to be lived up to. Eternal vigilance is the price of liberty and in the final analysis, its only keepers are the people. Imbecility of men, history teaches us, always invites the impudence of power."
A fallout of the Emergency era was the Supreme Court laid down that, although the Constitution is amenable to amendments (as abused by Indira Gandhi), changes that tinker with its basic structure cannot be made by the Parliament.
In the Rajan case, P. Rajan of the Regional Engineering College, Calicut, was arrested by the police in Kerala on 1 March 1976, tortured in custody until he died and then his body was disposed of and was never recovered. The facts of this incident came out owing to a habeas corpus suit filed in the Kerala High Court.
In September 1976, Sanjay Gandhi initiated a widespread compulsory sterilization programme to limit population growth. The exact extent of Sanjay Gandhi's role in the implementation of the programme is disputed, with some writers holding Gandhi directly responsible for his authoritarianism, and other writers blaming the officials who implemented the programme rather than Gandhi himself. Rukhsana Sultana was a socialite known for being one of Sanjay Gandhi's close associates and she gained a lot of notoriety in leading Sanjay Gandhi's sterilisation campaign in Muslim areas of old Delhi. The campaign primarily involved getting males to undergo vasectomy. Quotas were set up that enthusiastic supporters and government officials worked hard to achieve. There were allegations of coercion of unwilling candidates too. In 1976–1977, the programme led to 8.3 million sterilisations, most of them forced, up from 2.7 million the previous year. The bad publicity led every government since 1977 to stress that family planning is entirely voluntary.
The Emergency lasted 21 months, and its legacy remains intensely controversial. A few days after the Emergency was imposed, the Bombay edition of The Times of India carried an obituary that read:
"Democracy, beloved husband of Truth, loving father of Liberty, brother of Faith, Hope and Justice, expired on June 26."
A few days later censorship was imposed on newspapers. The Delhi edition of the Indian Express on 28 June, carried a blank editorial, while the Financial Express reproduced in large type Rabindranath Tagore's poem "Where the mind is without fear".
However, the Emergency also received support from several sections. It was endorsed by social reformer Vinoba Bhave (who called it Anushasan parva, a time for discipline), industrialist J. R. D. Tata, writer Khushwant Singh, and Indira Gandhi's close friend and Orissa Chief Minister Nandini Satpathy. However, Tata and Satpathy later regretted that they spoke in favour of the Emergency.
Others have argued that Gandhi's Twenty Point Programme increased agricultural production, manufacturing activity, exports and foreign reserves.[citation needed] Communal Hindu–Muslim riots, which had resurfaced in the 1960s and 1970s, also reduced in intensity.
In the book JP Movement and the Emergency, historian Bipan Chandra wrote:
"Sanjay Gandhi and his cronies like Bansi Lal, Minister of Defence at the time, were keen on postponing elections and prolonging the emergency by several years ... In October–November 1976, an effort was made to change the basic civil libertarian structure of the Indian Constitution through the 42nd amendment to it. ... The most important changes were designed to strengthen the executive at the cost of the judiciary, and thus disturb the carefully crafted system of Constitutional checks and balance between the three organs of the government."
Almost all parts of the Constitution, including the Preamble and amending clause, were changed by the 42nd Amendment, and some new articles and sections were inserted.
The amendment's fifty-nine clauses stripped the Supreme Court of many of its powers and moved the political system toward parliamentary sovereignty. It curtailed democratic rights in the country, and gave sweeping powers to the Prime Minister's Office. The amendment gave Parliament unrestrained power to amend any parts of the Constitution, without judicial review. It transferred more power from the state governments to the central government, eroding India's federal structure.
During the Emergency, Indira Gandhi implemented a 20-point program of economic reforms that resulted in greater economic growth, aided by the absence of strikes and trade union conflicts. Encouraged by these positive signs and distorted and biased information from her party supporters, Gandhi called for elections in May 1977. However, the Emergency era had been widely unpopular. The 42nd Amendment was widely criticised, and the clampdown on civil liberties and widespread abuse of human rights by police angered the public.
In its election manifesto for the 1977 elections, the Janata Party promised to "restore the Constitution to the condition it was in before the Emergency and to put rigorous restrictions on the executive's emergency and analogous powers". The election ended the control of the Congress (Congress (R) from 1969) over the executive and legislature for the first time since independence. After winning the elections, the Moraji Desai government attempted to repeal the 42nd Amendment. However, Gandhi's Congress party held 163 seats in the 250 seat Rajya Sabha, and vetoed the government's repeal bill.
The Janata government then brought about the 43rd and 44th Amendments in 1977 and 1978 respectively, to restore the pre-1976 position to some extent. Among other changes, the amendments revoked the 42nd Amendment's provision that Directive Principles take precedence over Fundamental Rights, and also curbed Parliament's power to legislate against "antinational activities". However, the Janata Party was not able to fully achieve its objective of restoring the Constitution to the condition it was in before the Emergency
After the Indian general election, 1980, the Supreme Court declared sections 4 and 55 of the 42nd amendment as unconstitutional. It further endorsed and evolved the basic structure doctrine of the Constitution. In the judgement on Section 4, Chief Justice Yeshwant Vishnu Chandrachud wrote:
"Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual."
On Section 4, Chandrachud wrote:
"Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power can not be destroyed."
In other words, Parliament can not, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.
On 8 January 2008, a petition, filed by Sanjiv Agarwal of the NGO Good Governance India Foundation, challenged the validity of Section 2 of the 42nd Amendment, which inserted the word "socialist" in the Preamble to the Constitution. In its first hearing of the case, Chief Justice K. G. Balakrishnan, who headed the three-judge bench, observed,
"Why do you take socialism in a narrow sense defined by communists? In a broader sense, it means welfare measures for the citizens. It is a facet of democracy. It hasn't got any definite meaning. It gets different meanings in different times."
Justice Kapadia stated that no political party had, so far, challenged the amendment and everyone had subscribed to it. The court would consider it only when any political party challenged the EC. The petition was withdrawn on 12 July 2010 after the Supreme Court declared the issue to be "highly academic"
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