How the Constitution was subverted during Emergency

Relevance: Proclamation of National Emergency is a test to India’s democracy, in that India passed with distinction. 

Context: 

It has now been 46 years since the beginning of National Emergency. India overcame the National emergnecy by strengthening the ideals and aspiration of Constitution makers.  

About the proclamation of National Emergency in 1975: 

• On the midnight of June 25-26, 1975, the President of India on the advice of Indira Gandhi and without the approval of her Cabinet, signed a proclamation. The proclamation to “declare that a grave emergency exists whereby the security of India is threatened by internal disturbances”. 
• The proclamation in 1975 was the second one. As the National Emergency proclaimed during the Indo-Pak war was already in existence since 1971.  Both the second and the third proclamations were revoked in March 1977. 

What triggered the National Emergency in 1975? 

• Raj Narain v. State of Uttar Pradesh case: The immediate trigger for the imposition of Emergency was the judgment of the Allahabad HC on June 12, 1975.  The Allahabad High Court found Mrs Gandhi guilty of corrupt electoral practices and disqualified her from holding public office for six years after hearing an election petition. 
• On June 23, the Supreme Court Vacation Judge granted a partial stay but without granting her voting rights in Parliament. 

• On the other hand, the opposition parties united under Jayaprakash Narayan demanded her resignation. They also criticized other issues with Judiciary. Such as,  

• The struck down of bank nationalisation and the privy purses case 
• The proposal of Basic structure doctrine in Kesavananda Bharati case that limited the power of Parliament. 

• With this background, the National Emergency was imposed in India. 

What are the significant events that occurred during the emergency? 

• Mass arrests and ban: More than one lakh political workers were arrested under the Defence of India Rules and MISA(Maintenance of Internal Security Act, 1971). All political activities were forbidden.  
• Censorship on the media: Many newspapers carried blank editorials to protest censorship. One newspaper carried an obituary advertisement that read: “Died, D.E.M. OCRACY, Mother of Freedom, … on 26th June, 1975.” 
• Attack on Judiciary:  

• The parliament superseded three judges who delivered the judgment in the Kesavananda Bharati case and appointed Justice A N Ray as Chief Justice of India. 
• In another instance, Justice H R Khanna was superseded and Justice H M Beg was appointed as CJI. 

• Fourteen high court judges who were found not to be pliable were transferred. 

• Threat to Fundamental Rights: A declaration was made under Article 359(1) whereby no person could move the courts for the enforcement of Articles 14, 19 and 21. In simple terms, if a person was threatened with death, he had no remedy in law. 
• Amendment to Constitution: The election disqualification case in the Supreme Court was scheduled for hearing. On the other hand, the Parliament tried to amend both the Constitution and the Representation of Peoples Act retrospectively to legislatively validate Indira Gandhi’s election process.  

• By the 39th Constitution Amendment, the elections of the Prime Minister, President, Vice President and Speaker could not be called into question before any court. It also added that any order made by any court setting aside an election of these four functionaries would be deemed void. 
• The 41st Constitutional Amendment that sought to amend Article 361 and give lifelong immunity from criminal prosecution to the Prime Minister, governors and President for all acts done before the assumption of office and during their tenure. 

• The 42nd Constitution Amendment provided that any constitutional amendment under Article 368 would be valid and can change the Basic structure of Constitution. 

Changes brought by 43rd and 44th amendments: 

But later the 43rd and 44th amendments and restored the primacy of the Constitution and rule of law. The changes are,  

• “Internal disturbance” was replaced by “armed rebellion” under article 352.  
• The decision of proclamation of emergency must be communicated by the Cabinet in writing.  

• Proclamation of emergency must be by the houses within one month.  
• To continue emergency, it must be re-approved by the houses every six month. 
• Article 358 provides that Article 19 will be suspended only upon war or external aggression and not upon armed rebellion.  
• Further, every such law that transgresses Article 19 must recite that it is connected to Article 358. All other laws can still be challenged if they violate Article 19. 

Conclusion 

Imposition of National Emergency and its aftermath strengthened democratic ideals of a free press, an independent judiciary and a transparent government. The people and their faith in democracy that emerged as the true winners during the emergency. 

Source: The Indian Express: Article 1, Article 2 and Article 3