III. States of Exception—B: Emergency
The Indian Constitution also enshrines a more familiar state of exception. The President is authorized to declare a state of Emergency if she is satisfied that ‘the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion’.37 During an Emergency, Article 19 of the Constitution stands suspended, and the President is also authorized to pass an order effectively suspending other fundamental rights (except Articles 20 and 21).38 The Emergency regime, which mirrors, in large part, the regime imposed by the British in colonial India,39 therefore, constitutes what Giorgio Agamben calls ‘a suspension of the juridical order’.40
Between 1962 and 1975, India was governed under multiple, successive emergency regimes, precipitated by the 1962 war with China, and the 1965 and 1971 wars with Pakistan. This culminated in the last, and most infamous, Emergency, imposed by Prime Minister Indira Gandhi after a series of political setbacks. Indira Gandhi justified the Emergency by arguing that the escalating protests against her rule constituted a grave internal disturbance.41 It is now widely accepted that the justification was specious, and was advanced only to provide legal cover for the consolidation of political power and the systematic (and often violent) persecution of dissent. The infamy of Gandhi’s political conduct, however, was matched by the infamy of the Supreme Court’s judicial conduct. In ADM Jabalpur v. Shivakant Shukla,42 the Court held that under the prevailing Emergency regime, the judiciary was barred from reviewing the habeas corpus petitions of the individuals who had been detained by the State. As a result, thousands of political opponents were subjected to unreviewed administrative detention. Many of them were tortured, and some were killed.43
ADM Jabalpur was a discredited decision at the moment of its birth. After the end of the Emergency and Indira Gandhi’s electoral defeat, the incoming Parliament undid some of its worst effects through the Forty-Fourth Amendment. And after forty years, the Supreme Court held that it had, indeed, been tragically mistaken in 1976.44
However, the importance of ADM Jabalpur lies in how the four judges in the majority visualized the relationship between the Court and the executive during a state of exception. A close reading of their reasoning reveals that, far from being an outlier, as it is often proclaimed to be, ADM Jabalpur marked a continuity in the judiciary’s approach to the state of exception: a continuity both with the preventive detention regime that we have discussed above, and a continuity with the Court’s own emergency powers jurisprudence. This continuity is marked by four features.
A. Executive Supremacy
At the heart of our constitutional order is the requirement that the State justify a restriction upon civil rights before a court of law, and that the court scrutinize the State’s legal arguments as well as the factual foundations upon which those arguments are based, in light of established constitutional standards. The Emergency regime, however, marks a complete inversion of this principle. It is the executive that defines both when an Emergency regime may come into existence, and what rights citizens may enjoy under that regime.45 In ADM Jabalpur, this position was articulated most lucidly in the concurring opinion of Justice Beg, where he observed:
Conditions may supervene, in the life of a nation, in which the basic values we have stood for and struggled to attain, the security, integrity, and independence of the country … may be imperilled by forces operating from within or from outside the country. What these forces are, how they are operating, what information exists for the involvement of various individuals … could not possibly be disclosed publicly or become matters suitable for inquiry into or discussion in a Court of Law.46
A similar logic was at play in the Court upholding Section 16(9A) of the Maintenance of Internal Security Act (MISA), which effectively barred a detainee from being informed of the grounds of his detention. Chief Justice Ray upheld the provision on the basis that the grounds of detention were ‘confidential and deemed to refer to matters of State and to be against public interest to disclose’,47 and that ‘the provision for periodical review entrusted to the Government under Section 16A(4) of the Act in the context of emergency provides a sufficient safeguard against the misuse of power …’48 And to the fear that the vesting of unreviewable Roman era-style dictatorial powers with the executive (to be used at a time of its own choosing) was simply creating an architecture of abuse, the Court’s response was: ‘It simply can’t happen.’ For example, Justice Chandrachud noted:
… above all the lofty faith in democracy which ushered the birth of the Nation will, I hope, eliminate all fear that great powers are capable of the greatest abuse.49
The regime of executive supremacy under the State of Emergency, therefore, boiled down to this: it was the executive’s decision when to trigger an Emergency, what rights to allow citizens to exercise during an Emergency, and to set up a self-referential regime of accountability where the executive would sit in judgement over complaints against abuse of power by the executive. The constitutional concerns about the vesting of such concentrated and unaccountable power were rejected through incantations of good faith and trust in the benevolent motives of the government, and a recitation of the formula that the possibility of abuse could not be grounds to strike down a law.
B. Denial of Remedies
The Presidential Order under the State of Emergency barred individuals from approaching courts to enforce their rights under Article 21 of the Constitution, including the right to habeas corpus. It was argued before the Supreme Court that this effectively amounted to effacing Article 21 itself, because a right without a remedy, or a mechanism for enforcing it, was illusory. The Court rejected this argument, noting that the right under Article 21 continued to exist; it was simply that, during the period of the Emergency, nobody could move the courts to enforce it.
C. The Jurisdiction of Suspicion
Thirdly, ADM Jabalpur endorsed and authorized what Justice Beg referred to as the ‘jurisdiction of suspicion’:
[P]reventive detention, in itself, is a departure from ordinary norms … It has been aptly described as a ‘jurisdiction of suspicion’ … it enables executive authorities to proceed on bare suspicion which has to give rise to a ‘satisfaction’ …50
Notice, however, that the ‘satisfaction’ involved was nothing more than the subjective belief of the executive that a person might be a threat in the future. Here again, therefore, we see an inversion of norms. Not only did the jurisdiction of suspicion eschew any requirement of proximity between the perceived threat and an actual instance of lawbreaking, but the executive’s own assessment of the nature of the threat, and the factual foundations upon which its suspicion existed, were beyond the purview of judicial scrutiny.
D. Salus populi suprema lex
Such a complete inversion required a powerful justification to legitimize it. The Court found it in the incantation that extraordinary times require extraordinary measures. Justice Beg wrote, ‘Even parents have to take appropriate preventive action against those children who may threaten to burn down the house they live in.’51 Apart from infantilizing citizens as unruly children, this image of the burning house at the cusp of destruction and needing drastic preventive action to be saved animated much of the four judgements.52 The majority judges drew upon the constitutional traditions regarding Emergency powers in the United Kingdom53 to hold that the ultimate, overarching value was that of salus populi suprema lex, i.e.,‘the people’s welfare is the supreme law’. Without the conditions of security under which people’s welfare could be pursued, the concept of individual rights was meaningless. For this reason, the Court rejected ‘a too liberal application of the principle that courts must lean in favour of the liberty of the citizen …’54
It was this combination of precepts—the State’s responsibility to preserve the basic framework within which rights remained meaningful, and the State’s paternal power to pre-empt and punish in order to do so—that finally drove the
majority into perhaps its most notorious holding in ADM Jabalpur, i.e., that fundamental rights were a ‘gift’ to individuals from the State, and that could be taken away by the State, based on its determination of what salus populi demanded in a particular situation.55 And the determination of what constituted the people’s welfare was essentially a matter of ‘high State policy’, circling back to the first proposition of ADM Jabalpur: that of unreviewable executive supremacy.
E. Conclusion: ADM Jabalpur and the Culture of Authority
The Supreme Court in ADM Jabalpur endorsed a series of interlocking, interpretive propositions. First, that under the constitutional order, there exists a state of normalcy and a state of exception, the paradigmatic example of which is an Emergency. Second, that the executive has the sole prerogative of determining when the state of exception ought to replace the default state of normalcy, and what is to happen with respect to citizens’ rights during an Emergency. Third, that the executive is guided by the principle of salus populi suprema lex. It is not for the courts to ask either whether the conditions requiring the state of exception to be called really exist or whether the executive’s actions actually serve public welfare or not. Fourth, that during the state of exception, the executive can suspend rights, suspend remedies, and be the sole arbiter both for the content of the right and for the remedy. And lastly, that the fact that such a power is vested in the executive and is capable of abuse is no ground for the power not existing. The executive is always presumed to act in good faith. In sum, salus populi suprema lex operated like a blank cheque for State impunity, or, in terms more familiar to constitutional law, like the ‘Ninth Schedule’ of constitutional interpretation.56
These propositions can be subsumed under a single phrase: ADM Jabalpur endorsed a ‘culture of authority’. It authorized a state of affairs where the political executive could act without giving reasons or justifications for its actions, either to citizens, or to courts. In such situations, whose initiation and continuation itself was left to the executive, individuals lost their status as rights-bearing citizens, and became—for the duration of the Emergency—colonial-era subjects once again.
IV. States of Exception—C: Salus populi suprema lex
The depravity of Indira Gandhi’s Emergency, its decisive electoral repudiation, the starkness of the verdict in ADM Jabalpur, and some particularly ill-advised remarks by the majority judges have all combined to create a perfect storm, and assign to the case a special and unique place in constitutional hell. According to popular narrative, ADM Jabalpur marks the lowest point in the history of the Supreme Court, from whose shadow the Court redeemed itself by developing public interest litigation in the 1980s.57
This is a mistake. On a careful reading of the majority opinions in ADM Jabalpur, one is immediately struck by the number and range of precedents invoked by the Court. These included judgements both from the UK, and from colonial Indian courts, but they also included post-Independence judgements of the Supreme Court. As Kalyani Ramanth correctly points out, ADM Jabalpur had its antecedents.58 For example, in Makhan Singh v. State of Punjab,59 a 1964 judgement involving the Emergency proclamation arising out of the war with China, the Supreme Court had held that the proclamation barred the right to move the courts for any remedy, including those under specific statutes such as the Code of Criminal Procedure. In language that was virtually identical to that of ADM Jabalpur, the Court observed:
How long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights … are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during periods of grave crisis, such as our country is facing today … in a democratic State, the effective safeguard against abuse of executive powers whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant, and vocal public opinion.60
In this distilled paragraph, the many aspects of ADM Jabalpur are present: executive supremacy, the denial of remedies, an unquestioning faith in the executive, the abdication of the courts as the protectors of rights, and in favour of the political process, when the very rights that are suspended (such as personal liberty) constitute the prerequisites of any meaningful political process.61
Examples of similar cases could be multiplied,62 but it is sufficient to say that before ADM Jabalpur, the Supreme Court had a consistent tradition of upholding absolute executive supremacy in the context of Emergency powers. Much more importantly, however, this tradition would continue even after ADM Jabalpur, after its repudiation by Parliament through the Forty-Fourth Amendment, and even after public recantation by some of the judges involved.
But it would continue informally: although an Emergency has never been declared after Indira Gandhi’s defeat, the elements of the Emergency that we have discussed in the previous section have been repeated in a slew of ‘anti-terrorism laws’, and have been upheld by the Court. In the words of Ujjwal Kumar Singh, what this has done is to create a regime of ‘interlocking legal systems’,63 where the state of exception and the state of normalcy become so enmeshed with each other, and what was meant to be a temporary and defined situation (under the Constitution) has been converted into a permanent and undefined one.64
To understand this better, let us go back to the four factors that defined the judicial approach in ADM Jabalpur, viz., executive supremacy, denial of remedies, the jurisdiction of suspicion, and salus populi suprema lex as the overarching principle, and examine what role they have played in the Supreme Court’s adjudication in the years after ADM Jabalpur.
A. Executive Supremacy
In Kartar Singh v. State of Punjab, the constitutional validity of the Terrorist and Disruptive Activities (Prevention) Act (TADA) was challenged. TADA, a temporary law that was originally enacted to contain insurgency in Punjab, was eventually extended to all of India. To strengthen the hand of law-enforcement agencies, TADA made a number of departures from accepted principles of criminal procedure, such as allowing confessions made to police officers, authorizing detention for up to one year during the pendency of the investigation, and so on. The petitioners argued that these ‘extraordinary provisions’ violated the rights of the accused under Articles 14, 19, and 21 of the Constitution.
In Kartar Singh, the Supreme Court began by painting a picture of India as a nation at war, observing that many cities had been engulfed with ‘blood bath, firing, looting, mad killing … and reducing those areas into a graveyard’.65 After spending around ten paragraphs in this vein, the Court set the stage for the constitutional analysis that was to follow, noting, ‘to redress all the multiple dimensions of crimes … is … of course a very difficult task because the crimes and the criminals do not respect frontiers and the field of operation of the activities of the criminals know no territorial limits’.66 However, the question of whether terrorism required special laws that loosened procedural safeguards, or whether it could be dealt with under the existing legislative framework, was actually at the heart of the controversy before the Court. In other words, purporting to state an uncontroversial factual position, the Court smuggled in its conclusion into the very premises of the argument.67
The factual narrative that the Court presented as a set of undisputable axioms was soon transmuted into constitutional argument. So, while considering the validity of the provisions establishing special courts, the Court observed that the ‘harsh and drastic’ provisions of the Act, ‘departing from the procedures prescribed under the ordinary procedural law, are evidently for the reasons that the prevalent ordinary procedural law was found to be inadequate’.68 The same justification was applied a few paragraphs later to uphold the validity of making police confessions admissible, with the Court noting ‘the gravity of terrorism unleashed by the terrorists and disruptionists endangering not only the sovereignty and integrity of the country but also the normal life of the citizens, and the reluctanc
e of even the victims as well as the public in coming forward, at the risk of their life’.69 In both paragraphs, what was conspicuous by its absence was the Constitution: the constitutional justification of TADA occurred by invoking the state of exception, and not by invoking the Constitution.
The Court engaged in an almost identical act of context setting ten years later, while considering the constitutional validity of the Prevention of Terrorism Act (POTA), which was the successor to TADA (TADA had been allowed to lapse after public outcry). POTA was challenged on similar grounds. Like in Kartar Singh, the Court in People’s Union for Civil Liberties (PUCL) v. Union of India, began by setting out a series of factual propositions that were treated as axioms, and which would go on to shape its legal analysis. Terrorism, it held, was ‘the most worrying feature of contemporary life’,70 which needed ‘new approaches … and new laws’,71 because what was at stake was ‘a kind of war’.72 Here again, contested factual propositions were treated as a background to the judgement, even before the Court identified, addressed, and dealt with the constitutional arguments.
The corollary to treating the state of exception as the established, normative background within which the Act was to be examined was, as we have seen, vesting concentrated powers in the hands of the executive, including the power to be a judge in its own cause. In the anti-terror cases, this aspect of executive supremacy was upheld by the Court in three separate contexts: at the stage of the triggering of the legal regime of the state of exception, at the stage of implementation, and finally, at the stage of accountability.
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