Ordinance raj during Emergency; 48, including 5 to amend MISA, promulgated

The Indira Gandhi government promulgated 48 ordinances during the Emergency period, including five to amend the Maintenance of Internal Security Act, often dubbed as “draconian”, that gave the administration the powers to detain any individual without a warrant.

The 21-month-long Emergency, which was imposed 50 years ago on June 25, 1975, also saw the government amend the Constitution several times, including to keep the elections to the offices of President, Vice President, Prime Minister and Speaker beyond the scrutiny of courts and insert the words ‘socialist’, ‘secular’ and ‘integrity’ in the Preamble.

The amendments to the various laws also shifted the balance of power in favour of the Centre and curtailed the powers of the higher judiciary.

The first ordinance to amend the Maintenance of Internal Security Act (MISA) was promulgated on June 29, 1975, within days of the Emergency proclamation.

The MISA (Amendment) Ordinance was promulgated four more times during the Emergency period and cleared by Parliament.

A day later, President Fakruddin Ali Ahmed promulgated the Defence of India (Amendment) Ordinance that gave the government broad powers to maintain public order.
Brief sessions of Parliament were held during the Emergency. The Congress, using its brute majority and with several opposition leaders in jail, passed draft legislation to put the parliamentary stamp of approval on several ordinances.
“The sessions of Parliament were shorter than usual during the Emergency period, mostly to pass bills to replace ordinances and approve new legislations,” former Lok Sabha secretary general P D T Achary told PTI.

Another key ordinance issued during the Emergency was the Disputed Elections (Prime Minister and Speaker of the House of the People) Ordinance to set up an authority to deal with a petition questioning the election of the prime minister and the speaker. It was issued on February 3, 1977, just over a month before the Emergency ended on March 21.

Instead of allowing an election petition to be filed in a high court against the verdict of an election, it created an authority to deal with such high-profile cases.

The Ordinance was converted into a law and subsequently repealed by the next government.
While 26 ordinances were issued in 1975 after the imposition of the Emergency, 16 were brought in 1976.

In 1977, before the Emergency ended, six ordinances were promulgated.

Referring to the functioning of Parliament, Achary said most of the opposition members of Parliament were in jail and hence passage of bills was easy.

He said the 42nd Constitution (Amendment) Act brought “radical” changes to the Constitution.

The 44th Constitution (Amendment) Act later passed by the next government overturned many changes brought by the 42nd Amendment.

Changes made to Article 352 relating to the imposition of the Emergency left things “open for interpretation”, Achary said.

The phrase internal disturbances was open for interpretation, he said.

The 44th Amendment later inserted the phrase armed rebellion due to which the Emergency can be imposed.

Achary said armed rebellion could not be interpreted or misinterpreted.
PM Gandhi recommended the imposition of the Emergency to the President without the consent of the Union Cabinet, citing the deteriorating situation due to which a Cabinet meeting could not be convened immediately, Achary said.

He said as the amendment stands now, signatures of all Cabinet members are required to send the recommendation to the President to proclaim Emergency.
Achary asserted that the most important amendment was the one made to Article 359 post-Emergency.
Article 359 states that after the Emergency declaration, the President can issue orders suspending civil liberties and fundamental rights.

But according to the amendment brought by the Janata government, the President can suspend fundamental rights except Articles 20 and 21.
While Article 20 protects from unfair conviction, Article 21 deals with the protection of life and personal liberty.

Achary described Article 21 as the “essence” and “fulcrum” of fundamental rights.
Parliament also approved bills to extend the tenure of the Lok Sabha by one year each on two occasions.
The House of the People (Extension of Duration) Bill was passed by the Lok Sabha on February 4, 1976, weeks before the term of the House was to end on March 18, 1976. The Rajya Sabha passed the Bill on February 6, 1976, to extend the tenure of the Lok Sabha by one year.

A similar bill was passed by both Houses of Parliament in November 1976 to further extend the term of the Lok Sabha by a year beyond March 1977.

However, Gandhi called for elections on January 18, 1977, and the Emergency was lifted as the new government led by Janata Party leader Morarji Desai assumed office on March 24, 1977.
The MISA was repealed in 1978 after widespread criticism of its misuse, especially during the Emergency period.

The Defence of India Act, enacted amid the 1962 India-China war to deal with public safety, lapsed after the Emergency ended in March 1977.

Some laws enacted during the Emergency, including the amendment to the Preamble of the Constitution and the introduction of fundamental duties alongside fundamental rights, continue to be in force.
Article 123 of the Constitution provides that ordinances having the same force and effect as an Act of Parliament may be issued by the President from time to time except when both Houses of Parliament are in session.