The observation made by Mr lK Advani on the Emergency has brought back the disturbing memories of the 1975 Internal Emergency. He thinks that despite all the constitutional safeguards that exist today, an Emergency can still be declared in this country. As a matter of fact, the Emergency is always possible so long as there exists in the Constitution, Article 352. The Janata Government did not even think of deleting all the provisions related to Internal Emergency. So, the position that obtains today is that an Emergency can be declared if the President thinks that the country is facing an imminent threat of an armed rebellion. The Janata Party Government, of course, replaced the much misused ‘internal disturbance’ with a more specific ‘armed rebellion’, through the 44th Amendment of the Constitution, in 1979.
There are people in India, who sincerely believe that there won’t be a recurrence of the Internal Emergency because of the various safeguards provided in the Constitution. However, a closer analysis of these safeguards will show that a determined and wily Government can get around these safeguards without much difficulty if the occasion demands. let’s have a closer look at some of them.
The first safeguard is the stipulation in Article 352(3), which states that, unless the collective decision of the Union Cabinet is communicated to the President, he will not issue a proclamation of Emergency. This provision was introduced in the Constitution by the Janata Government because Indira Gandhi had forwarded to the President, the recommendation for imposing Emergency without consulting her Cabinet.
However, this type of provision makes sense only in the context of a Janata-type regime, whose Cabinet could never agree on anything. But a party which has a majority in both Houses of Parliament and a strong person heading the Government, is a different kettle of fish. As such, a Government will have no problem in securing the approval of the Cabinet Ministers for a proclamation of Emergency. Indira Gandhi was too confident about the support of her Cabinet colleagues to think of consulting them before hand.
The second safeguard is the stipulation that only if both Houses of Parliament pass resolutions, with a majority of the total membership of the House and a majority of two-thirds of the members present for voting, the proclamation will continue in force beyond one month. There is a certain amount of confusion in the public mind about the true nature of this special majority. People generally believe that it is a special two-thirds majority. It is, in fact, a simple majority of the total membership of the Houses and a majority of two-thirds of the members present and voting. It is different from a two-thirds majority which is obtained when two-thirds of the total membership of the House votes in support of a measure.
The provision of two-thirds of the members present and voting can be used in favour of a Government by keeping the Opposition members in jail. When a substantial number of members in the Opposition are held under preventive detention and are unable to attend the House, which is usually the first act a Government does after the promulgation of Emergency, the resolutions approving the proclamation can be passed with the requisite majority. This was done with great success in 1975 by the Indira Gandhi Government.
All the amendments to the Constitution which require the above mentioned special majority were passed in both Houses with the support of the treasury bench and in the absence of the Opposition. So, the special majority in favour of the resolution can be secured in the absence of the Opposition members. Therefore, even this safeguard, a qualitative improvement on the pre-Emergency provision of a simple majority, will not be adequate against any future Emergency.
A real safeguard will be a provision for a majority of the two-thirds of the total membership of the House. It is a safe bet that no future Government is going to have such a majority in both Houses. Viewed from any angle, majority of two-thirds of the total membership of the Houses is the most effective safeguard against the imposition of Emergency by an authoritarian regime. To obtain this majority, the Government should get the support of 362 members in the lok Sabha and 162 Members in the Rajya Sabha, which is not an easy task. In the absence of such a majority, the proclamation of Emergency ceases to operate after one month. In such a situation, no Government will seriously entertain the idea of Emergency unless Parliament is convinced, that a real threat of a war, external aggression or armed rebellion exists endangering the security of the country.
The institution of Parliament suffered a total erosion of its dignity and prestige during the 1975 Emergency. A handful of harmless Opposition members left in the House (all others were behind bars) were usually made the butt of ridicule and scorn by the members of the treasury benches. One instance in Parliament comes to mind. One of those days, NKP Salve, a senior MP from the then ruling party, wagging his fingers at Dinen Bhattacharya, a CPI(M) Member of lok Sabha shouted, “Don’t bark!” Such obnoxious language by the members of the treasury benches in Parliament was symptomatic of the decadence of the institution of Parliament under the Emergency regime.
The question of whether an Emergency can come back, is a serious one, and one that every Indian citizen should be asking himself. They should know that their freedom can be taken away by errant politicians.
(The writer is a constitutional expert and former Secretary General of the lok Sabha)