June 25 marked the 50th anniversary of the proclamation of the Emergency ’75 in India. The Modi government decided to observe the occasion as “Samvidhan Hatya Divas" (The Murder of the Constitution Day). Ironically, whereas the Emergency ’75 might have been undemocratic, it was not unconstitutional per se. It was proclaimed under due provisions of law.

The Article 352 (1) in the original Constitution read as: “If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may by Proclamation, make a declaration to that effect".

It was this provision that the then-President Fakhruddin Ali Ahmed depended upon while proclaiming the Emergency on the night of June 25, 1975. “Internal disturbance" lent itself to a wide-ranging interpretation, including political and civil society movements. The original article contained no proviso that the proclamation of the emergency should be restricted to only affected parts of India. Thus it was proclaimed for the whole of India, even if that were not necessary.

Also, in a glaring lapse of parliamentary procedure, President Ahmed’s proclamation preceded the cabinet meeting approving the emergency.

The proclamation of emergency, Kuldip Nayar informs, was signed at 11.45 pm on June 25, 1975. Indira Gandhi decided to call the meeting of the cabinet at 6 pm on June 26 after returning from the Rashtrapati Bhawan (The Judgement: Inside Story of the Emergency in India, P. 39-41).

The proclamation was placed before the cabinet that met at 1, Safdarjung Road—the Prime Minister’s official residence—for ex-post facto approval.

The arrest of the opposition leaders, as well as the journalists, had gone on with ruthless efficiency in the intervening period.

Article 352 has been altered since then, raising the constitutional bar against the sweeping imposition of emergency countrywide as in 1975.

Paradoxically, even Indira Gandhi’s government has a role in it through the 42nd amendment of the Constitution (1976).

The 44th amendment brought in by the Janata Party’s government (1978) further conditioned the imposition of emergency.

Thus, from the constitutional viewpoint, the imposition of emergency became more difficult.

Further, Article 359, which was related to the suspension of the enforcement of the rights conferred by Part III during emergencies, no longer applied to Articles 20 and 21.

This meant that the constitutional provisions with regard to protection in respect of conviction of offences, and protection of life and personal liberty, could not be abridged under any circumstances (even if other fundamental rights are suspended under emergency). These changes will be described ahead.

The events described as the causes of the Emergency ’75, e.g. students’ movement spearheaded by Jay Prakash Narayan, the Allahabad High Court’s judgment declaring Indira Gandhi’s election from Raebareli parliamentary constituency (1971) as void, etc, were at best immediate causes.

Immediate causes........

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