Five Decades After the 1975
Emergency: Constitutional Safeguards and Democratic Lessons
Prelims: Constitution | Emergency
Provisions | Fundamental Rights
GS-II: Indian Constitution | Constitutionalism | Executive
Accountability
Why in News?
The
anniversary of the Emergency proclaimed on 25 June 1975 has renewed
attention on the constitutional safeguards created after 1977 to prevent
excessive concentration of executive power. The 1975–77 period witnessed
suspension of civil liberties, preventive detention, press restrictions and
major constitutional changes, making it a central case study in Indian
constitutionalism.
Constitutional Basis of
National Emergency
1.
Article 352: The President
may proclaim a National Emergency when the security of India or any part of it
is threatened by war, external aggression or armed rebellion.
2. The
expression “armed rebellion” was introduced by the 44th
Constitutional Amendment Act, 1978, replacing the broader expression
“internal disturbance”. The amendment narrowed the grounds on which an internal
Emergency could be proclaimed.
3. Written
Cabinet Advice: A proclamation can be issued only on the written
decision of the Union Cabinet, reducing the possibility of unilateral advice by
the Prime Minister.
4. Parliamentary
Approval: The proclamation must receive parliamentary approval
within the constitutionally prescribed period and requires a special majority
for continuation.
5. Lok
Sabha Safeguard: The Constitution provides a mechanism through which
the Lok Sabha can compel consideration of revocation of an Emergency.
Fundamental Rights During
Emergency
1.
The constitutional position after the
44th Amendment is substantially more restrictive than during 1975.
2. Article
358: Suspension of the freedoms under Article 19
operates only when the Emergency is declared on grounds of war or external
aggression, not armed rebellion.
3. Article
359: The President may suspend the right to move courts for
enforcement of specified Fundamental Rights; however, the rights under Articles
20 and 21 cannot be suspended.
4. This
protection is crucial because Article 20 safeguards persons in criminal
proceedings, while Article 21 protects life and personal liberty.
1975 Emergency and
Institutional Lessons
1.
The Emergency demonstrated that
constitutional democracy can be weakened even without formally abolishing the
Constitution.
i.
Executive Concentration:
Extraordinary powers can reduce the effectiveness of ordinary institutional
checks.
ii.
Preventive Detention: Broad
detention powers can directly affect personal liberty when judicial remedies
become restricted.
iii.
Press Freedom:
Restrictions on media weaken scrutiny of executive action and citizens' access
to independent information.
iv.
Parliamentary Majorities:
Numerical control of legislatures cannot substitute for constitutional
restraint.
v.
Judicial Protection:
Rights become meaningful only when effective judicial remedies remain
available.
42nd and 44th Amendments
1.
The 42nd Constitutional Amendment Act,
1976 considerably altered the balance among constitutional institutions
during the Emergency period.
2. The 44th
Amendment Act, 1978 subsequently strengthened safeguards by narrowing
emergency grounds, protecting Articles 20 and 21, requiring Cabinet-level
written advice and strengthening parliamentary oversight.
3. The
larger constitutional development was a movement from broad emergency
discretion towards procedurally constrained emergency power.
4. Democratic
Significance
5. Emergency
provisions remain necessary because a constitutional State must possess
exceptional powers to respond to war, external aggression or grave internal
armed threats. The danger arises when extraordinary powers become instruments
of ordinary political control.
6. A
durable constitutional balance therefore requires necessity,
proportionality, parliamentary scrutiny, judicial review and protection of core
liberties.