 Summary of this article
- The case exposed the conflict over whether Emergency meant only suspended remedies, or also suspended judicial review itself
- The question it raised was: can a law like MISA authorise preventive detention without judicial scrutiny?
- The Emergency did not so much create a new state as reveal how stubbornly a state can keep functioning in the language of legality while stripping away democracy beneath it
Emma Tarlo in her wonderful ethnographic account of Indian emergency stated “Emergency occupies an unusual place in the Indian past. It has been much mythologised but little studied.” Everything associated with the Emergency is remembered as a scandal, a constitutional episode, an emergency imposed through constitutional processes and that is not quite false.
But it is also far too tidy. The more serious truth is that it was not merely an emergency under the Constitution; it was an emergency for the Constitution itself. And the stark illustration of this crisis is the ADM Jabalpur v. Shivkant Shukla case, whose judgment now marks its fiftieth anniversary. During the case, when the apex court of a country was asked, in effect, whether a citizen detained under the Maintenance of Internal Security Act (MISA, 1971) could still approach the court and ask by what authority, and for what reason, he/she had been seized. The majority of the bench answered in the language of procedure and official calm: NO. In that moment, the State, having already taken the person into custody, was allowed to do something even more ominous: to strip away the last legal forum, the courtroom, the one in which a person might still speak in the name of freedom. And when law declines to hear the petitions of the detained, it begins to resemble not justice but administration - cold, tidy, and profoundly indifferent to “spirit of law” in name of “rule of law”.
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