Ashok H. Desai: How the Judiciary Defied the Government to Uphold Constitutional Values During the Emergency

The declaration proclaimed on June 25, 1975, under Article 352(1) of the constitution that a grave Emergency existed whereby the security of India was threatened by internal disturbance was the declaration of a phoney Emergency. Its real cause was the erosion of Indira Gandhi’s hold on power. The occasion to declare it on that day was an adverse decision of the courts. On June 12, 1975, in the election petition filed by Raj Narain, Jagmohan Lal Sinha, justice of the Allahabad high court, had found Gandhi guilty of corrupt practices.

Prem Shankar Jha: 42 Years After the Emergency, India’s Democracy is Once Again in Danger

The Supreme Court had risen for its summer vacation and Justice Krishna Iyer happened to be the vacation judge. On the very day of the decision, the judge received a curious telephone call from the law minister H.R. Gokhale (popularly known as Balasaheb) that he wanted to call on the judge. On inquiry, Gokhale mentioned that it was about the verdict in the prime minister’s case. The judge declined to meet him, but advised him to file an appeal and seek an early hearing.

At the hearing on June 24, 1975, Gandhi’s counsel Nani Palkhivala pressed for a complete stay, urging that otherwise the very legitimacy of the prime minister would become an issue. The judge, however, followed the established practice and granted only a limited stay (Indira Nehru Gandhi vs. Raj Narain, (1975) 2 SCC 159). Now the citizens of India had the protection of a ‘double Emergency,’ because from December 3, 1971, we were already governed by an earlier proclamation that an Emergency existed whereby the security of India was threatened by external aggression.

At 9:30 pm on the night of June 25, 1975, the proclamation was sent to President Fakhruddin Ali Ahmed. No cabinet meeting had been held to discuss the matter, much less to approve of the measure. Gandhi evidently wanted even her colleagues to face a fait accompli. The president also did not insist on a cabinet meeting, but was persuaded to sign the midnight proclamation. It is a historic irony that the order of a judge keen on preserving the rule of law provided the excuse for its suspension.

The report of the Shah Commission and now the book The Emergency by Coomi Kapoor shows that the actual preparation for an internal Emergency had started much earlier. Gandhi was being advised by a core group close to her, namely Siddhartha Shankar Ray (chief minister of West Bengal), D.K. Barooah (Congress president), Rajni Patel (chairman of the Bombay Pradesh Congress Committee) and Balasahab Gokhale, the last two being the contribution of the Bombay Bar…