Fifty Years Of The Emergency: The Constitution, The Courts, And The Battle For India's Democracy

Proclamation

On 26th June 1975, at 8:00 a.m., the Prime Minister of India, Smt. Indira Gandhi, addressed the nation on an All India Radio broadcast. She announced: “The President has proclaimed an Emergency. There is nothing to panic about...”

The official justifications by the government for this drastic constitutional measure were:

1. The Nav Nirman Andolan, a student-led anti-corruption movement in Gujarat.

2. Plans by George Fernandes to organize a nationwide railway strike.

3. The 'Total Revolution' campaign by Jayaprakash Narayan in Bihar.

4. The assassination of Union Railway Minister L.N. Mishra.

5. An alleged threat to the life of Chief Justice A.N. Ray.

On 25th June 1975, the President of India, Fakhruddin Ali Ahmed, had already signed the Proclamation of Emergency under Article 352 on the advice of the Prime Minister. This momentous decision, taken without consulting the Cabinet, marked the beginning of one of the darkest and most controversial periods in India's constitutional history.

India had already witnessed two Emergency declarations under Article 352 before 26th June 1975: the first in 1962 on the grounds of external aggression due to the China-India War, and the second in 1971, again due to the India-Pakistan War. The Emergency of 1975 was the first Emergency declared due to 'Internal Disturbances'.

The Emergency provisions under the Constitution of India are encompassed within Articles 352 to 360. Under Article 352, if the President is satisfied that a grave emergency exists where the security of the country is threatened by 'war', 'external aggression', or 'internal disturbances'—a phrase that was later replaced by “armed rebellion” by the Constitution (44th Amendment) Act, 1978—then the President can declare an emergency by issuing a Proclamation of Emergency if so advised by the Cabinet.

Once the Proclamation is issued, the federal structure under the Constitution turns into a unitary structure whereby the Centre assumes overriding power over State Subjects enumerated in List II of the 7th Schedule under the Constitution, meaning that Parliament gets the power to legislate on any matter, even those on the exclusive State List. In other words, the federal distribution of legislative powers collapses. The Union Government assumes overriding authority, and States lose their exclusive legislative competence even over subjects like police, public health, agriculture, local government, etc. Under the original text of Article 359, the rights conferred under Part III of the Constitution stood suspended; thereby, the right to move any court for enforcement of Fundamental Rights remained suspended.

By suspending Fundamental Rights, the freedom of the press was curtailed, and civil liberties could not be enforced; thereby, any person could be arrested and detained under preventive detention laws. Whether the Courts would be in a position to issue Writs for the enforcement of the Rights was a very contentious issue at that time and was seriously contested by the Government.

By the next morning, opposition leaders like Jayaprakash Narayan, Morarji Desai, Atal Bihari Vajpayee, George Fernandes, and 674 other opposition leaders were arrested. Censorship of the press was imposed; newspapers were forced to submit content for pre-clearance before publishing. Fundamental rights were suspended across the country. The Government argued that every petition filed in the country was not maintainable, as no judicial review was available while fundamental rights stood suspended. With fundamental rights suspended, civil liberties and the voice of the opposition scuttled, the executive acting in an absolutely high-handed and arbitrary manner, and citizens being detained left, right, and centre, it marked the end of democracy and the beginning of autocracy in India.

The period of emergency saw a systematic assault on democracy and the rule of law. There were arbitrary arrests and detention for indefinite periods of lakhs of citizens, there was censorship of the press and suppression of free speech, the state machinery was used for political vendetta, election laws were amended with retrospective effect, the Constitution was amended by the 39th Constitutional Amendment Act, 1975, inserting the controversial Article 329A, there was rampant coerced sterilization, slums were demolished, bulldozers razed homes, and families had no opportunity to contest or complain.

Then came the 42nd Constitutional Amendment Act, 1976, which is considered one of the most draconian amendments in the Constitution's history. Granville Austin termed it the "Constitution of Indira," not of India.

What truly transpired during the Emergency, i.e., the abuse of authority, the executive overreach, and the erosion of constitutional safeguards, is meticulously documented by the Shah Commission of Inquiry in 1978, chaired by Justice J.C. Shah, former Chief Justice of India. In his report, Justice Shah made a categorical finding that Smt. Indira Gandhi did not consult her Council of Ministers before advising the President to declare an Emergency on the night of 25 June 1975, despite there being ample time to do so. This act violated the spirit of Article 74(1) of the Constitution, which mandates that the President act only on the aid and advice of the Cabinet. Further, the Commission held that there was sufficient evidence to conclude that the imposition of the Emergency was not a necessity arising from external aggression or rebellion but rather a strategic and premeditated act, carefully orchestrated by Smt. Indira Gandhi to insulate herself from the consequences of the judicial verdict delivered against her by the Allahabad High Court just 14 days earlier.

This brings us to the two fearless judges who became unwitting catalysts for the Emergency. The first was Justice Jagmohanlal Sinha of the Allahabad High Court, who delivered a verdict that invalidated the election of a sitting Prime Minister. The second was Justice V.R. Krishna Iyer of the Supreme Court who, while sitting alone on a Vacation Bench, refused to grant an unconditional stay on that verdict despite immense pressure.

PART I: Judicial Sparks Before the Emergency

Election Petition: Raj Narain v. Indira Gandhi

In the 1971 General Elections, Raj Narain contested against Smt. Indira Gandhi from the Rae Bareli constituency. While Indira Gandhi secured a substantial victory with 1,83,309 votes against Raj Narain's 71,499, the election was later challenged on grounds of corrupt practices under the Representation of the People Act, 1951.

The petitioner alleged that Smt. Indira Gandhi had obtained the services of Shri Yashpal Kapur, a serving gazetted officer, for her election campaign, constituting a violation under Section 123(7) of the Representation of the People Act, 1951. It was further alleged that she procured assistance from members of the Armed Forces, employed government officers and police personnel for election-related work, and distributed material inducements such as quilts, blankets, clothing, liquor, and free conveyance to voters in violation of Sections 123(1) and 77 of the Act.

Although it was argued that Shri Kapur had resigned on 13.01.1971 and that his resignation was accepted on 14.01.1971, the Court held that under the Central Services (Temporary Services) Rules, 1948, he remained a government servant until the acceptance was notified on 25.01.1971. Since he assisted the Respondent from 07.01.1971 to 24.01.1971, the Court concluded that Smt. Indira Gandhi had procured assistance from a serving government official, amounting to a corrupt practice.

Regarding other allegations, the Court found that the Prime Minister was permitted to use Indian Air Force aircraft for official and non-official travel, and it found no evidence that this usage amounted to a corrupt practice in the context of her election campaign. It was proved that government officials, including the Superintendent of Police and the Executive Engineer, arranged for the construction of rostrums and the provision of power for loudspeakers at her election rallies. Though the deployment of police for security was deemed a governmental duty, the use of state resources for rostrum construction was held to be assistance for electoral advantage and thus a corrupt practice under Section 123(7).

Regarding the allegations about the distribution of free gifts and conveyances, the Court found insufficient evidence to substantiate claims that Smt. Indira Gandhi's agents distributed liquor, garments, or arranged free conveyance for voters. As the burden of proof in such matters is akin to a criminal trial, i.e., 'beyond reasonable doubt', these charges were dismissed.

After a mammoth trial that went on for four years, and after analysing and going through the entire evidence, on 12 June 1975, Justice Sinha declared the election of Smt. Indira Gandhi void, holding her guilty of committing corrupt practices under Section 123(7) of the Representation of the People Act, 1951. Consequently, she was disqualified from contesting elections for a period of six years. It was a momentous verdict; for the first time in Indian history, a sitting Prime Minister had been unseated by a judicial process. The judgment delivered by Justice Jagmohanlal Sinha of the Allahabad High Court was nothing short of historic. The might of the State was humbled by the majesty of the law, as the Prime Minister of the world's largest democracy stood disqualified by a court of law.

Smt. Indira Gandhi's counsel sought a stay of the judgment in order to approach the Supreme Court of India. Justice Sinha granted a stay of his judgment for 20 days. During these twenty days, the Prime Minister's legal team made valiant efforts to secure an unconditional stay of the judgment by filing an appeal before the Supreme Court. However, with the Court in recess for the summer, the matter was to be decided by a Single Judge Vacation Bench, convened solely to address urgent matters. The opposition was growing louder in its demand for the Prime Minister's resignation. What followed was not merely a judicial decision but an act of judicial statesmanship, often remembered as one of the Supreme Court of India's finest hours, where constitutional principles prevailed amidst an atmosphere of political crisis.

Appeal before the Supreme Court of India: Indira Gandhi v. Raj Narain

The appeal was filed on 23rd June 1975. The corridors of power pulled every string: the might of the Government of India was marshalled to secure an unconditional stay of the Allahabad High Court's judgment. No effort was spared. No stone was left unturned. With her political future in jeopardy, the fate hung precariously in the balance. The courtroom of the Supreme Court was set to witness the most consequential appeal ever heard in the history of independent India, and at its heart stood Justice V.R. Krishna Iyer, armed with precedent, principle, and unparalleled courage.

Indira Gandhi engaged J.B. Dadachanji, a well-known constitutional lawyer of that time, to represent her in the Supreme Court. J.B. Dadachanji retained the services of Nani Palkhivala to argue the case before the Vacation Bench of the Supreme Court. The petition was settled by none other than Fali Nariman, who was the Additional Solicitor General for India at that time. The aim of the petitioner was to get an unconditional stay at the Supreme Court, but what the Single Judge of the Supreme Court did next would define not only that moment but also the enduring spirit of judicial independence in India.

Justice V.R. Krishna Iyer: The Fearless Judge

Justice Krishna Iyer, one of the most distinguished judges of the Supreme Court, came to be appointed to the Supreme Court, bypassing several other senior judges in the country. His appointment came when Justice A.N. Ray was the Chief Justice, and he chose Justice Krishna Iyer over several other senior judges. The Prime Minister, Indira Gandhi, also agreed to his elevation to the Supreme Court. He was made the Chairman of the Law Commission of India as the Government wanted him to be appointed to the Supreme Court of India.

Barely two years after his appointment to the Supreme Court—an elevation that itself invited controversy given his non-traditional background as a former Minister in the Communist-led Kerala government—Justice Krishna Iyer found himself at the epicentre of the most politically charged moment. The hearing took place on 23rd June 1975.

In his autobiography, Unspeakable Anecdotes: My Life, Judiciary and More, Justice Krishna Iyer recounted how Law Minister H.R. Gokhale, who personally knew Justice Iyer and had played a role in his elevation to the Law Commission, which was the stepping stone for his elevation to the Supreme Court, sought a private audience with him to discuss the case. Justice Iyer declined the approach, advising that all appeals be routed through the Court registry, reinforcing his commitment to judicial propriety.

Justice Iyer could have deferred the matter until after the vacation, either by extending the stay or simply referring the matter to a larger bench, avoiding political heat. Instead, he chose to shoulder the burden alone, facing the pressure head-on. Mr. Nani Palkhivala, appearing for Mrs. Gandhi, urged for a complete suspension of the High Court's judgment, warning of political instability and international threats. Shanti Bhushan with equal zeal opposed the stay and defended the judgment with equal strength. Determined to resolve the matter the same day, Justice Iyer heard both sides at length, foregoing his lunch.

That very night, assisted only by his stenographer, he dictated the judgment. Justice Bhagwati, being his closest friend and neighbour, was allowed to sit and hear the dictation. Justice Bhagwati suggested that parts of the language seemed too harsh. Justice Iyer refused to alter his words. He allowed Indira Gandhi to remain Prime Minister under a constitutional provision that permitted non-members to hold ministerial office for up to six months but did not grant an unconditional stay of the judgment. In his own words, he said, “Law won. Statesmanship and its vision worked.” India's constitutional jurist H.M. Seervai called it the finest hour of the Supreme Court. Justice Krishna Iyer's ruling upheld the rule of law, balancing legal principle and striking justice, but the government did not see it in the sportsman spirit.

The verdict was delivered the next morning, on 24th June 1975. The judgment drew national attention. On the evening of June 24, 1975, Bombay was abuzz with uncertainty. Crowds gathered at newspaper stalls as evening editions sold out rapidly. People were desperate to know what had transpired in the Supreme Court. A special All India Radio Hindi bulletin aired at 4:02 p.m., officially confirming the shocking development. Indira Gandhi had not secured the unconditional stay she had sought.

M.C. Chagla, the respected jurist and former Chief Justice of the Bombay High Court, did not mince words. He opined that Indira Gandhi ought to resign, stating that she had forfeited the moral authority to remain in office. Political opposition leaders were prepared to launch a nationwide agitation demanding her immediate resignation.

But Mrs. Gandhi was silent. Instead, on the following day, i.e., June 25, 1975, she quietly visited the President of India, Fakhruddin Ali Ahmed. No one in her cabinet was consulted. No public debate occurred. What was to follow was the darkest chapter in India's democratic history. At 8:00 a.m. on June 26, 1975, Prime Minister Indira Gandhi addressed the nation through All India Radio. In a calm tone, she declared that the President had proclaimed a state of Emergency. “This is nothing to panic about,” she assured citizens, while alleging that the Emergency had been necessitated to save democracy itself. The Emergency would go on to unravel civil liberties, incarcerate dissenters, and change the constitutional fabric of India. But it all began with that broadcast—a quiet, calculated, and unilateral decision taken without cabinet consultation, altering the course of Indian democracy.

PART II: The Constitutional Eclipse (1975–77)

The Emergency Amendments: Constitutional Subversion through the 38th, 39th, and 42nd Amendments

With a significant portion of the Opposition in prison under preventive detention laws, the ruling government wielded near-absolute legislative control during the Emergency. In the absence of meaningful parliamentary dissent, it was able to enact far-reaching amendments to the Constitution without scrutiny or challenge. The amendments, viz., the 38th, 39th, and 42nd Constitutional Amendments, went beyond legislative reform and struck at the foundational principles of the Constitution. They attempted to curtail judicial review, centralize executive authority, insulate electoral malpractices from constitutional accountability, and the worst attempt was to nullify the Kesavananda Bharti judgment by introducing Articles 368(4) and 368(5) into the Constitution. Collectively, these measures constituted a grave violation of the Basic Structure doctrine, shaking the very edifice of Indian democracy.

Nitty-gritty of the constitutional amendments enacted during the Emergency period.

38th Constitutional Amendment Act, 1975

The Constitution (Thirty-eighth Amendment) Act, 1975, was the first of the three significant amendments passed during the Emergency that collectively sought to fortify the executive branch against judicial scrutiny. The 38th Amendment Bill, 1975, was introduced by the Law Minister on 20th July 1975 and received the President's assent on 1st August 1975, thereby coming into force immediately. It amended Articles 123, 213, 239B, 352, 356, and 360. The amendment explicitly barred judicial review of: (1) the President's proclamation of Emergency under Article 352, (2) State Emergency under Article 356, (3) Financial Emergency under Article 360, and (4) ordinances promulgated by the President and Governors (Articles 123 and 213).

The 38th Amendment fortified the executive's powers by placing several crucial decisions beyond the scope of judicial review. By amending Article 352, the declaration of Emergency dated 25th June 1975 could not be challenged before the Constitutional Courts. The amendment struck at the heart of constitutional checks and balances, effectively elevating the executive's word above the law during periods of proclaimed crisis. In essence, the 38th Amendment redefined the relationship between the executive and judiciary, tipping the scales overwhelmingly in favour of the former and laying the groundwork for further authoritarian consolidation through the 39th and 42nd Amendments.

39th Constitutional Amendment Act, 1975

Smt. Indira Gandhi's petition before the Supreme Court was fixed for 11th August for final hearing, and a day before the said hearing, i.e., on 10th August 1975, the 39th Constitutional Amendment received the assent of the President. The 39th Constitutional Amendment Bill, 1975, introduced in the Lok Sabha on 7th August 1975, was a direct response to the Allahabad High Court judgment that had unseated Prime Minister Indira Gandhi for electoral malpractices. It was passed with remarkable speed within three days. This amendment inserted a new Article 329A into the Constitution.

The effect of this provision was to eliminate the jurisdiction of courts, including the Supreme Court, in matters relating to the election of the President, Vice-President, Prime Minister, and the Speaker of the Lok Sabha. It also declared that any election dispute already adjudicated or pending in any court would stand abated, and future disputes concerning these high constitutional functionaries would be adjudicated only by a forum established by Parliament.

In a sweeping move, the amendment placed three central laws—(1) the Representation of the People Act, 1951, (2) the Representation of the People (Amendment) Act, 1974, and (3) the Election Laws (Amendment) Act, 1975—into the Ninth Schedule, shielding them from judicial scrutiny even if they violated fundamental rights. The practical impact of this amendment was the retrospective validation of Smt. Indira Gandhi's election, which had been declared void for violating Section 123(7) of the Representation of the People Act, 1951. This extraordinary legislative act was perceived as an attempt to override a binding judicial verdict and institutionalise personal political survival through constitutional means.

42nd Constitutional Amendment Act, 1976

The 42nd Amendment is one of the lengthiest and most controversial amendments in the Constitution's history. It came into force on 28th August 1976 after receiving the assent of the President. Many of its provisions significantly curtailed the powers of the judiciary, expanded the authority of Parliament and the executive, and diluted fundamental rights, thereby striking at the heart of the Constitution's basic structure.

The major and controversial changes brought by the 42nd Amendment are enumerated below:

· It expanded the scope of Article 31C, which initially protected only laws giving effect to Articles 39(b) and 39(c) of the Directive Principles. The amendment extended this protection to all Directive Principles, stating that any law made to give effect to any of the Directive Principles would not be deemed void on the ground that it violates Articles 14, 19, or 31 of the Constitution. This expansion meant that Directive Principles would override Fundamental Rights, which directly contradicted the Kesavananda Bharti judgment, where the Court had held that Fundamental Rights form part of the basic structure and cannot be overridden in this manner

· It inserted Articles 368(4) and 368(5) to nullify the Kesavananda Bharti judgment. Article 368(4) stated that no constitutional amendment could be "called in question in any court on any ground." Article 368(5) declared that "there shall be no limitation whatever on the constituent power of Parliament to amend... the Constitution." These provisions sought to make all constitutional amendments immune from judicial review, thereby nullifying the essence of Kesavananda Bharati, which allowed the judiciary to strike down amendments that damaged the Constitution's basic structure.

· It inserted Articles 131A, 144A, 226A, and 228A (later repealed by the 43rd Amendment, 1977), which gave exclusive jurisdiction to the Supreme Court for determining the constitutional validity of central laws (Article 131A). It mandated that a minimum of seven judges must sit to decide on the constitutional validity of a law and that two-thirds of the bench had to agree to strike it down (Article 144A). It barred High Courts from entertaining writ petitions challenging the validity of central laws (Article 226A). It further prevented High Courts from striking down State laws on grounds of repugnancy with central laws (Article 228A). These provisions collectively eroded the powers of the judiciary and tilted the balance in favour of a centralised parliamentary supremacy.

· It also amended Articles 83(2) and 172(1) to extend the duration of the Lok Sabha and State Legislative Assemblies from five to six years. This allowed the government in power to delay elections and prolong its rule without seeking a fresh mandate, a tool misused during the Emergency.

· The amendment also sought to weaken the independence of the judiciary, a core component of the basic structure, by establishing Administrative Tribunals under Article 323A that excluded the jurisdiction of High Courts under Article 226 and the Supreme Court under Article 32, and empowering the Legislature to define the jurisdiction and procedure of all courts, thereby curtailing judicial review. It specifically barred High Courts from exercising jurisdiction under Article 226 and the Supreme Court under Article 32, thus severely limiting constitutional remedies.

The 42nd Amendment was a direct challenge to judicial supremacy and the basic structure doctrine. By attempting to place constitutional amendments beyond judicial scrutiny and by elevating Directive Principles over Fundamental Rights, it sought to dismantle the very foundations of constitutionalism laid down in Kesavananda Bharati.

PART III: Judicial Capitulation and Redemption

The Supreme Court's Verdict in Indira Gandhi v. Raj Narain

With such controversial amendments being passed, the Supreme Court would have to determine the limits of Parliament and the executive. With the Kesavananda Bharti judgment, the ball was now in the Supreme Court's court to curb constitutional abuse.

A five-judge Constitution Bench of the Supreme Court consisting of Chief Justice A.N. Ray and Justices H.R. Khanna, K.K. Mathew, M.H. Beg, and Y.V. Chandrachud heard cross-appeals arising from the Allahabad High Court's decision voiding Prime Minister Smt. Indira Gandhi's 1971 election from Rae Bareli. The High Court had found two corrupt practices under Section 123(7) of the Representation of the People Act, 1951: procurement of assistance from gazetted officers of the Uttar Pradesh Government and from Shri Yashpal Kapur, then a gazetted officer in the Prime Minister's Secretariat. Acting on those findings, the High Court disqualified Mrs. Gandhi for six years from contesting elections.

During the pendency of the appeal, Parliament enacted retrospective election law amendments that altered the legal position on key issues, including the date on which a person becomes a “candidate,” the effectiveness of Yashpal Kapur's resignation, and the treatment of governmental assistance, thereby removing the statutory footing for the High Court's conclusions. The Supreme Court noted that these amendments, i.e., the Representation of the People (Amendment) Act, 1975, erased the very basis of the corrupt-practice findings. If the amended law were applied, the High Court could not have invalidated the election on those grounds.

The Supreme Court was also called upon to decide the validity of the 39th Constitutional Amendment Act, 1975, which inserted Article 329A, wherein Clause (4) was introduced to validate the Prime Minister's election and to bar judicial scrutiny of such contests. The Bench unanimously held Clause (4) unconstitutional, relying upon the binding law laid down in Kesavananda Bharti. The Clause violated the principle of free and fair elections, an essential element of democracy and therefore of the Constitution's basic structure. The Court further emphasized that what is prohibited under the basic-structure limitation cannot be rendered permissible simply by confining a constitutional amendment to a single case.

Having struck down Article 329A(4), the Court proceeded to decide the statutory appeals. It set aside the Allahabad High Court's judgment insofar as it found Smt. Gandhi guilty of corrupt practice and voided her election. The consequent six-year disqualification under Section 8-A was also annulled, and the election petition stood dismissed. Raj Narain's cross-appeal challenging adverse findings on other issues was also dismissed.

The Aborted Review of Kesavananda Bharati: A Bench Dissolved and a Doctrine Preserved

Despite relying on the Kesavananda Bharti majority ruling and holding Article 329A(4) unconstitutional in the Indira Gandhi judgment, Chief Justice A.N. Ray's foremost objective appeared to be to reverse the 13-judge bench ruling. On 20th October 1975, without any pending application for review, he issued a written administrative order listing for open-court hearing two questions: (i) whether the basic-structure doctrine restricted Parliament's amending power and (ii) whether the Bank Nationalisation precedent remained good law, which were set for hearing on 10th November 1975.

During the brief proceedings, Nani Palkhivala firmly denied that he or his client had sought any review, reminding the Court that Kesavananda had in fact been decided in their favour. Chief Justice Ray next suggested that the State of Tamil Nadu desired a review, only for its Advocate General to state that the State "stood by the judgment." The Advocate General of Gujarat, J.M. Thakore, echoed that position, to Chief Justice A.N. Ray's embarrassment.

At one point, Palkhivala remarked, "If I say anything about these recent amendments in public, I shall probably be arrested; the only place where there is any freedom of speech left in this country is within these few hundred square feet of this courtroom." Justice V.R. Krishna Iyer responded, "You should thank the Court for this.”

On 12th November 1975, on the third day of the hearing, Chief Justice Ray came to the courtroom and simply announced, “Bench dissolved,” and walked out. After his resignation, Justice H.R. Khanna praised Nani's advocacy in the Kesavananda review case and remarked: "It was not Nani who spoke. It was divinity speaking through him." Justice Khanna and other judges were of the view that the heights of eloquence and advocacy reached on these two days were really 'unparalleled' and that Palkhivala's feat would perhaps never be equalled in the Supreme Court.

Constitutional scholar H.M. Seervai, initially sceptical of the basic-structure doctrine, eventually conceded that the doctrine had "preserved Indian democracy" from irreversible damage. The abrupt dissolution of the thirteen-judge bench thus left Kesavananda Bharati untouched and ensured that the basic-structure doctrine remained the constitutional bulwark against future authoritarian amendments.

Legacy and Significance

The Indira Gandhi v. Raj Narain verdict, although a mixed outcome, solidified the Basic Structure Doctrine as an insurmountable constitutional limitation. It prevented the legislature from becoming a supreme authority unchecked by judicial review. It also reaffirmed that free and fair elections form part of the basic structure and cannot be undermined by political expediency or constitutional subversion. Had the Kesavananda Bharati doctrine not existed, the amendments passed during the Emergency, including Article 329A, would have entirely dismantled judicial oversight. This case stands as a testament to the resilience of constitutional safeguards amidst political adversity.

The Judiciary's Darkest Hour: ADM Jabalpur

The judgment in ADM Jabalpur v. Shivkant Shukla stands as a stark reminder of how, under the weight of a powerful executive during the Emergency, even the judiciary, constitutionally entrusted with the guardianship of fundamental rights, can falter in its duty, yielding to executive pressure at the cost of civil liberties. This judgment would go down as one of the most controversial and heavily criticised decisions in Indian judicial history, widely regarded as the moment when the judiciary buckled under executive pressure.

Following the mass detentions under the Maintenance of Internal Security Act (MISA) that followed the 25th June 1975 proclamation of Emergency, several High Courts, like Allahabad, Gujarat, Bombay, Delhi, Karnataka, Madhya Pradesh, Punjab-Haryana, and Rajasthan, held that habeas corpus petitions remained maintainable despite the Presidential order suspending enforcement of Articles 14, 21, and 22, while three High Courts—Andhra Pradesh, Kerala, and Madras—took the opposite view.

Consolidated appeals reached a five-judge Constitution Bench in ADM Jabalpur v. Shivkant Shukla. By a 4:1 majority (Ray C.J., Beg, Chandrachud, and Bhagwati), the Court ruled that, so long as the Article 359(1) order was in force, no person had locus standi to seek a writ of habeas corpus, even on grounds of mala fides or statutory illegality, because the suspension of Article 21 left courts without jurisdiction.

In his celebrated lone dissent, Justice H.R. Khanna refused to rationalize tyranny. He said that the right to life and personal liberty is inherent and not conferred by the Constitution. He bravely held that Courts must retain the power to issue a writ of habeas corpus against arbitrary arrests and mala fide detentions.

PART IV: Undoing the Emergency Amendments

The 44th Constitutional Amendment and Democratic Restoration

The Internal Emergency was revoked on 21 March 1977 after nearly twenty-one months of being in force. In the general elections that followed, the Congress Party suffered a major defeat, and the Janata alliance formed the government at the Centre. With Morarji Desai as the Prime Minister, the immediate priority was to reclaim the Constitution from the shadows of authoritarianism and restore its democratic spirit.

Justice Khanna mentions that immediately thereafter, Ram Jethmalani came to his residence and asked Justice Khanna to take over as the CJI. Even the Prime Minister called on him and mentioned that the incumbent in the office of the CJI would be asked to step down and Justice Khanna would be made the CJI. Justice Khanna refused, saying that it would not be proper. It is mentioned that the Prime Minister asked Justice Khanna to prepare a note containing suggestions for a constitutional amendment so that there might be no repetition of what had happened during the Emergency.

Justice Khanna gave detailed suggestions and mentioned that his suggestions were approved. Based on them, the 44th Constitutional Amendment was moved, which inserted Article 352(5), ceasing the operation of an Emergency on the expiry of six months. Another suggestion which was approved resulted in the amendment of Article 359, which, inter alia, excluded Articles 20 and 21 of the Constitution from suspension during an emergency, meaning that the Constitutional Courts would be able to issue writs even during an Emergency. Thereby, the majority opinion of the Habeas Corpus case was nullified by the amendment to the Constitution, and the minority opinion of Justice Khanna became the law of the land.

Despite being the sole dissenter, he was instrumental in making changes to the Constitution. He rightly earned an iconic status, which was elegantly put by The New York Times when it said, “If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first 18 years as an independent nation, someone will surely erect a monument to J.H.R. Khanna of the Supreme Court.” Justice Khanna's life-sized portrait was unveiled in Court Room No. 2 of the SCI in 1978, immortalizing him in the 2nd Court of the SCI.

The 44th Amendment was the principal legislative instrument used to reverse the damage wrought by the Emergency-era amendments. Enacted in 1978, it re-established key constitutional safeguards. It amended Article 352 to require that a Proclamation of Emergency could only be issued upon the written recommendation of the Union Cabinet. Further, “internal disturbance” was replaced with “armed rebellion” as a valid ground, significantly narrowing the scope of executive discretion. It ensured that Articles 20 and 21 could not be suspended even during an Emergency. This was a direct response to the infamous ADM Jabalpur ruling. It restored the judicial review of the High Courts and the Supreme Court to review state action even during an Emergency and reaffirmed the authority of Constitutional Courts. The Prime Minister's and Speaker's elections were made judicially reviewable again. The normal term of the Lok Sabha and State Assemblies was restored to five years (from six years under the 42nd Amendment). The 44th Amendment reaffirmed the basic structure doctrine laid down in Kesavananda Bharati and was a clear legislative message: no government, however powerful, can alter the core of the Constitution.

Conclusion: Constitutional Crisis and the Triumph of Democratic Resilience

The Emergency of 1975–77 exposed how power can corrupt, and absolute power corrupts absolutely. It showed how the concentration of power in one wing of a democracy can ruin the other pillars of democracy as well. The 38th, 39th, and 42nd Amendments concentrated power in an unprecedented fashion, while ADM Jabalpur revealed that even the highest court could falter under pressure ( Though after decades, the court admitted its mistake.) Yet, the same constitutional order that permitted such excess also contained the seeds of its own correction: a solitary dissent by Justice H.R. Khanna, a courageous Vacation Bench order by Justice V.R. Krishna Iyer, and an electorate that unseated a seemingly invincible government.

It also showed that during challenging times, even constitutional functionaries can become unreliable and can fail us. The Ministers of the Government, the Members of Parliament, the Judges of the Supreme Court, and even the President of India. This is because the President of India so readily agreed to sign the Proclamation of Emergency even before the Cabinet knew anything about it. The amendment to Article 352(3) was to ensure that such an event does not repeat itself and the President cannot declare an Emergency without the written representation of the Union Cabinet.

Parliament, too, eventually acknowledged the overreach, corrected its mistake, and enacted the 44th Constitutional Amendment Act, 1978, reversing many of the Emergency-era amendments, restoring judicial review, safeguarding fundamental rights, and placing limits on the executive's power to declare an Emergency.

The Constitution of India surviving for 75 years is a remarkable story compared with other written constitutions around the world. They are far more short-lived. Comparative constitutional data assembled by political scientists Zachary Elkins, Tom Ginsburg, and James Melton show that since 1789, the lifespan of constitutions around the world on average is only 17 to 19 years before they are wholly replaced. In other words, constitutional mortality is the norm; constitutional longevity is the exception. Against this global lifespan, our Constitution is a remarkable story, having survived for 75 years. It has lasted more than four times the worldwide mean while accommodating 106 formal amendments without surrendering its core architecture. There is no other country in South Asia whose constitutions have withstood the test of time and survived for so long.

With an awakened and vigilant judiciary, a restored Parliament, and an informed citizenry, the Indian Constitution has shown its capacity for self-repair. The Emergency remains a cautionary tale, but also a reaffirmation of the enduring spirit of the Indian Constitution. The resilience of its institutions and the strength of its democratic foundations ensured that constitutionalism, though shaken, ultimately prevailed.

The author Practicing advocate at High Court of Gujarat & an Alumnus of Queen Mary University of London (LL.M. – International Commercial & Corporate Law) . Views are personal.