President’s Role in the Emergency: Fakhruddin Ahmed's unchallenged decision severely criticised

President Fakhruddin Ali Ahmed was reproached for the manner in which he approved numerous ordinances and constitutional amendments that led to subversion of the Constitution. (Image Source: President's Secretariat - Official website)

The 21-month period during which India was placed under ‘emergency rule’ has been the subject of numerous scholarly analyses, research papers, and even full-length books dedicated solely to this period. From Gyan Prakash's ‘Emergency Chronicles’ to Christophe Jaffrelot and Pratinav Anil’s ‘India's First Dictatorship’, there have been several serious attempts to chronicle the important events of this dark phase of Indian democracy.

However, more importantly, many books also focus on what led to the imposition of the emergency and the role played by several individuals holding high offices in either facilitating or failing to prevent this episode.

In this context, the role of the then President Fakhruddin Ali Ahmed has been cited in the memoirs of many people who had the ringside view of the events that unfolded in the run-up to the imposition of emergency on the night of June 25, 1975.

It is a fact that Ahmed signed the proclamation of Emergency without consulting the Cabinet, merely on the advice of the Prime Minister. While it is marked as a betrayal of constitutional morality, it also raises important questions about the discretionary powers of the President and his duty to act as a check—not a rubber stamp—on executive overreach.

Apart from the criticism he faced for signing the Proclamation of Emergency without seeking proper legal consultation or the advice of the Council of Ministers, President Fakhruddin Ali Ahmed was also reproached for the manner in which he approved numerous ordinances and constitutional amendments that led to subversion of the Constitution. Among these, the 42nd Amendment stands out as the most notorious. It significantly weakened the judiciary and concentrated power in the hands of the executive. Specifically, it sought to curtail the scope of judicial review and made fundamental rights subordinate to the Directive Principles of State Policy.

Various accounts talk about the events that unfolded before the proclamation was signed. And, all it hints at is complete dereliction of duty on the part of the individual holding the highest constitutional office.

In the book ‘Emergency Chronicles: Indira Gandhi and Democracy's Turning Point’, Gyan Prakash recounts the sequence of events leading up to the declaration of the Emergency. At around 11:15 p.m. on June 25, 1975, President Fakhruddin Ali Ahmed summoned his secretary, K. Balachandran, to Rashtrapati Bhavan. Ten minutes later, Balachandran met the president, who handed him a one-page letter from Indira Gandhi marked "Top Secret." The letter stated that internal disturbances posed an imminent threat to India’s security and requested the proclamation of Emergency under Article 352(1), contingent on the president’s satisfaction. Although the prime minister had preferred to consult the cabinet first, time was deemed critical.

Balachandran, after reading the letter, argued that a proclamation without the proposed proclamation attached was constitutionally flawed. President Ahmed, seeking clarification, instructed him to retrieve a copy of the Constitution. After further discussion, the proclamation was signed.

Prakash notes, “The president swallowed a tranquilizer and went to bed after signing the Emergency proclamation.”

Although the President’s role is generally bound by the advice of the Council of Ministers, it was noted that President Ahmed could have waited for Cabinet ratification or sought a formal legal opinion, which would have made his role more non-partisan and less vulnerable to criticism. Even F.A.A. Rehmaney, Ahmed’s close aide and biographer, remarks, “The proposal did not encounter any resistance from the President. When he sought clarifications, they were at best technical and legal.”

Rehmaney also writes, “The President must act on the advice of the Council of Ministers, not solely that of the Prime Minister. Ahmed Saheb should have insisted the proclamation be cleared by the Cabinet first.”

He adds, “Had Indiraji respected constitutional propriety, she would have involved the Council of Ministers. The Emergency proclamation was taken for granted by her.”

It cannot be reasonably argued that had President Ahmed refused to sign the proclamation or insisted on its ratification by the Council of Ministers, the imposition of the emergency itself would have been prevented. However, by registering his dissent and insisting on adherence to constitutional norms, the highest constitutional office could at least have been shielded from criticism to a great extent.