How India’s Judiciary Faced Its Toughest Test During the Emergency.jpeg)
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Landmark rulings before 1975 sowed the seeds of judicial activism, but the Emergency years nearly broke it.
There is a popular belief that India’s judiciary turned active only after the National Emergency (1975–77). But that’s not entirely true. In fact, judicial activism in India began years earlier, with the Golaknath case in 1967, when the Supreme Court ruled that Parliament cannot take away fundamental rights guaranteed under the Constitution.
This judgment set the tone for India’s courts to stand up to political power, especially during times when democracy was at risk.
Golaknath and Kesavananda Bharati: The Foundation of Judicial Activism
- In the Golaknath case (1967), the Supreme Court limited Parliament’s power by saying it cannot change fundamental rights.
- This was a major step in separating constitutional democracy (where law rules) from conventional democracy (where majority rules).
- Then came the historic Kesavananda Bharati case (1973), where the court introduced the Basic Structure Doctrine.
- This doctrine says that some core parts of the Constitution—like secularism, democracy, and rule of law—cannot be changed by Parliament.
- The ruling was similar to Germany’s “eternity clause,” and was meant to protect the Constitution from political misuse.
Executive vs Judiciary: A Brewing Conflict Before the Emergency
The ruling in Kesavananda Bharati angered Prime Minister Indira Gandhi’s government, which saw it as a challenge to its authority. In response:
- Three judges who had ruled against the government were denied promotion and forced to resign.
- Their junior, Justice AN Ray, who sided with the government, was made Chief Justice of India.
- These events created a rift between the executive and judiciary even before the Emergency was declared in 1975.
What Happened to the Courts During the Emergency?
During the Emergency, the judiciary came under intense pressure. The government declared that fundamental rights could be suspended, and most judges agreed—except for Justice HR Khanna, who bravely dissented.
- The courts upheld retrospective laws that protected Indira Gandhi after she was disqualified from the Lok Sabha by the Allahabad High Court.
- This period saw the rise of what was called a “committed judiciary”—judges who aligned with the government.
- As a result, the independence of the judiciary took a major hit.
A Lesson from the Past: Institutions Must Stay Vigilant
Legal thinkers say that judges are not immune to politics. Scholar JAG Griffith wrote in The Politics of the Judiciary (1977) that when judges face political issues, they often act in similar ways—protecting existing power structures rather than challenging them.
This idea is still relevant. A 2020 paper titled Abusive Judicial Review: Courts against Democracy warned that some regimes use courts to weaken democracy by:
- Controlling appointments
- Limiting opposition parties
- Delaying or legitimizing undemocratic actions
Examples include countries like Russia, Brazil, Poland, Hungary, and the Philippines. In these places, populist leaders have weakened the judiciary, often with long-term consequences.
After the Emergency: A Judiciary Trying to Rebuild
After the Emergency ended, India’s Supreme Court tried to regain public trust by:
- Taking up public interest litigations (PILs)
- Expanding rights related to the environment, health, education, and equality
But these efforts rarely challenged the executive directly. The scars of the Emergency lingered.
The Kesavananda Review Attempt: A Close Call
In October 1975, just months after the Emergency was declared, Chief Justice AN Ray tried to reopen the Kesavananda Bharati ruling with a 13-judge Bench.
- This move was highly unusual and done without any legal petition.
- Legendary lawyer Nani Palkhivala opposed the move, warning that if Kesavananda were overturned, there might be no Supreme Court left worth fighting in.
- Ultimately, the review was dropped, and the Basic Structure Doctrine remained intact.
Why This Story Matters Today
- The Emergency years (1975–77) are not just about political oppression; they are a reminder of how fragile institutions can become under pressure.
- India’s judiciary must stay vigilant, especially at a time when courts around the world are being used or weakened by governments.
As lawyer and author Kaleeswaram Raj puts it, the Constitution survives not because of words on paper, but because of strong institutions that are willing to defend it—especially when it is unpopular to do so.
Final Thoughts
India’s democratic values rely not just on free elections or majority rule, but on courts that stand up to power. The lesson from the Emergency is clear: a strong judiciary is essential to safeguard the Constitution.
History shows us what happens when that strength is lost. It is up to the people, judges, and lawmakers to ensure it never happens again.