The ‘good-governance’ problem

M G Abrol was presumably asleep in his house when, in the early hours of 21 March 1977, the noise of a telephone rang through the halls. The additional secretary in the Ministry of Finance might not have been surprised to hear the voice of his equivalent at the Ministry of Home Affairs, P P Nayyar, at 2.30 am in the morning. For the past twenty months, India had been under Emergency, with the prime minister's executive-rule filling the vacuum left by the suspension of democracy. It was a period replete with late-night calls and secret lists being compiled by bureaucrats for penalising dissenters, sometimes on the instructions of political functionaries, sometimes in sheer caprice..Only, Nayyar had called to inform him that the Emergency had been withdrawn. Abrol recounted that fateful conversation in a 'Secret Note' penned on that day:.Just as it had come by way of midnight messengers in June 1975, the Emergency would now make its exit almost two years later in a cabinet meeting which began at 11.30 pm at 1 Safdarjung Road on the night of 20 March 1977. The meeting was held in the wake of perhaps the most defining electoral result in India's history (and if Pupul Jayakar's account is to be believed, a 'wake' pretty much summed up the mood). Against all odds, Prime Minister Indira Gandhi had just lost at the polls to a hastily-assembled opposition coalition, the most important members of which had only been out of jail for less than two whole months..All too often, it has been this electoral result which is credited for spelling the end of the Emergency in India and the full restoration of the rule of law as provided under the Constitution. Perhaps, as is argued, the cabinet revoked the Emergency in its entirety feeling that there was no mandate to sustain the measures after the decisive loss at the polls..The vesting of extraordinary powers in bureaucrats during that time for maximising administrative efficiency – even at the cost of civil rights and regular democratic functioning – resonates strongly in our post-pandemic times.What this dominant narrative has long ignored, however, is the involvement and investment of bureaucrats like Abrol and Nayyar in this process of first relaxing and ultimately revoking the Emergency. In the weeks leading to the end of the Emergency – a period when state officials wielded greater administrative discretion and ease – declassified documents show that the country's top bureaucrats were most concerned about how this would impact their powers and plans. While the primary aim of this historical foray is to offer commentary about a unique time in India's history, one cannot help but extend the threads to the present. The vesting of extraordinary powers in bureaucrats during that time for maximising administrative efficiency – even at the cost of civil rights and regular democratic functioning – resonates strongly in our post-pandemic times, as we see vast powers being vested in technocrats, experts and assorted unelected officials..Process of 'normalisation' .Journalist Kuldip Nayar, in his book The Judgment, recalls how surprised the veteran leader Morarji Desai was upon reading a copy of the Indian Express on 18 January 1977. Desai had been a prominent opposition leader during the Indira Gandhi regime, and had been one of the first persons to be sent to 'preventive detention' without trial when the Emergency was announced. On that day, He would have read a front page which announced that the prime minister had declared "relaxations" in the Emergency regime to facilitate campaigning for the snap Lok Sabha elections that she had decided to hold later in March. As a result, Desai and countless other politicians were soon released from prison, all the while never having faced a trial. They could not have known that the press release they read was the product of discussions that had been going on for over a week prior..While politicians were humbled by the loss of mandate, which they saw as a rebuke to suspension of fundamental rights, these issues were hardly a spot of bother from an administrative perspective..Declassified documents publicly available at the National Archives of India suggest that around the start of January 1977, Prime Minister Gandhi had set her administrators the task of executing a "process of normalisation". It is unclear whether the plans for the elections had been explicitly expressed yet. But whenever the desire to hold elections might have been made officially known, it was bureaucrats like Abrol, Nayyar, Khurana and RL Misra (joint secretary at the Home Ministry) who were responsible for determining what relaxations would be required for holding elections. Thus, on the same day that the Indian Express and other newspapers carried the news of the elections scheduled for March 1977, an internal note was prepared detailing the kinds of relaxations required to the Emergency rules for making campaigning possible. The brief was clear: relaxations to the Emergency were a bid to lend greater credibility to elections that were being held to justify Indira Gandhi's regime and the Emergency itself..As noted above, one of the first steps agreed upon was the release of political prisoners preventively detained under the draconian Maintenance of Internal Security Act 1971 (MISA). This was not a catch-all policy of releasing all detainees; the communiques noted that "No change in the policy at this stage is called for in respect of the members of banned organisations and economic offenders." These efforts at release of political detainees were stepped up through January and February of 1977, and assiduously implemented with weekly follow-up telegrams being sent from the central government to the states. The other relaxations pushed through were the easing of press censorship norms and of restrictions upon public gatherings, as both were seen as obvious essentials for legitimising the elections..Alternate legal reality.Once the low-hanging fruit had been plucked, it was time to face the big issue: should the government revoke the Emergency altogether? The archives suggest that this question vexed bureaucrats and politicians alike throughout the month of February 1977. It generated at least three, extremely detailed, notes within the Home Ministry. These documents give insight into the complex amalgam of political and administrative interests which were at play in the decision to revoke Emergency..On the political front, the Emergency had been largely criticised for its attack on press freedom and individual liberty. By February 1977, both sets of issues had been addressed by the initial spree of relaxations. As the 'Note on Emergency' dated 15 February remarks: "The demand for lifting of emergency, therefore, is purely political. It is in no way connected with the electioneering process." Revoking the Emergency, therefore, did not make political sense. In fact, as the notes suggest, it was considered that doing so would make it seem that the government had allowed the opposition to score a political victory..The absence of a political imperative to end the Emergency before elections was underscored by the need felt by administrators to sustain the alternate legal reality that the Emergency had allowed to subsist for so long. In India's constitutional setup, where persons are guaranteed many fundamental rights and freedoms, a declaration of Emergency is a legal trigger that can be pulled to surrender these civil and political liberties to state interests. In this context, of specific importance was the effect of Emergency on the laws regulating Preventive Detention. During a state of Emergency, the one-year limit on such detentions was suspended, as was the constitutional need for disclosing reasons behind an arrest..The government had accordingly amended laws to take advantage of this altered reality. Section 16-A was added to the MISA which sanctioned extendable year-long detentions without trial, and these specific provisions also authorised withholding the grounds for detention from not only the person but also any court before whom the order might be challenged. Similar changes were passed to the prominent anti-smuggling law called the Conservation of Foreign Exchange and Prevention of Smuggling Act 1974 (COFEPOSA), by adding Section 12-A to the statute (which was identical in its import to 16-A of the MISA)..The expansion of preventive detention powers offers a surprisingly lucid example of how the administrative perspective on matters differed from the political. Sitting in February 1977, administrators were acutely aware that MISA detentions had often carried a political hue, and this was being actively rectified by instructing the states to release such persons. At the same time, could anyone deny that the MISA had also been used to 'legitimately' detain many against whom it was difficult to lead evidence of guilt, and thus who would otherwise have disturbed the law-and-order situation? This sense of legitimacy in using preventive detention laws was far greater when it came to the COFEPOSA cases, as is vividly borne out in the February 15 note:.Thus, while the administrators were keen to suggest ways in which the brunt of Emergency could be reduced, such as pushing for the release of political prisoners, this did not mean that there was no need for the Emergency measures altogether. Rather, there continued to be a pressing incentive to retain these amendments, which were dubbed as part of the "important measures" that the Emergency had brought about..An unseemly retreat.The cessation of the altered legal reality of Emergency was why PP Nayyar had called MG Abrol in the middle of the night – revocation of the Emergency meant that Sections 16-A of MISA and 12-A of COFEPOSA would no longer be valid, and all detentions authorised under those provisions would lapse. Nayyar was preparing instructions to be sent to the State Governments for MISA cases and asked Abrol to do the same for COFEPOSA ones. Abrol's sense of worry is explicable:.At around 4 am, Nayyar brought a copy of the proclamation duly signed by the acting President B D Jatti to his Joint Secretary, R L Misra. There was no time to lose. A "MOST IMMEDIATE" letter was issued to the government press to publish the proclamation in the Extraordinary Gazette for 21 March. At the same time, Home Ministry officials also prepared a draft telegram conveying instructions to state governments for both MISA and COFEPOSA issues. Again, Nayyar called Abrol and read out his draft, informing state governments about the revocation of Emergency and that persons detained under the Emergency-specific clauses "should be released immediately". Abrol did not object, and the telegram was issued at 4:55 am. That was not the end of the matter, though. As planned, the Finance Ministry officials met around 8 am to decide the fate of COFEPOSA detentions. Abrol, along with Finance Secretary HN Ray, immediately set out for Finance Minister C Subramanian's residence. Unlike his officials, Subramanian was present at the cabinet meeting the night before, and now suggested that they discuss the matter with other concerned ministries..The Emergency created an altered legal reality in which legal and administrative actions could proceed much faster..Their perceived need for Emergency-era detention powers was such that in a meeting immediately held between themselves, Finance Ministry officials came up with a drastic suggestion: pass an ordinance increasing maximum periods of possible detention and amend Section 12-A to allow for grounds for such detention to be supplied, so that some detentions may still be legalised. After all, the COFEPOSA was not dealing with political prisoners, but notorious smugglers, who had the means to subvert the regular legal process and so could only be tackled by preventive detention. In the run-up to the election, even the opposition had not made COFEPOSA detentions an issue. How did it make sense to allow such persons to be immediately released?.The Finance Ministry officials pitched this idea in a meeting held shortly afterwards at the cabinet secretariat with Home Secretary Khurana and the cabinet secretary, both of whom shot it down. MG Abrol does not recall this in his 'Secret Note', but the minutes of this meeting reveal that the Finance Secretary suggested sustaining COFEPOSA amendments by passing them under the 1971 Emergency Proclamation. This was a reference to the other state of emergency, declared after the 1971 War between India and Pakistan surrounding the liberation of Bangladesh, for which no revocation had yet been issued by the government. The cabinet secretary rejected this suggestion as well. He might have already known that a revocation of this Emergency was going to come (and did, soon after). Still, he left it open for the Finance Ministry officials to approach their minister, who could then himself raise the matter with the outgoing prime minister..The Finance Ministry officials might have felt a legitimate sense of grievance, for theirs was the cause which everyone felt was justified, so much so that while the MISA was repealed after the Emergency by the Janata Party Government, the COFEPOSA continues to remain valid to this date. The attempts of MG Abrol, HN Ray and other officials to find ways in which the effort to curb smuggling might remain unaffected by political events suggest a curious mixture of righteous administrative zeal with political naiveté. Perhaps dogged with that sense of feeling, the officials returned to their minister for a briefing after the meeting at the cabinet secretariat. Subramanian, of course, decided that it was best not to pursue the issue of an ordinance any further..The bureaucratic creep.Revisiting the history of India's Emergency of 1975-77 from the perspective of administrators is an oddly fascinating experience. Today, few would argue that the Emergency brought the democratic setup and civil liberties in India to its knees, and yet we saw how, till the very end, administrators argued against revoking Emergency powers. This was not necessarily because administrators derided civil liberties; rather, it was only because this was the most "administratively desirable" option, which was separate from the "political implications" of any choice ultimately made by the legislators. That several administrators were in fact unable to disavow the political factors during the Emergency became one of the key findings of the Shah Commission of Inquiry which looked into the abuses of power during this period. But I would argue that this does not detract from the observation, as a large number of bureaucrats successfully said that they were simply doing their job..Looked at from this perspective, it is understandable that while politicians were humbled by the loss of mandate, which they saw as a rebuke to suspension of fundamental rights, these issues were hardly a spot of bother from an administrative perspective. For them, what mattered were problems of administration and regulatory enforcements, now made more difficult by the end of the Emergency. Thus, placing successful curbs on smuggling to improve economic prospects for the many presumably mattered a lot more than fundamental rights which were (and, some would argue, still are) the provenance of the privileged few. The governance setup under normal situations, with elected mandates and judicial oversight, had prevented administrators from fully flexing their muscles; the Emergency lifted those restraints. It created an altered legal reality in which legal and administrative actions could proceed much faster. Revoking that alternate legal reality without giving some permanence to the many transformative measures brought about – such as extended detentions under COFEPOSA – understandably sent shudders down a few spines, as the officials viewed this outcome as undoing all the good work of the past twenty months..Looking back at the manner in which India exited the Emergency of 1975-77 should also offer some clues as to why it is proving so hard for the country, and other democratic regimes, to resume normal modes of governance while the threat of the pandemic ceases to abate..Of course, in a democratic setup, sooner or later the people must be heard. The popular mandate serves as the only substantial check on an administrator's discretion to impose what are 'good' measures. Such imposition of rule by decree becomes unpalatable in the long run. This is the lesson that the story of Abrol and the COFEPOSA detentions teaches us: no matter how seemingly good the policy, executing it requires a popular mandate, especially when people go to jail in the process..These experiences from India's Emergency of 1975-77 are proving surprisingly relevant in 2020, thanks to the pandemic having thrown most systems of democratic governance into complete disarray and prompting wide-scale devolution of power upon the executive branch by evoking images of a "war" on COVID-19..Looking back at the manner in which India exited the Emergency of 1975-77 should also offer some clues as to why it is proving so hard for the country, and other democratic regimes, to resume normal modes of governance while the threat of the pandemic ceases to abate. Once the choice to bring in the problem-solvers is made – who are most often unelected, and in some cases non-civilian, actors – they are unlikely to pause until they think the problem has been solved completely. It is foolish to imagine they will willingly renege the extraordinary powers invested in them. The imperceptible nature of the threats posed by the pandemic have not only placed our health at severe risk, but also risks shifting the foundations of the democratic enterprise that the Subcontinent takes such pride in. It might make the state just a little bit less about the people and a little bit more about the expert.