While a division bench of the Supreme Court in Veera Sarin has agreed to examine the constitutionality of the Emergency Declaration of 1975, the importance of reiterating the damage done to the body politic by the Emergency and the steps taken to undo the same (through the 44th Amendment, SR Bommai or Puttaswamy I) have been brought to light.
A tale worthy of mention is that of the country born with ours- Pakistan and how its fate was sealed by a series of rulings that legitimised illegitimate Emergency Proclamations.
In 1947, as the two nations of India and Pakistan with a shared history and commitment to democratic ideals attained freedom, little was it known that only one of them would turn 73 with a clean democratic record of rule by elected governments, save 21 months between 1975-77.
On the other hand, Pakistan saw her constituent assembly be dissolved (shelving the 1st Draft, 7 years in the making) by the Governor-General Ghulam Muhammad who then set up a government of his choice.
This action was challenged in the High Court of Sindh, which held that such a move was ultra vires the power vested in the Governor-General. On appeal, the Federal Court (infamously called the ‘Munir’ Court after the Chief Justice that presided over it), ruled 4-1 in favour of the dissolution.
It is said about Justice Munir that he viewed the law as an instrument to be used by a judge to reach his desired result. He’d boast about his ability to write convincing and legally sound judgements of both acquittal and conviction for the same criminal case.
The legal instrument in this instance was the ‘Doctrine of Necessity’- he argued that the absence of a legislature created the necessity for the Governor’s role within the system to be given primacy.
Moreover, such a transfer of power derived the obedience of the people regardless of the means.
Therefore, anything that is unlawful becomes lawful post facto, given the circumstances in which the action was taken. The judgment in this case however, did not lay down the limits of the circumstances in which necessity would be a viable defence for an ultra vires act, and therein lies its failure as Justice Cornelius’s dissent notes- the will of the people (sovereign) is subverted if you allow for autocracy to make inroads through a precedent.
As fate would have it, the democratic stability of the Nation was often challenged by this precedent. In 1972, Yahya Khan imposed martial law, but a challenge to it was brought in the Punjab High Court, by a teenage-petitioner who would go on to become Pakistan’s most famous Human Rights Lawyer- Asma Jehangir.
The Court declared Yahya Khan an “usurper,” and held that no post facto obedience of the people would right a wrong. However, they were of the opinion that some necessary actions of even an illegitimate government must be validated if the action were necessary for "the ordinary orderly running of the country."
The scope of even this limited application of the doctrine would be exploited in a few years.
The 1973 Constitution under Article 6 and the High Treason Act of 1973, made the Act of usurping the Constitution or aiding the Usurption of the same punishable by death to deter persons from seizing power to meet their own ends.
However, could the Munir's of the world simply interpret these safeguards as they please to allow illegitimate governments to stay in power?
In four years time, Bhutto’s democratically elected government was overthrown by a Military Coup. This take over was challenged in the Federal Courts that acknowledged that the coup was “extra-constitutional,” but held that such a step was a necessity for the welfare of the people given the instability that elections in the state had brought. The measures taken during the period were thus necessary to ensure the ordinary functioning of the state.
In 1999 Federal courts upheld the validity of Provisional Constitutional Orders that suspended the Constitution and gave all power to Pervez Musharraf, citing precedents right from the Munir Court. In 2007 a fresh Order of the government to appoint favourable judges was met with a 2-page order by a 7-member bench of the Federal Court, overturning the Order, only to be dismissed and put under house arrest.
What followed was a remarkable step in the Independence of the judiciary- 63 judges refused to validate the Government Order and were all promptly dismissed. It took a lawyer's movement and international pressure for the Emergency to be lifted and the judges to be restored.
Once restored, the Federal Court declared that the Orders of the government and every other action taken by it during the period, unconstitutional.
In 2019, a Special Court ruled that the 2007 proclamation was ultra vires and sentenced Musharraf to death citing the 1973 Act, only for it to be annulled by the Lahore High Court in 2020 as politically motivated since the act of usurpation could not have been carried out by one person alone.
It remains unanswered whether the role of the judiciary in legitimizing the usurpation makes it complicit in abetting the destruction of democracy in the state.
The Indian Judiciary is presented with the opportunity to reflect on the nature of the 1975 Declaration and the role that the judiciary played during the Emergency in sitting on the rights of the people who depended on it.
Must actions taken by an illegitimate government be deemed legitimate even if it is a necessity?
The judiciary’s answer is likely to have an impact on jurisprudence and governance in India for decades to come.
The author is a 3rd year student at the School of Law, Christ (Deemed to be) University in Bangalore