We Need to Find a Solution for India’s Self-Contradicting Constitution

Once an Emergency is imposed, it is unrealistic to expect either parliament or the court to come to the citizen’s rescue. It is, therefore, the Common Man who must take preventive steps to guard against the recurrence of what can only be described as constitutional contradiction.

Fifty years ago, the supreme operator of the Indian constitutional machinery, the president of India, pressed the panic button. By invoking Emergency under Article 352 of the constitution, the government sought to eliminate all perceived threats to its authority. Fundamental rights under Article 19, federalism, and freedom of the press were suspended in one fell swoop. Leaders of opposition parties and media personnel were arrested overnight. At 11.45 pm on June 25, 1975, the president signed the proclamation; by 2 am, power supply to Bahadur Shah Zafar Marg, India’s Fleet Street, was cut. The next morning, censorship was formally imposed. Free speech became the first casualty of the Emergency.

A primary reason for this drastic action was the Indira Gandhi regime’s unease with the decentralisation of political power. The official white paper Why Emergency, published in 1975, stated:

“In the 1967 election, power came to be distributed among a large number of heterogeneous parties and groups, and this led to instability.”

In Parliament in 1976, Indira Gandhi declared, “The unity of India depends on a strong central government.” The ruling coterie sought unrestrained and centralised authority. To that end, they wielded the surgical knife with scant regard for the lifeblood of constitutional democracy.

Yet, the Emergency cannot be equated with a full-fledged totalitarian regime. As Granville Austin noted in Working a Democratic Constitution (1999), there were limits:

“Considerable individual and political freedom existed within it, ideological purity was not demanded, opponents were not shot.”

Indira Gandhi defended the Emergency as a constitutional response to an extra-constitutional threat. In her view, rule of law and personal liberty were sacrifices required for the greater national good and the construction of a “disciplined democracy” – a model that suppressed political pluralism and popular participation.

Christophe Jaffrelot and Pratinav Anil, in India’s First Dictatorship: The Emergency, 1975–77 (2022), describe this episode as a “constitutional dictatorship.” They explain:

“The ambivalent character of this regime was also reflected in the constitutionality of the new dispensation. For, by using one of its provisions to bring the Emergency into existence, Gandhi had made certain not to step outside the boundaries of the Constitution.”

This paradox – constitutional forms enabling autocratic content – is what encapsulates a constitutional fragmentation. The constitution is a fractured legal entity in which democracy and authoritarianism uneasily coexist within the same constitutional body.

Decoding the phenomenon

This brings us to the profound and unresolved internal conflict within the Indian constitutional framework, a tension between two radically opposing impulses. On one hand, the constitution promises a liberal democratic order: fundamental rights, federalism, separation of powers, and a government accountable to the people. On the other, it houses emergency provisions that, when invoked, allow the state to suspend the very rights that define that democratic order.

Unlike the US constitution, which, influenced by John Locke's social contract theory, contains no generic “emergency powers” clause, the Indian constitution incorporates such provisions. This inclusion allows for a constitutional regression into authoritarianism while maintaining a veneer of legality. The constitution, in this sense, behaves contradictorily: it offers safeguards to the citizens even as it contains within itself the mechanism for their suspension. This internal dissonance undermines the coherence of constitutionalism itself.

The 44th Constitutional Amendment attempted to resolve some of this dissonance. It mandated that the President may issue a proclamation of emergency only upon the written advice of the Union Cabinet. Further, any such proclamation must be ratified by a special majority of Parliament within one month and may be revoked by a simple majority resolution. However, in today’s political context, these procedural safeguards offer little solace. The Westminster model has steadily evolved into a presidentialised prime ministerial system, where power is concentrated in a single individual supported by a close-knit inner circle.

Edification without enforcement

During the Emergency, the judiciary failed in its constitutional duty. Like Pontius Pilate, it washed its hands of responsibility as executive excesses went unchecked. Justice Gajendragadkar’s observation in Makhan Singh Tarsikka v. State of Punjab (1964) remains hauntingly relevant: “In a democratic State, the effective safeguard against abuse of executive power, whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public opinion.” Yet, as early as Sree Mohan Chowdhury v. Chief Commissioner, the Court had held that detainees under the Defence of India Act, 1962, could not file habeas corpus petitions due to a Presidential Order under Article 359. 

Chief Justice Subba Rao, in Ghulam Sarwar v. Union of India (1967), cautioned:

“The question whether there is a grave  emergency... is left to the satisfaction of the Executive, for it is obviously in the best position to judge the situation. But there is a correlative danger of abuse of such extraordinary power leading to totalitarianism... The obvious safeguard is the good sense of the Executive, but a more effective one is public opinion.”

In ADM Jabalpur v. Shivakant Shukla (1976), the Supreme Court delivered what has been called “the most unkindest cut of all.” It held that no habeas corpus petition could be entertained—even if the detention was unlawful or malicious. Justice M.H. Beg went so far as to state, “There is no Rule of Law during the Emergency.”

Human rights lawyer K.G. Kannabiran, in his posthumous memoirs The Speaking Constitution: A Sisyphean Life in Law (2022), laid bare the inconsistency in judicial reasoning:

“Even the Supreme Court ruled that in the  matter of the deprivation of personal liberty, no basic feature of the Constitution was violated [during the Emergency]. The same court that ruled that in the matter of property there could be no law that altered the basic structure of the Constitution also ruled that personal liberty cannot be interpreted with reference to the basic structure. The basis of this interpretation was that since it is the state and the Constitution that conferred rights, the same may be withdrawn. I am of the opinion that it is a grave error to interpret fundamental rights in this manner- any ruler, state, government or Constitution only confirms, respects and guarantees protection of the inherent rights of persons”. 

A self-coup and the shadow Emergency

What lessons does the Emergency hold for contemporary India? In India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance (2022), Arvind Narrain traces how democratic institutions are being steadily hollowed out. He compares the 1975 Emergency with present-day trends under the Modi regime. Through an arsenal of draconian laws, dissent is being criminalised, and democratic checks – the media, Election Commission, opposition, and judiciary – are being co-opted or compromised. The Prime Minister’s Office has become the epicentre of political power.

Narrain identifies six features that make this contemporary moment more dangerous than the Indira-era Emergency: Deep ideological grounding in Hindutva, Widespread mass mobilisation through RSS networks, Complicity of mainstream media, Mob vigilantism under the guise of nationalism, Legislative attempts to embed Hindutva into law, and  Corporate capture of the political process These trends amount to what Latin American scholars term an autogolpe – a self-coup where an elected leader dismantles constitutional constraints while retaining formal democratic legitimacy.

Whether declared or undeclared, a state of Emergency rarely leaves space for institutional resistance. Parliament and the judiciary are unlikely to stand up to an executive that derives its legitimacy from majoritarian nationalism. The responsibility, therefore, rests squarely on the shoulders of the citizen. It is the Common Man who must inoculate the republic against the recurrence of constitutional contradiction. This immunisation cannot be achieved by law alone. It must take root in civic life – through constitutional education, civil discourse, neighbourhood forums, family conversations, classrooms, and digital spaces. As Justice Subba Rao so rightly observed, the ultimate safeguard is not legal machinery, but a well-informed, vigilant public opinion. Only then can the Indian Constitution, fractured yet resilient, hope to recover from its curious phenomenon.

Faisal C.K. is deputy law secretary to the Government of Kerala. Views are personal.

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