Daily Times

On June 12, 1975, the Allahabad High Court ruled that Prime Minister Indira Gandhi should be unseated and told the Congress Party to make alternative arrangements for running the government. Indira consulted S S Ray, Chief Minister of West Bengal, who advised her not to resign. An appeal was filed in the Supreme Court and, on June 24, Justice Krishna Ayer announced that Indira could continue as prime minister but could not vote in parliament until her appeal was decided.

On the morning of June 25, Ray was summoned by Indira. The Gujrat and Bihar Assembly were dissolved. Indira told Ray, “Democracy will come to a grinding halt, emergent action is needed.” Indira then read aloud from the intelligence reports on her desk. They outlined a rally to be held that evening, in which J Prakash Narayan would call for the police and army to mutiny. Indira informed Ray that she did not want to discuss the emergency with her cabinet until after it had been imposed. Ray proffered the legalist explanation that not all presidential proclamations needed to be formulated with the prior knowledge of the cabinet and advised Indira that the president could impose an ‘internal emergency’ that the cabinet would then endorse retroactively. Ray then accompanied Indira to see the president.

The president asked the prime minster whether she had consulted the cabinet; she said the matter was too urgent and the cabinet would approve the emergency retroactively. After various other questions, the president told her to send the emergency order. Eventually, the president signed an order under article 359 (1) suspending the right to move the court under article 19 of the constitution, resulting in the suspension of the protection of articles 14, 21 and 22.

Indira Gandhi, in her first broadcast of June 26, 1975, stated, “Certain persons have gone to the length of inciting our armed forces to mutiny and our police to rebel.” Large numbers of persons were arrested that night. The cabinet met at 6:00 am. Few ministers present endorsed the emergency. Challenging the arrest and detention of thousands of people, there were writs of habeas corpus filed in Allahabad, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab and Rajasthan. The high courts held that the detention was mala fide. The government filed an appeal, which was heard by a bench consisting of Chief Justice A N Ray, H R Khanna, M H Baig, Y V Chandrachud and P N Bhagwati. The bench dismissed the writ petition four to one, the lone dissenter being Justice Khanna.

It should be mentioned that Justice Khanna was first in the line of seniority. When Justice Ray retired, Khanna was bypassed and Baig was appointed chief justice. The historic importance of the dissent given by Justice Khanna was recognised the world over. The New York Times of April 30, 1976 paid rich tribute and observed, “Someone will surely erect a monument to Justice Khanna, who spoke out fearlessly and eloquently for freedom.”

Dorothy Norman, along with the New York based writer Mehta, drew up a petition denouncing the emergency, which was signed by over 80 prominent Americans including Noam Chomsky. Less than a month after emergency was imposed, parliament was convened on July 25 and both houses endorsed the emergency. Dissent in parliament was curbed by a resolution suspending the daily question hour. Foremost amongst the urgent business before them was a series of bills introduced to amend the constitution. The primary purpose of these amendments was to make the emergency and Indira invulnerable to the judiciary. On August 1, the 38th Amendment was passed, which safeguarded the declaration of an internal emergency, President’s rule in states, and promulgation of ordinances, and put them beyond the reach of the courts. The 39th Amendment almost nullified the judgment of the Allahabad High Court. The 42nd Amendment, enacted in November 1976, gave parliament power to amend the unamendable basic structure of the constitution. The 42nd Amendment extended the term of the Lok Sabha and state assemblies from five to six years. The emergency was further consolidated by promulgating various ordinances.

In February 1976, Indira postponed the upcoming general elections and extended the emergency. According to Amnesty International, during the first year of the emergency, 110,000 people were detained without trial. In the first five months of the emergency, 3.7 million were sterilised. Eventually, elections were held and the opposition secured a majority. On March 23, 1977, Morarji Desai was sworn in as the fourth prime minister of India. After Indira lost the election, “Indira Gate” was hot copy and Indira became the new Nixon. Janardan Thakur’s All The Prime Minister’s Men, Kuldeep Nayar’s The Judgment and many other books on the subject were in wide circulation. In London, notorious novelist Salman Rushdie — the author of Midnight’s Children — depicted Indira as a monstrous, life-devouring widow, and won the Booker Prize.

In 1980, Morarji’s government introduced various constitutional amendments to undo the damage done by Indira Gandhi. A commission headed by the ex-chief justice of India was constituted to go into Indira’s misdeeds. In his three-volume report, Justice Shah declared that the proclamation of emergency was unconstitutional and fraudulent and that there was no evidence of any breakdown of law and order in any part of the country nor any apprehension of it occurring.

The writer is an advocate, former attorney general of Pakistan, judge ad hoc of the International Court of Justice and former secretary general OIC