Indian Constitution was murdered on June 25, 1975

On the midnight of June 25, 1975, India was witness to the suspension of civil liberties and democratic ethos. Moreover, it was not merely a political Emergency but also a constitutional emergency in the truest and most tragic sense. Should we then not call it Samvidhan Hatya Divas? The day our Constitution was betrayed from within, not by invaders, not by enemies, but by its own custodians.

Most questions remain unanswered even fifty years later:

Why was Fakhruddin Ali Ahmed not impeached?

With a stroke of his pen, he signed away the fundamental rights of the people—rights he had solemnly sworn to uphold. Was the oath to “preserve, protect, and defend the Constitution” simply ceremonial? The then Prime Minister, bound by the collective responsibility to the Constitution, did not initiate impeachment—one of the gravest omissions in our constitutional history.

If such dark conditions rose the doubt-can and should the President be impeached? But in 1975, silence prevailed over action. Compliance replaced courage. It was not just an Emergency—it was complicity.

Fifty years back, the Emergency was declared based on the constitutional provision of “internal disturbances,” which was later extended to include “external aggression”. Ahmed’s role was largely seen as supporting the then Prime Minister Indira Gandhi’s decisions during that time.

During his term as President, Ahmed also gave his assent to numerous ordinances and constitutional amendments drafted by Indira Gandhi to rule by decree. There were no reasons to justify the imposition of Emergency, a dubious reason “a grave emergency exists whereby the security of India is threatened by internal disturbances.” The President did not cite any reports to that effect from the Intelligence Bureau, Home Ministry or from any of the governors, nor had the proposal been considered by the Union Council of Ministers.

Article 60’s ‘Oath or affirmation’ by the President says:

Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior-most Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say—

“I, A.B., do swear in the name of God/solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India.”

This is not a privilege of the President, or his/her duty?

President’s ‘satisfaction’ and the Constitution:

How does the President reach ‘satisfaction’? The President’s satisfaction in the constitutional sense means that it is the ‘satisfaction’ of the council of ministers. The President acts on the advice of the Council of Ministers in most matters, including giving assent and amendments. Therefore, when a provision requires the President’s satisfaction, it means that the council of ministers must be satisfied with the provision before it is presented to the President for his assent. The Ministers of the Union play a crucial role in the functioning of the President’s office. They are responsible for advising the President on various matters, including giving assent to recommendations by the Prime Minister and the Cabinet. The Constitution vests the executive power of the Union in the President, but this power is to be exercised on the aid and advice of the Council of Ministers.

One should examine Article 352 of our Constitution to read that empowered the President to impose a national Emergency on his satisfaction that the security of India or any part of it is threatened by war, external aggression, or internal disturbance.

Article 74 of the Constitution, as it then stood, provided for “a Council of Ministers with the Prime Minister at the head to aid and advise the President”.

Unfortunately, the President did not know that the proposal was sent without any discussions with the Union Cabinet. The President learnt only after the ‘ratification’ of the Cabinet the next morning. Meanwhile, within three hours after the imposition of the Emergency, power supply to all major newspapers was cut, while many top opposition leaders were arrested and jailed.

Top secret revealed at midnight!

Author Gyan Prakash picked up this excerpt from the book ‘Emergency Chronicles: Indira Gandhi and Democracy’s Turning Point’:

“President Fakhruddin Ali Ahmed summoned his secretary, K. Balachandran, at around 11:15 p.m. on June 25, 1975.

Ten minutes later, Balachandran met the pajama-clad president in the private sitting room of his official residence at Rashtrapati Bhavan. The president handed his secretary a one-page letter from Indira Gandhi marked “Top Secret.” Referring to the prime minister’s discussion with the president earlier that day, the letter said she received information that internal disturbances posed an imminent threat to India’s internal security. It requested a proclamation of Emergency under Article 352 (1) if the president was satisfied with this score. She would have preferred to have first consulted the cabinet, but there was no time to lose. Therefore, she was invoking a departure from the Transaction of Business Rules in the exercise of her powers under Rule 12 thereof.

The president asked for his aide’s opinion on the letter, which did not have the proposed proclamation attached. Balachandran said that such a proclamation was constitutionally impermissible on more than one ground.

At this, the president said that he wanted to consult the Constitution. Balachandran retreated to his office to locate a copy.

Meanwhile, the deputy secretary in the president’s Secretariat showed up. The two officials launched into a discussion about the constitutionality of the prime minister’s proposal before they returned to President Ahmed with a copy of the Constitution. Balachandran explained that the president’s satisfaction that internal disturbances posed a threat to internal security was constitutionally irrelevant. What the Constitution required was the advice of the Council of Ministers.

Balachandran withdrew when the president said he wanted to speak to the prime minister. When he re-entered the room ten minutes later, President Ahmed informed him that R.K. Dhawan had come over with a draft Emergency Proclamation, which he had signed.

Then the President swallowed a tranquilizer and went to bed. The author Gyan Prakash explained the sordid episode as follows:

This late-night concern for constitutional propriety is revealing. What we see unfolding in the hunt for a copy of the Constitution, the leafing through its pages to make sure that the draft proclamation met the letter of the law, is the meticulous process of the paradoxical suspension of the law by law. The substance of the discussion concerns the legality of the procedures to follow in issuing the Emergency Proclamation. The political will behind the act goes unmentioned. This is because Article 352 (1) of the Constitution itself had left the judgment of the necessity for the Emergency proclamation outside the law.

The doctrine of necessity regards the judgment of crisis conditions as something that the law itself cannot handle; it is a lacuna in the juridical order that the executive is obligated to remedy. This leaves the sovereign to define the conditions necessitating the suspension of law. Accordingly, the discussion at Rashtrapati Bhavan did not refer to the politics of the Emergency proclamation.

Instead of resigning from the position as President, Ahmed should have been impeached as was the overall opinion in those days.

The lovers of democracy expect the I.N.D.I.A outfit led by the Congress Party to assure that Emergency will not be repeated and the NDA to ensure that they will remove the dark situations of violating freedom of speech, and enliven the Samvidhan without killing it.

Let us hope every Constitutional officer remembers their oath and the President will not sign without reading such documents like a rubber stamp.

(The writer is Advisor, School of Law, Mahindra University, Hyderabad)