Impact_of_national_emergency_on_fundamen

Comparative Constitutional Law

“IMPACT OF NATIONAL EMERGENCY ON FUNDAMENTAL RIGHTS IN INDIA.”

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INDEX 1.SECTION–I

:

INTRODUCTION…………………………………………………………………..03 1.1. Nature of study…………………………………………………………………..04 1.2. Scope…………………………………………………………………………….04 1.3. Importance and Significance…………………………………………………….04 1.4. Objectives………………………………………………………………………..04 1.5. Research Questions……………………………………………………………...04 1.6. Sectionization…………………………………………………………………...05 2. SECTION – II : SUSPENSION OF FUNDAMENTAL RIGHTS DURING EMERGENCY..............06 2.1. Background….…………………………………………..06 2.2 Proclamation of Emergency………………………………………06 2.3 Statutory Amendments ……………………………………07 SECTION – III : JUDICIAL RESPONSE TO EMERGENCY………………………………08 SECTION - IV : 44th AMENDMENT ACT AND ITS RELEVANCE TO NATIONAL EMERGENCY……..11 4.1 Emergency Provisions Before 44th Amendment ………….11 4.2. Shah Commission of Enquiry ………………………………………14

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CONCLUSION……………………………………………………………………...15 BIBLIOGRAPHY………………………………………………………………....16

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INTRODUCTION A 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 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 three types of emergencies: 

National emergency

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State emergency



Financial emergency

“Proclamation of Emergency” means Proclamation issued under clause (1) of Article 352. Accordingly, wherever the expression “Proclamation of emergency” occurs, it should not include the two other emergencies, namely, the emergency arising out of the failure of the constitutional machinery in a state or the financial emergency. Proclamations of Emergency under Article 352 have been issued thrice- In October, 1962 during Chinese aggression which was revoked in January 1968, December 1971 in connection with external aggression from Pakistan and while this was in operation another in June 1975 on ground of internal disturbances both of which were revoked in March 1977. While the provisions on the breakdown of the constitutional machinery in the states have been invoked over a hundred times, the provisions on financial emergency have never been invoked so far. (Shukla 2008) 1.1.NATURE OF STUDY The nature of my study is a Doctrinal type of research study. Researcher here tries to formulate his research conclusion and merits of his study by applying the Doctrinal type of research methodology for which the researcher has referred the various books, articles, journals and Constituent Assembly Page | 4

Comparative Constitutional Law

Debates of the law scholars and the philosophers and various advocates which are available in the law library and the various websites on the internet as the nature of the topic is such that it requires the analysis of the various books, journals and articles which is the general and main aspect of the doctrinal type research methodology and is most important method for this research. 1.2. SCOPE The researcher has covered the scope of this research to constitutional provisions related to Emergency before and after the 44th Amendment Act, 1978 and various cases in respect of suppression of fundamental rights during emergency. This study will also briefly discuss the events surrounding the National Emergency between 1975-77. 1.3. IMPORTANCE AND SIGNIFICANCE A 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 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. 1.4. OBJECTIVES The aim and objective of this study will be to critically analyze Emergency provisions in Indian constitution, how they affect the fundamental rights of the citizens, judicial views and legislative response to the same. The aims and objectives of the study include the Following: i.

To study the provisions relating to Emergency in Indian Constitution.

ii.

To analyze how the proclamation of Emergency affects Fundamental Rights of the Citizens.

iii.

To analyze judicial response to the Emergency.

iv.

To study legislative response to the Emergency. Page | 5

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1.5. RESEARCH QUESTIONS a) What are the impacts of emergency on Fundamental rights in India? b) What are the judicial and legislative responses to National Emergency?

1.6. SECTIONISATION SECTION 1 – General Introduction: This section outlines the contents of this research work. It includes an introduction and background of the research topic. In discusses aims and objectives of the research, scope of the study and hypothesis. Further it also covers the literature review which consists of the survey of the existing books which have been referred. Lastly it contains the Research Methodology used in the conducting the research and lists down the primary and secondary sources applied for the same. SECTION 2 – Suppression of Fundamental Rights During Emergency This section covers the background events which led to imposition of National Emergency in 1975, the Proclamation of Emergency by the President, various amendments made by the government for suppression of fundamental rights of the citizens. SECTION 3 – Judicial Response to Emergency This section covers response of Indian courts to the emergency and fundamental rights of the citizens during the emergency. Researcher has studied how court has interpreted preventive detention in various cases with special focus ADM Jabalpur v. Shivkant Shukla i.e. Habeas Corpus case. SECTION 4 – Legislative Response to Emergency This section studies the emergency provisions under the Indian constitution before the National Emergency of 1975-77. Then the researcher has analyzed 44th Constitutional Amendment Act and how court has interpreted the changes made in Emergency Provisions through this Amendment. SECTION 5 – Conclusion The concluding section outlines role of judiciary in protection of fundamental rights of the citizens and importance of constitutionalism and rule of law for the survival of democracy in India. Page | 6

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SUPPRESSION OF FUNDAMENTAL RIGHTS DURING EMERGENCY Background: Smt. Indira Gandhi was declared elected to Lok Sabha in 1971 against Shri Rajnarain and other contestants to the election Shri Raj Narain then filed a petition in the High Court of Allahabad challenging the election of Smt. Indira Gandhi on a number of grounds. The High Court of Allahabad pronounced its judgment. Shri J. M. L. Sinha of Allahabad High Court ordered: “In view of findings, this petition is allowed and the election of Smt. Indira Nehru Gandhi to the Lok Sabha is declared void. Accordingly, the respondent stands disqualified for a period of six years from the date of this order.” Proclamation of Emergency: Thereafter, The President Fakhruddin Ali Ahmed proclaimed an emergency under Article 352(1) of the Constitution on the advice of Prime Minister Indira Gandhi. Later, he issued a proclamation suspending the right to approach the courts for the enforcement of the fundamental rights guaranteed under Articles 14, 21 and 22. The imposition of emergency was necessitated, according to Mrs. Gandhi, because of the turmoil and incipient rebellion in the country. Besides the maintenance of order justification, the government pointed to the imperatives of saving democracy, protecting the social revolution and preserving national integrity - all of which together compelled the resort to such a drastic step. On the contrary, for the critics, the emergency was nothing short of a scandal on the Constitution, and smacked of Mrs. Gandhi's dictatorial ambitions. The justifications notwithstanding, some of its tangible consequences on the ground were the following: detention of nearly 1,11,000 persons, a significant number of whom belonged to the opposition, under the Maintenance of Internal Security Act, 1971 and the Defense of India Act/ Rules, 1961; infliction of torture on many of these detenues ; press censorship and curbs on the freedom of speech and expression; demolition of shanty towns in and around Delhi; and the Page | 7

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subjection of rural and urban poor, and the lower middle class in North India to forced sterilization programs. Fortunately for those who suffered, the emergency was revoked and normalcy restored in eighteen months and for the first time in the history of independent India, a non-Congress government came to power at the centre after the Parliamentary elections in 1977. While the National Emergency of 1975 was in operation, the government made following attempts to suppress Fundamental Rights through various statutory provisions they are;(Shah Commission,1977) a. The Defense of India (Amendment) Act, 1975. b. The Maintenance of Internal Security (Amendment) Act, 1975. c. The Constitution (Thirty-eighth Amendment) Act, 1975. d. The Constitution (Thirty-ninth Amendment) Act, 1975. e. The Press Council (Repeal) Act, 1976. f. The Prevention of Publication of Objectionable Matter act, 1976. g. Parliamentary Proceedings (Protection of Publication) Repeal Act, 1976. h. The Constitution (Forty Second Amendment) Act, 1976.

JUDICIAL RESPONSE Page | 8

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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. Under the circumstances, the courts considered the effect of proclamation of emergency in a number of cases: (1) On Preventive Detention, (2) On the effect of the “suspension” of Article 19 following on a proclamation of emergency and (3) on the effect of the President’sOrder under Article 359. In Mohan Chowdhary v. Chief Commr. Tripura (1946) the Defense of India Ordinance and the rules made there under were challenged. On a preliminary objection being taken that in view of the President’s 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 President’s Order had not suspended that rights, 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 suspended in accordance with the provisions of the Constitution. Article 359 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 President’s 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 President’s Order, the petitioner’s right to move this court, but not this court’s 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. Page | 9

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In Ram Manohar Lohia v. State of Bihar (1966) it was held unanimously that the President’s Order suspended the enforcement of a person’s 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 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 (1966) “…in this context…a mala fide exercise of power does not necessarily imply any moral 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.” ADM Jabalpur vs. Shivkant Shukla (1976), famously known as the Habeas Corpus Case, The appeals decide by the Supreme Court in the Habeas Corpus case 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 President’s 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 Page | 10

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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.” 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 Court’s order. 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 section 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.

44th AMENDMENT ACT AND ITS RELEVANCE TO NATIONAL EMERGENCY Emergency provisions under Indian Constitution prior to passing of 44 th Amendment Act: Page | 11

Comparative Constitutional Law

Part XVIII of the Indian Constitution deals with the Emergency provisions. The relevant provisions prior to passing of 44th Amendment Act are as following: Article 352: Proclamation of Emergency. (1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or internal disturbance, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation. Article 353: Effect of Proclamation of Emergency. While a Proclamation of Emergency is in operation, then (a) Notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised; (b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List; Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, (i) the executive power of the Union to give directions under clause (a), and (ii) the power of Parliament to make laws under clause (b), shall also extend to any State other than a State in which or in any part of which the Proclamation of Emergency is in operation if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation. Article 358: Suspension of provisions of Article 19 during emergencies. Page | 12

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(1) While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect: Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies. (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order (1A) While an order made under clause ( 1 ) mentioning any of the rights conferred by Part III is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions containing in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article Page | 13

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in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation (2) An order made as aforesaid may extend to the whole or any part of the territory of India: Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary (3) Every order made under clause (1) shall, as soon may be after it is made, be laid before each House of Parliament Justice Khanna dissenting in ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), ended his judgment with this note: “A dissent in a Court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possible correct the error into which the dissenting Judge believes the court to have been betrayed." On 18th January 1977, 19 months after Emergency was declared, Indira Gandhi announced dissolution of Parliament, called fresh elections and released all political prisoners. The emergency officially ended on 23rd March 1977. Recent experience had shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution were capable of being taken away by a transient majority. It was, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they were to live.13 Thus, newly formed Janata Party government appointed the Shah Commission on 28th May 1977 under Section 3 of the Commissions of Inquiry Act, 1952 to inquire into all the excesses committed Page | 14

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during Indian Emergency (1975-77). It was headed by Justice J.C.Shah, a former Chief Justice of India. The commission published its report on the illegal events during the emergency and the persons responsible in three volumes totaling 525 pages. The first interim report was submitted on 11 March 1978, dealing with the lead-up to the declaration of the Emergency and the way in which the press was prevented from speaking out. The second interim report discussed police actions and the role of Sanjay Gandhi at the Turkman Gate incident in which police fired on a crowd of people protesting against demolition of their houses. The final report was issued on 6 August 1978 and covered prison conditions, torture and family planning atrocities. In May 1978, after the second interim report of the commission had been issued, some leaders of the Janata party began demanding that special courts be set up to ensure speedy trial of cases related to the emergency. Parliament eventually passed an act establishing two special courts on 8 May 1979. However, it was too late. The government fell on 16 July 1979. After Indira Gandhi returned to power in January 1980 the Supreme Court found that the special courts were not legally constituted, so no trials were conducted. Article 352 has been amended in several respects by the Forty-Fourth Amendment Act so as to minimize the chances of abuse of power to declare Emergency.

CONCLUSION The history of the 1975 Emergency and its aftermath has taught us the lesson: that if need be, the peace loving masses in India will rise from their slumber to exercise their political sovereignty, to take back from their representatives their solemn trust. Page | 15

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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. It extended its jurisdiction and acquired immense power of administration, becoming the most powerful judiciary in the world. It extended the meaning of 'State', prescribed limits to executive discretion, and redefined the scope of judicial interference, which was in fact unbounded and limitless. The Court and Executive shared the glory of this brief but significant period in the history of the country. These were the Court's finest years. There has been vacillation between hope and disappointment, but ultimately hope has survived; the Court is indeed the forum for legitimizing the establishment as well as the dissent. There is a general feeling that whatever the failures and disappointments, the Court has inspired an antiestablishment force to seek its intervention in 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. (NUJS 2013) The judiciary plays 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 judiciary is reinvigorated by these experiences and more fortified for an ever more audacious protection of human rights.

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REFERENCE LIST 

ADM Jabalpur vs. Shivkant Shukla (76) A.SC Pg 1325).

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Attorney General v. Amratlal Prajivandas (1994) 5 SCC 54 : AIR 1994 SC 2179).

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Austin, G. 2003. Working a democratic constitution. Delhi: Oxford University Press. Page | 17

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

Basu, D 2013. Introduction to the Constitution of India. Gurgaon: Lexis Nexis Butterworths Wadhwa Nagpur.

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Ghulam Sarwar v. Union of India (1967) 2 S.C.R. 271).

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Jaichand Lal v. State of West Bengal (A.SC. 483, 485).

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Jstor.org, (n.d.). JSTOR. [online] Available at: http://jstor.org [Accessed 1 Mar. 2016].

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Makhan Singh v. State of Punjab (1964) 4 S.C.R. 797).

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Mohan Chowdhary v. Chief Commr. Tripura (1964) 3 S.C.R. 442).

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Mohd Yaqub v. State of J&K (1968) (AIR 1968 SC 765).

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Parliamentofindia.nic.in, (2016). Avlailable at : http://parliamentofindia.nic.in/ls/debates/vol11p11.htm [Accessed 1 Mar. 2016].

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Ram Manohar Lohia v. State of Bihar (1966) 1 S.C.R. 709).

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Seervai, H. 1991. Constitutional law of India. Bombay: N.M. Tripathi.

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Shukla, V. 2008. Constitution of India. Lucknow: Eastern Book Co.

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