Should emergency powers exist at all?

One of the paradoxical things about the imposition of Emergency in 1975 was that the Constitution was effectively suspended by the government using a provision of the Constitution itself. The Constitution actually provides for three kinds of emergencies -- Article 352, in cases of war and armed rebellion; Article 356, when a state government cannot function in accordance with the Constitution; and Article 360, when the financial stability of India or any state is affected. These “emergency powers” are meant to be exercised when constitutional government is itself under threat, but that has not always been the case.

As originally drafted, Article 352 could also be invoked in case of “internal disturbance”, and the Indira Gandhi government used this ground to suspend the functioning of large parts of the Constitution on the basis that “internal disturbances” threatened the unity and integrity of India. 1975 wasn’t the first time that Emergency was imposed in India, but on the previous occasions (1962 and 1971), it had been on account of war and was lifted once the conditions of war passed. 1975 was the first time that Emergency was imposed citing “internal disturbance” -- a move seen as largely unjustified and done to reassert the fast-slipping popularity of the Congress government.

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Some members of the Constituent Assembly (CA) wouldn’t have been surprised by this misuse of Article 352. They had foreseen it in the CA debates.

As with many provisions of the Constitution, Article 352 also has its origin in the Government of India Act, 1935. There, Section 102 gave the Governor General of India the power to issue a proclamation of emergency on grounds of war or “internal disturbances”. Such a proclamation would last for six months and lapse unless it was extended. There being no fundamental rights or real federalism under the Government of India Act, there was no need for extensive provisions relating to Emergency.

The initial draft Constitution reproduced this clause, but it was changed and introduced as draft Article 275 in August 1949, notably reducing the six-month life of the proclamation to two months. Some members, notably H V Kamath, Kazi Syed Kasimuddin and K T Shah, were worried about the scope of the power being given to the President, both in terms of how it would be used and how it may be abused by the government. Kamath raised the example of the Constitution of the Weimar Republic, which had a similar Emergency provision which Adolf Hitler used to subvert the Constitution itself and impose one-man-rule over Germany. As Kamath put it, “Let us remember that a Constitution can be subverted not merely by agitators, rebels and revolutionaries, but also by people in office, by people in power.”

The fears of Kamath and others were proven true 25 years after the Constitution came into force. The use of “internal disturbance” as an excuse to impose Emergency did occur. The Constitution was, as Kamath had feared, subverted by those in power.

Though the Emergency was eventually lifted and elections held, the Janata Party government proceeded to reform the provision to reduce the chances of a repeat of 1975. It replaced “internal disturbance” in Article 352 -- a wide and unclear term -- with “armed rebellion”, a much narrower and specific term, as a basis for invoking emergency powers. Do the changes guarantee that no future government will ever abuse the provision? This is hard to say. No matter how many safeguards are put in place, there is no way to eliminate the misuse of emergency powers. Perhaps what will prevent its future misuse is knowledge of Indira Gandhi’s electoral fate post-Emergency. That India’s electorate can and will call any would-be dictator’s bluff.