50 years on: The Supreme Court and liberty jurisprudence during the Emergency

This year marks the 50th anniversary of the third and most controversial National Emergency in India’s constitutional history.

On the night of June 25-26, 1975, the President of India, acting on the advice of the then Prime Minister Indira Gandhi, issued a proclamation under Article 352 of the Constitution, citing “internal disturbances” as grounds. Unlike the earlier proclamations - in 1962 during the Sino-Indian conflict and in 1971 ahead of the Indo-Pak war - there was neither external aggression nor overtly alarming internal conditions. Additionally, the 1971 proclamation was never revoked officially, and thus was technically still in operation.

Commentators have linked this unprecedented step to the political fallout from the Allahabad High Court’s verdict of June 12, 1975, which set aside Gandhi’s election for electoral malpractices. The Supreme Court’s refusal, on June 24, 1975, to completely stay the High Court’s judgment, left her politically vulnerable, precipitating the Emergency.

In its aftermath, large-scale preventive detentions targeted political opponents, dissenting public figures and journalists. Detentions were ordered under Section 151 of the Code of Criminal Procedure, 1973 (CrPC), the Maintenance of Internal Security Act, 1971 (MISA), the Defence of India Rules, and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). While the political consequences of this period have been extensively documented, less attention has been paid to the judiciary’s role, particularly the Supreme Court’s preventive detention jurisprudence during this phase. This article focuses on that institutional response.

A systematic analysis of Supreme Court judgments in liberty matters -including preventive detention, bail and probation - between January 1974 and June 1975 (before, during and after the Emergency) reveals striking patterns. Official law reports recorded only 19 such judgments during this period. Recognising that some judgments - especially those classified as “unreportable” at judicial discretion - often escape scrutiny, an examination of bound collections of unreported judgments preserved by the Court raised this number by 56, totalling 75 liberty-related decisions.

Even so, this figure appears disproportionately low, particularly when juxtaposed against the widespread detentions during the Emergency. Several plausible reasons emerge: (i) detenus preferring to approach High Courts; (ii) liberty matters not being listed; (iii) petitions being dismissed at admission-stage without speaking orders; and (iv) censorship or non-preservation of judgments, even within Court records.

A comparative analysis highlights this anomaly. During this period, the Court decided 59 liberty matters, 57 of which concerned preventive detention. Though only 11.8% of these were “reportable,” records show a relatively steady output. However, from July 1975 onwards (post-Emergency proclamation) the number of such judgments dropped sharply. From 52 unreported liberty judgments in the preceding eighteen months, the number plummeted to 2 in July–December 1975, and to 0 over the next three half-yearly terms.

A similar, though less dramatic, pattern emerged for “reportable” judgments. While 4 liberty judgments appeared in July–December 1975, none involved preventive detention. Rather, these concerned parole, probation or bail. Notably, even amidst the intense political detentions of these months, no Supreme Court judgment on preventive detention appeared in reports.

Between January 1976 and June 1977, only five “reportable” judgments on liberty matters were delivered. Two of these were the high-profile cases of ADM Jabalpur v. Shivkant Shukla (the Habeas Corpus case) and Union of India v. Bhanudas Krishna Gawde, both involving prominent political detainees including Atal Bihari Vajpayee and Lal Krishna Advani, whose cases could not be summarily dismissed without controversy.

This pronounced decline in liberty jurisprudence is legally curious, given that writ petitions challenging preventive detention remained maintainable until the April 1976 judgment in ADM Jabalpur. One might reasonably expect a surge in such petitions before the Supreme Court in this intervening period. Yet, the data indicates otherwise.

Speculation over possible causes points to administrative irregularities within the Court Registry. Documented instances exist of politically sensitive cases being de-listed or selectively listed. A telling episode involves the constitution of a 13-judge bench in I Jagadeeswara Rao v. Union of India in November 1975 to reconsider the Kesavananda Bharati precedent on Parliament’s amending power. The matter, concerning civil servants’ service conditions, hardly warranted immediate constitutional reconsideration during an Emergency. The listing was traced to an oral directive from Chief Justice AN Ray. It was only after Nani Palkhivala, appearing for interveners, strongly objected that the move was abandoned.

Such episodes lend credence to the inference that liberty matters were either not listed or deliberately excluded from reporting. Several judgments of this era - including the Allahabad High Court decision against Indira Gandhi - remained unpublished in official law reports, though preserved in court registries.

While it would be excessive to suggest uniform institutional capitulation, the record demonstrates a discernible erosion in the Supreme Court’s adjudicative output on liberty matters. Whether by administrative design, judicial restraint or political deference, the data reflects a judiciary hesitant to assert constitutional liberties during a critical phase.

The history of the Emergency reveals that censorship during those 21 months was not confined to the press or to overt legislative and executive action. It reached, in subtler ways, the functioning of the judiciary as well. The Emergency’s legal history offers a layered account of how institutional responses to political authority are shaped not merely by constitutional text but by practical control over listing, hearing and reporting decisions. It is this dimension of India’s constitutional experience during the Emergency that merits closer, dispassionate study fifty years on.

Nitish Rai Parwani is a D Phil scholar at the University of Oxford.