50 Years of the Indian Emergency: Lessons for Democracy
Edited by Peter Ronald deSouza and Harsh Sethi
Orient BlackSwan, 376 pages, Rs 1,025

As the nation marks the fiftieth anniversary of the Emergency, this collection of essays looks at the event and its aftermath from diverse perspectives. Bringing together leading scholars and writers, it explores how the Emergency transformed Indian polity, and shaped law enforcement and penal practices, the media, student movements, judicial responses, subaltern politics and literary expression, and examines why analysis of the Emergency is still relevant to political discourse in India today.

Here is an excerpt from the introduction by the editors – Peter Ronald deSouza, Senior Research Associate, African Centre for Epistemology and Philosophy of Science (ACEPS), University of Johannesburg, and Trustee of the Institute of Social Studies Trust, and Harsh Sethi, formerly Consulting Editor of ‘Seminar’. 

Lessons for Democracy

The overwhelming lesson that we learn from studying the Emergency, in all five frameworks, is the failure of institutions. We had wanted to use a less dramatic term than ‘failure’, to describe the situation, such as ‘infirmity’, ‘deficiency’, or ‘weakness’, but the need to be true to the evidence compelled us to stay with ‘failure’. The institutions that were chosen by the Constituent Assembly to safeguard our democracy from tyranny unfortunately failed us during the Emergency. This is true of the ‘deliberative’ institutions (the cabinet, parliament and state assemblies) as well as the ‘oversight’ institutions (the courts, CAG, CVC and media), as also the ‘penalty imposing’ institutions (the courts, police and jails). The Shah Commission report details this failure. The most disappointing of these institutions was the Supreme Court. The *ADM Jabalpur* judgement is a reminder of the highest court’s potential for failure. It was only the dissenting Judge H. R. Khanna who demonstrated that it was possible to work for an institution, defending its independence in the face of an authoritarian Executive. Justice Khanna showed that the principles of ‘separation of power’ and ‘checks and balances’ need not be vacuous. He had the spine to uphold them. What makes for an independent judiciary? This is an urgent issue since it is at the centre of many of the challenges confronting democracies today in 2025 – in many democracies across the world such as Poland, Israel, India and the USA. When the Emergency was imposed, however, all institutions, for some reason, succumbed to the Executive, contributing to its transition from one that was constrained by these institutions to one that was unconstrained. A supreme authority emerged in the political realm – an Executive largely unbound. The parliament, for example, without much demur passed the 39th and 42nd Constitutional Amendments that Mrs Gandhi had wanted, giving herself extraordinary powers. (See the chapter by Ujjwal Kumar Singh and Anupama Roy, and also the one by R. Sudarshan.)

The failure of institutions is a fact. What is required, not just for India but also for other democracies, is an explanation for why this happened. Why did they crumble, even though they were not expected to, when faced with a demanding and fierce authority? Three possible explanations can be forwarded. The first is fear. Officials who hold important offices of the state, offices that can halt the movement towards tyranny, imagine that if they express their opposition to decisions of the Executive, they will face retribution. They hence choose the prudential route over the confrontational path. This fear of retribution grips the officialdom in a democracy when faced with an ascendent autocrat. This fear makes the institutions that are tasked with providing ‘checks and balances’ become weak, much weaker than the political and legal theory of institutions makes an allowance for. Aspiring tyrants therefore cause officials to look over their shoulders rather than at constitutional principles, and rules and regulations from which they draw their authority, while making decisions.

The second explanation is collusion. Officials collude in the arbitrary decisions of the authoritarian leader because they believe they can gain benefits, such as career advancement and plum postings, from such collusion. When this happens in the case of members of the judiciary, we must accept that we have lost an important, perhaps the key, bulwark against authoritarianism. The sad justification by Justice P. N. Bhagwati for his collusion in the *ADM Jabalpur* case shows this weakness to seduction by power. Is such collusion a unique instance, or is it perhaps intrinsic to the system of the modern state? We term it ‘intrinsic’ because such collusion takes place, fairly regularly, in all democracies. One does not need to look very hard to find such collusion. The challenge is how to fix it, if it is fixable at all. Justice P. N. Bhagwati who was a member of the notorious *ADM Jabalpur* bench of the Supreme Court wrote an obsequious letter to Mrs Gandhi when she returned to power in 1980 where he described her as the ‘symbol of the hopes and aspirations of the poor’ and praised her for her ‘iron will and firm determination, uncanny insight and dynamic vision, great administrative capacity and vast experience’. For a sitting judge of the Supreme Court to write to a prime minister such a fawning letter is embarrassing.

Thirty year later he regretted his being part of the majority vote on ADM Jabalpur. “I was wrong. The majority judgment was not the correct judgment . . . I would agree with what Justice Khanna did. I am sorry” (for the judgment) he told The Indian Express in 2011. Bhagwati added: “Initially, I did not favour the majority view. But ultimately, I do not know why I was persuaded to agree with them. I was a novice at that time, a young judge . . . I was handling this type of litigation for the first time. But it was an act of weakness on my part.” (The Indian Express 2011) 

This is a pathetic admission coming from a former Chief Justice of India!

The third level of institutional failure is the delegation of authority – to implement the orders of the Emergency – to levels where it should not have been delegated, that is, to the jailors, constables and the petty officials, who are the face of the state for most common citizens. These are officials who do not necessarily carry with them the normative notion of limits, of the ‘red lines’ of a constitutional culture that should not be crossed. On the contrary, threats and the display of coercion are an essential aspect of their sense of office. In Indian colloquial usage, we refer to it as ‘dandagiri’ and ‘dadagiri’. While higher levels of authority may have often crossed the ‘red lines’ specified by conventions and rules, their excesses can be called out by later Commissions, and they can be punished. An example would be the arrest of Prabir Purkayastha by DSP P. S. Bhinder, and keeping him in jail even though Bhinder knew that it was a case of mistaken identity; or Navin Chawla preparing lists of political opponents who were to be arrested. It is the jailor and the constable, however, who shaped the coercive dimension of the Emergency through torture and encounter killings. (See the detailing of these atrocities in the book by John Dayal and Ajoy Bose [2018].) This happened across the nation. It is the failure of the ‘delegation function’ that we are drawing attention to here, since it is at this level of official authority that the higher levels of tyrannical authority get a materiality. The excesses of sterilisation, demolition of houses, torture, encounter deaths, harassment, denial of the rights to assemble and protest, etc., can be located first at these levels. The responsibility for tyranny must hence also be placed here, in addition to locating it at the higher levels and certainly at the door of the prime minister. We flag it here because it is here where safeguards have to be considered, to eliminate both collusion and the tendency towards tyranny by the officials of the state. How does one protect democracy from the dangers of ‘anticipatory obedience’? To an ordinary citizen, it is the ‘thanedar’ who is feared even in normal times.

Beyond fear, self-interest and collusion, there were also individuals in the administration who, while disagreeing with many of the decisions taken, chose not to resign or openly dissent. Possibly, they felt that as insiders they might be in a position to help contain and dilute at least some of the excesses of the period. This is the classic challenge of ‘now is not the time’ that individuals in positions of authority face when their institutions are descending into tyranny. Universities across the Western world are plagued with this dilemma. The counter to this indecision is the other question, which must also be faced: ‘if not now, when?’

During the Emergency, there were individuals who, in addition to recording the excesses, helped individuals evade arrest, provided information to regime opponents, and attempted to block/slow down proposals that they perceived as harmful. This conflicting tendency – to stay ‘safe’ and ‘subvert from within’ – sometimes successfully, more often not – is evident in the memoirs and reminiscences of several senior figures such as B. K. Nehru, P. N. Dhar and P. N. Haksar, to name a few. But whether these accounts are self-serving efforts to ‘recover and restore’ a tainted reputation or a post-facto attempt to set the record straight, remains unclear. Without greater access to classified files, inter-departmental memos, and other records, it remains difficult to construct a fuller picture of what may have happened behind closed doors. Nevertheless, it is important that greater attention be focused on the ‘intent and rationale’ of key actors – politicians and officials – to better understand how decisions/choices are made in trying circumstances. While scholars have talked of agency to decipher the decisions of leaders, there is an inadequate probing of the minds and intentions of key decision makers.

[The excerpt reproduced with the permission of the publishers.]