The traumatic episode of emergency must act as a reminder of the responsibility of democratic institutions in always safeguarding the freedoms and rights of citizens. On 25 June 1975, Prime Minister Indira Gandhi advised Fakhruddin Ali Ahmed, the then President of India to declare a state of National Emergency under Article 352 of the Indian Constitution. This marked the beginning of a 21-month period that remains one of the most controversial and dark chapters in the post-independence political history of India.

The suspension of civil liberties and free speech, the arbitrariness in government actions, and the indiscriminate arrests of opposition leaders and dissenters under draconian preventive detention laws, among other measures, continue to haunt us even today. The 1975-77 Emergency also witnessed embattled amendments which dented the spirit of constitutionalism. Citizenry expected the apex court to intervene during this dark time but it instead capitulated to Indira Gandhi’s autocratic tendencies.

The court in A.D.M. Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207) a severely criticized case, held that certain fundamental rights, including the right to liberty, did not survive the executive’s proclamation of emergency. That decision only served to erode further the apex court’s esteem. Taking lessons from this hostile experience, the newly constituted Parliament on 30 April 1979 in exercise of its power under Article 368 of the Constitution passed the 44th Amendment. The amendment was a major constitutional overhaul, passed by the Janata Party government to undo the regressive constitutional changes made during the Emergency of 1975–77 through the 42nd Amendment and to bring in safeguards against similar abuses of power by future governments.

The amendment restored the original position by ensuring that rights under Article 21 could not be suspended even during an Emergency. Given the mass detentions of opposition leaders during the emergency, significant safeguards were added to Article 22 of the Constitution to tackle the evil of preventive detention (Section 3 of the Constitution 44th Amendment Act, 1978).

The vital features of the said section were: first, period of detention under any preventive detention act was reduced from three months to two months; second, the advisory board must give its opinion for extension of detention period beyond two months before the expiry of two months; and third, the composition of the advisory board was specified so as to ensure the rule of law for the detenu in actual practice, so that justice is not only done but seen to be done in case of preventive detention. The Board consists of a service judge of the appropriate High Court as the Chairman and two retired or serving High Court judges as members. However, Section 1(2) provided that the provisions of the Constitution 44th Amendment Act 1978 shall come into force on such date as the Central Government may by notification in the official gazette provide and different dates may be appointed for different provisions of this Act.

Parliament conferred on the Union Government the discretion as to when it would bring the amendment into force by notification. All the constitutional changes brought through the 44th Amendment were enforced by the then Janata Party government except the one that deals with improving and humanizing the preventive detention framework under the Constitution (Sections 1(2) and 3 of the amendment). Two years later, Indira Gandhi once again returned to power and enacted a new preventive detention law i.e. the National Security Act (NSA), 1980 which remains in effect till present.

The NSA authorizes the central government and the state governments to utilize preventive detention in certain cases. The central and state governments, as well as district magistrates and police commissioners, are empowered to detain any individual “with a view to preventing him from acting in any manner prejudicial to” various state objectives including national security and public order (section 3(1) (a). Any detention made under NSA has to be referred to an Advisory Board within three weeks from the date of detention (section 10). The board has to submit its report within seven weeks from the date of detention. The Advisory Board is constituted by Judges of the High Court or persons qualified to be appointed as the judge of the High Court.

But the person detained does not have the right to be legally represented. Sometimes when governments fail, people get hope from the judiciary, especially the Supreme Court which has been entrusted with the guardianship of civil liberties in India. The post-Emergency period saw serious efforts by the Supreme Court to recapture its legitimacy which was eroded during the emergency. In the Maneka Gandhi case (AIR 1978 SC 597) the Supreme Court sturdily echoed that Articles 14, 19 and 21 will offer a composite test for any legislation or executive action rather than examining it in silos. It also enthusiastically supplanted “procedure established by law” in Article 21, with “due process” despite the extensive debates in the Constituent Assembly pointing to the contrary.

Yet, the attitude of the Supreme Court with respect to the preventive detention law did not change. In this context, the SC got an opportunity to examine the constitutional validity of the National Security Act in A.K. Roy v. Union of India (AIR 1982 SC 710). The court not only entirely upheld the validity of the NSA but also declined to ask the government to implement the amendments made in Article 22 (4) to (7) by 44th Constitutional Amendment Act. However, in their dissenting note, Justices A.C. Gupta and V.D. Tulzapurkar reasoned that Parliament only gave the executive limited discretion to notify the provision within a “reasonable” time frame. They also observed that the executive clearly was in a position to implement the amendment as a preventive detention law with similar safeguards had been passed initially, but these safeguards were removed from subsequent iterations of the law.

Even the majority in A.K. Roy observed that “Parliament could not have intended that the central government may exercise a kind of veto over its constituent will by not ever bringing the Amendment or some of its provisions into force.” Fortysix years later, one wonders whether successive central governments have indeed effectively vetoed Parliament.

Since all other amendments of the various Acts under the same Constitution Amendment Act, 1978 have already been notified by the Government of India, this is nothing but hostile discrimination as far as personal liberty of a person detained under any preventive detention law is concerned. It is a fraud on the constitution. If the government of the day that rejoices 25th June as a black day every year is truly committed to undo the damages of the Emergency and not repeat its grave errors, it must notify the amendments made in Article 22 (4) to (7) by 44th Constitutional Amendment Act which are intrinsically related to the personal liberty of a citizen.

(The writer is Professor of Law and Vice-Chancellor, National Law University, Tripura. The views expressed are personal)