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

SECTION – V :
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CONCLUSION……………………………………………………………………...15

BIBLIOGRAPHY………………………………………………………………....16

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 Comparative Constitutional Law

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
 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been issued thrice- In October, 1962 during Chinese aggression which was revoked in January 1968,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
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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.

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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.
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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
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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

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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.

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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

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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:

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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.

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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
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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
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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.
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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 anti-
establishment 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).

 Attorney General v. Amratlal Prajivandas (1994) 5 SCC 54 : AIR 1994 SC 2179).
 Austin, G. 2003. Working a democratic constitution. Delhi: Oxford University Press.

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 Basu, D 2013. Introduction to the Constitution of India. Gurgaon: Lexis Nexis Butterworths
Wadhwa Nagpur.
 Ghulam Sarwar v. Union of India (1967) 2 S.C.R. 271).
 Jaichand Lal v. State of West Bengal (A.SC. 483, 485).
 Jstor.org, (n.d.). JSTOR. [online] Available at: http://jstor.org [Accessed 1 Mar. 2016].
 Makhan Singh v. State of Punjab (1964) 4 S.C.R. 797).
 Mohan Chowdhary v. Chief Commr. Tripura (1964) 3 S.C.R. 442).
 Mohd Yaqub v. State of J&K (1968) (AIR 1968 SC 765).
 Parliamentofindia.nic.in, (2016). Avlailable at :
http://parliamentofindia.nic.in/ls/debates/vol11p11.htm [Accessed 1 Mar. 2016].
 Ram Manohar Lohia v. State of Bihar (1966) 1 S.C.R. 709).
 Seervai, H. 1991. Constitutional law of India. Bombay: N.M. Tripathi.
 Shukla, V. 2008. Constitution of India. Lucknow: Eastern Book Co.

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