The National Emergency proclaimed by the President Fakhruddin Ali Ahmed on advise of the Prime Minister Indira Gandhi has arguably been the lowest ebb of the Indian politics due to the the frontal attack on the very democratic set up of the country in addition to the gross civil right violation meted out by the government of the day. In this write up the author analyses the constituent assembly debates to decipher the raison d’être for including a provision entailing such wide connotations and the safeguards that have subsequently been incorporated to inhibit such an ordeal from panning out in the future again.

The Constituent Assembly was cognizant that such provisions alter the very political structure of the country from a federal one to a completely unitary one and could inadvertently prove conducive for a constitutional dictatorship if an executive of despotic temperament desired to do so.

The Constitution enumerated that the President could proclaim a National Emergency on three grounds, namely- (a.) internal disturbance

(b.)war or 

(c.)external aggression 

These terms for declaring a National  Emergency, it was argued, were deemed to be too vague. The fact that civil rights of the citizens could be suspended even on the “slightest fear” of the aforementioned exigencies could make up for an extremely “retrograde and reactionary” provision unfit for a constitution that aspires to put forth ideas of liberalism, tolerance, freedom of thought and expression. Some hounourable members even went a step further and asserted that the government of the day differed from an imperial one only in the skin complexion of those holding offices.

In order to eliminate such a situation from panning out in the future the honourable members who seconded the aforementioned notion recommended amendments which are enumerated as follows- 

Making it mandatory to seek advise from the Union Council of Ministers for promulgation of an emergency

It was opined that in post world war 2 times replete with turbid and volatile world order possibility of provision some remote countries declaring war each other could never be ruled out. Such a war would be  having infinitesimal bearing on India and would merely serve as an excuse for the executive  to declare an emergency.

Hence promulgating an emergency merely on “apprehension” of external aggression, war or internal disturbances, they believed, shall be expurgated from the Constitution altogether.

Further states are adequately armed with the state police force in order to deal with any internal disturbances rendering the provision of presidential emergency redundant and futile. Thus, internal disturbances should be replaced by the word armed rebellion which would have justified that presidential intervention.

Furthermore they pressed for a provision providing for the parliament to disapprove of the Emergency so that it acts as a system of check on the sweeping powers of the executive. It was also adumbrated that the Union could declare an emergency in a state having government of an opposing party in order to gain control of governance for such a state.

Lastly, considering a possibilty of the Parliament not being in session at time of proclamation of an emergency it was opined that a provision shall be inserted providing for summoning the Parliament immediately to ratify the ordinance. 

Although the “skeptics” kept forth convincing arguments and their fears of the provision being misused were not unfounded, which we can attest to owing to the benefit of hindsight and having experienced the emergency of 1975, but of course the entire assembly did not share this viewpoint of the skeptics.

The honourable members in favour of the provision drew attention to India’s experiences of the second world war the need for a strong Central government to make the states fall in line with its orders was stressed upon.

A strong Center was deemed essential for a nascent democracy especially  during emergencies. 

The Emergency provisions were extolled and exalted as a safety valve being hailed as the sanction behind the Indian Union, preventing people of one state or province from behaving in a manner prejudicial to the Union as a whole. 

The aspersions enumerated by the “skeptics” were rebutted. It was argued that the prior advise of the Union Cabinet of Ministers was implied but not explicitly mentioned keeping in mind if a situation compels the President to act in “spur of the moment” 

Proclamation of Emergency on mere apprehensions was justified citing the example of America in the second world war, which albeit had not formally entered the war till very late was already preparing owing to its “lend lease” policy. 

Honourable Dr. B.R. Ambedkar did not refute that the emergency provisions were susceptible to be misused, but he hoped that it will be a last resort if the need ever arises. He observed “I do not altogether deny the possibility of these articles being abused or employed for political reasons.

Why then, one may ask did the Constitution not omit the provision or even undertake steps to allay the prospect of misuse by a despotic executive. The author believes that the constituent realising the political and social realities of an infant democracy in a post war ravaged world order the Constituent Assembly adopted a pragmatic outlook as was much required in a nascent democracy bedeviled by nefarious elements throughout the length and the breadth of the country.

In the next post, we will analyze the steps undertaken in the aftermath of the 1975 National Emergency to address these lacunae by the legislative and the Suprme Court.