Undiscovered Country. Emergency care

On the 40th anniversary of the Emergency in June this year, we saw numerous articles and even a book on what happened, how it happened, and whether we, in today’s India, are safe from a recurrence. We came perilously close to throwing away the most precious gift of our Independence movement — our democracy, the freedom to govern ourselves rather than be mere pawns at the hands of those in power. Had India given up on its democracy, it would not have been the first country to do so. Almost every developing country failed to hold on to democratic principles after independence. It was not peculiar to developing countries, or Asian and African nations. The most famous country to throw away democracy, bringing to power a dictator through democratic means, was, of course, Germany.

Using the excuse of the Reichstag fire in February 1933, Adolf Hitler’s National Socialist German Workers’ Party — the Nazis — managed to win 44 per cent of the vote. They had the most seats in Parliament, but were still short of majority. Warning against ‘traitors within’, the Nazis pushed through the Enabling Act in March 1933, which allowed the government to make laws without Parliamentary consent. By May 1933, all the trade unions had been abolished, and by July, all political parties other than the Nazi Party were banned. By 1934, Hitler had made himself President, Chancellor and Head of the Army.

The peculiar thing is that this eventuality, of an undemocratic ruler using democratically passed laws to undo democracy, was already being extensively discussed in Germany before the rise of Hitler. This was part of the lecture delivered by Professor Dietrich Conrad to the law faculty at Benares Hindu University in 1965. (Professor Conrad headed the law department at Heidelberg University’s South Asia Institute.) His lecture was titled ‘Implied Limitations of the Amending Power’. To explain his point, he asked what if a majority government decided to pass a law to hand sovereignty of India to the British Crown or the Mughal dynasty, or carve the country into half. The government might have had the two-thirds majority needed to pass such an amendment, but did it have the right to change the basic structure of the country and the Constitution?

In a lovely essay, eminent jurist AG Noorani explains how the paper based on Professor Conrad’s lecture was read aloud by Constitutional lawyer MK Nambyar in the famous 1967 Golakh Nath case. In its ruling, the Supreme Court held that ‘Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights’. Although this was partially overridden in the 1973 Kesavananda Bharati case, the Supreme Court explicitly stated in the latter case that there was a ‘basic structure’ to the Constitution that the government of the day could not override. Incensed by the judgment, Indira Gandhi tried to stack the judiciary with compliant yes-men, but she could not undo these decisions.

Everybody knows that the guilty verdict in 1975 against Mrs Gandhi — the misuse of government jeeps for campaigning — was one of the primary drivers of her declaring Emergency. But few know that in the same year, the government had come up with a Bill to amend Article 361 of the Constitution, disallowing any criminal proceeding against the Prime Minister. It was dropped, no doubt because the government’s legal advisors probably warned that such a Bill would be struck down because of the ‘basic structure’ doctrine espoused in the 1973 Kesavananda Bharati case. Had this not been the case, Mrs Gandhi could have happily continued violating laws without being ‘legally’ wrong. (The current Maharashtra government, in its effort to make it mandatory to get a government nod before filing cases against MLAs and senior government officers, is ignoring this, and will no doubt be reminded of the same by the courts.)

We are indebted to Professor Conrad. He identified the lakshmanrekha that a democratically elected government could not cross and still call itself democratic. His insights, incorporated into the judicial decisions, helped the judiciary determine that Mrs Gandhi had crossed that line. These insights were also what allowed the judiciary to clean up extra-Constitutional insertions by her during the Emergency. We often think our tragedies are lonely ones, but Professor Conrad’s example shows us that we can avoid mistakes by learning from the ones others made. Reading a 2011 paper by Aharon Barak, the former President of the Israeli Supreme Court, on ‘Unconstitutional Constitutional Amendments’ in the Israel Law Review , heavily citing the Indian experience, makes me glad that our lessons become those of the world as well.

Omair Ahmad is an author. His last book was on Bhutan; @OmairTAhmad

COMMENT NOW