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A research project of such great scope and precision could never have been possible without

great co-operation from all sides. Contributions of various people have resulted in this effort.

Firstly, I would like to thank God for the knowledge he has bestowed upon me.

I would also like to take this opportunity to thank Mr C.M. Jariwala without whose valuable

support and guidance, this project would have been impossible. I would like to thank the

library staff for having put up with my persistent queries and having helped me out with the

voluminous materials needed for this project. I would also like to thank my seniors for having

guided me and culminate this acknowledgement by thanking my friends for having kept the

flame of competition burning, which spurred me on through the days.

And finally my parents who have been a support to me throughout my life and have helped

me , guided me to perform my best in all interests of my life , my grandparents who have

always inculcated the best of their qualities in me.

ÊÊÊ

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àe, by virtue of taking birth in this world as human beings, have been bestowed with some
rights which are natural in sense of their existence. These rights include various right ranging
from right to speak to right to live and in between these two words i.e., speak and live, lies
the whole set of rights which make a person¶s life worth living.

Our Constitution recognizes some rights as fundamental rights which means basic right that
now cannot be taken away even by Parliament.

But in light of darkest period of Indian democracy that we have through during 1975-1977,
the above meaning of fundamental rights seems to be shaking.

These fundamental rights are indispensable in order to protect the dignity of individual, i.e..,
to treat a man no less than a man. But emergency provisions appear to be against this notion
which through the petty politics and the use and abuse of power restricts these rights. The
government becomes the absolute ruler and act according to its whims and fancies.

In this project work I have tried to discuss the various aspects of restriction on fundamental
rights by way of Constitution itself.

The infamous case of ADM Jabalpur v Shivkant Shukla has been discussed in detail in
relation to rights v security debate.

The Former Secretary General of UN Mr Kofi Annan in its report in In Larger Freedom:
Towards Development, Security and Human Rights for All1 said that the -µ«it would be a
mistake to treat human rights as though there were a trade-off to be made between human
rights and goals such a security and development. . . .
Strategies based on the protection of human rights are vital both for our moral standing and
the practical effectiveness of our actions¶

è 

 
 

  


ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ
Ê, p. 140, delivered to the
General Assembly, U.N. Doc. A/59/2005 (21 March 2005). Kent Roach, Must We
Trade Rights For Security?, 27 Cardozo L. Rev. 2151. Ê

Ê
The language of rights dominates political debate around the world. This debate is not so
much concerned with whether citizens have some moral rights against the government, as it
does about the nature of such rights, whether these rights are absolute or may be derogated
from. Fundamental rights are moral rights which have been made legal by the Constitution.
These constitutional rights which are µfundamental¶ in character represent according to
Ronald Dworkin, rights in the µstrong sense¶. They are distinct from ordinary legal and
constitutional rights because they may not be restricted on ground of general utility. The very
essence of these rights is that they are guaranteed even if the majority would be worse off in
doing so. Dworkin argues that fundamental rights are necessary to protect the dignity of an
individual. Invasion of these rights is a very serious matter and it means treating a man as less
than a man. This is grave injustice and it is worth paying the incremental cost in social policy
or efficiency that is necessary to prevent it.
However this does not mean that fundamental rights are absolute. The government may
impose restrictions on three grounds. The government might show that the values protected
by the original right are not really at stake in the marginal case or at stake only in some
attenuated form. Alternatively if it may show that if the right is defined to include the
marginal case, then some competing right, in the strong sense, would be abridged. This is the
principle of competing rights of other members of society as individuals. Making this µrights¶
choice and protecting the more important at the cost of the less important, does not weaken
the notion of rights. Hence the government may limit rights if it believes that a competing
right is more important. The third possibility is if it may show that if the right were so
defined then the cost to society would not be simply incremental but would be of a degree far
beyond the cost paid to grant the original right, a degree great enough to justify whatever
assault on dignity of the individual it may result in.



   m  
The Emergency in India is typically referred to the 18-month period between 1975 and 1977,
when the then President of India Fakhruddin Ali Ahmed, upon advice by the then Prime
Minister Indira Gandhi, declared a state of emergency under Article 352 of the Constitution
of India, effectively making Indira Gandhi, a dictator, suspending elections and civil liberties
in India. It is one of the most shameful periods in the history of independent India during
which the press was censored, people were forced to undergo vasectomies, and power of the
Government was rampantly abused by the members of the Congress Party.

The political unrest to declare the Emergency had stemmed from the case of Ê

ÊÊ

Ê
 
Ê ÊÊÊ

Raj Narain, who had been defeated in parliamentary election by Indira Gandhi, lodged cases
of election fraud and use of state machinery for election purposes against Mrs. Indira Gandhi
in the Allahabad High Court. On June 12, 1975, Justice Jagmohanlal Sinha of the Allahabad
High Court found the Prime Minister guilty on the charge of misuse of government
machinery for her election campaign. The court declared her election null and void and
unseated her from her seat in the Lok Sabha. The court also banned her from contesting any
election for an additional six years. Ironically some serious charges such as bribing voters
and election malpractices were dropped and she was held responsible for misusing the
government machinery, and found guilty on charges such as using the state police to build a
dais, availing the services of a government officer, Yashpal Kapoor, during the elections
before he had resigned from his position, and use of electricity from the state electricity
department. Because the court unseated her on comparatively frivolous charges, while she
was acquitted on more serious charges,Ê
described it as 'firing the Prime Minister for
a traffic ticket'. However, strikes in labor and trade unions, student unions and government
unions swept across the country. Protests led by J.P.Narayan, Raj Narain and Morarji
Desai flooded the streets of Delhi close to the Parliament building and the PM's residence.
The persistent efforts of Raj Narain, was praised worldwide as it took over 4 years for Justice
Jagmohan Lal Sinha to finally pass judgement against Indira Gandhi. The ruling later became
the primary reason for the imposition of emergency by Indira Gandhi. It also encouraged
greater belief in the judiciary and democracy in India.

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The Constitution of India has provided for imposition of emergency caused by war, external
aggression or internal rebellion. This is described as the National Emergency. This type of
emergency can be declared by the President of India if he is satisfied that the situation is
very grave and the security of India or any part thereof is threatened or is likely to be
threatened either (i) by war or external aggression or (ii) by armed rebellion within the
country. The President can issue such a proclamation even on the ground of threat of war
or aggression. According to the 44th Amendment of the Constitution, the President can
declare such an emergency only if the Cabinet recommends in writing to do so

Ê
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The declaration of National Emergency has far-reaching effects both on the rights of
individuals and the autonomy of the states in the following manner :
(i) The most significant effect is that the federal form of the Constitution changes into
unitary. The authority of the Centre increases and the Parliament assumes the power
to make laws for the entire country or any part thereof, even in respect of subjects
mentioned in the State List.
(ii) The President of India can issue directions to the states as to the manner in which
the executive power of the states is to be exercised.
(iii) During this period, the Lok Sabha can extend its tenure by a period of one year at a
time. But the same cannot be extended beyond six months after the proclamation
ceases to operate. The tenure of State Assemblies can also be extended in the same
manner.
(iv) During emergency, the President is empowered to modify the provisions regarding
distribution of revenues between the Union and the States.
(v) The Fundamental Rights under Article 19 about which you have already learnt are
automatically suspended and this suspension continues till the end of the emergency.
But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended
only in case of proclamation on the ground of war or external aggression.

Right to life and liberty (article 21) and protection against double jeopardy , ex post facto
laws and forced testimony against self (article 20) have been protected even during the
emergency. This protection on which was earlier not available has been now provided by the
44th amendment of the Constitution.

Right to life has been considerably extended by the Supreme Court in its various landmark
judgements. These rights now include the right to life with dignity, freedom from torture and
arrest etc. The Supreme Court in the case of   
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4
5
6 
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 interpreted the expression of right to life as the right to live with dignity and all that
goes with it, viz, bare necessaties of life such as food, clothing and shelter over the head. The
state according to the court cannot deprive a person of right to live with basic dignity. hence
torture, cruel and inhuman treatment which trenches on human dignity would not be
permissible under article 21 of the constitution of india. Article 7 of the International
Covenant on Civil and Political Rights is thus woven into Constitutional Jurisprudence of the
Country.





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Central to the idea of rule of law is that government may not arbitrarily deprive
persons of their fundamental rights. This principle has been recognized in national
constitutions and several human rights treaties and declarations. However, these
treaties recognise a µstate of exception¶, to strike a balance between national interests
and rights of individuals.
. The most guidance that the Constitution may provide is to indicate who may act in such a
case10. It however argued by others that there is a need for new constitutional concepts to
protect civil liberties, rescuing the concept of emergency powers from fascist thinkers like
Carl Schmitt, µwho used it as a battering ram against liberal democracy¶. This dichotomy
of views is representative of the debate between rights and security during times of
emergency.
Most of debates on the issue assume a necessary µtrade off¶ between rights and security.
Restrictions on rights on ground of security are not justified 
. This may be because the
trade off is unnecessary where the government may pass effective laws which do not violate
rights or when harsh laws restricting rights will not yield results. However tensions do arise.
If the security strategy genuinely implicates rights, then it may be justified and must be
governed by the principle of proportionality. Proportionality analysis is an uphill task and
involves balancing of the two social goods of liberty and security. It involves analysing if
there exists a rational connection between the aims of the legislation and the means
employed, if there is a less restrictive means available in order to achieve the aim. Thirdly,
comparing the effectiveness of the means with the infringement of rights.

Dworkin argues that if one begins with the assumption that it is fair to treat some people
unfairly during an emergency, for instance by restricting their rights based on suspicion, then
a more discriminating approach is required. The burden must be on the government to prove
that this unfair treatment is necessary and mitigate the unfairness. Government operates under
conditions of high uncertainty during an emergency.
According to Dworkin, the institution of rights takes seriously limits its freedom to
experiment under such conditions. Furthermore, a state of emergency is declared to protect
against forces that subvert democracy. Policies which do not comply with proportionality
standards may prima facie seem more effective but will ultimately be self defeating because
such unbalanced security measures strip governments of their democratic character and only
further the objectives of elements that they are trying to protect the state against. Hence civil
liberties must not be treated as the µluxuries of peace time¶. Restrictions on fundamental
rights must thus be imposed in accordance with the Rule of Law.

â2   
 
    7
 
This principle denies information to a person detained during an emergency on ground of
security is a case in point. The information that the government withholds may have many of
the hallmarks of miscarriage of justice, including improper procedures for eyewitness
identification, unreliable statements from in-custody informants, and confessions made after
the application of extreme interrogation techniques.

In Canada the system was justified by the court of appeal in ‘


Ê on grounds that
the government¶s lawyer had a duty to present all the evidence in closed ex parte proceedings
and the presiding judge had special expertise in challenging the government¶s case24.
Furthermore the person accused may also make a claim to the court and challenge the
detention.
However it is argued that this does not represent an effective adversarial challenge as
the arguments of the person accused may not be precise as he has no access to the
information that the government claims may not be disclosed. Britain has a less drastic
system. Legislation was enacted to allow the immigration board to appoint security cleared
special advocates who may challenge the government¶s claim to national security
confidentiality and represent the interests of the person in closed hearing. These special
advocates may communicate with the accused after having received the classified
information. The court of appeal in uÊtook note of the British system of special
advocates, but held that the desirability of such a reform was a matter for Parliament. The
Canadian system thus uses a harsh technique in the presence of a less drastic one, thereby
violates the proportionality principle.

ÊÊ

Ê
ÊÊ Õ 
 8

Another instance is one that arises in the state of emergency that may arise out of a terrorist
attack. The civil liberties climate has been disturbed greatly by counter-terrorism policies
passed by countries, most after 9/11. In the cases of ? Êvs. 

 
 Êvs.
   and 
 Êvs. !
", the United States government detained the accused on grounds
of being an enemy combatant, denying procedural due process to them. The majority of the
court in the first case required that a citizen detained as an enemy combatant is given notice
of the factual basis for such detention and be entitled to rebut the government¶s factual
assertion before a neutral decision-maker. To alleviate the burden on the government while
the executive is engaged in active military operations, the plurality specified that hearsay
evidence is acceptable, and that once the government made out a prima facie case for
detention, it would be appropriate to grant the government¶s evidence a presumption of
validity. The burden of persuasion would then shift to the detainee to rebut that presumption
and to demonstrate that he or she does not fall within the relevant criteria. This burden
shifting procedure would ensure that µthe errant tourist, embedded journalist, or local aid
worker has a chance to prove military error¶.
It is however submitted that the court in this case reduced the #
Ê
right to a
mere formality, as it is difficult for the persons detained who are denied the rights of
the ordinary criminal procedure to meet this burden of proof.

ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ
2
542 US 507 (2004).
3
542 US 426 (2004).
4
542 US 466 (2004).Ê
 

   
In V  

 5

The House of Lords held that in an emergency legislation there was no scope for judicial
review. The court had no jurisdiction to enquire into the reasonableness of an emergency
power which was conferred by Parliament upon a minister who was responsible to it. But th
court had power whenever there was an allegation of malafides, to find out if acted in good
faith. Lord Atkin in his dissenting opinion in the case expressed the view that the law of
interpretation of statutes does not differ in time of war.

In India the question of justiciability of proclamation of emergency has been agitated before
the Supreme Court in a number of cases. The issue has been further complicated by
intervening amendments of the Constitution. It remains yet to be finally settled in India. The
Supreme Court in the case of 4
+ ) 
9
%  
% 6 held that when
proclamation of emergency was subsequently followed by an order under article 359(1), it
totally barred the jurisdiction of the courts. So an order depriving a person of fundamental
rights even on the grounds of malafides cannot be challenged. In the case of the State of
Rajasthan v Union of India7 the majority opinion was that the proclamation of emergency
under article 356, though based on the subjective satisfaction of the executive , can be
challenged on the grounds that the proclamation was made on a consideration which is
irrelevant to the purpose for which power has been granted in the article 356 that is to break
down the constitutional machinery of the State.

m  $ 
Under conditions of normalcy, part III serves as an important limitation on the power of the
state. However during emergency in order to equip the state to deal with the situation, it is
necessary to impose restrictions imposed on state power by part III to a limited extent. India
has experienced three emergencies in 1962, 1971 and 1975 on grounds of the Chinese
invasion, conflict with Pakistan and on account of internal disturbance respectively.
ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ


Ê(1942) AC 206

6
1976 SC 1207

ÊAIR 1977 SC 136Ê
 # uu  %   .

The most controversial use of emergency power in the history of India has been between
1975 and 1977. The experience of this state of emergency exposed starkly the weaknesses
and inadequacies of safeguards on use of crisis power by the government. Though restrictions
were imposed on various rights in this period, the most serious infringement was of personal
liberty, which is the focus below.

The President issued orders under the Constitution of India, art. 359(1) suspending the right
of any person to move any court for enforcement of fundamental rights under arts. 14, 21 and
22 and 19 for the duration of the emergency. Following this declaration hundreds of persons
were arrested and detained all over the country under the swoop of the 4  


 
% 
:
[0,[;
Various persons detained under Maintenance of Internal Security Act, 1971, s. 3(1)
filed petitions in different high courts for the issue of the writ of habeas corpus. The high
courts broadly took the view that the detention may be challenged on the grounds of ultra
vires, rejecting the preliminary objection of the government. Aggrieved by this the
government filed appeals, some under certificates granted by high courts and some under
special leave granted by the Supreme Court. Despite every high court ruling in favor of the
detenus the Supreme Court ruled in favour the government (4:1), in effect accepting the
contention of the Attorney General, Niren De, who contended, µeven if life was taken away
illegally, courts are helpless¶. The majority of the court held that in times of emergency, the
liberty and security of the individual must give way to the interests of the state, as liberty is a
µgift of the law¶ (per Ray, J.) and is not absolute. They observed that decisions on what
restraints must be put on persons during an emergency are a matter of policy which lies
outside the sphere of judicial determination.

The court thus excluded judicial balancing, thereby paying no heed to the principle
of proportionality. The rationale of the court was flawed. It reasoned that since the validity of
the declaration of emergency may not and has never been challenged by virtue of art. 352(5)
therefore the restrictions that are imposed under such an emergency also may not be

ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ

 $ % Ê&# Êvs. 
Ê  , AIR 1976 SC 1207.Ê
challenged. Khanna, J. registered his dissent saying that judicial review of is not ant-ethical to
the power of the state to detain a person under preventive detention as the court would simply
determine the legality of such detention.
The majority held that art. 21 was the sole repository of fundamental rights. Ray, J. held that
fundamental rights in our Constitution are interpreted to be what is commonly said to be
natural rights. The purpose of declaring some rights to be fundamental was to exclude other
sources and hence art. 21 has no source in natural or common law. The writ of habeas corpus
lies only against legally enforceable rights.

àhat the court except for Khanna, J. failed to realise is that the right to personal to
life and liberty are human rights and is not a µgift of the Constitution¶. International Covenant
on Civil and Political Rights (ICCPR), art. 4 recognises the right to life and personal liberty
to be a non- derogable right even during times of emergency.The majority defended its
position by stating that Part XVIII is the rule of law during an emergency. There may not be a
pre or post constitutional rule of law which nullifies the constitutional provisions during the
time of emergency. There is no violation of separation of powers by placing preventive
detention exclusively within the control of the executive. Rule of law after the Constitution
ceased to exist in the realm of unwritten law but existed only in the form of specific
provisions.

It is humbly submitted that the court erred in its understanding as the rule of law
exists independent of its recognition in the Constitution. Furthermore rule of law is
antithetical to arbitrariness. Hence any law which gives sweeping powers to the executive
may not be termed as µrule of law¶. The court also held that executive orders which are not
made under
Maintenance of Internal Security Act, 1971 would not rob the µprotective umbrella¶ (per Ray,
C.J.) of art. 359. àhat the Presidential Order affected was the locus standi of the person
detained, hence even if he contended that the executive action was 
Ê
, it would be
futile.

The Court on this point distinguished 4  

%  0 on two grounds. Ê
'

, that the reference to this aspect in the case was part of the orbiter.

ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ

%Ê Ê
Ê

ÊÊ#, AIR 1964 SC 381Ê
  , that the order of 1962 in %Ê Êwas a conditional unlike in the present
case. However it was correctly decided by Khanna, J. that the right to life in art. 21 includes
both procedural (law must prescribe the procedure to deprive a person of his liberty) and
substantive (that power must be conferred by law upon such authority to deprive a person of
his liberty) aspects. Suspension of the right to move any court impinges upon the procedural
requirement alone. It may not affect the substantive requirement, which is a cardinal principle
of the rule of law.

A challenge on other grounds was also precluded by virtue of s. 16A (9) of

Maintenance of Internal Security Act, 1971, which made information regarding the grounds
of detention, confidential matter. The majority refused to even read down this section on
grounds that it affected the powers of the high court under ;
*. The result of this
provision was that it created a presumption of correctness of an order under s. 3. The court
must presume that executive authorities are acting in conformity with both the spirit and the
substance of law. Asking executive authorities to show the strict legality would nullify the
effect of suspension of enforceability of the right of personal liberty making the Presidential
Order ineffective.
The Supreme Court in this case seems to have taken an idealist position, placing too much
reliance on the #Ê Êintentions of the executive. The courts seems to willingly ignore the
potential abuse of such unfettered powers with the executive. The series of custodial deaths
and human rights violations that came to light following the emergency is indicative of the
misplaced trust of the court.

The court said that there were still some remedies open to the detenu. On the
expiration of the emergency, the illegality of suspension may be challenged. The Presidential
Order does not have the effect of making the unlawful actions of the executive lawful; it
merely suspends the right of a person to move any court for redress during the time of
emergency. Furthermore the absence of judicial review, was in the view of the court
adequately substituted by s. 16A (4) which entrusts this task to the government. In case of
mistaken identity or malicious reposts means of redress are still open to a detenu by
approaching executive authorities.

It is difficult to comprehend how the Apex Court may have been so naïve to believe
that the executive will be the judge in its own cause, by allowing review powers to it.
Allowing for a challenge of illegality post the emergency implies that during that period, an
innocent person is left to languish in jail. The most glaring anomaly of the decision according
to Seervai is that though the 3 out of the 4 majority judges held that a detenu may maintain a
habeas corpus petition if the preventive detention was ex facie bad, the final order disallowed
a challenge of illegality. Interestingly Beg, J. admitted this error on the part of the court in the
habeas corpus case in (Ê Ê) . The holding of the court is outrageous and it seems that
the court has tailored its justifications to suit the pre-decided holding. One wonders if such
unquestioning faith is the executive on the part of judges like Bhagwati, Chandrachud, Beg
and Ray, JJ. is justified on grounds of emergency. Khanna, J. paid the price for his views. He
was superseded and J. Beg went on to become the Chief Justice followed by J. Chandrachud.
Such is the scheme of politics and justice.

Thus in this case rights were sacrificed at the altar of state power on the pretext of
national interest. In contrast to %Ê Êwere the court had taken a relatively more
balanced view by allowing detenus to challenge detention on alternate grounds of  Ê ,
excessive delegation etc. This imbalance was corrected by the Janata government by means
of the 44th Amendment which made changes to the emergency provisions, intending to
safeguard them against future abuse. art. 359(1) disallowed suspension of arts. 20 and 21
even during an emergency. Also art. 358(1) was amended whereby the automatic suspension
of the freedoms under art. 19 was restricted to threat to national security arising from war or
external aggression alone and not armed rebellion50. Constitution of India, art. 358(2) now
required that the law which the government sought to protect under art. 358(2) now protected
persons from ultra vires executive action. The amendment also made some changes in the
preventive detention measure in Constitution51. The increased awareness of the vulnerability
of civil liberties which followed the 1975 emergency led the +  

to accede to
the ICCPR in 1979. Art. 4 of the covenant requires derogatory measures to be proportionate
to the threat posed and that such measures do not affect non derogable human right
guarantees of the covenant.
m

  
  
ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ Article 4 of the
   
# 

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3[0** lays
down, ³In times of Public emergency which threatens the life of the nation and the existence
of which is officially proclaimed, the state parties to the present covenant may take measures
derogating from their obligation under the present covenant to the extent strictly required by
the exigencies of the situation, provided such measures are not inconsistent with their other
obligation under the International Law and do not involve discrimination solely on the
grounds of race, color, sex, language , religion and social origin.´

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( :
[0$1 made only four such rights
nonsuspendable. The International Covenant on Civil and Political Rights raised the number
to seven, namely

(1) Right to Life .i.e., article 5

(2) Prohibition of Torture .i.e., article 7
(3) prohibition of Slavery or servitude,
(4) prohibition of imprisonment for breach of contractual obligations .i.e., article 11
(5) prohibition of retroactive criminal law .i.e., article 15
(6) Freedom of thought, conscience and religion .i.e., article 18
(7) Recognition as a person before the law (article 16). The fact that these non-derogable
rights cannot be suspended even in times of public emergency for the asserted
objective of safeguarding the life of nation is of great significance.

Moreover the American Convention on Human Rights 1969 has increased the number to
Eleven and includes:

(8) Rights of the Family ( ACHR article 17)

(9) Rights of the Child (ACHR article 19)
(10) Rights to nationality (ACHR article 20)
(11) Rights to participate in the government.

The minimum standards of human right norms in a state of exception formulated by the
human rights committee of the
   
V 
  


  
4  

%   list 16 non suspendable rights. The category of non suspendable rights stems from
the concept that some rights are inalienable so that they could not be taken away even when
the existence of the state is at stake.
There are certain basic requirements that State of Emergency must meet in order to avoid
adoption of measures that will have a negative impact on human rights. '

   

V 
   has highlighted some democratic control parameters of an emergency
situation
a) First, The state of Emergency must be Officially proclaimed. This implies that people
must be informed that State of emergency has been proclaimed and must also be made
aware of the types of limitations that have been imposed on their rights. This
obligation of officially declaring a State of emergency including obligation to fully
inform the citizens is designed to avoid de facto State of Emergency.
b) The second condition is the principle of legality. This principle demands that the State
of emergency be declared and applied according to national and international rules
that regulate it. It means that State of emergency should be applied, according to
Constitutional Law and Jurisprudence of the Country as well as the treaties and
covenants that protect human rights. It is also necessary that the crisis should be so
grave as to pose a genuine threat to the structure and life of a society.
c) Next comes the principle of temporality. It means that there should be specific time
limit regarding the duration of the emergency. àithout this rule, the State of
Emergency will continue indefinitely and limitation on people¶s human rights will
acquire a permanent character. There are instances of perpetuation of the State of
Emergency. This kind of violation could be noticed in Latin America during 1970-
1980. The most illustrative is the example of Paraguay which was under a state of
emergency without interruption from 1954 till 1988.
i Then there is a principle of proportionality which establishes that a relationship must
exist between gravity of crisis and the type of measures adopted to resolve it.
Restrictions on people¶s rights must be proportionate to the circumstance of the
situation. àithout this principle, there will be excesses on part of authorities. Ê

Ê
m

 u    
  

In the Case of (

   the House of Lords referred to the principle  
Ê 

Ê
Ê * ( safety of the people is the Supreme Law) . This is the state necessity which
implies that an act would be otherwise illegal becomes legal, if it is done bona fide under the
stress of necessity.

In Ireland in the V 

 , the European Court of Human Rights observed that
emergency cannot be declared if an armed insurrection or disturbance is confined in a local
area and has not spread over the rest of the country.
u  

àe see that how the Indira Gandhi government has misused the power and declared
Emergency t remain intact at her seat. The case of ADM Jabalpur was highly critised even by
the judges who has delivered the judgment. But that was the time when constitutional
amendment 44th was not there and the Courts felt helpless. But due to various international
commitments and the power of judicial review the basic rights are protected and the courts
try to look in to the legality of emergency and the rights derogated in proportion to the
necessity of the Country.