The country’s President is supposed to be a nominal head of the executive, the first citizen as well as the supreme commander of the Indian Armed Forces. As per Article 60, the President should take the oath or affirmation with “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.”

An oath without consequence!

The ‘oath’ remains forgotten. Under the leadership of Indira Gandhi, the Union of India did not think of impeaching the President, which is a blatant violation of the Constitution and the oath to preserve, protect, and defend the rule of law.

Exactly 50 years ago, the then-President had an opportunity to avoid the Emergency. Then why did Fakhruddin Ali Ahmed, as President of India, not face impeachment proceedings related to the imposition of the Emergency in 1975? While he did declare the Emergency and give his assent to related actions, the constitution provides a mechanism for impeachment, but it was not initiated in his case. For suspending the freedom of speech and expression, he deserved to be impeached, including imposing Emergency, without a cabinet resolution. The PM wanted and the President signed blindly whenever ordered.

Article 352 provisions:

One should examine Article 352 of the constitution, which empowers 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 advice the President”.

The Union Council of Ministers had not met and advised the proclamation of an Emergency. Ahmed signed the bill of amendment. The expression “internal disturbance” was termed to “armed rebellion” by the 44th Constitutional Amendment Act, which added in Section 74 that the President “may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.”

Lost and found:

How does the President reach satisfaction? The President’s satisfaction refers to it in a constitutional sense, which means that it is the ‘satisfaction’ of his Council of Ministers. The President acts on the advice of the Council of Ministers in most matters, including the giving of assent to bills or many more significant bills, like 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 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.

Constitutional crime ‘ratified’:

Indira Gandhi requested a compliant President Fakhruddin Ali Ahmed to proclaim a state of emergency. Unfortunately, the President did not know that the proposal had been approved by the PM without discussion with the Union Cabinet. The President learned only after the ‘ratification’ of the Cabinet the next morning. Earlier, within three hours after the imposition of the Emergency, electricity supply to all major newspapers was cut, and the political opposition was arrested.

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.

That means he knew the blunder!

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. And the Rashtrapati Bhavan will not find a copy of the Constitution.”

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, 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.

That happened because of manipulation and misinformation, to say the least, because the President did not read the Constitution of India, or his secretary did not find a copy, before he signed. Instead of resigning from the position as President, he has resigned! At least, somebody should have been impeached.

(The writer is a ormer Central Information Commissioner, and presently Proffessor, School of Law, Mahindra University, Hyderabad)