The Emergency was imposed on June 25, 1975. A constitution bench in the case of ADM Jabalpur (1976) upheld that the right to Habeas Corpus stood suspended (Article 21). No relief could be given. The decision was by majority of 4 : 1. Justice H.R.Khanna dissented. The right to life was available even in the absence of Article 21. It was never held by the constitution bench that the imposition of Emergency was unconstitutional. The Emergency was widhdrawn on March 21, 1977. Article 21 stood restored. The Emergency provision, Article 352 was never used thereafter. In 2017 in the case of K.S.Puttaswamy, a nine judge bench overruled ADM Jabalpur. The beauty was that the judgment of senior justice Y.V.Chandrachud was overruled by younger Justice D.Y.Chandrachud. The right to life is available as a natural human right. It cannot be suspended. The kind of situation which rose in ADM Jabalpur can never re-occur. Ultimately, it goes to the credit of the Supreme Court that the Constitution has been so meaningfully interpreted that Article 21 can never be suspended.
The biggest controversy before, during and post elections has been that the Indian Constitution will be defaced and defiled. In April, 2024, while addressing an election rally in Rajasthan, the PM Narender Modi categorically stated : “As far as the Constitution is concerned, keep Modi’s words in writing, if Babasaheb Ambedkar comes back himself, he too cannot abolish the constitution. For the government, our Constitution is Gita, Ramayan, Mahabharat, Bible and Quran.” This leaves nothing to doubt.
The new Parliament has been constituted. There is a strong Opposition. There is a Leader of the Opposition (LoP) from congress in both the Houses of the Parliament. It was thought that the NDA Government and the Opposition would work in coordination. There is no move on the part of NDA Government to carry the Opposition along. The repeated reference to the Emergency of 1975 has been made. The Prime Minister, the Speaker of the Lok Sabha and the President of India have made references to the Emergency. The President of India addressed the joint session of Parliament on June 27, 2024. She said – the imposition of Emergency was the biggest and the darkest chapter of direct attack on the Constitution. The other constitutional authorities equally condemned Emergency.
The repeated reference to Emergency particularly after a space of 50 years was clearly and understandably avoidable. This provided the fuel and provocation to the Opposition in both the Houses of the Parliament. The Opposition was keen to have an assurance that there was no threat to the Constitution. It is true that Article 21 cannot be suspended. Yet, it is not being followed in actual practice. In many situations, it is apparent that it does not exist. The 18th Lok Sabha has been constituted. In the new Parliament, each Member has taken an oath in terms as prescribed in 3rd schedule to the Constitution. The oath reads : “shall bear true faith and allegiance to the constitution of India as established by law”. Each Member of Parliament is not merely bound by the text of the constitution. He/she is bound by the constitution as interpreted by the Supreme Court. Article 144 says that all authorities civil and judicial, in the territory of India shall act in aid of the Supreme Court. This means that all authorities are to follow the discipline of the Constitution as interpreted by the Supreme Court. Only then the authorities act in aid of the supreme court. This being the constitutional position, the assurance from the Prime Minster would have changed the entire political environment of the country. Both could function in unison. The absence of any such assurance created doubt and fear in the minds of the Opposition Members. In a constitutional democracy, this ‘understanding’ is most important Prof. Upendra Baxi has used two words : Oathed and non oathed citizens. Both category of citizen are bound by the constitution. By constitutional values. Constitutional morality. During the Motion of Thanks to the President’s address, Prime Minister said in the Rajya Sabha : Constitution guides the citizen ‘like a light house’. The Opposition wanted the NDA govt. to run the country in accordance with the Constitution. The Opposition Members were holding the copy of the Constitution in their hands. They truly wanted an assurance. This was the opportunity for the govt. to come forward. It failed. The Chairman of the Rajya Sabha said that he gave the LoP a chance to speak. He has insulted the Constitution. I condemn their conduct. The Constitution is not something to keep in their hands but to live by. The LoP wanted to remind the govt. to function in accordance with the Constitution. To tinker with the Constitution is one thing. But to run the Govt. by following constitution is another thing. The Govt. may not silence Article 21. Yet, in actual working it may not follow it. This is the true challenge of the present times.
We are a Parliamentary constitutional democracy. Democracy is a government by discussion. Discussion presupposes arguments and counter arguments. The essence of parliamentary democracy is that Majority has its ‘way’ and the Minority has its ‘say’. Laski, the political thinker has summed up beautifully : ‘men who are to live together peacefully must be able to argue together peacefully.’ This is the true understanding of parliamentary democracy. In the present case, the Remarks of both the Leaders of Opposition have been expunged by the speaker and the chairman respectively. Was something un-parliamentary said ? Was something said against the PM or a Minister ? Were they present in the Parliament to respond? Is the power of expunging absolute? If it is absolute, is it not impinging upon the freedom of speech and expression of LoP? In a Constitutional democracy, there is no power which is absolute. Therefore, the power of expunging deserves to be considered by the constitution bench of the Supreme Court. The healthy jurisprudence of ‘Expunging Remark’ made in the Parliament deserves to be build up. Otherwise, the power is pregnant with absolute danger. A threat to Parliamentary Democracy.
It was on July 12, 2024, the Govt. of India, Ministry of Home Affair decided to observe June 25 every year as ‘Samvidhaan Hatya Diwas’ : The Constitution Death Anniversary. The Supreme Court never ever held that the imposition of Emergency was the death of Indian Constitution. During the last almost 50 years, the Constitution of India has served and protected the rights of the people of India. On the first day of 18th Lok Sabha (June 24), the PM duly and fully bowed to the Constitution of India. With utmost respect. In the 75th year of Indian Constitution, this notification proclaims June 25 as the death anniversary of the Constitution. What a constitutional tragedy! A constitutional calamity!
This notification is open to challenge before the Supreme Court as unconstitutional. Constitutions are meant to have only Birthdays. No Death days. Another dicotomy. As per the notification, June 25 will be observed as Constitution Death Anniversary. A few months later, we would be observing November 26 as the Constitution Day. In fact, we would be completing 75 years of Indian Constitution. It is reported on July 15, 2024 (Indian Express) that the Ministry of Culture is planning an extensive campaign to mark 75 years of the Constitution. The whole world will laugh at us. No thought process has gone into the issuance of the notification (July 12, 2024). No application of mind. Only one thought, how to silence the Opposition! Long live the Indian Constitution.
Dr. Balram K Gupta
Professor Emeritus
Sr. Advocate
Honorary Chief Advisor, CJA
