How Indira Gandhi Used Legal Loopholes to Impose Emergency

The imposition of the Emergency and most of what happened then were seemingly within the legal framework. For instance, the Emergency was declared on June 25, 1975, under Article 352 of the Constitution, which at the time allowed such a proclamation on grounds of “internal disturbance”.

Indira Gandhi’s decision to continue as Prime Minister, despite the Allahabad High Court on June 12, 1975, disbarring her as a Member of Parliament for election malpractices, was also legal — the Supreme Court allowed her to remain in the post, granting a conditional stay on the HC order on June 24, 1975. The HC itself had granted a 20-day stay on its verdict to allow the Congress to pick its leader.

Indira’s move to take the matter of imposing the Emergency directly to the President, circumventing the Cabinet was also seemingly lawful. Rule 12 of the Government of India (Transaction of Business) Rules, 1961 allowed the PM to bypass other rules and take actions that could be later ratified by the Cabinet. The Cabinet was informed the morning after the Emergency was proclaimed.

But all these seemingly legal steps heralded a dark chapter in modern Indian history, which was marked by a severe erosion of democratic rights and constitutional norms. This happened due to a combination of weaponisation of laws, subversion of judicial independence, and disregard of the rule of law. Constitutional scholars now outline these themes as predictable precursors to how democracies die.

The Emergency module

Weaponisation of laws: The most glaring excess of the Emergency era was the illegal detentions. Nearly 1,11,000 persons were detained under preventive detention laws, including 13,000 associated with Opposition parties.

Historian Granville Austin in his book, Working a Democratic Constitution, noted that Indira had approved the list of those who were to be arrested in sweeping pre-dawn raids on June 26, 1975, even before the President’s Proclamation was published in the official Gazette. These detentions were made primarily under the Maintenance of Internal Security Act (MISA), 1971, which allowed indefinite incarceration without disclosing the grounds of arrest to the detainee.

In August 1975, through the 39th Amendment to the Constitution, MISA was placed under the Ninth Schedule to the Constitution, which meant it could not be challenged in courts. By doing so, a valid law was weaponised to arbitrarily arrest political detractors.

Subverting judicial independence: Judicial appointments became a proxy for the battle for control of the Constitution. Judges who fit the government’s idea of a “committed judiciary” were appointed. The government tinkered with the seniority rule for appointment of the Chief Justice of India (CJI).

For instance, in 1977, Justice M H Beg was appointed CJI, overlooking Justice H R Khanna, the senior-most judge. Justice Khanna was the lone dissenter in the 1977 habeas corpus case in which the SC had upheld the suspension of civil liberties.

Erosion of the rule of law: The selective or unequal application of laws was seen in the way courts were asked to give the state a pass for its excesses, especially in cases of arbitrary arrests. Those who were arrested had no such rights or the benefit of the doubt.

The Constitution was amended when Opposition leaders were in jail. The passing of the amendments paid lip service to legislative norms, but in spirit, the idea of democratic lawmaking was violated.

Executive aggrandisement: The slogan “Indira is India and India is Indira” was heard widely during the Emergency. The fusing of personality and state, or party and state, is recognised as a marker of democratic backsliding. Even in its 1975 ruling, the Allahabad High Court agreed with the charge that Indira had used state machinery to facilitate her election campaign — a fusing of personality and state.

Lessons from the module

Democracy is a legal construct that is held together through collective adherence to constitutional requirements that ensure accountability and the rule of law. They are drawn from the functioning of the political Opposition, an independent judiciary, a free press, and a robust civil society.

Tom Ginsburg, co-author of How to Save a Constitutional Democracy (2018), has noted that while democracies “innovate” on constitutional design, “authoritarians copy”. For example, India’s Constituent Assembly abolished untouchability in 1950, at a time when the Jim Crow laws continued to be constitutionally enforced in several states in the United States, and only the US military was desegregated through an Executive Order in 1948.

On the other hand, authoritarian playbooks are often repeated, from undermining judicial independence, giving into majoritarian impulses, and ultimately eroding the rule of law.

Elected leaders can gradually subvert the democratic process to increase their power, according to American political scientists Steven Levitsky and Daniel Ziblatt (How Democracies Die, 2018).

The striking aspects of the Emergency module, however, are the intensity of democratic decline in a short period and the restoration of democratic values. Therefore, lessons in unravelling the authoritarian playbook are worth repeating.