In a prequel to this piece, we discussed the chain of events that led to the landmark judgment pronounced by the Allahabad High Court 45 years ago on June 12, 1975, and its aftermath. This judgment, deciding an election petition filed by Raj Narain, found Indira Gandhi to have indulged in corrupt electoral practices and accordingly disqualified her from holding any public office for a period of 6 years from the said date.
On an ex parte application, the High Court stayed the operation of this order for 20 days, and thus, the Congress Party was given 20 days to find a replacement for Indira Gandhi as Prime Minister.
Interestingly, I noticed that this judgment is mysteriously not available on any online platform and has not been reported in leading law reports. One can only wonder why!
Indira Gandhi approached the Supreme Court against this judgment. As summer vacations were running, the appeal was presented before the vacation judge, Justice Krishna Iyer, who pronounced the judgment on June 24, 1975. Nani Palkhivala represented Indira Gandhi. Shanti Bhushan, for Raj Narain, had argued that Indira Gandhi approached the Court with ‘unclean hands’, as her lawyer misrepresented the Allahabad High Court to grant the unconditional 20 days stay order to approach the Supreme Court. This was rejected by Justice Krishna Iyer, and a conditional stay was granted, but it was clarified that there was no legal embargo on Indira Gandhi continuing as Prime Minister.
The socio-economic condition of India was in bad shape between 1972-1975. The two wars and the influx of eight million refugees from Bangladesh had strained the economy. There was a sharp increase in oil prices and prices of commodities. A monumentally high level of inflation had caused great distress, and most importantly, industrial growth was low and unemployment was high.
A few important parallel developments at the same time include the Nav Nirman movement led by the Akhil Bhartiya Vidyarthi Parishad (ABVP) in Gujarat, the Sampoorna Kranti (total revolution) agitation led by Jayaprakash Narayan (JP), and the national strike by the Railway workers union.
The slogan ‘Indira Hatao’ (Remove Indira) gained momentum and voices seeking the resignation of Indira Gandhi on moral grounds were at their peak. As a reaction, the Congress coined ‘India is Indira and Indira is India’. This did well only to an extent. They circulated another poem to attract public confidence in Indira Gandhi:
What attracted people was a different poem. On the evening of the judgment by Justice Krishna Iyer, JP recited Ramdhari Singh Dinkar’s “सिंहासन खाली करो कि जनता आती है” (Deboard your throne as public is coming) in Delhi’s Ramlila ground.
A wave of mass repulsion against the government ran across. JP also announced a week-long Satyagraha to press for Indira Gandhi’s resignation while appealing to the armed forces, the police and government employees not to obey the ‘illegal and immoral orders’ of the government.
At 9:30 pm, on June 25, 1975, the Proclamation of Emergency was sent to President Fakhruddin Ali Ahmed. At midnight, Indira Gandhi invoked Article 352 of the Constitution for ‘internal disturbance’, and imposed a national Emergency. Opposition leaders of the Jansangh were taken into custody, censorship was imposed on press, cinema, other forms of art, and fundamental rights were suspended, rampant torture became the norm, and to deter grassroots revolution, a ban was soon announced on various organisations, including the Rashtriya Swayamsewak Sangh (RSS).
The Cabinet was not consulted and senior leaders were also not informed. The Union Cabinet was informed about the midnight imposition of Emergency in a special meeting at 6:00 am on June 26 after all the things were put in place. At 8:00 am, Indira Gandhi made an unscheduled radio broadcast to tell the nation about the Emergency. Many newspapers in Delhi had their power supply cut off the previous night, and had not reached readers. They reported the news on June 27.
The entire Congress Parliamentary Party, barring five dissidents, supported the Emergency. All five were suspended from the party. The Communist Party of India also wholeheartedly supported the Emergency.
Let us discuss a few interesting highlights surrounding the Emergency.
1. This was the third instance of declaration of Emergency. The two other times were in 1962-1968 (Indo-China war) and 1971 (Indo-Pak war). Technically, the 1971 Emergency was not revoked and was still running at the time of issuing the 1975 Emergency.
2. The press was made to suffer and every word was screened by the ruling establishment. The Indian Express held a silent protest against this and carried a blank page instead of an editorial. The Financial Express carried Rabindranath Tagore’s poem, “Where the mind is without fear, and the head is held high”. The Bombay edition of The Times of India carried an obituary that read: “DEM O’Cracy, beloved husband of T Ruth, loving father of LI Bertie, the brother of Faith, Hope and Justice, expired on June 26.”
3. Censorship on art was at its pinnacle. Lyricist Gulzar’s movie titled Aandhi (1975) was banned, because the film was supposedly based on Indira Gandhi. Amrit Nahata's film Kissa Kursi Ka (1977) a bold spoof on the Emergency, where Shabana Azmi played 'Janata' (the public), a mute, dumb protagonist, was banned and reportedly, all its prints were burned by Indira Gandhi’s son Sanjay Gandhi and his associates at his Maruti factory in Gurgaon. Similarly, a movie titled Nasbandi starring Amitabh Bachchan and Rajesh Khanna was also banned after its release due to Emergency-related content.
4. The extent of vengeance was such that during this period, when popular singer Kishore Kumar was asked to sing for a Congress party rally in Bombay and he refused, an unofficial ban was forced on playing his songs on state broadcasters from May 1976 till the end of Emergency.
5. The Maintenance of Internal Security Act (MISA), 1971 was widely used to take custody of all dissenters and lodge them in jail. It also permitted law enforcement agencies very broad powers including indefinite preventive detention, powers of search and seizure without warrants, surveillance, and tapping.
6. The Constitution was amended in an autocratic manner through 5 constitutional amendments starting from the 38th amendment till the 42nd amendment, which is also called the mini Constitution. Barring a few, many amendments were later nullified by the next government and by the Supreme Court.
7. The 39th Amendment placed MISA in the Ninth Schedule, making it totally immune from judicial review even on the grounds of breaching fundamental rights. It was later repealed in 1977 by the successor government, through the 44th Constitutional amendment. However, other coercive legislations like the Armed Forces (Special Powers) Act, 1958 (AFSPA), the Essential Services Management Act (ESMA), 1968 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 are still enforced.
8. The naxal movement, which started from Naxalbari in West Bengal, gained pace during this period. A routine mode of operations of Naxalites in Kerala was attacks on police stations in rural areas. The police acted with vengeance upon citizens.
9. In September 1976, Indira’s son Sanjay Gandhi initiated a widespread compulsory sterilisation program. This was not only hard paternalism, but was forceful and brutal. Many instances of forceful sterilisations were reported.
10. The RSS, which had a large organisational cadre base, was seen as a potential threat as it could organise protests against the government. It was consequentially banned and thousands of its workers were imprisoned. However, thousands still participated in its peaceful protests and underground movements.
11. The nationwide strike of the Railway employees union faced brutal suppression by the government and thousands of employees and their families were forcefully driven out of their quarters.
12. A criminal case came to be launched against opposition leader George Fernandes and few others. The Central Bureau of Investigation (CBI) charged George and others of smuggling dynamite to blow up government establishments and railway tracks in protest. They were also charged with waging war against the State to overthrow the government. He was represented by late Sushma Swaraj and Swaraj Kaushal. His photo in a prison cage and chains became a revolution of its own, to an extent that he contested election from jail and his supporters won the election by campaigning through that photograph. The Janta Party withdrew the case on coming to power in 1977 and all accused were released.
13. A film actress, Snehlata Reddy was a co-accused with George Fernandes. She was arrested in the same case and was regularly tortured and confined to live in inhuman conditions. Owing to deteriorating health, she was released on parole, but died of injuries within days and became one of the first martyrs of the Emergency.
14. Similarly, an engineering student in Kerala, P Rajan died due to police torture. Many deaths remained unreported.
15. Almost all High Courts held that even during Emergency, a citizen could approach them under Article 226 of the Constitution for appropriate remedy through writ jurisdiction. This was overturned by the Supreme Court in ADM Jabalpur’s case by a majority of 4:1. The majority judgment relied on the wartime decision of the majority of the House of Lords in Liversidge vs. Anderson, disregarding the ringing dissent of Lord Atkins. The lone dissenter in ADM Jabaplur, Justice HR Khanna, was deprived of the post of Chief Justice of India due to his decision. ADM Jabalpur is no longer good law and has been overruled by the Supreme Court in KS Puttaswamy.
16. The Supreme Court also reversed the Bombay High Court judgments on the conditions of detention including in the case of Mrinal Gore (Union of India v. Bhanudas K Gawde).
17. After imposition of Emergency, Nani Palkhivala refused to appear for Indira Gandhi. Fali Nariman, who was the Additional Solicitor General, resigned from the post. Ram Jethmalani was the then Chairman of the Bar Council of India. An arrest warrant was issued against him under MISA. Palkhivala and Soli Sorabjee were among other 300 lawyers who appeared for him in court, and the warrant was stayed by the Bombay High Court. He, however, left India on the day the judgment in ADM Jabalpur was passed by the Supreme Court. The Supreme Court Bar Association (SCBA) also joined the movement against the Emergency and actively canvassed for restoration of democracy, abolition of MISA, and holding free and fair elections. Many lawyers declined to appear for the government in cases affecting civil liberty.
18. The military chose to remain apolitical during the Emergency. In fact, the Army refused to help with water requirements of the Congress party for a massive rally at India Gate and made its stance very clear that it will do nothing to uphold the Emergency.
19. On January 18, 1977, Indira Gandhi called fresh elections and released all political prisoners, though the Emergency officially ended on March 23, 1977. In the Lok Sabha elections held in March 1977, Indira Gandhi and Sanjay Gandhi both lost their seats. The Congress was reduced to just 153 seats, 92 of which were from four of the southern states. The Janata Party's 298 seats and its allies' 47 seats (of a total 542) gave it a massive majority. Morarji Desai became the first non-Congress Prime Minister of India.
20. After coming into power, the Janata Party made efforts to get government officials and Congress politicians tried for Emergency-era abuses and crimes. This wasn’t very successful.
21. The Janata Party amended the Constitution and made it necessary that the advice to the President to proclaim Emergency must be given in writing by the Council of Ministers.
The 1975 Emergency was the darkest period in the history of democratic India. I will leave the reader to imagine the situation back then by recounting two famous statements made by two eminent citizens.
"Even if life was to be taken illegally during the Emergency, the courts are helpless", said then Attorney General Niren De in ADM Jabalpur’s case and when asked on the issues of election. In response, Gandhi had said,
I hope we never see those days again. Fingers crossed!
Namit Saxena is an Advocate-on-Record at the Supreme Court of India. Follow him