50 years after Emergency, our democracy still fragile

REMEMBERING is somewhat easy, not forgetting much more difficult. Remembering involves recalling. In the case of the Emergency that was declared on June 25, 1975, just 50 years back, one can resurrect much of what happened in the following 21 months in considerable detail. The events are well chronicled and, above all, etched in the memory of those who lived through that period. The more challenging task is ‘not forgetting’, for it entails learning from that experience so that we are not “condemned to repeat” the same mistakes.

Hence, the most important question for us today is — what have we learnt, and even more importantly, what can we learn from the experience of the Emergency?

Looking back at those tumultuous months, perhaps the most important lesson for us is that there is a distinction between the letter of the law and the spirit of the law, and it is the latter that can nurture democratic life.

In 1975, the Allahabad High Court set aside Prime Minister Indira Gandhi’s Lok Sabha election victory on the grounds of electoral malpractices. Although the Supreme Court stayed that verdict, the opposition within the House and outside asked for her resignation on moral grounds. They questioned her moral legitimacy to rule and govern, invoking as it were, an appeal to the conscience (and not merely to the letter of the law) to do the right thing.

Mrs Gandhi prioritised political judgement over the moral one and we know the consequence of that decision. In the hustle and bustle of electoral competitive politics, the moral frequently loses out to the practical-political, and every time that happens democracy takes a step back. How can we bring the ‘moral’ back into political life?

The Emergency has left us with this difficult question, and even today we are no closer to answering it. However, what that period in our history has shown is that democracy stays on track when governments take note of the concerns raised by the Opposition. When they dismiss them, as Mrs Gandhi did then, democracy is at risk.

Our Constitution has provisions for declaring state and national emergency along with clauses for ‘preventive detention’. In fact, in 1975, the Emergency was declared under the existing constitutional provisions. The suspension of civil liberties and political rights, mass arrests of Opposition leaders, journalists and other dissenting voices under MISA (Maintenance of Internal Security Act) that allowed indefinite preventive detention, search and seizure without warrant, muzzling of the freedom of the press, postponement of elections to central and state legislative bodies, and with it, the concentration of power in the hands of the central executive, was made possible by the invocation of Article 352.

This, more than anything else, has made us aware that our democracy is fragile and our rights vulnerable. We cannot take either for granted. In 1975, even the Supreme Court ruled that writ petitions challenging the legality of detention could not be considered by the court during the period of the Emergency. Hence, without continuous vigilance by citizens and all institutions, we may always remain vulnerable.

A few lessons have been learnt. In 1978, the 44th Amendment of the Constitution stipulated that Articles 20 and 21 (dealing with personal liberty) could not be suspended even during a declared Emergency. Since then, the Supreme Court has also made some course correction. Reflecting on its own (in)action during the Emergency, it has extended and strengthened the right to liberty. In 2017, a Constitutional Bench ruled that the right to life and liberty is inalienable and its limitation must be in accordance with a procedure that is fair, just and reasonable.

All these important changes in the institutional framework are a product of ‘not forgetting’ the Emergency. However, much more still needs to be done. When legal scholars note that the rules for granting bail remain flexible, open to considerable interpretation, at times presuming guilt rather than innocence, then the task of protecting the citizen’s democratic rights remains unfinished and warrants urgent attention.

No democracy is perfect. Each has its own weaknesses. In parliamentary democracies, elections often give one party the majority of the seats, and this allows it to shape laws and policies. Mrs Gandhi advised the President to declare the Emergency without a formal meeting and endorsement by the full Cabinet, saying that the threat of internal disturbances warranted immediate action. In hindsight, we can only underline the need for strengthening processes of formal consultation in an environment where different points of view are likely to be expressed. It did not happen in 1975 and democracy got derailed.

The Emergency did not merely suspend democratic rights. The policies during this period — from compulsory sterilisation to reporting dissent — were successfully and energetically pursued by innumerable officials at various levels. Writing about the extermination of Jews, Hannah Arendt argued that horrific acts of terror and violence were carried out by individuals who saw themselves as following orders. Bureaucratic structures promote this form of thoughtlessness and ‘banality of evil’.

We could question that analysis and say that individuals always have a choice. When the Emergency was declared, some resigned from their positions and refused to endorse the government’s diktat. But expecting such heroic action from most people is unrealistic. Usually, the costs of critically assessing one’s actions, or the attraction of promised rewards, take their toll. These vulnerabilities can only be addressed by creating a system in which each institution is held responsible and accountable for its actions and individuals within them protected by norms of collective action.

The scars left by the Emergency are many. We cannot erase the past completely, but we do have an option, and an opportunity, to learn from it and shape a stronger democratic future.

Gurpreet Mahajan is former Professor, Political Science, JNU.

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