Emergency: Why was he not impeached?

Exactly 50 years ago, India suffered a serious violation of rights never thought of. 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 of India provides a mechanism for impeachment, but it wasn't initiated in his case. For suspending the freedom of speech and expression, he deserved to be impeached, including an emergency without a cabinet resolution. Simply what PM wanted, and that President signed blindly whenever ordered.

A rubber-stamp

Even once, 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 of India and the oath to preserve, protect, and defend the rule of law.  

The Indian Constitution outlines specific grounds for impeachment of the President, including violation of the Constitution.  While the Emergency was a controversial period, and Ahmed's actions were criticized, the impeachment process was not formally invoked against him.

The Emergency was declared based on the constitutional provision of "internal disturbances," which was later extended to include "external aggression". Ahmed's role was largely seen as supporting the then-Prime Minister Indira Gandhi's decisions during that time.

Fakhruddin Ali Ahmed's commitment was his lifetime blunder and a dark day for our Constitution.  During his term as President, Ahmed imposed the Emergency in August 1975 and gave his assent to numerous ordinances and constitutional amendments drafted by Indira Gandhi to rule by decree. Attupurathu Mathew Abraham (11 June 1924 – 1 December 2002), pen name Abu, lampooned in an iconic cartoon, Ahmed's reputation was tarnished by his support for the Emergency. His Presidency had been described as a rubber stamp.

Ahmad studied in Delhi and Cambridge, practiced law in Lahore and Guwahati. He became the Advocate General of Assam in 1946, and was the finance minister under Gopinath Bordoloi in 1939, and later again he was finance minister from 1957 to 1966. He was a Union Cabinet Minister in 1966. Thus, Ahmad was such a reputed freedom fighter, but why not defend our Constitution? There were no reasons to justify the imposition of Emergency, a dubious reason “a grave emergency exists whereby the security of India is threatened by internal disturbances."  The President has not cited any reports to that effect from the Intelligence Bureau, the Home Ministry, or from any of the governors of the states, nor had the proposal been considered by the Union Council of Ministers.

One should examine Article 352 of our Constitution to read that empowered 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 advise the President".

The Union Council of Ministers had not met and advised the proclamation of Emergency. Ahmed signed the bill of amendment. The expression "internal disturbance" was termed to "armed rebellion" by the forty-fourth Constitutional Amendment Act which also 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."

When a President forgot his oath to ‘Preserve, protect, and defend’.

The President of Bharat (Bhārat kē Rāṣṭrapati) is the head of state of the Republic of India. The president is supposed to be a nominal head of the executive, the first citizen of the country, as well as the supreme commander of the Indian Armed Forces. The office of president was created when India became a republic on 26 January 1950 when its Constitution came into force. One should read Article 60 ‘Oath or affirmation’ by the President, which says:

Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior-most Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say—

“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.”

It means the President should have read out the form of the oath of office, “the ability to preserve, protect, and defend the Constitution”. The ‘oath’ is that the only President, under Article 60, especially states what he or she would do to protect the Constitution, while all others promise to uphold allegiance, etc. That is the unique privilege of the President, who needs to understand and implement it.  Not only Fakhruddin, but every President should remember the ‘oath’.

That’s how Rashtrapati Bhawan lost and found “the Constitution of India.”

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.

A criminal wrong ‘ratified’!

Indira Gandhi requested a compliant President Fakhruddin Ali Ahmed to proclaim a state of emergency. Unfortunately, the President did not know that it was approved the proposal sent 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, the electricity to all major newspapers was cut, and the political opposition was arrested.

Rashtrapati Bhavan has lost and found ‘the Constitution’

Author Gyan Prakash picked up this excerpt from the book Emergency Chronicles: Indira Gandhi and Democracy’s Turning Point, the Penguin Random House. He wrote:

 “President Fakhruddin Ali Ahmed summoned his secretary, K. Balachandran, at around 11:15 p.m. on June 25, 1975.

Top Secret

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’.

The author 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, the 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.

Instead of resigning, he signed!

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

Parliament remembers on 49^th Emergency

Even after 49 years of National Emergency, ‘the attack on freedom of speech and expression’ started with pre-censorship with silenced the editorials, the 2024 Parliament opened with adjournment for ‘observing a moment of silence in memory of the victims of the 1975 measure’.  It is difficult to forget the imposition of the emergency. Speaker of Lok Sabha Om Birla read out a resolution criticizing that Congress had crushed the spirit of the Constitution, and dictatorship had been imposed in 1975.

“The Emergency is a black spot in history. The aim of these amendments made by the Congress government was to bring all the powers to one person, to control the judiciary, and to destroy the basic principles of the Constitution. By doing this, the rights of citizens were suppressed and the principles of democracy attacked.”

The Parliament should remember that entire MPs should take an oath to impose such an Emergency and should try to protect the Constitution of India.