This June marks fifty years since one of the gravest constitutional crises in India's constitutional history. The Emergency, which lasted from June 1975 to March 1977, is remembered for mass arrests, press censorship, and the suspension of fundamental rights. But amid this grim record of executive overreach, another institution that quietly faltered in its constitutional role was the Supreme Court of India.
Much has been written about political detentions and the media clampdown during those 21 months. Less attention, however, has been paid to how the judiciary, which exists to defend citizens' liberties against state excess, largely stood aside. The Emergency was not merely a failure of politics, but a profound institutional crisis — one in which the highest court chose caution over courage.
Judicial Silence Amid Widespread Detentions
In the immediate aftermath of the Emergency proclamation on 25–26 June 1975, the executive detained thousands under an assortment of laws — Section 151 of the Code of Criminal Procedure (CrPC), Maintenance of Internal Security Act (MISA), Conservation of Foreign Exchange and Prevention of Smuggling Activities Act ('COFEPOSA'), and others. Yet, an analysis of the Court's docket in liberty-related matters — preventive detention, bail, parole — reveals an inexplicable decline.
A close examination of the Supreme Court's decisions in cases concerning personal liberty — preventive detention, bail, parole, and probation — from January 1974 to June 1975 reveals that there were 75 liberty-related decisions, including both reported and unreported judgments. However, following the Emergency, this figure collapsed. From July to December 1975, only two such cases appear in the Court's records, and virtually none in the subsequent terms. This sharp drop is legally significant given that writ petitions challenging preventive detentions remained maintainable until ADM Jabalpur case was decided in April 1976.
Administrative Discretion and Procedural Control
Available evidence points to more than passive omission. Several accounts indicate administrative interference in the Court's functioning: politically sensitive petitions were quietly de-listed or not listed at all, and many cases were disposed of at the admission stage without speaking orders.
A striking episode in November 1975 involved the constitution of a 13-judge bench to reconsider the Kesavananda Bharati judgment, which had set limits on Parliament's power to amend the Constitution. The case being listed involved civil servants' service conditions — hardly a matter demanding constitutional reconsideration in the middle of an Emergency The move, prompted by an oral directive from Chief Justice A.N. Ray, was eventually abandoned after objections from senior counsel Mr. Nani Palkhivala, exposing how administrative levers could be used to shape judicial priorities during this period and discretion could be used to prioritise — or suppress — cases for political ends.
This wasn't an isolated event. Several important judgments from this period, including the Allahabad High Court's verdict disqualifying Indira Gandhi, were either unpublished in law reports or conspicuously absent. The Emergency's censorship wasn't limited to newspapers; it reached court registries and reporting practices as well.
The Habeas Corpus Case: A Defining Moment
The Court's institutional retreat culminated in April 1976 in ADM Jabalpur v. Shivkant Shukla, better known as the Habeas Corpus Case. The central question was whether detained individuals could seek judicial review when Article 21 was suspended. In a 4:1 majority decision, the Court held they could not.
Justice H.R. Khanna's dissent — affirming that no authority could deprive a person of liberty without legal recourse — remains the sole principled exception in an otherwise dismal record. The judgment was not merely doctrinally flawed but emblematic of a deeper institutional failure that had taken hold months earlier when liberty petitions began vanishing from the Court's docket.
Judicial Censorship Beyond the Press
While press censorship during the Emergency is widely recognised, less acknowledged is the judiciary's own internal censorship through procedural devices: selective listing, control over case flow, suppression of judgments, and registry discretion. These administrative mechanisms served as effective tools to blunt judicial oversight.
The period reveals how control over the procedural machinery — rather than or in addition to the formal constitutional amendments — can significantly compromise institutional independence.
The legal history of the Emergency offers enduring lessons about the vulnerability of constitutional guarantees when institutional independence is compromised. The Supreme Court's record during 1975–77 was not shaped by unavoidable constraints but by institutional choices made under political pressure.
Post-Emergency too, questions about listing practices, selective hearing of cases, and delays in sensitive constitutional matters have emerged. This is not to suggest that the country has been on the verge of another Emergency, but to recall that democratic decay is rarely sudden; it is incremental, normalised through procedural discretion and institutional silence.
Fifty years later, as contemporary democracies grapple with creeping procedural control and institutional subversion, this history remains urgently instructive. It stands as a reminder that constitutional text alone cannot safeguard liberties without vigilant institutions willing to defend them in moments of crisis.
Author is a D.Phil. student at the University of Oxford. Paper on the two of his three part study, dealing with aspects of judicial response during the period of National Emergency, can be accessed at: https://repository.nls.ac.in/slr/vol19/iss1/4/. ↑
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