Mainstream, VOL LIII No 34 August 15, 2015
The Emergency Deserves Larger Reflections
Saturday 15 August 2015, by
On the 40th anniversary of the Internal Emergency imposed by Indira Gandhi on June 26, 1975, former Deputy Prime Minister L.K. Advani’s caution against its recurrence drowned the real issues in the resulting din. One set of reactions, viewing Prime Minister Narendra Modi and his regime in the mirror of the 2002 riots and picking up trends and antiphons from the Bharatiya Janata Party (BJP) under a new leadership since the 2014 elections, interpreted it to mean undemocratic, if not authoritarian, streaks in the party and the leadership. Another set of reactions described it as originating from the frustrations of the octogenarian leader left out in the cold.
Beyond the BJP, Modi and Advani, the four-decade milestone of the Emergency invited analyses, most of which reminded the nation of the appearance of the first authoritarian streak in Indian politics. However, the reflections and analyses have merely targeted a directionless Congress, asking questions whether Mrs Gandhi would have run a dictatorial regime but for her obsessed love for her son, Sanjay. Others assay the Emergency from the perspective of the future of the Indian polity. These have missed the larger implications of 38 years of the post-Emergency politics that washed her dictatorial taint, leaving the causative tendencies unatte-nded. The questions of creation and sustenance of a democratic and more institutionalised party system, a more broad-based party system without the familial leadership successions in parties, depoliticisation of the institutional framework, etc. have not been discussed. Possible precautionary and preventive measures taken against the socio-political weaknesses that the Emergency manifested, is also missing from these introspections.And, above all, could the mending of the Constitution undo the effects of the controversial Fortysecond Amendment?
In short, has Indian democracy learnt lessons from the tendencies that led to the Emergency, whether or not it is declared formally?
The Politics of Undoing
Thirtythree months between the withdrawal of the Emergency on March 21, 1977 and a quick-fix Janata Party winning the sixth general election and coming to power three days later, and Indira Gandhi’s return to power in less than three years on January 7, 1980, the political contestation that challenged the politics of the ‘Emergency’ was severely diluted, was rather undone, due to an intense no-holds-barred political feud for personal and factional aggrandisement. From the disagreements and controversies over leadership amongst Morarji Desai, Charan Singh (his Bharatiya Lok Dal was the largest component in the Janata Party) and the Dalit Congress leader, Jagjivan Ram, who had switched sides on the eve of the elections to form the Congress for Democracy (that later merged in the Janata Party), to each merging party maintaining its informal identity within the party, the party and government had been built over a shaky foundation, glued together by the personality of an ailing Jayaprakash Narayan. The fall of the Morarji Desai-led government within two years (July 15, 1979) following the defection of Charan Singh and his followers to set up the Janata Dal (S) and formi the government with the ‘outside support’ of the Congress (July 28, 1979) was a clear negation of the principles and politics that had contested the Emergency. At once his personal power ambition not only shook the foundations of the JP movement and its gains that appeared to have created the basis of what we today call the post-Congress polity and a two-party system at the national level, it also lent credence to the politics, also backed by personal ambition, that had led to the imposition of the Internal Emergency.1 Not only was it an abuse of the constitutional provisions, it also for the first time manifested the functioning of a police state in the country. In the process, the already politicised, deinstitutionalised and demoralised police apparatus in the country was further abused and demotivated.
The Constitutional Engineering: Done and Undone
The controversial Fortysecond (Constitution) Amendment Act, passed by the Indian Parliament on November 2, 1976, when most of the Opposition leaders were behind bars, is considered the most important piece of legislation that attempted to change the balance of power designed by the framers of the Constitution as also set and declare new priorities to justify the declaration of the Emergency.2 It significantly extended the duration of the Lok Sabha and the State Legislative Assemblies, elected for five years, by a year. In case of such a constitutional change, implementation is left till a new House is elected, but in this case the change not only extended the duration of the elected Houses, but also extended the duration of the future representative Assemblies. The Janata Party Government, committed as it was to undoing the constitutional improprieties committed during the Emergency, immediately passed the Fortythird (Constitution) Amendment Act (December 1977, applicable since April 1978)3 and the Forty-fourth (Constitution) Amendment Act (May 1978, applicable since April 1979).
The Fortysecond Amendment made 59 changes in the Constitution, impacting the executive, the legislature, the judiciary and the citizens’ rights alike. Granville Austin thus analyses its real objectives, ‘Building on the Swaran Singh Committee proposals, the Amendment’s twenty pages of clauses had four main purposes: to further protect from legal challenges Mrs Gandhi’s 1971 election to Parliament and future elections of her followers; to strengthen the central government vis-à-vis the state governments and its capability to rule the country as a unitary, not federal, system; to give maximum protection from judicial challenge to social revolutionary legislation—whether intended sincerely or to cloak authoritarian purpose; “to trim” the judiciary, as one Congressman put it, so as to “make it difficult for the Court to upset her policy in regard to many matters”.’4 The additions of ‘Secular, Socialist’ to ‘Sovereign Democratic Republic’ and assurance of ‘unity and integrity’ of the nation in the Preamble, the elements that were integral to and implicit in the Constitution, were to create the impression of emerging threats to the nation and Indira Gandhi’s resolve to streng-thening and safeguarding the ‘nation’ against them. However, the statutory safeguards for the leader impacted both institutions and citizens’ rights.
Threats to national unity and integrity being used as the raison d’être for imposing the Emergency and constitutional changes attempted a political and civic atmosphere of suspicion giving credence to the hyperbole of increasing ‘anti-national’ activities. This was then used to strengthen the executive vis-à-vis the other organs and add to the police powers of the Union Government vis-à-vis the States and of the Indian state vis-à-vis the citizens. The changes in Lists 1 and 2 of the Seventh Schedule strengthened the Union Government’s role in public security by legitimising Central intervention. Strengthening of preventive detention further bolstered the police powers of the state and weakened the protections to the Fundamental Rights. Changes in Articles 31 and 31C and addition of Article 31D seriously jeopardised the Fundamental Rights by enabling the government to restrict any act or association by declaring it anti-national. These changes also affected right to life and personal liberty enshrined in Article 21.
Article 74 of the Constitution providing for ‘a Council of Ministers to aid and advise the President in the exercise of his functions’ was also amended and ‘who shall, in the exercise of his functions, act in accordance with such advice’ was added to it, as despite an easy assent by President Fakhruddin Ali Ahmad on orders to declare the Emergency, doubts were raised whether the advice of the Council of Ministers were binding on the President or not. Rules made under the Article were put beyond judicial scrutiny.
The weakening role of the judiciary was another major feature of the Fortysecond Amendment. New Articles 103 and 192 took away the judiciary’s powers to adjudicate matters relating to elections of candidates to the Parliament and Legislative Assemblies; the President and Governors were empowered to look into such disputes. New Articles 226A and 228A took away the power of the High Courts (HCs) to rule on the constitutionality of the Central laws. It also altered the federal balance by strengthening the Central authority. Articles 144A and 228A added by the Amendment strengthened the executive by prescribing seven and five-judge Benches respectively of the SC and HC to rule by two-thirds majority on the constitutionality of the Central or State laws. Protection to certain Central laws against judicial scrutiny (particularly of the HCs) created a skewed balance in separation of powers. Amendment to Article 368 brought a fundamental change in the equation amongst citizens, judiciary and Parliament. Not only was Parliament empowered to make any change in the Constitution including in Part III, the right to appeal to any court on infringement of the Fundamental Rights was taken away from the citizens. At the same time the citizens were statutorily reminded of their Fundamental Duties, that is, their duty to the state (sic) and the nation, as the new addition as Part IVA in the Constitution of India.
Amending the Fortysecond Amendment on eleven counts, the Fortythird Amendment strengthened the citizens by removing Parliament’s power to make laws in respect of ‘anti-national activities’ and associations (Article 31D) and by bringing State laws impacting the Fundamental Rights under judicial scrutiny. The deletion of Article 131D restored the original jurisdiction of the Supreme Court of India and High Courts. It curtailed the Supreme Court’s (SC’s) exclusive jurisdiction in regard to questions as to the constitutional validity of Central laws, also qualified the SC’s and HCs’ power to strike down the constitutional validity of the Central and State laws by making the requirement of a majority of two-thirds of the judges in the Bench. The amendment, though important in its content and intent despite its limited scope, appeared a preliminary attempt to undo the Emergency amendments preceding a detailed amendment. The Fortyfourth Amend-ment was introduced in the Lok Sabha on May 15, 1978 and passed by Parliament on December 7, 1978. It stated in its ‘Statement of Objects and Reasons’:
1. Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution, are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effected voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill.
2. It is, therefore, proposed to provide that certain changes in the Constitution which would have the effect of impairing its secular or democratic character, abridging or taking away fundamental rights prejudicing or impending free and fair elections on the basis of adult suffrage and compromising the independence of judiciary, can be made only if they are approved by the people of India by a majority of votes at a referendum in which at least fiftyone per cent of the electorate participate. Article 368 is being amended to ensure this. (Italics mine—A.K.M.)5
It made 45 changes to add to the eleven made by the Fortythird to undo the tinkering with the Indian Constitution during the Emergency. However, the Preamble was significantly left with the additions made and the Fundamental Duties were retained. Article 74, amended to make the Council of Ministers advice explicitly mandatory for the President to follow, was qualified with the proviso that the President can return an advice of the Council of Ministers’ for reconsideration, but was bound by it if it is resent unchanged; this was unstated qualified endorsement of the earlier amendment. Even the amended Seventh Schedule Lists 1 and 2 to strengthen the Central role in public security, were retained. However, Article 257A, providing for deployment of Central forces in a State, was not found ‘in accordance with the scheme of things ... laid down in the Constitution’ and deleted. Also, protection provided to the bureaucracy and the provision for more All-India services in Articles 311 and 312 as well as Part XIV and Article 323 regarding adminis-trative tribunals were retained.6 These qualified changes and retentions are as significant as the major changes introduced, but neither the Statement of Objects and Reasons, nor do the discussions on the Bill reveal much about them.
A significant change effected in the funda-mental rights was the deletion of the right to property (19f and 31) in the Fundamental Rights, Part III of the Constitution. However, the rights to life and liberty were further reinforced by bringing additional protections against preventive detention in Article 22. The Writs (habeas corpus, mandamus, prohibition, quo warranto and certiorari) under Article 226 were made citizen-friendly. The duration of the Lok Sabha and Vidhan Sabhas was restored back to five years. The High Courts got their powers back. The Emergency provisions received greater constitu-tional safeguards against their misuse. Article 352 thus witnessed significant changes—a) internal disturbance was replaced with armed rebellion, and b) the President was mandated to assent imposition of Emergency only if the advice came as a Cabinet resolution in writing. The restrictions on and penalties against citizens for reporting legislative proceedings in Parliament and State Legislatures were removed. The changes introduced by the Fortysecond Amendment in Parts III and IV were removed.
However, mere qualification of some critical clauses relating to the balance of power between the President and his Council of Ministers and policing powers of the Centre vis-à-vis the States indicated a political consensus.7 Unfortu-nately, an expert analysis of this part of the Emergency and post-Emergency politics is unavailable. Large-scale mutations and defiling, witnessed by institutions during the Emergency, indicating weakness amongst individuals to support such debasement, supports what L.K. Advani described in relation to the media: ‘You were asked to bend but you began to crawl.’
As the main drivers of the political process, political parties in the country looked vulnerable, putting the nation in the danger, catering to the survival-whims of a leader. Even as the Indira Gandhi-led Congress was gradually moving towards this situation, other parties did not look in good organisational health, despite the Opposition being visible and vocal both within and outside Parliament. Even though the stitching together of parties on a new political platform, called the Janata Party, became possible due to the existence of political capital on alternative (to the Congress) space, that capital appeared weak and dissipated both organisatio-nally and in terms of leadership. Hence, the post-Emergency politics witnessed a mix of old leaders available on alternative political planks and a new crop emerging from the JP movement. The old leadership flunked its first test within two years and again repeat tests in 1989 and 1996. The new JP movement crop of 1975-80, the present old guards of Indian politics, are a squabbling and self-centred lot. While they switch loyalties conveniently in search of fruits of power, they are looking for permanent loyalties for themeselves, available only in their own families. The tendency permeates India’s party system resulting in a single leader or oligarchic parties.
The Indian Party System has changed dramati-cally in four decades since the Emergency in 1975. At the national level, from a one-party dominant system without alternation, it demon-strated the possibility of alternation only to revert to the one-party dominant system for a decade since 1980. The last decade of the past century witnessed the rise of small parties and satraps, leading to the theorisation that the Indian parties were federalising in the ‘post-Congress polity’. The sixteenth general elections, aside from a decisive decline of the Left parties, witnessed an unprecedented decline of the Congress, monopolised and famililised by the Indira Gandhi family, and the rise of the BJP as the largest party in the country and in New Delhi. However, while the ‘new’ resurgent BJP characterises its old oligarchic structure along with the new one-leader-centric centralisation, small parties and the satraps (along with their families) continue to have significant presence and influence in several States. Nor surprisingly, political parties, in most cases, are family fiefdoms. Those without family allegiance arrange lateral entry at higher levels for their kin and are, in most cases, oligarchies. The enfeebled Left could be an exception to that rule. If the Emergency reflected the dangers to Indian democracy from a monolithic party, the vulnerability still lurks due to a weak party system.
The judiciary appeared disoriented during the Emergency. It has still to sort out complaints of inefficiency and corruption that plague the lower judiciary. Overburdened higher courts have faced avoidable controversies relating to some of the incumbents. The recently raging controversy regarding abolition of the collegium system and establishment of a new National Judicial Appointments Commission has the executive and judiciary locked in domain-related eye-ball-to-eye-ball confrontation.
The bureaucracy and police were the first to be affected. The repression against political rivals and dissenting opinions in the media and society succeeded as these two institutions crumbled; those few standing up were sidelined. Indira Gandhi’s twenty-point and Sanjay Gandhi’s five-point programmes, including forcible vasectomy, rested on these pillars. The bureaucracy may not be committed as Indira Gandhi wished in 1974, but with exceptions, it is fairly politicised, particularly at the State level, from where the Centre draws its pool. Do the new generation of bureaucrats have the capacity to stand up to political pressures?
That the police reform has not even fulfilled the Dharam Vira Commission’s wish-list and India continues to have a politicised, corrupt, overworked and inefficient police, reviled by the people at large and abused by the politicians, points to continuing susceptibilities. In each case of communal riot anywhere in the country, the police gets drawn into the communal and political whirlpool of controversies. The 2002 Gujarat riots constitute one such example. While several police officers at different levels were charged with communal and political tilt, several others were later charged with falsely accusing the State Government and political leadership and are fighting legal battles. Beyond the question of who was and is right, it reflects the dangers of working in uniform. Fortunately, the police strike of the 1980s has not been repeated, but in the absence of the Whitley Council mechanisms for negotiating wages, can that be totally wished away?
The police powers of the state, exercised to detain ‘dissenters’ and ‘rebels’ without trial, have existed and been exercised with discretion even in normal times too. Sharpened during the Emergency with the Maintenance of Internal Security Act (MISA), these powers were misused and abused with impunity. The Fortyfourth Amendment rightly strengthened Article 22 further, which was specially brought in by Dr Ambedkar to strengthen Article 21 on protection to life and liberty. Afflicted with insurgency and terrorism and the Maoist rebellion, post-Emergency India has not been able to do away with preventive detention. Various anti-terror laws in the past three decades—such as the Terrorist and Disruptive Activities (Prevention) Act 1987, the Maharashtra Control of Organised Crime Act 1999, Prevention of Terrorism Act 2002, Unlawful Activities (Prevention) Amendment Act 2004—and various versions of the highly controversial Armed Forces Special Powers Act in Nagaland, Manipur and Jammu and Kashmir have raised questions regarding preventive detention, human rights and violence inherent in special police powers of the state. Indeed, there would be different perceptions of these Acts in the rest of India and the areas that have to face their harshness. Significantly, the difference between the use of preventive detention and special police powers under normal and special circumstances is technical indeed, but their existence four decades since the Emergency indicates persisting inherent vulnerabilities in the society and polity.
Despite some exemplary defiance, the Fourth Estate too exposed its Achilles’ heel during the Emergency. Many followed the diktat of censorship, some shut down. Now expanded electronically beyond television, it is vulnerable to the whims of the powers that be and their nexus with the corporate owner. Who is with whom is always a subject of discussion in any brouhaha. Fingers keep being raised at the scribes ruling the media world and their political inclinations.
Obviously, the Emergency was as much about a leader using the democratic Constitution for self-aggrandisement, a declining party seeking the short-cut of special constitutional powers to perpetuate itself, as it was a failure of the society and polity. Has India strengthened itself against such vulnerabilities?
1. Though not very convincingly, Janardan Thakur does catch some of the dynamics in All the Janata Men. (New Delhi: Vikas Publishing House, 1978) Charan Singh’s politics created a base for anti-Congress mobilisation in the mid-1970s and then he cut a deal with the Congress to become the Prime Minister of India; these have been brought out by Paul Brass, An Indian Politial Life: Charan Singh and Congress Politics,1967-87. (New Delhi: Sage, 2014)
2. The statement of reasons and objectives in presentation of the Bill said: ‘The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some years now.’ It declared that the amendment to the Constitution was ‘to spell out expressly the high ideals of socialism, secularism and the integrity of the nation, to make the directive principles more comprehensive and give them precedence over those fundamental rights (emphasis mine—A.K.M.) which have been allowed to be relied upon to frustrate socio-economic reforms for implementing the directive principles. It is also proposed to specify the fundamental duties of the citizens and make special provisions for dealing with anti-national activities, whether by individuals or associations.’ (http://india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-second-amendment-act-1976; accessed on July 19, 2015)
3. The Fortythird Amendment does not even find a mention in the politics of the Emergency and post-Emergency despite some significant changes it made.
4. Granville Austin, Working of a Democratic Constitution: The Indian Experience, New Delhi: Oxford, 1999, p. 371.
5. http://indiacode.nic.in/coiweb/amend/amend44.htm (Accessed on July 29, 2015).
I have italicised and emphasised the second para of the Objects and Reasons to highlight the suggestion for ‘referendum’ for certain major constitutional amendment. The Janata Government indeed introduced the referendum clause for changes in the Fundamental Rights as well as amending the procedure of the Constitution (Article 368), but that did not go through Parliament. This left the constitutional amendments vulnerable as amended in the Fortysecond Amendment. It was in 1986 that the Supreme Court declared these clauses of Article 368 unconstitutional in the Minerva Mills case (chapter 25), bringing Parliament’s powers to amend the Constitution to the language of the Twentyfourth Amendment (1971) as interpreted in the Kesavanand Bharati case (1973) that enunciated the basic structure doctrine. (For discussion see, Austin, ibid., p. 427)
6. Austin, ibid., p. 426.
7. Consensus-building appeared to be an important strategy of the Janata Party too. Law Minister Shanti Bhushan, who piloted the Fortythird and Fortyfourth Amendments, worked on building consensus with all parties, including the Congress, by hosting a dinner at his Race Course Road residence to seek their support for amending the Bill. He used the argument with the Congress leaders that this would prevent the government from using the Fortysecond Amendment against them. Austin’s analysis suggests that on most amendments the Congress, not necessarily because of the fear of the use of the Amendment, but to salvage their dented image due to the Emergency, went along with all the major amendments.
Prof Ajay K. Mehra is the Director (Honorary), Centre for Public Affairs, Noida (UP). He is a former Ford Foundation Chair in Dalit Studies, Jamia Millia Islamia, New Delhi.