50 Years Of A Judgment That Let Emergency Eclipse The Constitution

Emma Tarlo in her wonderful ethnographic account of Indian emergency stated “Emergency occupies an unusual place in the Indian past. It has been much mythologised but little studied.” Everything associated with the Emergency is remembered as a scandal, a constitutional episode, an emergency imposed through constitutional processes and that is not quite false.

But it is also far too tidy. The more serious truth is that it was not merely an emergency under the Constitution; it was an emergency for the Constitution itself. And the stark illustration of this crisis is the ADM Jabalpur v. Shivkant Shukla case, whose judgment now marks its fiftieth anniversary. During the case, when the apex court of a country was asked, in effect, whether a citizen detained under the Maintenance of Internal Security Act (MISA, 1971) could still approach the court and ask by what authority, and for what reason, he/she had been seized. The majority of the bench answered in the language of procedure and official calm: NO. In that moment, the State, having already taken the person into custody, was allowed to do something even more ominous: to strip away the last legal forum, the courtroom, the one in which a person might still speak in the name of freedom. And when law declines to hear the petitions of the detained, it begins to resemble not justice but administration - cold, tidy, and profoundly indifferent to “spirit of law” in name of “rule of law”.

Thousands of political personalities, union leaders, workers association, journalists, students and dissenters were detained under the ‘Maintenance of Internal Security Act’ (MISA). Several people challenged the detention in the High Courts. ADM Jabalpur vs Shivkant Shukla was one amongst these several cases. High Courts of Allahabad, Bombay’s Nagpur Bench, Delhi, Karnataka, and Madhya Pradesh refused the government’s preliminary objection and held that detenus could still challenge their arrests as ultra vires: that is, made by an unauthorised authority, beyond delegated powers, or in breach of statutory conditions.

They also accepted challenges based on mala fides, where the state acted on irrelevant considerations, improper motives, or without properly applying reason. And the Nagpur Bench went further still, reading down section 19A (9) of MISA, which had been invoked to withhold information about the grounds of arrest. In other words, in contrast to the Supreme Court, the High Courts were not prepared to let the State hide behind form and processes while doing violence to substance. This contrast is what makes ADM Jalalpur vs Shukla case so important: it exposed the conflict over whether Emergency meant only suspended remedies, or also suspended judicial review itself.

The case turns on a series of questions that are, in fact, one key question wearing different legal hats: can a law like MISA authorise preventive detention without judicial scrutiny; can fundamental rights be switched off when Emergency is declared; what exactly can a Presidential Order like Emergency cover; and, whether the High Courts are to remain open as constitutional forums or the judicial hierarchy has to be mistaken for judicial subordination? The core question the case asks, in plain terms, is whether the Constitution still stands by its own words when the government of the day treats those words as nothing more than protocols to be arranged, bent, and played with?

In this case, 4:1 majority bench of the Supreme Court, Chief Justice of India Ajit Nath Ray, Justice Mirza Hameedullah Beg, Justice Yeshwant Vishnu Chandrachud, and Justice P. N. Bhagwati against the lone dissenting voice of Hans Raj Khanna, legitimised the President’s order which barred people from approaching the judiciary for restoring their rights. Effectively overruling the half, a dozen high courts orders which retained the judiciary as custodian role against arbitrary arrests. The New York Times report titled with "Fading hope in India”, published April 30, 1976, stated, “The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of democratic society; and the Indian supreme court’s decision appears close to utter surrender”. Thus, Justice H.R. Khanna’s dissent is remembered because it refused this fatalism. He argued that life and liberty are not gifts that the executive may withdraw at will. And while his position is often praised for its humane quality, which it certainly had, the larger truth is that it was also the more legally persuasive one. Liberty, and the conscience of the Court with it, cannot be left to rhetoric, sentiment, or a few decorative phrases about constitutional grandeur. It requires a hard, unsentimental understanding that fundamental rights are not prose for ceremonial occasions, but the means by which an individual can negotiate, however unevenly, with the state.

Post Emergency, the Shah commission revealed the extensive misuse of preventive detentions. Around a lakh of people were arrested without judicial scrutiny, tortured beyond prescribed procedures and there was ad nauseam citation of internal security reasons to avenge personal vendetta of state. Often bureaucratic errors like mistaken identity also led to yearlong imprisonments. The report summed up “large-scale fabrication of records that followed every illegal action including arrests and detentions by the police and the Magistracy”. Although political opponents and observers have rightly directed their outrage at the leaders in power and the executive machinery that carried out the Emergency, the judiciary which enabled, licensed, and in crucial moments consecrated the whole business has often escaped the severity of criticism it so richly deserves.

As we stand today, this case is not a mere memory of distant past but lessons of decisive present and possible future scenarios. The Emergency is often, and not altogether accurately, compared with Hitler’s Reichstag Fire Decree, which placed authoritarian power above the country and bade farewell to fundamental rights. There is, of course, a superficial resemblance. But the comparison can also be misleading. The Emergency was not a Nazi decree aimed at a particular community, nor did it require the manufacture of a frenzied citizenry thirsting for persecution. Its more chilling achievement was subtler than that. It offered a more adaptable and therefore more durable form of authoritarianism: a method by which the State could concentrate power, discipline dissent, and extend control without having to summon the full barbarism of a mass political fever. Also, the Emergency shows an intensification of a bureaucratic habit already at work before it and still visible after it. At the Union level and at the state level alike, laws such as the Orissa Preventive Detention Act, 1970, the Maharashtra Preventive Detention Act, 1970, the Assam Preventive Detention Act, 1980, the Andhra Pradesh Prevention of Dangerous Activities of Communal Offenders Act, 1984, and later the UAPA, have allowed the language of national security and public order to justify detention without a reason that ordinary citizens can meaningfully contest. Read that way, the Emergency did not so much create a new state as reveal how stubbornly a state can keep functioning in the language of legality while stripping away democracy beneath it. In that sense it begins to resemble what Charles Tilly meant by a protection racket, a power that offers security in the same breath that it manufactures fear.

41 years later, the same Supreme Court’s 9-Judge Constitutional bench, in Puttuswamy vs Union of India case, formally overruled the ADM Jabalpur judgement as, “seriously flawed... Article 21 rights are inalienable natural rights, not mere constitutional grants. The same bench unanimously praised Justice Khanna as the “voice of the Constitution amid emergency darkness”. The Constituent Assembly entrusted the Supreme Court as a guardian of the Constitution is an unending task, which requires vigil from both judiciary and citizens' active engagement and fighting for the constitutional spirit.

Perhaps, Shivkant Shukla and Justice Khanna each took that role with grave seriousness, and now it is incumbent on us to honour that burden by remembering to reason, especially when rhetoric reigns the day.

The Burden of Reason is for all of us to share and uphold.

Views expressed are personal