Analysing Abusive Constitutionalism in India Through the Lens of the 1975 National Emergency

On the night of June 25, 1975, Indians went to sleep in a democracy and woke up in something else entirely, and it was all perfectly constitutional. No constitution was suspended or torn apart. Instead, a provision buried inside the document itself was activated, rights were extinguished by presidential order, and the government that had been elected to serve the people turned around and began imprisoning them. The Emergency lasted twenty-one months. It ultimately ended through a free election.

That question is the subject of this essay framework I use to answer it is abusive constitutionalism, a concept developed by constitutional scholar David Landau[1] which describes this phenomenon precisely: the use of legitimate constitutional mechanisms to make a state significantly less democratic, typically to entrench the ruling power and dismantle the checks that constrain it. The 1975 Emergency is not merely an episode of political abuse. It is, as I will argue, a near-perfect case study of abusive constitutionalism in practice and its lessons are far from exhausted.

The Framework: What Abusive Constitutionalism Means

Landau’s insight is essentially about method. Traditional constitutional theory was built around an assumption: that the threats to democracy would come from outside the constitutional order, coups, revolutions, and foreign conquest. The constitution’s job was to resist those external shocks. What Landau identified was a new and more insidious threat: democratic erosion from within, using the constitution’s own mechanisms.

Abusive constitutionalism works through amendment procedures, emergency powers, judicial appointment processes, and legislative supermajorities, all of which are legitimate in isolation. The abuse lies in purpose: these tools are used not for their intended function but to concentrate power, silence opposition, and remove the institutional checks that hold government accountable. Because each individual step is technically legal, courts struggle to intervene. Because the government can claim a democratic mandate, citizens struggle to resist. The very legitimacy of the constitutional process is weaponized against the constitutional order.

The hallmarks are consistent across cases: emergency provisions invoked beyond their genuine scope; constitutional amendments that expand executive authority or immunize it from judicial scrutiny; suppression of a free press under legal cover; the subordination of courts to executive will. Hungary under Orbán, Venezuela under Chavez and India in 1975 each display this pattern in recognizable form.

How the Emergency Became Possible: Guha’s Warning

Historian Ramachandra Guha’s account of this period is essential, and his central argument is that the Emergency did not come from nowhere; it was the product of a long, deliberate hollowing-out of Indian democratic institutions.[2]

Guha locates the rot in the deinstitutionalisation of the Indian National Congress under Indira Gandhi through the late 1960s and early 1970s. The Congress that Nehru had led possessed genuine internal democracy: chief ministers were elected within the party, the organization was independent of government, and the Prime Minister was accountable to the party hierarchy. Indira Gandhi systematically dismantled this structure. By 1975, Congress was not a political party in any meaningful institutional sense; it was a personal vehicle. When institutional independence within the ruling party collapses, the broader institutional framework of democracy becomes structurally fragile in a way that no constitutional text can compensate for.

The immediate trigger was the Allahabad High Court judgment of June 12, 1975, which voided Indira Gandhi’s 1971 election on grounds of corrupt electoral practice and barred her from holding elected office for six years. A leader with genuine democratic conviction would have stepped aside pending appeal or sought a political resolution. Instead, within thirteen days, the Emergency was declared. The cabinet was not convened beforehand only informed after the fact. The President signed the proclamation on the advice of the Prime Minister alone. The constitutional mechanism was used; its spirit was obliterated.

The Constitutional Mechanics of the Emergency

The Emergency’s constitutional architecture rested on three provisions. Article 352 allowed the President to declare an emergency on grounds of war, external aggression, or crucially ‘internal disturbance,’ a phrase vague enough to encompass almost any political inconvenience. Article 358 automatically suspended Article 19, the provision protecting freedoms of speech, assembly, and movement, for the duration. Article 359 allowed the President to suspend citizens’ right to approach courts for the enforcement of other fundamental rights.[3]

This last provision is where the Emergency’s constitutional logic reached its most extreme point. A Presidential order under Article 359 suspended enforcement of Articles 14, 21, and 22 the rights to equality, life and personal liberty, and protection against arbitrary arrest. In practical terms, this meant that a person detained without trial under the Maintenance of Internal Security Act [MISA] could not petition any court in India to challenge the legality of their detention.[4]The right to life, the constitution’s most fundamental guarantee, had been legally extinguished.

None of this technically violated the constitution. The constitution permitted it. That is precisely the point. This is not the story of a government breaking the law; it is the story of a government using the law as a weapon against the people the law was meant to protect. Abusive constitutionalism, in its most naked form.

The Court That Looked Away: ADM Jabalpur

Constitutional provisions are only as strong as the institutions that enforce them. The Supreme Court’s judgment in ADM Jabalpur v. Shivkant Shukla, delivered on April 28, 1976, is the story of what happens when those institutions fail.[5]

The question before a five-judge constitutional bench was direct: with Article 21 suspended by Presidential order, did any court retain jurisdiction to examine a habeas corpus petition challenging a detention? By four votes to one, the court answered no. The majority Chief Justice A.N. Ray and Justices Beg, Chandrachud, and Bhagwati held that the right to life had no existence outside Article 21, and since that article’s enforcement was suspended, there was nothing to assert and no standing to appear before any court. Justice Beg’s concurring opinion went further, remarking that detainees’ lives were ‘in good keeping’ of the executive, asking citizens to trust their jailers during the precise period when judicial oversight had been surrendered.

The majority had, in effect, ruled that during an Emergency, the Indian state could detain any person without legal authority, without trial, without disclosure of reasons, and without any court possessing the power to question it. This was not a misreading of the Constitution. It was a choice, a choice by four judges to defer to executive authority when exercising their independence would have cost them personally and institutionally. It was, in Landau’s terms, the judicial component of abusive constitutionalism: the capture of the one institution that was supposed to hold the line.

The Dissent That Defined Constitutionalism

The sole dissent was written by Justice H.R. Khanna, and it remains one of the most significant acts of judicial courage in any democracy’s recorded history.

Khanna held that the right to life and personal liberty pre-existed the constitution, which recognised these rights; it did not create them. Suspending enforcement of Article 21 did not, in his reasoning, eliminate the underlying right. Courts retained the power to examine whether any detention had a legal basis under the laws in force, because a government cannot detain someone without any legal authority and call it lawful simply because judicial enforcement of a constitutional provision has been suspended. The argument was technically precise and morally unambiguous: the rule of law cannot survive if it permits the state to imprison anyone, for any reason, beyond all judicial scrutiny.

After the judgment, the government superseded him. Justice M.H. Beg, part of the majority, was appointed Chief Justice instead. Khanna resigned. In 2017, the Supreme Court unanimously overruled ADM Jabalpur in the privacy rights judgment, with Justice D.Y. Chandrachud, whose father had been part of the majority, explicitly acknowledging that the majority’s reasoning had been wrong[6]. It took forty years, but the constitution corrected itself.

The 42nd Amendment: Entrenchment Through Text

If ADM Jabalpur represents the judicial dimension of the Emergency’s abusive constitutionalism, the 42nd Amendment represents its legislative dimension. Passed in November 1976, when the opposition was jailed, and the press was censored, the amendment has been described as an attempt to constitutionally entrench Emergency rule.[7] It curtailed judicial review of constitutional amendments, prioritised Directive Principles over Fundamental Rights, extended Parliament’s term from five to six years, delaying elections that the government feared and created provisions for parallel tribunals to deal with ‘anti-national’ activities.

This is abusive constitutionalism at its most systematic: using a democratic supermajority, obtained in conditions of institutional capture and political suppression, to rewrite the constitution in ways that insulated the ruling party from accountability. The instrument of constitutional change was used to make the constitution less constitutional.

Resilience, Repair, and Guha’s Unfinished Warning

The Emergency ended not because institutions resisted it but because Indira Gandhi chose to hold elections in 1977, perhaps believing she would win. She did not. In what Guha describes as one of the most remarkable demonstrations of democratic instinct in the post-colonial world, Indian voters, rural, poor, with limited access to uncensored information, used the ballot to deliver a decisive verdict. The Janata government that followed passed the 44th Amendment in 1978, replacing ‘internal disturbance’ with ‘armed rebellion’ as a ground for the Emergency, requiring formal cabinet approval for a proclamation, mandating a special parliamentary majority, and, most critically, making Articles 20 and 21 permanently suspendable. The constitution was amended through democratic means.[8]

But Guha’s forward-looking analysis does not permit easy comfort. His deeper argument is that the Emergency was made possible by conditions that the 44th Amendment addressed only partially. The dynastic concentration of power, it revealed Sanjay Gandhi wielding extra-constitutional authority, running coercive population control programmes, influencing judicial appointments, points to a pattern in Indian politics that no amendment has structurally addressed. The deinstitutionalisation of ruling parties, the fragmentation of opposition, the cultural tendency within state institutions to defer to executive authority when pressure mounts, these are not text problems. They are not fixed by rewording an article.

Guha’s warning, implicit in his account and made explicit in his later writing, is that the conditions that produced the Emergency are features of Indian political life, not anomalies that have been corrected. They can reassemble. The constitutional safeguards introduced by the 44th Amendment make it harder to declare another formal Emergency. They do not make the underlying political pathology impossible to recreate.

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