It was on June 26, 1975, that the Emergency was declared in the country. During the Emergency, the Constitution was amended by the 42nd Amendment, which enabled the suspension of fundamental rights of life and personal liberty and severely curtailed the rights of citizens to move a court.
This year, as the day approached, the Bharatiya Janata Party’s veteran leader L.K. Advani warned that we could once again have an emergency in the country.
Under the Constitution, as originally framed, Article 359 made clear that the President may, by order, declare that the right to move any court for the enforcement of fundamental rights would remain suspended. The Proclamation of 1975 did suspend all fundamental rights. This enabled the arrest of hundreds of well-known politicians, many of whom are alive today. The infamous ADM Jabalpur vs Shivkant Shukla case, wherein the Supreme Court refused to release detenues on the basis of this proclamation, is a judgment some of its authors have come to regret.
By far the most significant amendment made by the Janata Party when it came to power was to delete the words “internal disturbance” from Article 352 and replace it with “armed rebellion”. Hence, if the question is, can an emergency be imposed today for “internal disturbance”, the answer is no. But what “armed rebellion” means is a matter of interpretation. And when an armed rebellion requires an emergency to be imposed remains an unanswered question. It must be remembered that emergency can be declared in a “part of the country”. Today we have “armed rebellion” in several parts of the country and it is anybody’s guess if an emergency can be declared in those regions.
The other very significant amendment was an amendment to Article 359 which stated that a proclamation of emergency will not allow the suspension of the fundamental right to life and liberty. To that extent, this provision is the abiding legacy of the Janata government and no proclamation can now deprive access to the courts for the release of arrested persons. However, Article 353 enables the Centre to enact laws and take executive decisions for the whole of the country, virtually turning it into a unitary state from a federal one. This Article was left intact.
The basic tools for the declaration of an emergency are in place. The safeguards inserted by the Janata government were — an emergency can only be declared on the written advice given to the President by the Cabinet and that the proclamation must be approved by a majority of the total members of the House and two-thirds of those present and voting. In the last one year we have got accustomed to listening to spokespersons of the ruling coalition justify every decision, right or wrong, legal or illegal, constitutional or unconstitutional, with the stock reply, “We have the numbers”.
The question, therefore, reduces itself not to whether an emergency can be declared — after all, why have a declaration if the job can be done without a declaration — but whether the county is being run on constitutional lines. The legality of a decision under the Constitution is not judged by whether the government has a majority in Parliament but by its compliance with constitutional standards. This primarily entails respect for the fundamental rights of all, including minorities, respecting the federal structure of the Constitution and the separation of power between the legislature, the executive and the judiciary.
By this touchstone, we are witnessing what we saw during the 2014 general election campaign the slow transformation of the parliamentary form of government into a presidential form — the erosion of the collective responsibility of the Cabinet system and the erosion of the rights of landless and toiling people.
We are also witnessing a severe attack on the judiciary in the form of the National Judicial Appointments Commission, which has the potential of packing the judiciary with friendly judges and blocking those who decide against the government of the day.
While this law is under challenge on the ground that it interferes with the independence of the judiciary, many other such laws and policies, written and unwritten, have gone unchallenged so far. Of them, the most deadly, the “ghar wapsi” and “love jihad” of the BJP and its fringe organisations, violated one of the sacred rights — the freedom of conscience and faith and the right to practise a religion of one’s choosing. It is here that “we have the numbers” argument is most evident.
The intense hatred of dissenting opinions on development paradigms is a hangover from the Emergency of 1975. It is no accident that the law which is now being used against non-governmental organisations is the Foreign Contributions Regulation Act that was enacted during the Emergency!
It is being used with a vengeance, something that was not witnessed during the 10 years of the UPA government. Whether it is Teesta Setalvad or Priya Pillai, activists are being caught within the net of that law. It stands to reason that cutting off funding, whatever be the colour of the money, can lead to a drop in organised advocacy and alternative points of view. It is a different matter that there are some of us who will continue, with or without funding, to oppose the policies of the ruling party if we consider them against the interest of the people of the country.
The tendency to rule through ordinance is a clear bypassing of Parliament, the prime example being the land ordinance issued for the second time for want of a majority in the Rajya Sabha. In short, if the declaration of an emergency implies intolerance of dissenting opinions, we are already in one and those of us who do not agree with the changes made to laws and proposed changes such as the labour code are in danger of being called anti-national elements.
The most significant indicator of the emergency ethos is the attempt to define a threat to security, a precondition to the declaration of an emergency, to mean and include a threat to the economic security of the country. This will indeed be a first; so far, the word “security” has been associated with threats to our external security and sovereignty in the sense of war on our borders, terrorist activity, organised money laundering or smugglers.
We on the margins of society are indeed in an emergency.
The writer, a former additional solicitor-general of India, is well-known for her legal activism in promoting human rights and feminism
