3 Emergency Provisions under Indian Constitutional Law
Part 18 of Indian constitution talks about emergency, (Article 352 to 360)
- Article 352- National Emergency
- Article 356- State emergency
- Article 360- Financial Emergency
- National Emergency (Article 352) can be set up on the ground of war, external aggression and armed rebellion, if the president think that the security of India or the part of India is in danger he proclaim emergency.
There are two parts in National Emergency
- Internal – internal carries armed rebellion which is inserted in 44 amendment
- External- external carries war and external aggression.
Approval first passed by the cabinet that is council of Minister and President
If cabinet is satisfied then they pass written advice to President and if President is also satisfied with written advice it is sent for approval to Parliament that consists of Rajya Sabha and Lok Sabha if approved by Parliament then it remains for 6 months after 6 months the same procedure is to be followed.
Article 358 – Earlier when National Emergency starts then article 19 automatically suspense but after 44th Amendment there is a change in article 358 that is only in war and external aggression time article 19 will be suspended.
While article 339 is that the president has the right to suspend the enforcement of fundamental right but after 44 amendment article 20 and 21 cannot be suspended.
- State emergency (Article 356)- If the Governor conveys the President by his report that the government of the state cannot be carried on in accordance of the Constitution then the president can proclaim emergency
By president without approval of Parliament the validity of state emergency is 2 months but if the Parliament approves the state emergency then the validity extends to 6 months.
- Financial Emergency (Article 360)- empowers the president to proclaim financial emergency if he is satisfied that the financial stability of the credit of India or any part of the its territory is threatened.
The 38th Amendment Act on 1975 made the satisfaction of the president in declaring a financial emergency final and beyond Judicial review, but this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the president is not beyond Judicial review.
Financial emergency must be approved by both the houses of Parliament within two months from the date of it issue.
If the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of 2 months without approval then until 30 days from the first sitting of Lok Sabha after its reconstitution provided the Rajya Sabha has in the meantime approve it
Once approved by both the houses the financial emergency continuous indefinitely till it is revoked this implies two things –
- no maximum period prescribed for its operation
- no repeated parliamentary approval for its continuation
Here, are the series of cases which explains the scenario of emergency
- MOHAN CHOUDHRY v Chief Commissioner (1964)
- MAKHAN SINGH v STATE OF PUNJAB (1966)
- ANANDA NAMBIYAR v Commissioner (1967)
- RAM MANOHAR LOHIYA v STATE OF BIHAR (1967)
- GHULAM SARWAR v UOI (1967)
- ADM JABALPUR v SHIV KANT SHUKLA(1975)
- MINERVA MILLS (1977)
- 1st Legal Challenge- Mohan Choudhary v Chief Commissioner
In order that the Court may investigate the validity of a particular ordinance or act of a legislature, the person moving the Court should have a locus standi … In view of the President’s Order passed under the provisions of Art. 359 (1) of the Constitution, the petitioner has lost his locus standi to move this Court during the period of Emergency
Hence under Defence of India Act 1962, 21 and 22 can be suspended and citizens have no right to approach Courts.
- MAKHAN SINGH v STATE OF PUNJAB (1966)
Court held that issuing writ under circumstances of Emergency is defeated upon question of Substance if not Form.
But court itself went on to examine, other than challenging constitutionality of Defence of India Act, 1962, what other options may be utilized to ascertain legality of Executive action.
And they concluded that person may approach court:
-If such fundamental rights which are not mentioned under the proclamation are violated.
-If order of detention suffer from malafide.
-On the ground of excessive delegation of Legislative powers. That essential legislative functions were delegated.
One of the most imperative observation upon petitioner’s argument that prolonged Emergency may abridge rights of citizens for elongated time, Justice Gajendra Gadkar Stated
“Argument has no material bearing on the points with which we are concerned. How long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of the emergency, are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during periods of grave crisis, such as our country is facing today”
“This argument is essentially political and its impact on the constitutional question with which we are concerned is at best indirect. Even-so, it may be permissible to observe that in a democratic State, the effective safeguard against abuse of executive powers whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public opinion”.
- ANANDA NAMBIYAR v Commissioner (1967)
Further Two Grounds were developed in Ananda Nambiyar v Chief Commissioner and Ram Manohar Lohia v State of Bihar.
1. If the dentation order was issued by a person not authorised under Defence of India Act 1962, such can be challenged.
2. And if detention was ordered on grounds other than mentioned under Proclamation. In case of Ram Manohar Lohia detention was overturned as was ordered under Law and Order whereas Proclamation allowed detention under Public Order only.
- GHULAM SARWAR v UOI
Court Restricted itself from deciding upon the question whether proclamation of Emergency is necessary? It stated that such may be decided if, it was raised in court and as such has not been raised, we leave this question to the good sense of Executive and opinion of the People.
- ADM JABALPUR v SHIV KANT SHUKLA 1975
New Act Maintenance of Security Act 1971 enacted, many People were detained and Habeas Corpus petitions filed in several High Courts whereupon High Courts held that they have authority to examine propriety of Such Detention Orders.
Supreme Court took the moment and stated that Citizens have no recourse under the New Act and all FR’s remain Suspended during the duration of Emergency.
The Court concluded, ‘no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or 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 or is illegal or is vitiated by mala fides factual or legal or is based on extraneous consideration”.
HR KHANNA STATED
If any official, even a head constable of police, capriciously or maliciously, arrests a person and detains him indefinitely without any authority of law, the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency … In other words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers.
KHANNA J went on to state that Basic Postulation of RULE OF LAW is, State can not assume to itself unlimited power and can not deprive anyone of his life and personal liberty.
MH BEG had shard disagreement with Khanna J and he stated “If on a correct interpretation of the legal provisions, we find that the jurisdiction of Court was itself meant to be ousted, for the duration of the emergency … because the judicial process suffers from inherent limitations in dealing with cases of this type, we are bound … to declare that this is what the laws mean … it does not follow from a removal of the normal judicial superintendence … that there is no Rule of Law during the emergency”.
KHANNA J Further stated that negation of RULE of Law will not result in such a state as that has been arrived upon by a statute which passes over the spirit of Constitution.
MH BEG reply was rhetoric;
It seems to me to be legally quite impossible to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to lie behind the Constitution to frustrate the objects of the express provisions of the Constitution … What we are asked to do seems nothing short of building some imaginary parts of a Constitution, supposed to lie behind our existing Constitution, which could take the place of those parts of our Constitution whose enforcement is suspended and then to enforce the substitutes.
Champion of HUMAN RIGHT JURISPRUDENCE JUSTICE PN BHAGWATI HAS MORE TO ADD “I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the constitution a construction which its language cannot reasonably bear … the Constitution is the law of all laws and there alone judicial conscience must find its ultimate support, and its final resting place”.
Further he stated “We must also disabuse our mind of any notion that the emergency declared by the Proclamation dated 25th June, 1975 is not genuine, or to borrow an adjective used by one of the lawyers appearing on behalf of the interveners, is ‘phoney’. This emergency has been declared by the President in exercise of the powers conferred on him under Article 352, clause (1) and the validity of the Proclamation dated 25th June, 1975 declaring this emergency has not been assailed before us”.
- MINERVA MILLS (1977)
In Minerva Mills Case a precise observation was made by Subba Rao J who stated that “it may be possible for the citizen in a given case to move the court for issuing a writ of mandamus for revoking the Proclamation of Emergency if he is able to show by placing clear and cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency. This is not a matter which is a fit subject matter for judicial determination and the Court would not interfere with the satisfaction of the executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala fide or for a collateral purpose.
JUDGE WHO SAID SORRY! WHAT IT CHANGES THOUGH
If the introduction of the idea of PIL marked the pinnacle of his judicial career, Bhagwati had his low point during the Emergency. He was one of the five judges in the Supreme Court bench that ruled in the ADM Jabalpur (habeas corpus) case in April, 1976. The SC upended the high court ruling in the case and held that the right to life ceased to exist under the Emergency provisions, a ruling that remains a stain on the otherwise stellar record of India’s highest court. Justice H.R. Khanna was the lone dissenter; that act of superior wisdom and integrity cost him the CJI’s post, but history earmarked him as a hero of modern India. In 2011, Bhagwati, now 89, pleaded guilty. He said: “The Supreme Court should be ashamed about the ADM Jabalpur judgment. I plead guilty. I don’t know why I yielded…”. A year earlier, the SC itself had apologised for the 1976 ruling, which, it said, violated the fundamental rights of a large number of people in the country.
The apology, indeed, came late in the day. But Bhagwati was upfront about his complicity in the court’s disgraceful compromise with the establishment. He didn’t shift blame or put it on the system. It was “an act of weakness of my part”, he said.
Here is an excerpt from Fali Nariman’s book ‘Before Memory Fades’ which tells what it meant: During the hearing of ADM Jabalpur in the Supreme Court, the then attorney General of India was specifically asked by Justice HR Khanna – one of the judges on the bench – whether there would be any remedy if a police officer, because of personal enmity and for reasons which had nothing to do with the state, too into detention a law-abiding citizen and even put an end to his life. The answer of the attorney general was unequivocal….”It may shock you conscience, it shocks mine, but consistently with my submissions no proceedings can be taken in a Court of Law on that score during Emergency.
EXACT WORDS OF PN BHAGWATI
“I was wrong. The majority judgment was not the correct judgment. If it was open to me to come to a fresh decision in that case, I would agree with what Justice Khanna did. I am sorry. I don’t know why I yielded to my colleagues. Initially, I was not in favour of the majority view. But ultimately, I don’t know why, I was persuaded to agree with them. I was a novice at that time, a young judge…I was handling this type of litigation for the first time. But it was an act of weakness on my part.”
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