Anda di halaman 1dari 33

SVKMS

NMIMS SCHOOL OF LAW

A PROJECT SUBMITTED ON;


NATIONAL EMERGENCY A POISONED CHALICE
IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING
SCHEME, FOR TRIMESTER IV OF 2016-2017, IN THE SUBJECT OF
CONSTITUTION - II
SUBMITTED TO FACULTY:
PROF. NADISHA VAZRANI
SUBMITTED BY:
MEGH KANOJIA
ROLL NUMBER - A025
SECOND YEAR (B.B.A. LL.B)

RECEIVED BY: ____________________________


ON DATE: __________
1 | Page

TABLE OF CONTENTS
1.

CHAPTER 1: INTRODUCTION

1.
2.
3.
4.

2.

Introduction to National Emergency


Emergencies Declared in India Background
Unitary Bias during National Emergency
Centre-State relations during Emergency

CHAPTER 2: RESEARCH METHODOLOGY

1. Limitations
2. Research Questions
3. Hypothesis

3.

CHAPTER 3: LEGAL ANALYSIS

1.
2.
3.
4.
5.

Grounds of Declaration
Parliamentary Approval and Duration
Revocation of Proclamation
Effects of Proclamation of Emergency
Effects on the Fundamental Rights

6. Distinguishing Between Articles 358 and 359

4.

CHAPTER 4: ROLE OF JUDICIARY

1.
2.
3.
4.
5.

ADM Jabalpur vs. Shivkant Shukla


Mohan Chowdhary v. Chief Commr. Tripura
Ram Manohar Lohia v. State of Bihar
Mohd Yaqub v. State of J&K
Makhan Singh v. State of Punjab

5.

CHAPTER 5: COMPARATIVE STUDY

6.

CHAPTER 6: CONCLUSION AND SUGGESTIONS

7.

BIBLIOGRAPHY

2 | Page

CHAPTER 1 : INTRODUCTION

D.E.M O'Cracy, beloved husband of T Ruth, loving father of L.I.Bertie, brother of Faith,
Hope and Justice, expired on June 26.
-

Obituary carried by TOI after the 1975 Emergency

Introduction to National Emergency


A National Emergency or state of emergency in India refers to a period of governance under an
altered constitutional setup that can be proclaimed by the President of India, when he/she
perceives grave threats to the nation from internal and external sources or from financial
situations of crisis. Under the advice of the cabinet of ministers and using the powers vested in
him/her largely by Part XVIII of the Constitution of India, the President can overrule many
provisions of the constitution, which guarantee fundamental rights to the citizens of India and
acts governing devolution of powers to the states which form the federation.
The President can declare such an emergency only on the basis of a written request by the
Council of Ministers headed by the Prime Minister. Such a proclamation must be laid before both
houses of Parliament, and the state of emergency expires after one month unless approved within
that time by both houses sitting and voting separately. However, if the Lok Sabha (the lower
house) is not in session when the state of emergency is declared, and the Rajya Sabha approves
of the state of emergency, the deadline for the Lok Sabha is extended until thirty days after that
house convenes. According to Article 352(6)1, approval by each house requires a special
majority: those in favour of the motion must be two thirds of those present and voting, and
amount to a majority of the entire membership of that house. A Parliamentary resolution extends
the state of emergency for up to six months, and it can be extended indefinitely by further
resolutions in six-monthly increments.2

1 CONSTITUTION OF INDIA, art. 352


2 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 792
3 | Page

The President can declare three types of emergencies:

National emergency

State emergency

Financial emergency3

Emergencies Declared in India Background

The Emergency of 1975-77, is the most traumatizing phase in the history of Indian politics.
Today, it has been more than 40 years since the Emergency took place, but its painful memories
still haunt those alive today, who had gone through the States abuse and misuse of
Constitutional powers during the Emergency, in a democracy like India. Declaration of
Emergency was not only a threat to the Constitution of India but also, to its legal system as well.
The Indian Emergency of 1975-77, had not only suspended the fundamental rights and curtailed
the freedom of citizens but also paralyzed the independent judiciary. Supersession of judges,
arrests and detentions of political leaders, student union leaders, eminent personalities, and some
government officials without trials shocked the entire Nation. The Emergency was declared by
the then Prime Minister Indira Gandhi, on grounds of internal disturbance. Before 1975,
Emergency was declared twice in India. Once, in 1962, National Emergency was imposed during
Indo-China war and secondly, in 1971 it was imposed during the Bangladesh war of liberation to
protect India from Pakistani intruders.4
But the Emergency declared in 1975 was believed to be a ploy set by Mrs. Indira Gandhi to
retain her power, position and serve her political interests as she was accused of corruption
charges after the Allahabad High Court found her guilty of corrupt electoral practices in the 1971
3 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 792
4 "India in 1975: Democracy in Eclipse", ND Palmer Asian Survey, vol 16 no 5.
4 | Page

election and barred her from contesting election for the next six years. As a result of the Courts
judgment, she declared Emergency to retain her Prime Ministership. But she did not follow the
proper procedure and Emergency provisions given by the Constitution under which Emergency
can be declared in India. Very soon, the power of the executive was enhanced overnight which
acted as the coercive sovereign power and eventually, it formed an authoritarian regime in India.
The deadly effects of unchecked and uncontrolled sovereign power during Emergency in all
spheres of politics, social, media, and economy were severely critiqued by social activists,
political leaders, and even by foreign media correspondents and academicians.5
The entire Nation was on the verge of arousing resistance under the popular J.P movement
organized by Jayprakash Narayan, to protest against the imposition of Emergency and the
curtailment of fundamental rights and freedom in a democracy. What benefited Mrs. Indira
Gandhi most is the fact that the Emergency suspended the rule of law and fundamental rights of
citizens, the two very bases of democracy. Hence a situation prevailed, where people would not
be free to raise their voice against the state decisions. Once an Emergency is declared, the
Executive retains absolute power, and both the legislature and judiciary serve as mere rubber
stamps. The shrewd politics of Mrs. Indira Gandhi, adopted to tackle any opposition towards her
government and her ways of governance had undoubtedly welcomed severe criticisms against
her, both at home and abroad. The image of her being the daughter of a liberal socialist Pt.
Jawaharlal Nehru, the first Prime Minister of India, was shattered into pieces during the
Emergency.
The implementation of draconian laws like Maintenance of Internal Security Act (MISA) and
Defense of India Rules (DIR), clearly exhibited that no individual protesting against the then
Congress government could escape such stringent laws. Imposition of family planning
programmes and implementation of birth control methods like sterilization and vasectomy for
both men and women had witnessed the invasion of governmental power into the personal lives
of common people to control sexuality. It was a well thought out approach to manage population
growth during Emergency.6
5 Nayar, K., 1977. The judgement: inside story of the Emergency in India. New Delhi: Vikas Publishing House.
6 India: The Years of Indira Gandhi. Brill Academic Pub. 1988, p. 171
5 | Page

Moreover, the censorship of the press was another hard-hitting reality during Emergency to curb
the voice of democracy. The intention of the Congress government was to effectively restrict the
press from publishing any objectionable comments against the governmental actions. As a result,
almost every newspaper avoided publishing any critique and controversial issue against the
government policies. Foreign correspondents were too subjugated under press censorship. There
was a strict surveillance over both common people in public places and on government officials
and bureaucrats in offices. Phone tapping became a routine order in government offices to tap
conversations of government officials and supposedly, everyone was under the eyes of the
authoritarian regime. The Emergency lasted 21 months, and its legacy remains intensely
controversial.7

Unitary Bias during National Emergency


A national emergency modifies the federal system of government to a unitary one by granting
Parliament the power to make laws on the 66 subjects of the State List (which contains subjects
on which the state governments can make laws). Also, all state money bills are referred to the
Parliament for its approval. During an Emergency, the Central government becomes all powerful
and the states go into the total control of the Centre. It converts the federal structure into a
unitary one without a formal amendment of the Constitution. This kind of transformation of the
political system from federal during normal times to unitary during Emergency is a unique
feature of the Indian Constitution. In this context, Dr B. R. Ambedkar observed in the
Constituent Assembly that:8
All federal systems including American are placed in a tight mould of federalism. No matter
what the circumstances, it cannot change its form and shape. It can never be unitary. On the other
hand, the Constitution of India can be both unitary as well as federal according to the
requirements of time and circumstances. In normal times, it is framed to work as a federal

7 Austin, Granville (1999). Working a democratic constitution: the Indian experience. Oxford University Press. p.
295.

8 Constituent Assembly Debates, Volume VII, p. 34.


6 | Page

system. But in times of Emergency, it is so designed as to make it work as though it was a


unitary system.9

Centre-State relations during National Emergency


While a proclamation of Emergency is in force, the normal fabric of the Centrestate relations
undergoes a basic change. This can be studied under three heads, namely, executive, legislative
and financial.
(a) Executive: During a national emergency, the executive power of the Centre extends to
directing any state regarding the manner in which its executive power is to be exercised. In
normal times, the Centre can give executive directions to a state only on certain specified
matters. However, during a national emergency, the Centre becomes entitled to give executive
directions to a state on any matter. Thus, the state governments are brought under the complete
control of the Centre, though they are not suspended.
(b) Legislative: During a national emergency, the Parliament becomes empowered to make laws
on any subject mentioned in the State List. Although the legislative power of a state legislature is
not suspended, it becomes subject to the overriding power of the Parliament. Thus, the normal
distribution of the legislative powers between the Centre and states is suspended, though the state
Legislatures are not suspended. In brief, the Constitution becomes unitary rather than federal.10
The laws made by Parliament on the state subjects during a National Emergency become
inoperative six months after the emergency has ceased to operate. Notably, while a proclamation
9 PART X VIII - EMERGENCY PROVISIONS, http://lawmin.nic.in/olwing/coi/coi-english/const.pock
2pg.rom8fsss(24).pdf (last visited Aug 20, 2016).

10 Anuj Shaha, Suppression of Fundamental Rights During Emergency - Judicial and Legislative Response,
http://www.academia.edu/9440306

7 | Page

of national emergency is in operation, the President can issue ordinances on the state subjects
also, if the Parliament is not in session. Further, the Parliament can confer powers and impose
duties upon the Centre or its officers and authorities in respect of matters outside the Union List,
in order to carry out the laws made by it under its extended jurisdiction as a result of the
proclamation of a National Emergency.11
The 42nd Amendment Act of 197612 provided that the two consequences mentioned above
(executive and legislative) extends not only to a state where the Emergency is in operation but
also to any other state.
(c) Financial: While a proclamation of national emergency is in operation, the President can
modify the constitutional distribution of revenues between the centre and the states. This means
that the president can either reduce or cancel the transfer of finances from Centre to the states.
Such modification continues till the end of the financial year in which the Emergency ceases to
operate. Also, every such order of the President has to be laid before both the Houses of
Parliament.

11 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 795


12 The Constitution (Forty-second Amendment) Act, 1976
8 | Page

CHAPTER 2 : RESEARCH METHODOLOGY

The research conducted is of secondary nature. Materials and fact written are taken from various
books, reports, articles and the internet. All the aspects of the topic have not been covered in
complete depth as the subject was very vast. Attempts have been made to ensure that this
contains no biased views. However, views and opinions of the researcher may have been stated
in the project. The research design type used in the study is of descriptive and of review nature.
The research fails to conduct primary research in the form of questionnaires, interviews, field
research, etc. As the study was a research-based analysis, doctrinal methods have been adopted
for the purpose of research because it was not possible to study the subject by experimental
method.13

Limitations
The limitations of this research study are that it is restricted to secondary research, which
involves the summary, collation and/or synthesis of existing research rather than primary
research, in which data is collected from, for example, research subjects or experiments. Thus the
13 C.R. Kothari, Research Methodology Methods & Techniques, Second Edition, New Delhi: New Age
International publisher, 2004, PP. 1-2.

9 | Page

quality of research is affected as the origins of the information may be questionable. Secondary
research never meets the specific needs of researcher because all the information, data and
statistics have already been generated. Hence, I would suggest further researchers to critically
evaluate and validate the reliability and credibility of the information gathered.14

Research questions
The questions that I hope to answer in the project are:
Do the Emergency provisions in the Indian Constitution give a lot of drastic discretionary
powers in the hands of the Executive, with a potential for misuse?
Should a system of checks and balances be brought into place, so that unlike in the 1975
emergency, there is no misuse of power by the ruling party and the Executive?

Hypothesis
The Emergency provisions in the Indian Constitution give overriding powers to the
Executive, with a potential for misuse.
There is scope for the unjust violation of the fundamental rights of the citizens of India
during a situation of National Emergency.

14 C.R. Kothari, Research Methodology Methods & Techniques, Second Edition, New Delhi: New Age
International publisher, 2004, PP. 39

10 | P a g e

CHAPTER 3 : LEGAL ANALYSIS

Introduction: The Emergency provisions are contained in Part XVIII of the Constitution, from
Articles 352 to 360. These provisions enable the Central government to meet any abnormal
situation effectively. The rationality behind the incorporation of these provisions in the
Constitution is to safeguard the sovereignty, unity, integrity and security of the country, the
democratic political system, and the Constitution.15

Grounds of Declaration
Under Article 35216, the President can declare a national emergency when the security of India or
a part of it is threatened by war or external aggression or armed rebellion. It may be noted that
the president can declare a national emergency even before the actual occurrence of war or
external aggression or armed rebellion, if he is satisfied that there is an imminent danger.

15 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 793


16 CONSTITUTION OF INDIA, art. 352
11 | P a g e

The President can also issue different proclamations on grounds of war, external aggression,
armed rebellion, or imminent danger thereof, whether or not there is a proclamation already
issued by him and such proclamation is in operation. This provision was added by the 38th
Amendment Act of 1975.17
When a national emergency is declared on the ground of war or external aggression, it is
known as External Emergency. On the other hand, when it is declared on the ground of armed
rebellion, it is known as Internal Emergency.
A proclamation of national emergency may be applicable to the entire country or only a part of it.
The 42nd Amendment Act of 197618 enabled the president to limit the operation of a National
Emergency to a specified part of India.
Originally, the Constitution mentioned internal disturbance as the third ground for the
proclamation of a National Emergency, but the expression was too vague and had a wider
connotation. Hence, the 44th Amendment Act of 197819 substituted the words armed rebellion
for internal disturbance. Thus, it is no longer possible to declare a National Emergency on the
ground of internal disturbance as was done in 1975 by the Congress government headed by
Indira Gandhi.
The President, however, can proclaim a national emergency only after receiving a written
recommendation from the cabinet. This means that the emergency can be declared only on the
concurrence of the cabinet and not merely on the advice of the prime minister. In 1975, the then
Prime Minister, Indira Gandhi advised the president to proclaim emergency without consulting
her cabinet. The cabinet was informed of the proclamation after it was made, as a fait accompli.
The 44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the
prime minister alone taking a decision in this regard.20
17 V. N. Shukla, Constitution of India (12th Ed 2013), p. 1014-1016
18 The Constitution (Forty-second Amendment) Act, 1976
19 Constitution (Forty-fourth Amendment) Act, 1978
20 Granville, Austin. Working A Democratic Constitution - The Indian Experience. p. 371.
12 | P a g e

The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from
the judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of
197821. Further, in the Minerva Mills case22, (1980), the Supreme Court held that the
proclamation of a national emergency can be challenged in a court on the ground of malafide or
that the declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.

Parliamentary Approval and Duration


The proclamation of Emergency must be approved by both the Houses of Parliament within one
month from the date of its issue. Originally, the period allowed for approval by the Parliament
was two months, but was reduced by the 44th Amendment Act of 1978. However, if the
proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the
dissolution of the Lok Sabha takes place during the period of one month without approving the
proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha
after its reconstitution, provided the Rajya Sabha has in the meantime approved it.
If approved by both the Houses of Parliament, the emergency continues for six months, and can
be extended to an indefinite period with an approval of the Parliament for every six months. This
provision for periodical parliamentary approval was also added by the 44th Amendment Act of
1978. Before that, the emergency, once approved by the Parliament, could remain in operation as
long as the Executive (cabinet) desired. However, if the dissolution of the Lok Sabha takes place
during the period of six months without approving the further continuance of Emergency, then

21 Constitution (Forty-fourth Amendment) Act, 1978


22 Minerva Mills v. Union of India, AIR 1980 SC 1789
13 | P a g e

the proclamation survives until 30 days from the first sitting of the Lok Sabha after its
reconstitution, provided the Rajya Sabha has in the mean-time approved its continuation.23
Every resolution approving the proclamation of emergency or its continuance must be passed by
either House of Parliament by a special majority, that is, (a) a majority of the total membership
of that house, and (b) a majority of not less than two-thirds of the members of that house present
and voting. This special majority provision was introduced by the 44th Amendment Act of 1978.
Previously, such resolution could be passed by a simple majority of the Parliament.24

Revocation of Proclamation
A proclamation of emergency may be revoked by the President at any time by a subsequent
proclamation. Such a proclamation does not require the parliamentary approval.
Further, the President must revoke a proclamation if the Lok Sabha passes a resolution
disapproving its continuation. Again, this safeguard was introduced by the 44th Amendment Act
of 197825. Before the amendment, a proclamation could be revoked by the president on his own
and the Lok Sabha had no control in this regard.
The 44th Amendment Act of 1978 also provided that, where one-tenth of the total number of
members of the Lok Sabha give a written notice to the Speaker (or to the president if the House
is not in session), a special sitting of the House should be held within 14 days for the purpose of
considering a resolution disapproving the continuation of the proclamation.
23 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 795
24 PART X VIII - EMERGENCY PROVISIONS, http://lawmin.nic.in/olwing/coi/coi-english/const.pock
2pg.rom8fsss(24).pdf (last visited Aug 20, 2016).

25 Constitution (Forty-fourth Amendment) Act, 1978


14 | P a g e

A resolution of disapproval is different from a resolution approving the continuation of a


proclamation in the following two respects:
1.The first one is required to be passed by the Lok Sabha only, while the second one needs to be
passed by the both Houses of Parliament.
2.The first one is to be adopted by a simple majority only, while the second one needs to be
adopted by a special majority.26

Effects of Proclamation Of Emergencies


The effects of Proclamation of Emergency are given under Article 35327 of the Constitution. The
power under this is provisional and cannot be used without reasonable care. The most important
effect is that during the operation of a proclamation the federal nature of the government
becomes unitary and the union has power to give directions to the state in reference to the
executive power to be exercised by them. In this way the legislative power of the union
parliament is enlarged up to the extent that it can make laws for the state and also modify
provisions regarding revenue matters. Where the fundamental rights are concerned, during
emergency arising out of war or external aggression Article 19 is suspended. During the
continuance of proclamation, power is vested in the President to suspend the right of individual
to move to the courts in case of infringement of their fundamental rights except those under
Article 20 and Article 21 under the Constitution of India.28

Effects of National Emergency on the Fundamental Rights


26 V. N. Shukla, Constitution of India (12th Ed 2013), p. 1016
27 CONSTITUTION OF INDIA, art. 353
28 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 796
15 | P a g e

During a national emergency, many Fundamental Rights of Indian citizens can be suspended.
The six freedoms under Right to Freedom are automatically suspended. By contrast, the Right to
Life and Personal Liberty cannot be suspended according to the original Constitution. In January
1977, during the emergency declared controversially by Indira Gandhi, the government decided
to suspend even the Right to Life and Personal Liberty by dispensing with Habeas corpus29.
Justice Hans Raj Khanna defended the Right to Life and asked: "Life is also mentioned in Article
21 and would Government argument extend to it also?" The Attorney General observed: "Even if
life was taken away illegally, courts are helpless".30
Articles 358 and 359 describe the effect of a National Emergency on the Fundamental Rights.
Article 35831 deals with the suspension of the Fundamental Rights guaranteed by Article 19,
while Article 35932 deals with the suspension of other Fundamental Rights (except those
guaranteed by Articles 20 and 21). These two provisions are explained below:
(a) Suspension of Fundamental Rights under Article 19: According to Article 35833, when a
proclamation of national emergency is made, the six Fundamental Rights under Article 19 are
automatically suspended. No separate order for their suspension is required.
While a proclamation of national emergency is in operation, the state is freed from the
restrictions imposed by Article 19. In other words, the state can make any law or can take any
executive action abridging or taking away the six Fundamental Rights guaranteed by Article 19.
Any such law or executive action cannot be challenged on the ground that they are inconsistent
with the six Fundamental Rights guaranteed by Article 19. When the National Emergency ceases
to operate, Article 19 automatically revives and comes into force. Any law made during
Emergency, to the extent of inconsistency with Article 19, ceases to have effect. However, no
29 A D M Jabalpur vs. Shukla, 1976 AIR 1207
30 V. N. Shukla, Constitution of India (12th Ed 2013), p. 1021
31 CONSTITUTION OF INDIA, art. 358
32 CONSTITUTION OF INDIA, art. 359
33 CONSTITUTION OF INDIA, art. 358
16 | P a g e

remedy lies for anything done during the Emergency even after the Emergency expires. This
means that the legislative and executive actions taken during the emergency cannot be
challenged even after the Emergency ceases to operate.34
The 44th Amendment Act of 197835 restricted the scope of Article 358 in two ways. Firstly, the
six Fundamental Rights under Article 19 can be suspended only when the National Emergency is
declared on the ground of war or external aggression and not on the ground of armed rebellion.
Secondly, only those laws which are related with the Emergency are protected from being
challenged and not other laws. Also, the executive action taken only under such a law is
protected.
(b) Suspension of other Fundamental Rights: Article 35936 authorises the president to suspend the
right to move any court for the enforcement of Fundamental Rights during a National
Emergency. This means that under Article 359, the Fundamental Rights as such are not
suspended, but only their enforcement. The said rights are theoretically alive but the right to seek
remedy is suspended. The suspension of enforcement relates to only those Fundamental Rights
that are specified in the Presidential Order. Further, the suspension could be for the period during
the operation of emergency or for a shorter period as mentioned in the order, and the suspension
order may extend to the whole or any part of the country. It should be laid before each House of
Parliament for approval.
While a Presidential Order is in force, the State can make any law or can take any executive
action abridging or taking away the specified Fundamental Rights. Any such law or executive
action cannot be challenged on the ground that they are inconsistent with the specified
Fundamental Rights. When the Order ceases to operate, any law so made, to the extent of
inconsistency with the specified Fundamental Rights, ceases to have effect. But no remedy lies
for anything done during the operation of the order even after the order ceases to operate. This

34 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 795


35 Constitution (Forty-fourth Amendment) Act, 1978
36 CONSTITUTION OF INDIA, art. 359
17 | P a g e

means that the legislative and executive actions taken during the operation of the Order cannot
be challenged even after the Order expires.37
The 44th Amendment Act of 197838 restricted the scope of Article 359 in two ways. Firstly, the
President cannot suspend the right to move the Court for the enforcement of fundamental rights
guaranteed by Articles 20 to 21. In other words, the right to protection in respect of conviction
for offences (Article 20) and the right to life and personal liberty (Article 21) remain enforceable
even during emergency. Secondly, only those laws which are related with the emergency are
protected from being challenged and not other laws and the executive action taken only under
such a law, is protected.

Distinguishing Between Articles 358 and 359

The differences between Articles 358 and 359 can be summarised as follows:39 40
37 Anuj Shaha, Suppression of Fundamental Rights During Emergency - Judicial and Legislative Response,
http://www.academia.edu/9440306

38 Constitution (Forty-fourth Amendment) Act, 1978


39 CONSTITUTION OF INDIA, art. 358
40 CONSTITUTION OF INDIA, art. 359
18 | P a g e

1. Article 358 is confined to Fundamental Rights under Article 19 only whereas Article 359
extends to all those Fundamental Rights whose enforcement is suspended by the Presidential
Order.
2. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the
emergency is declared. On the other hand, Article 359 does not automatically suspend any
Fundamental Right. It only empowers the president to suspend the enforcement of the specified
Fundamental Rights.
3. Article 358 operates only in case of External Emergency (that is, when the emergency is
declared on the grounds of war or external aggression) and not in the case of Internal Emergency
(i.e., when the Emergency is declared on the ground of armed rebellion). Article 359, on the
other hand, operates in case of both External Emergency as well as Internal Emergency.
4. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of
Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period
specified by the president which may either be the entire duration of Emergency or a shorter
period.
5. Article 358 extends to the entire country whereas Article 359 may extend to the entire country
or a part of it.

6. Article 358 suspends Article 19 completely while Article 359 does not empower the
suspension of the enforcement of Articles 20 and 21.
7. Article 358 enables the State to make any law or take any executive action inconsistent with
Fundamental Rights under Article 19 while Article 359 enables the State to make any law or take

19 | P a g e

any executive action inconsistent with those Fundamental Rights whose enforcement is
suspended by the Presidential Order.41

Conclusion: This chapter analyzed the articles that pertain to Emergency provisions in the
Constitution of India, such as Articles 352, 353, 358 and 359, and certain essentials such as the
grounds of declaration of an Emergency and its effects on fundamental rights. It also examined
certain amendments such as the 44th Amendment Act of 1978 and the 42nd Amendment Act of
1976 and their effects on the Emergency related provisions.

CHAPTER 4 : ROLE OF JUDICIARY

41 Anuj Shaha, Suppression of Fundamental Rights During Emergency - Judicial and Legislative Response,
http://www.academia.edu/9440306

20 | P a g e

Introduction: The discussion of cases falls into two parts: Cases decided during the emergency
created by war or external aggression and cases decided during the Emergency proclaimed on
25th June 1975 on the ground of internal disturbance. During first two emergencies which
were declared in October 1962 and December 1971 on ground of External Aggression, no
attempt had been made to impair permanently the fundamental rights embodied in our
Constitution.

ADM Jabalpur vs. Shivkant Shukla- 1976 AIR 1207 (Habeas Corpus Case)
The appeal decided by the Supreme Court in the Habeas Corpus case42 arose out of habeas
corpus applications filed by several detenues who prayed for their release from illegal preventive
detention. A preliminary objection was raised by the Union that in view of the Presidents Order
under Article 359 suspending the right of any person (including a foreigner) to move any court
for the enforcement of his fundamental rights under Articles 14, 19, 21 and 22, the petitioners
had no locus standi to maintain the petition, because, in substance, the detenues were seeking to
enforce their fundamental right under Article 21, namely, that they should not be deprived of
their personal liberty except by procedure established by law. The High Court of Allahabad,
Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab and Haryana and
Rajasthan, rejected this contention and held that though the petitioners could not move the court
to enforce their fundamental right under Article 21, they were entitled to show that the order of
detention was not under or in compliance with the law or was mala fide.
However, the Supreme Court held that:
In view of the Presidential Order dated 27th June 1975, no person has any locus standi to move
the High Court for habeas corpus or any other writ order or direction to challenge the legality of
an order of detention on the ground that the order is not under or in compliance with the Act
(Maintenance of Internal Security Act, 1971) or is illegal or is vitiated by mala fides factual or
legal or is based on extraneous consideration.

42 1976 AIR 1207


21 | P a g e

The Order was passed as the result of four majority judgments delivered by Ray C.J., Beg,
Chandrachud and Bhagwati JJ. Justice Khanna gave dissenting judgment but he signed the
Courts order. The Supreme Court inflicted a deep wound on itself when four judges passed this
misleading order which barred and bolted the prison doors behind which helpless and innocent
persons were illegally detained and ill treated.
Dissenting judgment of Justice Khanna in Habeas Corpus case:
Justice Khanna dissented as in his opinion it takes us back to the pre constitutional British
period. The most salient feature of Justice Khanna's decision was that Article 21 could not be
viewed as the sole repository of the right to life and personal liberty, and that therefore its
suspension did not give executive officers of the government carte blanche powers to detain
persons without the authority of law. For him, this right was not the gift of the Constitution; it
had existed long before the Constitution came into force. Merely because an aspect of the right
was incorporated in the fundamental rights chapter did not mean that its independent identity had
been exterminated. In effect Article 21 required a proper procedure under a valid law before a
person could be deprived of his or her right. So at the most, its suspension meant the deprivation
of the right to a procedure, and not the denial of the right in the absence of authority of law.43

Mohan Chowdhary v. Chief Commr. Tripura - 1964 AIR 173


In Mohan Chowdhary v. Chief Commr. Tripura44 the Defense of India Ordinance and the rules
made there under were challenged. On a preliminary objection being taken that in view of the
Presidents Order made under Article 359, the petitioner was not entitled to move the court or
the enforcement of his fundamental rights, the petitioner contended that as Article 32 itself
conferred a fundamental right and as the Presidents Order had not suspended that right, the
petitioner was entitled to move the court under Article 32. The Supreme Court held that the right
to move that court under Article 32 was subject to Article 32(4) under which the right could be

43 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 801


44 (1964) 3 S.C.R. 442
22 | P a g e

suspended in accordance with the provisions of the Constitution. Article 35945 enabled the
President to suspend the right to move any court for the enforcement of the fundamental rights
which may be named by the President. The Presidents Order did not suspend all rights vested in
a citizen to move the Supreme Court but only his right to enforce the provisions of Articles 21
and 22 in respect of anything done under the Defense of India Act:
As a result of the Presidents Order, the petitioners right to move this court, but not this courts
power under Article 32 has been suspended during the operation of the emergency with the result
that the petitioner has no locus standi to enforce his right, if any, during the emergency.
Thus, the validity of the statutory provisions authorizing the detention could not be challenged in
view of the Presidential Order. The Court, however, held that the pleas which were open to a
detenu were that the mandatory provisions of the Defense of India Act and rules had not been
observed and the plea not merely alleged but proved that the detention was mala fide.46

Ram Manohar Lohia v. State of Bihar - 1966 AIR 740


In Ram Manohar Lohia v. State of Bihar47 it was held unanimously that the Presidents Order
suspended the enforcement of a persons rights under Articles 21 and 22 if he had been deprived
of those rights by an order passed under the Defense of India Act, 1962 or the rules made there
under. But it was open to him to show that the order under the said Act and rules was a mala fide,
or an invalid, order, and in either event, he was entitled to move a court for the enforcement of
his rights under Articles 21 and 22.
What constitutes Mala fide has been interpreted in case of Jaichand Lal v. State of West Bengal
48

...in this context...a mala fide exercise of power does not necessarily imply any moral

45 CONSTITUTION OF INDIA, art. 359


46 Anuj Shaha, Suppression of Fundamental Rights During Emergency - Judicial and Legislative Response,
http://www.academia.edu/9440306

47 (1966) 1 S.C.R. 709


48 A.SC. 483, 485
23 | P a g e

turpitude as a matter of law. It only means that the statutory power is exercised for purposes
foreign to those for which it is in law intended... i.e. for some indirect purposes not connected
with the object of the statute or the mischief it seeks to remedy.

Mohd Yaqub v. State of J&K - 1968 AIR 765


The real importance of the words used in Article 35949 came up for consideration in Mohd
Yaqub v. State of J&K50 which overruled other preceding cases like Ghulam Sarwar v. Union
of India. It was concerned with a number of habeas corpus writ petitions to test the validity of
arrests made under Rule 30(1) of the Defense of India Rules, 1962 and the Presidents Order
issued under Article 359(1) suspending the enforcement of fundamental rights under Articles 14,
21 and 22 during the period of emergency. Among other grounds, it was contented firstly, that the
President being an authority under Article 12, the order passed by him under Article 359 was a
law within the meaning of Article 13(2) and was, therefore, liable to be tested on the anvil of
fundamental rights, and secondly, that the enforcement of only such fundamental rights could be
suspended which had nexus with the reasons which led to the proclamation of emergency. The
Supreme Court rejected both the arguments. Firstly, because Article 13(2) and Article 359 being
parts of the same Constitution stand on an equal footing and the two provisions must be read
harmoniously in order that the intention behind Article 359 was carried out and not destroyed
altogether.
Thus though an order under Article 35951 may be assumed to be law in the widest sense, it cannot
be law within the meaning of Article 13(2) for, if that were so, Article 359 would be
meaningless. If the order is a law within the meaning of Article 13(2), the result would be that
though the order says that the enforcement of a particular fundamental right is suspended during
the period of Emergency, the order can still be tested with the aid of Article 13(2) on the anvil of
the same fundamental right the enforcement of which it suspends and a declaration made there
under has no meaning whatsoever. Secondly, it is implicit that the enforcement of a particular
fundamental right suspended by the President is for the sake of the security of India, for which
49 CONSTITUTION OF INDIA, art. 359
50 AIR 1968 SC 765
51 CONSTITUTION OF INDIA, art. 359
24 | P a g e

the Emergency has been declared under Article 352, and no further proof of it is necessary.
Declaration of Emergency is for the subjective determination of the President, and he cannot be
called upon to justify his action in a court of law.
Hidaytullah, J, in his dissenting judgment suggested that Article 359 must be circumscribed in at
least those theoretically possible cases where the power may be misused or exercised mala fide,
and for that purpose room must be let for the operation of Article 14. However, it is submitted
that once this suggestion is accepted, it would unduly circumvent the ambit of Article 359.
Moreover, there has always been a remedy available in a court of law against misuse of power or
mala fides as an independent ground.

Makhan Singh v. State of Punjab - 1964 AIR 381


Makhan Singh v. State of Punjab52 showed that even when the Presidents Order suspended the
right of the detenu to move the Courts for the enforcement of his fundamental rights under
Articles 21 and 22, his right to challenge his detention on several other grounds was not taken
away. These grounds were (i) the law authorizing detention was colorable or was passed by a
legislature which had no legislative competence, (ii) the detention was in violation of the
mandatory provisions of the law authorizing detention, (iii) the detention was in excess off the
powers conferred by the Act and the Rules, (v) the order of detention was passed mala fide. The
court has reiterated this position in Attorney General v. Amratlal Prajivandas.53
While considering the Right to Freedom guaranteed under Article 19, Supreme Court in Makhan
Singh v. State of Punjab54 said that,
The suspension of Article 19 during the pendency of the Proclamation of emergency removes
the fetters created on the legislative and executive powers by Article 19 and if the legislatures
make laws or the executive commits acts which are inconsistent with the rights guaranteed by
52 AIR 1964 SC 381 : (1964) 4 SCR 797
53 (1994) 5 SCC 54 : AIR 1994 SC 2179
54 AIR 1964 SC 381 : (1964) 4 SCR 797
25 | P a g e

Article 19, their validity is not open to challenge either during the continuance of the emergency
or even thereafter.
Before 1975, the impact of Article 35955 on the fundamental rights conferred by Part III had not
been fully realized, partly because the power of preventive detention was not as grossly abused
as it was during Emergency of 1975.
In 1975, for the first time after the constitution came into force, the Emergency was proclaimed
on the ground of internal disturbance, and it was made a cloak for gross abuse of political power.
After the declaration of Emergency, the President of India issued an order under Article 359 of
the Constitution on June 27, 1975 suspending the right to move any court for the enforcement of
fundamental rights conferred by Article 14, 19, 21 and 22 of the Constitution.56
Conclusion: This chapter analyzed some of the cases and judgments that had a decisive impact
on Emergency provisions in the Constitution of India. It was illustrated that the courts have
considered the effect of proclamation of emergency in a number of cases and under different
circumstances such on Preventive Detention, on the effect of the suspension of Article 19
following on a proclamation of emergency and on the effect of the Presidents Order under
Article 359.

55 CONSTITUTION OF INDIA, art. 359ik


56 J. N. Pandey, Constitutional Law of India (52nd Ed 2015), p. 798
26 | P a g e

CHAPTER 5 : COMPARATIVE STUDY

Different constitutions differ greatly in their treatment of the subject matter of emergency
powers. Most modern constitutions, such as the Indian Constitution, contain explicit, frequently
detailed, emergency provisions. However, some other Constitutions like the Constitution of
United States, are devoid of references to states of emergency and to emergency powers. Indirect
reference to emergencies may only be found in two clauses Article I, Section 8, Clause 15
which vests the power in Congress to provide for calling forth the Militia to execute the Laws of
the Union, suppress Insurrections and repel Invasions, and Article I, Section 9, Clause 2, which
provides that the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require it. Although certain other clauses
mention terms such as war, or time of war, none attaches special powers to any branch of
government in the event of such exigencies.57 The omission of emergency provisions is limited to
the federal level. Unlike the Federal Constitution, many State Constitutions contain emergency
provisions.58
However, for the purpose of comparing the United States Constitution with the Indian
Constitution, we can examine some emergency powers that are explicitly provided in the former:
57 United States Constitution, Art. I, Sec. 8, Clause 11 (Congresss power to declare war); Art. III, Sec. 3, Clause I
(the crime of Treason); Third Amendment (prohibition on the quartering of soldiers in private premises); Fifth
Amendment (exemption from the requirement of Grand Jury).

58 Constitution of the State of California, Art. xiiib, Sec. 3(c) and Art. xiv, Sec. 2; Constitution of Colorado, Art. v,
Sec. 25a and Art. xvii, Sec. 1; Constitution of Florida, Art. ii, Secs. 2 and 6, Art. vi, Sec. 5, Art. vii, Sec. 18;
Constitution of Hawaii, Art. vii, Sec. 13; Constitution of Maine, Art. 4, part 3, Sec. 16 and Art. 9, Sec. 17

27 | P a g e

Congress may authorize the government to call forth the militia to execute the laws, suppress

an insurrection or repel an invasion.


Congress may authorize the government to suspend consideration of writs of habeas corpus

"when in cases of rebellion or invasion the public safety may require it."
Felony charges may be brought without presentment or grand jury indictment in cases arising

"in the militia, when in actual service in time of war or public danger."
A state government may engage in war without Congress's approval if "actually invaded, or
in such imminent Danger as will not admit of delay."

Aside from these, many provisions of law exist in various jurisdictions, which take effect only
upon an executive declaration of emergency. The National Emergencies Act59 regulates this
process at the federal level. It requires the President to specifically identify the provisions
activated and to renew the declaration annually so as to prevent an arbitrarily broad or openended emergency. In all such cases, the government must continue to act within the limits of the
law and constitution.60 A state governor or local mayor may declare a state of emergency within
his or her jurisdiction. This is common at the state level in response to natural disasters. The
Federal Emergency Management Agency maintains a system of assets, personnel and training to
respond to such incidents. For example, on December 10, 2015, Washington state Governor Jay
Inslee declared a state of emergency due to flooding and landslides caused by heavy rains.
The 1977 International Emergency Economic Powers Act allows the government to freeze assets,
limit trade and confiscate property in response to an "unusual and extraordinary threat" to the
United States that originates substantially outside of it. A state of emergency confers vast
powers on the Executive Branch, including the ability to financially incapacitate any person or
organization in the United States, seize control of the nations communications infrastructure,
mobilize military forces, expand the permissible size of the military without congressional
authorization, and extend tours of duty without consent from service personnel. Declared states
of emergency may also activate Presidential Emergency Action Documents and other continuity59 The National Emergencies Act (Pub.L. 94412, 90 Stat. 1255, enacted September 14, 1976, codified at 50
U.S.C.

60 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 650 (1952).
28 | P a g e

of-government procedures, which confer powers on the Presidentsuch as the unilateral


suspension of habeas corpusthat appear fundamentally opposed to the American constitutional
order. Although the National Emergencies Act, by its plain language, requires Congress to vote
every six months on whether a declared national emergency should continue, Congress has done
so only once in the nearly forty-year history of the Act.61
As of 2016, the United States is under more than thirty presidentially declared states of
emergency under the IEEPA, the oldest of which was declared in 1979 with regard to the
government of Iran. Another ongoing national emergency, declared after the September 11
attacks, authorizes the president to retain or reactivate military personnel beyond their normal
term of service.62 In comparison, there have only been three national emergencies in Indias
political history.

61 Thronson, Patrick, Toward Comprehensive Reform of Americas Emergency Law Regime (March 23, 2013).
University of Michigan Journal of Law Reform, Vol. 46, No. 2.

62 US Presidential Proclamation 7463


29 | P a g e

CHAPTER 6 : CONCLUSION AND SUGGESTIONS


The hypotheses that were a starting point for this research were that the Emergency provisions
in the Indian Constitution give drastic discretionary powers to the Executive, which may be
misused, and that there is scope for the violation of fundamental rights during a state of
Emergency. The history of the 1975 Emergency and its aftermath has taught us several lessons,
and arguably also proved both these hypotheses right. With the imposition of Emergency the
executive had set up an aggressive front. In the face of this aggression, the Court under the
leadership of Chief Justices Ray and Beg, abdicated its power of judicial review. Subsequently
during the tenure of the Janata Government in 1977-1980, it bounced in with vengeance against
the emergency and with massive public support, the Court under the leadership of the Chief
Justice Chandrachud endorsed the policy decision of the new Government. The relaxed political
atmosphere made the executive more liberal in its approach, providing an opportunity for the
Court to retrieve its lost judicial territory.
The researcher suggests that whatever the failures and disappointments in the past, the Court has
to galvanize itself as an anti-establishment force that seeks to intervene in the defense of
democracy and the rule of law, and thus the Court remains the main bulwark of Indian
democracy because other organs of the state have not shown any promise of rejuvenation.63

63 Contribution of the Supreme Court to the Growth of Democracy in India NUJS Law Review, 2013
30 | P a g e

The research undertaken has shown that the judiciary plays an important role throughout a state
of emergency, from the inception of the declaration of the state of emergency to its termination.
The rising skepticism about the role of the judiciary in times of crises is based on an unbalanced
evaluation of the past experience of the judiciary and fails to take into account the resultant
lessons and developments from these experiences. The suggestion is that without doubt, the
judiciary must be reinvigorated by these experiences and more fortified for an ever more
audacious protection of human rights.
Since

India

has

sub-continent

dimensions,

immense

socio-economic

diversity, and

"multitudinous people, with divided loyalties" the security and unity of the country could not be
taken for granted. The provisions of Emergency in the Indian constitution were incorporated to
safeguard the sovereignty, unity, integrity and security of the country and the researcher suggests
that these are indeed essential.
However the Emergency of 1975 was arbitrary and there were no checks and balances in place
then. The Indian Constitution was framed and imbued with a spirit of democracy, justice and
liberty. That spirit had been crushed by the 42nd amendment. The 44th amendment restored the
original spirit of the constitution and ensured that such an aberration would no longer be possible
in future. The researcher would like to suggest that even though a situation such as the 1975
emergency is practically impossible today, the Courts and judiciary should be safeguarded from
any form of subversion to protect citizens from Executive tyranny.
The researcher would also like to illustrate that there is a vast difference between the India of
1975 and the India of today. Now we live in an age of liberalization where Government control is
reduced in every sector. Provisions and legislation such as the 44th amendment make the
declaration of an Emergency based on arbitrary reasons impossible. The Supreme Court in the
Minerva Mills64 case has brought National Emergencies under judicial review on the basis of
mala fide, which makes the Government accountable even further. In todays age of Internet
and mobile connectivity, any attempt to suppress the media and information is impossible. There
exist various human rights organizations, which vehemently fight for justice, and the common
man is no longer vulnerable to having his fundamental rights snatched away from him. The
researcher would like to emphasize that in the end, however, it remains the responsibility of
64 Minerva Mills v. Union of India, AIR 1980 SC 1789
31 | P a g e

those in power to ensure that a democratic tragedy such as the 1975 Emergency should not be
repeated.
Dr. Babasaheb Ambedkar speaking in Constituent Assembly on 25th November 1949 rightly
concluded thus-:
However good a Constitution may be, it is sure to turn out bad because those who are called to
work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if
those who are called to work it, happen to be a good lot. The working of a Constitution does not
depend wholly upon the nature of the Constitution. The Constitution can provide only the organs
of State such as the Legislature, the Executive and the Judiciary. The factors on which the
workings of those organs of the State depend are the people and the political parties they will set
up as their instruments to carry out their wishes and their politics.65

65 http://parliamentofindia.nic.in/ls/debates/vol11p11.htm
32 | P a g e

BIBLIOGRAPHY

http://www.indiankanoon.org
http://www.legalservicesindia.com
http://www.academia.edu
http://parliamentofindia.nic.in/ls/debates/
http://lawmin.nic.in/
Anuj Shaha, Suppression of Fundamental Rights During Emergency - Judicial and

Legislative Response
ND Palmer, India in 1975: Democracy in Eclipse
India: The Years of Indira Gandhi
Constitutional Law of India J.N. Pandey
Constitution of India - V. N. Shukla
Research Methodology Methods & Techniques - C.R. Kothari
Constituent Assembly Debates
Constitution of India, 1950
United States Constitution, 1789

33 | P a g e