NIRMA UNIVERSITY

INSTITUTE OF LAW

1975 – Emergency, A Detailed Study

Course Name – Legal Research

Course Code – 2EBLL27
Aman Pathak
3/5/2016
 1975 – Emergency: A detailed study

A dramatic turn in the political evolution of India occurred when in the early hours of 26 th June
1975 The Emergency was proclaimed by the President Fakhruddin Ali Ahmed on the advice of
Prime Minister Indira Gandhi. With the promulgation of this very rule of law the fundamental
rights and the legal remedies of the Indian citizens as well as the foreign citizens were
suspended, the freedom of press was curbed and was kept under the check of strict censorship.
Various opposition leaders like Jayaprakash Narayan (JP), Atal Behari Vajpayee, and Lal
Krishna Advani were rested behind the bars. Political dissent was crushed by the harsh police
measures and use of arbitrary powers without any accountableness. The very amendments passed
in the time of the emergency were very impulsive and delinquent decisions taken by the Indian
National Congress or author must say Indira Gandhi, the 38 th and the 39th amendments. The
emergency episode had a great impact on the Indian democracy and revealed a lot about Mrs.
Indira Gandhi, though she had strong, forceful and an autocratic type of leadership this incident
revealed the other side, the flawed one of Indira Gandhi.

How it came about

The government took office in 1971 and as soon as it came into power it faced series of
calamities on it, starting with the Bangladesh crisis. On 25 th March, 1971 army of Pakistan
started the holocaust in the East Bengal region (now Bangladesh), Sheikh Mujibur Rehman the
leader of the Awami League made a clean sweep in the eastern Pakistan region winning 160
seats out of 160 in its national Assembly of 300 members and thus was now eligible to form the
government in the centre. In western Pakistan under the leadership of the Zulfikar Ali Bhutto the
Peoples Progressive Party appeared as the largest single party win with 83 seats with them. The
election results created a divide between the two parties and in just two months there was a deep-
rooted and irreconcilable political split. Instantly after the crackdown on 25 th exiles began
gushing into West Bengal, Tripura, Meghalaya and Assam burdening these states with heavy
economic, social and political costs. When the flow of refugees turned into flood, it became a
crisis for India. In the course of just five weeks, 14 th April to 21st May, their number jumped from
a little more than 100,000 to about 3.5 million. At first they came in at 60,000 a day, and then at
a staggering 150,000 a day.1 This colossal influx of refugees into the north eastern region of
India was putting a lot of strain on the centre. It was only the time when Indira Gandhi herself
visited the refugee camps in the states of Assam, Meghalaya, and Tripura she decided to respond
to the crisis. It was after the failed negotiation trials the military intervention under Sam
Manekshaw was conducted resulting in the liberation of East Pakistan which is now present day
Bangladesh. In the year of 1971-72, expenditure connected with the refugee influx, war with
Pakistan and natural calamities in several parts of the country imposed a serious strain on the
government finances. Because of the war the United States of America also terminated the
economic aid to India when it was most needed which also lead to deterioration of the economic
situation of the country. Notwithstanding the unprecedented resource mobilization effort by the
way of additional taxation, the budgetary operations of Central and State Governments disclosed
an overall budgetary deficit of Rs. 738 crores, the largest ever in any single year.2

The Indian economy was under a significant strain in the years of 1972-73, the commodity
production showed an unsatisfactory growth in the particular period. Agricultural production
declined by 1.7% in 1971-72 also there decline in the food production from 108.4 million tonnes
in 1970-71 to 104.7 million tonnes in 1971-72 due to the erratic behavior of monsoons. The
subsequent failure of summer and winter rains in 1972-73 resulted in another sharp decline in
agricultural production which was a staggering 8%. 3 Also one of the major reasons for set-back
of the Indian economy was the overnight fourfold raise in the price of oil by OPEC, the price
level rose by 23% in 1973 which were later escalated to 30 % in 1974. Already worse situations
worsened India’s import bills increased by billions of dollars.

The Indian economy became too fragile to survive the mentioned setbacks. Already the economy
was facing a low growth and had nothing to cushion the sudden rise in the prices of oil by OPEC
which severely affected the balance-of-payments of the country. Mrs. Indira Gandhi and her
government fund herself in a very problematic situation and then in the stormy period there were
two events which triggered the Emergency – the railway strike of 1974 and political movement
in 1974-75 led by JP.
1
P.N. Dhar, Indira Gandhi the ‘Emergency’ and Indian Democracy, 155, (2000)
2
The Economy In 1972-73 – An Overall View, http://indiabudget.nic.in/es1972-73/1%20The%20Economy%20in
%201972-73_An%20Overall%20View.pdf
3
Supra Note No. 1, pp.233
The railway strike of 1974 can be called as the largest trade union strike ever took place in the
history of India, it is the event which Indira Gandhi government states as one of the major cause
and the justification of Emergency. The Indian railways was the largest single employer of the
country and is considered as the artery and lifeline of the country. The workers grievances were
the absolute and relative decline in the income of the railway workers. Since an increased wage
bill would impose a strain on the government’s budget, every pay commission become a political
issue. There were three pay commissions between 1947 t0 1974. The first set down uniform rates
of pay out, it also provided dearness allowance (DA) formula that would compensate workers for
increases in prices but was not sufficient. By the end of 1950s railway workers’ incomes had
become seriously eroded. Despite decline, the second pay commission did not actually increase
the remuneration. The high inflation years of mid 1960s cut deeply into workers’ real wages and
were merely compensated by the DA. The third pay commission was more or less similar to that
second but came in at a very worse time for the railway workers which was 1 st January 1973
during which India experienced its worst inflation.4 Due to these agitations between railway
workers’ and government the railway strike took place. All India Railwaymen’s Federation
(AIRF) leader led the strike which was commenced 8 th May 1974 and called off on 27 th May
1974. The government had put in colossal efforts to suppress the strike, it had to take harsh
measures and invoking Defence of India rules to bring the agitation to the ground.

The success of the Nav Nirman movement in Gujarat was the inspiration of JP to launch his
movement in Bihar. The Gujarat government was forced to resign because of the Nav Nirman
movement led by the students in order to meet their (students’) demands which were put
forward. This very movement acted as a signal to the Bihar students who were dissatisfied with
the high prices, inadequate supply food grains and unemployment. The Akhil Bharatiya Vidhya
Parishad played a major role in setting up Nav Nirman movement along with Samajvadi Yuva
Jan Sabha (SYJS) and Chhatra Sangharsh Samiti (CSS) for a Gujarat like struggle. The demands
of the students were increased scholarship, improve supplies of wheat and rice to hostels and
elimination of minimum marks criteria for applicants of medical examinations. Impressed by the
Nav Nirman movement in Gujarat JP agreed to lead the movement. The demand which was
made was similar to that of Gujarat – the dismissal of government and dissolution of the

4
Sherlock S, Railway Workers and Their Unions: Origins of 1974 Indian Railways Strike, Economic and Political
Weekly, 24(41), 2311–2322, (1989).
assembly. The response to their agitations was not which they expected, only 42 out of 318
MLAs resigned and thus the resignation campaign was unsuccessful. To resuscitate the
movement JP sought to widen its base and forge new organizational instruments to carry it
forward. He tried to bring in the movement of farm workers, landless laborers and other poor
sections of the society and highlight the demands for land to landless and fair wages to
agricultural workers.5 Even after bringing various movements together the government stood
unmoved from the office. As the movement was not yielding any results JP decided to take the
struggle nationwide. The CPI(M) reached on consensus with JP, in Odisha there were JP’s
Sarvodaya colleagues leading agitation, in Madhya Pradesh BJS. But towards the end of 1974
the movement was showing signs of exhaustion because of lost enthusiasm and also that the state
government endured the agitation unlike the Gujarat government. While in Gujarat the law and
order greatly improved under the president’s rule, the fresh elections were scheduled in
September but Morarji Desai wanted the elections to be held in May, and JP also supported
Desai. The government gave in and the elections were conducted on 10 th June. The results of the
election were announced on 12th June. The Janta Morcha a four party alliance of Congress (O),
the BLD, Jan Sangh and Socialist Party won the elections under the leadership Morarji Desai.

It was a big blow to the Indira Gandhi government because she had vigorously campaigned for
her party, but even a bigger blow struck her on the next morning on 12 th June 1975, when Justice
Jagmohan Sinha of Allahabad High Court set aside her election in the Lok Sabha on the grounds
of electoral malpractices in a petition filed by Raj Narain unseating her from the parliament for 6
years. The vacation judge of the Supreme Court, Justice V.R. Krishna Iyer, held hearings on 23 rd
June 1975, to consider the appeal of Prime Minister Indira Gandhi, she had demanded a
‘complete and absolute’ stay which would have permitted her to be a voting member of
Parliament as well as prime minister. The Justice Iyer ruled on 24 th June with effect from 23rd
June that Mrs. Gandhi could have a conditional stay only.6 The significance of the ruling was that
the Prime Minister would not be permitted to participate in the business of Parliament or vote,
but she could continue as Prime Minister and could speak in either House. 7 Jayaprakash
Narayan’s public call on the evening for civil disobedience movement to coerce Mrs. Gandhi’s
resignation also included the appeal to military and police to not follow and obey the illegal
5
Supra Note No. 1, pp.249
6
Indira Nehru Gandhi v. Raj Narain and Anrs, SCC (2) 159 AIR 1590, 12-13, 1975
7
Richard L. Park, Political Crisis in India, University of California Press, Asian Survey, 15 No.11, pp. 996-1013
orders of the government. Early next morning Indira Gandhi gave her response to the ongoing
activities in the country by the opposition. It was the declaration of National Emergency.

Press Censorship

One of the most critical issue during the time of emergency was the dissemination of the
information. The independent news agencies United News of India (UNI) and Press trust of India
(PTI), were amalgamated into a single state-controlled news service called Samachar. The press
council an autonomous watchdog was abolished. Law granting immunity to the journalists was
repealed. As many as 253 journalists were put behind the bars including Kuldip Nayar of Indian
Express, K.R. Sunder Rajan of Times of India. 8 After the imposition of the emergency press’
power was cut so that no newspapers could be distributed in the morning.

Censorship was laid down stringently under a new Minister of Information, V. C. Shukla,
appointed two days after the emergency. Nothing was published in the newspapers except
favorable actions of the Government and successful economic growth. Even the foreign press has
had a difficult time exporting news that bears any close resemblance to the truth. 9 Now only the
information which government permits was been printed in the newspapers the largest violation
of the press laws in India, a legal and a systematic violation.

24th Amendment of the Constitution of India and Control over Judiciary

After the rejection of the two popular decisions – taking fourteen private banks in the hands of
government and terminations of the pensions of kings and princes, leading to ever expanding
divide between the parliament and judiciary, and the Indira Gandhi government to decided to
bring down the judiciary by bringing the 24 th Amendment on 5th November 1971, empowers
Parliament to weaken Fundamental Rights through Amendments of the Constitution. It
additionally altered article 368 to give explicitly that Parliament has authority to revise any
procurement of the Constitution. The revision further made it compulsory for the President to
give his consent, when a Constitution Amendment Bill was exhibited to him. This amendment
was brought to overrule the Golaknath case 10 which was decided three years ago and stated that
parliament does not have an infinite power to amend the constitution, it cannot amend the

8
Ramachandra Guha, India After Gandhi, 502, (2007)
9
Supra Note No. 7
10
I.C.Golaknath and Others v. State of Punjab and Anrs, SCR (2) 762 AIR 1643, (1967)
Fundamental Rights (Part-III) of the Indian Constitution. Decision regarding 24 th Amendment
came in the famous Keshavanada Bharati 11 case in which a bench of thirteen judges gave the
decision in a ratio of 7:6, in which the Supreme Court upheld the validity of the 24 th amendment
but with condition that parliament does not have power to amend with the basic structure of the
constitution.

After giving judgment in the Keshavanada Bharati case, the Chief Justice of India S.M. Sikri
retired just a day later, according to seniority the next chief justice would be Jaishanker Manilal
Shelat but this didn’t happened, next appointed chief justice was A.N. Ray after superseding
three senior judges of Supreme Court Jaishanker Manilal Shelat, AN Grover and K. S. Hegde.
Justice Ray from then, whether it was Keshavanada Bharti or Bank Nationalization or Privy
Purse gave the judgments which were in line of thought of government and parliament. This
event revealed that the judiciary and even the President V.V. Giri were now to a certain degree in
the hands of government.

The 38th, 39th and the 42nd Amendments of the Constitution of India

The 38th amendment of the constitution of India can be called as the Indira’s amendment,
introduced on 22nd July 1975, the bill got assent in just ten days which not at all a difficult task as
Congress had the majority in the house. This amendment gave the enormous power in the hands
of the few people sitting in the parliament and can be called as the slayer of the constitution. The
amendment barred the judicial review of proclamations of all types of emergencies – external,
internal and financial. It also banded the judicial review of the overlapping of the emergency
proclamations and most importantly the laws enacted during emergency which contravened with
Fundamental Rights. After this bill being passed the government had unlimited power to extend
the term of emergency for the duration of the government’s will without any judicial review and
to pass the bills of their requirements without any check, which according to author is the
blackest day of Indian Judiciary, Politics and Democracy.

The 39th Amendment, introduced two weeks later, stated that the election of prime minister could
not be challenged by the Supreme Court, but only a body constituted by Parliament. This came
just in time to help Mr. Gandhi in her elections review petitions.12

11
His Holiness Keshavanada Bharati Sripadagalvaru and Ors. v. State of Kerala and Anrs, SCC (4) 225, (1973)
12
Supra Note No. 8, pp.499
This amendment brought the most far reaching changes to the Constitution in its history, and is
often called a "Mini Constitution" or the "Constitution of Indira". The 42 nd amendment was a 20
page document whose clauses gave unprecedented powers to parliament, it could now increase
its own term which it immediately did. The amendment gave laws passed by the legislature
further immunity from judicial scrutiny, and further strengthened the power of centre over state
eroding India’s federal structure. All in all 42nd amendment allowed parliament “unfettered
power to preserve or destroy constitution”.

The Habeas Corpus case – A.D.M. Jabalpur v. S.S. Shukla etc.

Amid the Emergency the Supreme Court sank to its most minimal when it chose the infamous
Habeas Corpus Case with the accompanying conclusion:

"In perspective of the Presidential Order dated 27th June 1975 no individual has any locus to
move any writ request under Art. 226 in the witness of a High Court for habeas corpus or
whatever other writ or request or course to challenge the legitimateness of a request of
confinement on the ground that the request is not under or in consistence with the Act or is
unlawful or is vitiated by mala fides authentic or lawful or depends on unessential
contemplations."

The question presented before the court in the case was a very meek – despite the proclamation
of the emergency, can the high courts entertain the writ petition (habeas corpus) or any other writ
petition challenging his or her detention. All high courts decided to keep their doors open in such
a situation and entertain the petitions, but Supreme Court thought other way, in spite of the
unanimous decisions of the high court four out of five Supreme Court judges gave the decision
other way round. They were the then Chief Justice of India A.N. Ray, M.H. Beg, Y.V.
Chandrachud, P.N. Bhagvati and Justice H.R. Khanna. According this one sided decision, the
Supreme Court asked the high courts to slam shut their doors and not entertain any writ petition
filed in the time of emergency.

Numerous who had been captured tested their detainment by recording writs of habeas corpus
under Article 226 in different High Courts. In most High Courts, the State Governments had
raised the issue with reference to whether such writs were viable on the ground that in light of
the Presidential Order the privilege to record such writ was taken. The High Courts of Allahabad,
Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab, and Rajasthan
had all rejected the Government's contention and held that regardless of the suspension of central
rights, a man kept could exhibit that their detainment was not in consistence with the law. The
blackest day in the history of the Judiciary of India, a man will be denied fundamental right of
protection against detention or arrest.

Justice Khanna’s voice was lone and dissenting, his intense love for the Constitution could not
permit him to read into it things which were not there. He also brought in the theory that the soul
of natural justice was fair play in action. Justice Khanna paid the price for his dissent. He was
next in line to become Chief Justice of India. He resigned when his junior, Justice M.H. Beg,
superseded him. That was justice Indira Gandhi style.1314

Conclusion

The author accepts the then government’s one of the reasoning for proclaiming emergency was
the war with Pakistan and liberation of Bangladesh, the government had the largest budgetary
deficit in 1971-72 due to war and influx of refugees but according to author it was not that
necessary enough to declare the Emergency on the basis of Internal Disturbance, while the
Emergency on the basis of External Aggression was already in motion.

The second reasoning which was put forward by the Indira Gandhi government was the financial
crisis of 1972-73, due to the failure of monsoon in the period and also in 1970-71 and the sudden
increase the prices of oil by the OPEC. The author accepts that the situation of the country’s
economy was very fragile but also believes that it could have been curbed by imposing the
Financial Emergency, it could have been controlled because all the sectors were displaying the
downfall of economy, the industrial sector indicated an increase in the growth rate by 4.5%. 15
Author believes that, there was a need of financial and budgetary policies and not the emergency.

Another reasoning behind the proclamation of emergency which author considers to be

proximate with the grounds of internal disturbance were the Railway men’s Strike and the Nav
Nirman Movement associated with JP. Railway men’s Strike was a threat to peace, prosperity
and the economy of the country, but before it could have impacted the country very much it was
13
When the Supreme Court Struck Down the Habeas Corpus,
http://www.pucl.org/reports/National/2001/habeascorpus.htm
14
Additional District Magistrate, Jabalpur v. S.S. Shukla etc, SCC (2) 521 AIR 1207, (1976)
15
Supra Note No. 2
brutally crushed by the harsh means of the government. The last being the Nav Nirman
Movement led by JP, the movement was nationwide and no doubt could have harmed the peace
of the country, but was not proved to be that successful as was of the Gujarat. Though the
movement was nationwide but was losing and lacked enthusiasm with time and the sternness of
the Bihar Government.

The press censorship, the 24th, 38th, 39th and 42nd amendments, the A.D.M Jabalpur, the arrests of
the opposition leaders, the 5 point programme ran by Sanjay Gandhi which was not very
essential at that very moment, were some of the instances in the Emergency period which the
democratic constitution undemocratic, raised a lot of questions regarding the Judiciary of India,
being the black spots on the political and judicial history of India. But author asserts that
Judiciary tried its best to control the situation, the Golaknath case and Keshavanada Bharati
cases being some of them.