DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A. P., INDIA

PROJECT TITLE:

EMERGENCY PROVISIONS OF THE CONSTITUTION OF INDIA

SUBJECT:

CONSTITUTIONAL LAW

NAME OF THE FACULTY:

A. NAGESWARA RAO, LLM.

NAME OF THE CANDIDATE:

D. SUMANTH

ROLL NO: 18LLB120

SEMESTER:4

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ACKNOWLEDGEMENT

I would sincerely like to put forward my heartfelt appreciation to our respected faculty of
Constitutional law A. Nageswara Rao for giving me a golden opportunity to take up this
project regarding Emergency Provisions Of The Constitution Of India. I have tried my
best to collect information about the project in various possible ways to depict clear picture
about the given project topic.

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CERTIFICATE OF DECLARATION

I hereby declare that this pr0ject titled Emergency Provisions Of The Constitution Of
India undertaken by me is an 0riginal w0rk has duly ackn0wledged all the s0urces and
relevant inf0rmati0n. This pr0ject is free fr0m any kind 0f plagiarism.

Date:

Place: Visakhapatnam

Signature of the Researcher Signature of the Faculty

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 TABLE OF CONTENTS

1. INTRODUCTION…………………………………………………………..5
2. HISTORICAL BACKGROUND…………………………………………..6
3. TYPES OF EMERGENCY PROVISIONS……………………………….6
3.1. National Emergency
3.2. State Emergency
3.3. Financial Emergency
4. NATIONAL EMERGENCY……………………………………………….7
4.1. Proclamation Of Emergency
4.2. Judicial Review Of Proclamation
4.3. Consequences Of A Proclamation Of National Emergency
4.4. Invocation of National Emergency
5. STATE EMERGENCY……………………………………………………...10
5.1. Proclamation Of Emergency
5.2. Consequences Of A Proclamation Of State Emergency
5.3. Invocation of National Emergency
6. FINANCIAL EMERGENCY………………………………………………..13
6.1. Duration Of Emergency Proclamation
7. RAJ NARAIN v. STATE OF U.P……………………………………………15
8. ADM JABALPUR v. SHIVKANTH SHUKLA……………………………..20
9. CONCLUSION………………………………………………………………..27
10. BIBLIOGRAPHY…………………………………………………………….28

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INTRODUCTION

Democracy is at the heart of governance in India. However, in its working, democracy has
revealed several inadequacies. The chain of accountability from the civil service to legislature
and political authority is weak; follow-through at higher levels of administration is poor; and
limited oversight by Parliamentary committees is part of the problem. Good governance is
accordingly associated with accountable political leadership, enlightened policy-making and
a civil service imbued with a professional ethos.

The presence of a strong civil society including a free press and independent judiciary are
pre-conditions for good governance. Emergency is a very serious matter as it disturbs the
normal fabric of the constitution and adversely affects the rights of the people. Such a
proclamation should, therefore, be issued only in exceptional circumstances and not merely to
keep an unpopular government from office. Being a democratic nation emergency provision
in India has been subject to a lot of debate and discussion as the ultimate control goes to one
single authority that is the centre.

Emergency under the constitution means a situation which is not normal a situation which
calls for urgent remedial action1 . It is mandatory for the government to be prepared with all
required measures to safeguard its people from any kinds of crisis. Hence, the Government
has been conferred powers to be prepared for any such situations before it arrives. India being
a democratic nation, when reaches to such severe crisis situations cannot deal with them in its
normal process since it needs immediate action and therefore the president is given the
authority to proclaim emergency after he is satisfied after discussion and advice with the
council of ministers that it is the need of the hour. But that is the time when the president is
the only controlling authority and being a democratic state, it creates the assumption of
extraordinary powers in the hands of the president will be in derogation of the civil and
political rights normally ensured to the citizens by the democratic situations. That is the
reason why it is a topic of debate and discussion. Whenever there is a threat to the nation or
any part of the territory OR there is a failure of the constitutional machinery OR the financial
credibility of India is threatened, then as per the satisfaction of the President of India
emergency can be declared in India. There are different procedures via which the emergency
is declared in the nation. These procedures are discussed further in the paper.

HISTORICAL BACKGROUND2
1
Rameshwar Prasad v. Union of India (2006)2SCCI: AIR 2006 SC980
2
SSRN/emergency provision of India

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The conditions, which were at that time of framing the Constitution, played an important role
for that the provisions of emergency were included. The framers of the Constitution
compelled to think about such provisions after facing many incidents after and before of
independence period. The disruptive forces of caste’s, regionalism, and communalism created
cacophony and disturbed the peace and harmony of the country . The communal riots were
happening between Hindus and Muslims which were disintegrating dangers for the
establishment and maintenance of democracy in India. Kashmir problem came up with the
lapse of the Crown at the time of making of our Constitution. Danger from Pakistan was
coming up. There was the recalcitrant attitude of some of the Native States (Junagarh and
Hyderabad) towards joining the Indian Union. It was a biggest challenge for the government
of India at that time because the government could not permit such separatist conduct
Military action in Junagarh and Hyderabad was necessary as a matter of geographical
compulsion. This all motivated to need of Art. 352 .3

The early years of independence witnessed a spurt in the communist activities among the
workers and peasants in Telangana. The revolution of the communists was a probable danger
to the harmony and democratic order of the country. This led to the inclusion of stringent
emergency provisions in the Constitution. Government of a province. Thus, the Constitution-
makers were worried of the regular and successful functioning of the State governments. So
they included Art. 356 to take care of the breakdown of Constitutional machinery in a State.

There was also marked decline in the economic condition of the country due to the
circumstances created by fall in foreign exchange reserves and partition. Dr. Ambedkar
wanted to avoid all legal difficulties and thus came Art. 360 of the Constitution.

TYPES OF EMERGENCIES UNDER THE INDIAN CONSTITUTION4 :

To protect the active order in the nation, Constitution provides the laws for emergency action.
The unusual circumstances are to be dealt with by the provisions contained in Part XVIII of
the Indian Constitution. These situations can be broadly classified under three head, which
are given below :

1. National Emergency- Emergency due to war, external aggression or internal

disturbance ( Art. 352 )
3
Ibid
4
Jain M.P., Indian Constitutional Law, 700 (8th Edition, 2018), Lexis Nexis, New Delhi

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 2. State Emergency- Emergency in case of failure of Constitutional machinery in States
( Art. 356 )
3. Financial Emergency- Emergency due to financial crisis (Art. 360).

NATIONAL EMERGENCY (Art. 352)

PROCLAMATION OF EMERGENCY:

“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 armed
rebellion, 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. ”5

A proclamation of emergency under Article 352(1) may be made before the actual occurrence
of war, external aggression or armed rebellion 6 . Moreover, the forty fourth amendment
introduced another innovation where a notice in writing, signed by not less than 1/10th of the
total members of the Lok Sabha has been given of their intention to move a resolution
disapproving the proclamation of emergency, to the speaker if the house is in session or to the
president, if the house is not in session, a special sitting of the house is to be held within 14
days from the date on which such notice is received by the speaker or the president, as the
case may be, for the purpose of considering such resolution.[Article 352(8)]

JUDICIAL REVIEW OF PROCLAMATION7:

A view was prevalent that the question whether emergency exists is essentially a political
question entrusted by the constitution to the union executive and therefore not justifiable
before the court.

However, in Minerva Mills Ltd. vs. UOI 8, it was held that there is no bar to judicial review
of the validity of a proclamation of emergency issued by the president under article 352.
Merely because a question has a political complexion, it is no ground why the court should
shrink from performing its duty under the constitution if it raises an issue of constitutional
determination. The court’s power, however, is limited only to examining whether the
limitations conferred by the constitution have been observed or not. the court cannot go into
question of adequacy of the facts and circumstances on which the president’s satisfaction is

5
The Constitution of India, bare Act , Article 352(1)
6
Naga people’s Movement of human rights V. Union of India, (1998) 2 SCC 109
7
https://www.legalbites.in/emergency-provisions
8
Minerva Mills vs. Union of India AIR 1980, SC 1789

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based unless it can be shown that there is no satisfaction of the president at all (in that case
the exercise of the power would be constitutionally invalid). Where at all, the satisfaction is
absurd or perverse or mala fide or based on wholly extraneous and irrelevant grounds, it
would be no satisfaction at all and it would be liable to be challenged before a court of law.

CONSEQUENCES OF A PROCLAMATION OF NATIONAL EMERGENCY

(a) There is a transformation in the behaviour of the Indian federalism. The normal fabric of
the Centre-State relations undergoes a fundamental change. Parliament becomes empowered
to make a law with respect to any matter in the state list, and such a law operates till six
months after the proclamation ceases to operate [Art. 250]

(b) Further, the Centre can give directions to the state as to the manner in which it is to
exercise its executive powers [353(a)]. Since parliament can make a law even in the
exclusive state field, it means that the centre can give directions even in the area normally
allotted to the states. Parliament may confer powers and impose duties upon the Centre or its
officers or authorities even though the law pertains to a matter not in the Union List [Art.
353(b)].

(c) When emergency is declared not in the whole of India but only in a part of India, the
executive power of the Centre to give directions, and the power of Parliament to make laws
as mentioned above, extend not only to the State in which the territory under emergency lies,
but also to any other state, “if and 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 ” [Proviso to Art. 353] .9

(d) While the proclamation of emergency is in operation, the President may by order direct
that any provision (Arts. 268 to 279) relating to the distribution of revenue between the
Centre and the States, shall take effect subject to such exceptions or modifications as he
thinks fit [Art. 354(1)].This provision frees the Centre from its obligation to transfer revenue
to the States so that’s own financial capacity remains unimpaired to deal with the emergency .

(e) During an emergency, Parliament can also levy any tax which ordinarily falls in the Sate
list [Art. 250] 10
9
(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.
10
Art. 250. (1), The Constitution of India, 1950, Notwithstanding anything in this Chapter, Parliament shall,
while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the

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(f) As has already been pointed out, during the operation of the proclamation of emergency,
the life of the Lok Sabah may be extended beyond its normal five year period by parliament
by law for a year each time, up to a period not extending beyond six months after the
proclamation of emergency ceases to operate .

(g) Parliament may by law extend the life of the state legislators by one year each time during
an emergency, subject to a maximum period of six months after the emergency ceases to
operate .

INVOCATION OF NATIONAL EMERGENCY

In India, national emergency has been invoked three times so far.

First time, on October 26, 1962, in the wake of clash with china. It remained in force during
the Indo-Pak conflict in 1965, and was revoked only in January, 1968.

Second time, on December, 1971, as a result of the India and Pakistan dispute on the ground
of external aggression.

While the 1971 was still effective, another proclamation was issued on June 26, 1975. This
time the proclamation was issued on the ground of “Internal disturbance” threatening the
security of India. Bothe these proclamations were revoked in March 1977.

One of the major result which come out after the proclamation of the emergency in 1975was
the amendment of Article 352 by 44th Constitutional amendment so as to introduce some
more safeguards therein against any unwarranted declaration of emergency in future. The
main purpose of this amendment was that what happened in 1975 should not repeat in future.
[21]

STATE EMERGENCY

PROCLAMATION OF EMERGENCY

Article 356 and 357 provide for meeting a situation arising from the failure of the
Constitutional machinery in a state.

territory of India with respect to any of the matters enumerated in the State List.

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“If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied
that a situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution, the President may by Proclamation”

(a) Assume to himself all or any of the functions of the Government of the State and all or
any of the powers vested in or exercisable by the Governor or anybody or authority in the
State other than the Legislature of the State;

(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the
authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be
necessary or desirable for giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions of this
Constitution relating to anybody or authority in the State.

CONSEQUENCES OF INVOKING STATE EMERGENCY

Article 356(1) has been invoked a number of times since the advent of the Constitution
reading Art. 356 along with Art. 357 a pattern has thus come into existence, whenever the
centre takes over a state government. The centre has acted only when the governor has
reported failure of the Constitutional machinery in the state and in no case has the centre
acted ‘otherwise’. The governor makes the report to act in this matter on the advice of the
council of ministers.

The proclamation issued by the President under Art. 356(1) is placed before parliament. If it
is expected to remain in force only for two months, then no further action is necessary. But if
it is proposed to keep it in force for a longer period, it is to be ratified by both houses.

Under Art.356 (1) (a), the President can assume to himself the powers of the Governor. One
of the Governor’s powers is to dissolve the Legislative Assembly. Consequently, when the.
President issues a proclamation and assumes the governor’s powers, the powers to dissolve
the assembly and hold fresh elections is automatically transferred to the president. Therefore,
the Presidential proclamation may dissolve the State Legislature and arrangements for
holding fresh elections are set afoot.

INVOCATION OF STATE EMERGENCY

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The sweep of the phrase, “the government of the State cannot be carried on in accordance
with the provisions of this Constitution” in Art. 356(1) has indefinite connotations. Failure of
the Constitutional machinery in a State may arise because of various factors; these factors are
diverse an imponderable. State Emergency or President’s Rule can be invoked after a receipt
of report submitted by the Governor of a state to the President. Though Article 163(1) obliges
the Governor to act according to the advice tendered by his Council of Ministers excepting
those matter with respect to which the Constitution requires him to exercise his discretion,
and because the furnishing of a report under Article 356(1) is not so mentioned by the
constitution as a function to be exercised by him in his discretion, it is obvious that in the
matter of the Governor reporting to the President that there has been a breakdown of the
Constitutional machinery must necessarily be a matter in which the Governor cannot possibly
act according to the advice of the Council of Ministers 11. Nevertheless, some situations of the
breakdown of the Constitutional machinery may be as follows:

1. No party in the Assembly has a majority in the State Legislative Assembly to be able
to form the government.
2. A government in office loses its majority due to defections and no alternative
government can be formed.
3. A government may have majority support in the House, but it may function in a
manner subversive of the Constitution. As for example, it may promote fissiparous
tendencies in the State.
4. The State Government does not comply with the directions issued by the Centre
Government under various Constitutional provisions.
5. Security of the State may be threatened by a widespread breakdown of law and order
in the State.
6. It may be debatable whether Art. 356(1) can be invoked when there are serious
allegations of corruption against the Chief Minister and the Ministers in a State.

Reading Articles 355 and 356 together, it can be argued plausibly that the Constitutional
machinery breaks down in the State when the government indulges in corruption.

Article 356 has been invoked in the State of Uttar Pradesh because it did not appear to be
feasible to form a stable government. In S.R Bommai v. Union of India 12, the Supreme Court
has laid down various guidelines in regard to the use of article. 356, which, it is hoped, would
11
Samsher v. State of Punjab, AIR 1974 SC 2192
12
SR Bommai v. Union of India [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1)

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put a check on arbitrary dismissal of state governments in future and strengthen the federal
structure of Indian polity.13

The Supreme Court in the Bommai case observed: “In view of the pluralist democracy and
the federal structure that has been accepted under the constitution, the party or parties in
power at the centre and in the states may not be the same. Therefore, there is a need to
confine the exercise of power under article 356(1) strictly to the situation mentioned therein
which is a condition precedent to the said exercise.”

FINANCIAL EMERGENCY

Article 360 makes a provision concerning financial emergency . “If the President is satisfied
that a situation has been whereby the financial stability or credit of India, or any part thereof,
is threatened, he may by a proclamation make a declaration to that effect.

When such a proclamation is in operation, the centre can give directions to any state to
observe such canons of financial property as may be specified in the directions. It may give

13
Id footnote no.2

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such other directions as the President may deem necessary and adequate for the purpose
[360(3)].

Any such directions may provide for the reduction of salaries and allowances of all. Or any
class of persons serving in the state. [Art. 360(4)(a)(i)]14

The centre may require that all money bills, or financial bills or those which involve
expenditure from the state consolidated fund, shall be reserved for the President’s
consideration after being passed by the state legislature [Art. 360(4) (a) (ii)].15

The President may also issue directions for reducing the salaries and allowances of persons
serving the union including the Supreme Court and the high court judges [Article 360(4) (b).]

A proclamation issued under issued under Art. 360(1) may be revoked or varied by a
subsequent proclamation [Art. 360(2) (a)], and has to be laid before each House of Parliament
[Art. 360(2) (b) ]

The proclamation ceases to have effect after two months unless in the meantime it is
approved by the Thirty-Eighth Amendment of the Constitution, the Presidential ‘satisfaction’
in Art. 360(1) was declared to be ‘final and conclusive’ and not questionable in any court on
any ground. No court was to have jurisdiction to entertain any question, on any ground,
regarding the validity of

1. A declaration made by proclamation by the President to the effect stated in Article

360(1)
2. The continued operation of such Proclamation. This provision has now been deleted
by the Forty-Fourth Amendment of the Constitution.

In India, there has not been financial emergency imposed till now.

DURATION OF EMERGENCY PROCLAMATION

The Constitution specifically provides that a Proclamation of Emergency made by the

President shall be valid for a period of two months only in the maximum within which it shall
be laid before each House of Parliament and approved by them. But if within that period, Lok
Sabha is dissolved, the proclamation shall be laid before Rajya Sabha only. On its approval, it
14
Art. 360 (4), The Constitution of India, 1950, Notwithstanding anything in this Constitution (a) any such
direction may include (i) a provision requiring the reduction of salaries and allowances of all or any class of
persons serving in connection with the affairs of a State
15
(a) (ii). A provision requiring all Money Bills or other Bills to which the provisions of article 207 apply to be
reserved for the consideration of the President after they are passed by the Legislature of the State

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shall continue beyond two months till the new Lok Sabha are elected, and it ratifies the
proclamation within thirty days of its first session. Fixed time limit is always qualified by
clauses like, “as soon as”, “for the time being”, etc.

The Constitution also does not provided for the contingency of Parliament disapproving the
proclamation. Parliament has three options before it – (a) it may approve the proclamation by
a resolution; (b) it may take no action; or (c) it may reject or disapprove the proclamation. If
the President feels the necessity of continuance of the proclamation beyond two months, and
Parliament is opposed to its continuance, there is a deadlock. Its tenure can be extended by
Parliament alone.

Ordinarily, the wishes of the legislature will prevail. If the executive persists in its view, it
may issue another proclamation which shall remain valid for another two months. The issue
of another proclamation is not barred by the Constitution. It is difficult to agree that the
President will take advantage of this gap. In practice, there is no room for conflict between
the executive and the legislature especially, the lower house in a parliamentary democracy. If
at all such a conflict arises, it will result in the resignation of the ministry and/or dissolution
of the Lower house.

RAJ NARAIN vs. STATE OF UP

(The case which led to the proclamation of emergency 1975)

BACKGROUND:

Raj Narain was the political contender against Indira Gandhi for Rae Bareilly Constituency in
1971 Lok Sabha General Elections. Mrs. Gandhi won the election & congress won the house
with sweeping majority. However, after the results of the polls, Raj Narain filed a petition
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before High Court of Allahabad contending that Indira Gandhi has performed Election
malpractices. On 12 June1975, The High Court of Allahabad speaking under Justice Jag
Mohanlal Sinha found Indira Gandhi guilty of misusing government machinery u/s-123(7) of
Representative of Peoples Act, 1951. Therefore, the court held that Indira Gandhi cannot
continue as the Prime Minister of the nation, further, she cannot contest elections for another
six years. Aggrieved by this decision Indira Gandhi went to appeal this ruling of Allahabad
High court in Supreme Court. there were huge protest and strikes under leadership of Jai
Prakash Narayan , George Fernandez and others organized rallies and protest against the
government of Indira Gandhi on the grounds of corruption and poor government etc. on June
25 1975 she took a decision to advice President to proclaim Article 352 of internal
emergency.16

This phase was the darkest phase of Indian democracy, a special Act MISA (Maintenance of
Internal Security Act) was enforced which converted India into police state. Almost all civil
liberties of citizens were taken away and most shocking Article 20 and 21 were suspended.
This suspension led to arbitrary arrest of many any person arrested under MISA (under article
16(A) or not was moreover deprived of the moral judicial guarantees and notably of the right
to appeal against the decision. The nature of preventive detainments had become arbitrary.
People were being arrested for common law crimes. The administrative authorities could
arrest whomsoever they want for 2 years.17

The massive seizures that were carried out by the barbaric government in the wake of
declaration of internal “emergency” on June 25th, 1975 provided the High Courts of India
with writ petitions from people who had been detained under MISA. Several High courts
decided, on the principles Of Makhan Singh , that they had jurisdiction under Article 226 to
issue the writ of habeas Corpus where detention orders were ultra vires or mala fide. During
the Emergency in 1976, the Supreme Court (SC) delivered a shocking judgment in the habeas
corpus case known as ADM Jabalpur v. Shivkant Shukla , which stunned the whole country.

The then Attorney General of India focused on the aspect of 'liberty' as found in Art.21 of the
Constitution. “His central contention was that since the right to move any Court had been
suspended, the detenue had no locus standi and their writ petitions would necessarily have to
be dismissed.” However under pressure and criticism from national and international groups
finally emergency was revoked on 21st March 1977.
16
Raj Narain v. State of Uttar Pradesh 1975 A.I.R. 865
17
http://lawtimesjournal.in/indira-nehru-gandhi-v-raj-narain/#_ftn1

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FACTS

In this case, an appeal was filed by the appellant against the decision of the Allahabad High
Court invalidating Smt. Indira Gandhi’s election on the ground of corrupt practices. In the
meantime, the Parliament passed the 39th Constitutional Amendment , which introduced and
added a new Article 392A to the Constitution of India.18

It was stated by this Article 392A that the election of the Prime Minister and the Speaker
cannot be challenged in any court in the country. It can be rather challenged before a
committee formed by the Parliament itself.

Although the Supreme Court validated the election of Indira Gandhi but declared the 39th
Amendment to be unconstitutional as it violated the basic structure of the Constitution.

The 39th Amendment was made to validate with retrospective effect the election of the then
Prime Minister which was set aside by the Allahabad High Court .

DECISION OVERVIEW

The clause 392A of Indian Constitution was struck down by the Court on the ground that it
violated free and fair elections which were an essential feature that formed the Basic
Structure of the Indian Constitution. The exclusion of judicial review in election disputes in
this manner resulted in damaging the Basic Structure as propounded by the Apex court in
Kesavananda Bharati case 1973.

The Supreme Court held clause (4) of the Constitution 39th Amendment Act, 1975 19 as
unconstitutional and void on the ground that it was outright denial of the Right to Equality
enshrined in Article 14, It was held by the Court that these provisions were arbitrary and were
calculated to damaged and destroy the Rule of Law.

In the words of Mathew J. the said clause destroyed essential democratic feature of the
Constitution viz. the resolution of an election dispute by ascertaining the adjudicative facts
and applying the relevant laws. He was of the opinion that a healthy democracy can only
function when there is possibility of a contest of free & fair elections. The impugned
amendment destroyed that possibility therefore it is violative of Basic feature of
Constitution .

18
http://www.pathlegal.in/Landmark-Judgment---INDIRA-NEHRU-GANDHI-V-RAJ-NARAIN-and-ANO-
blog-1202833
19
39th Amendment of the Constitution of India 1975

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Justice H.R. Khanna held that the democracy is the Basic Structure of the Constitution and it
includes free and fair election which cannot be violated.

The Supreme Court, in this case, added the following feature as ‘Basic Features” to the list of
basic features laid down in Keshavananda’s Case20 . These are

 Rule of Law: Democracy that implies free and fair elections.

 Judicial Review: Jurisdiction of Supreme Court under Article 32
 Background of the introduction 44th Constitutional Amendment;

The proclamation of emergency is a very serious matter as it disturbs the normal fabric of the
constitution and adversely affects the rights of the people. Such a proclamation should,
therefore, be issued only in exceptional circumstances and not merely to keep an unpopular
government from office . This happened in June 1975 when an emergency was declared on
the grounds of internal disturbance without there being adequate justification for the same.
The proclamation of 1975 was made on the ground of internal disturbance which proved to
be most controversial because there was violation of fundamental rights of the people on a
large scale; drastic press censorship was imposed. A large number of persons were put in
preventive detention without justification. In the light of these amendments have thus be
made by the 44th amendment Act to the emergency provisions of the constitution to make
repetition of 1975 situation extremely difficult, if not possible.

AFTERMATH

In 1977, general elections were held and a new government of Janta party headed by Moraji
Desai was formed. Among the first thing the new government passed was the 44th
Constitutional Amendment 1978. This was the first step of the recovery from the shock of
Indira emergency. Main motive of this amendment was to make India emergency proof.

THE 44TH AMENDMENT OF INDIAN CONSTITUTION21

The 44th amendment of Indian constitution substantially altered the emergency provision of
the constitution to ensure that it is not abused by the executive as done by Mrs. Indira Gandhi
in 1975. It also restored certain changes that were done by 42nd Amendment.

20
Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR (1973) 4 SCC 225
21
http://www.legalservicesindia.com/article/1769/Emergency-Provisions:-Effects-and-Impact..html

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 The following are important points of this amendment:

 “internal disturbance was replaced by armed rebellion under article 352”

 The decision of proclamation of emergency must be communicated by the Cabinet in
writing.
 Proclamation of emergency must be by the houses within one month.
 To continue emergency, it must be reapproved by the houses every six months.
 Emergency can be revoked by passing resolution to that effect by a simple majority of
the houses present and voting. 1/10th of the members of a house can move such a
resolution.
 Article 358 provides that article 19 will be suspended only upon war or external
aggression and not upon armed rebellion. Further, every such law that transgresses
article 19 must recite that it is connected to article 358. All other laws can still be
challenged if they violate article 19.
 Article 359, provides, suspension of the rights to move courts for violation of part III
will not include articles 20 and 21
 Reversed back the term of Lok Sabha from 6 to 5 years.

A GIFT FROM THE SUPREME COURT OF INDIA:

Landmark judgement was passed in Minerva Mill’s case 22 1980 . It provide that the
emergencies are covered by Judicial review and can be declared null and void when finds it
unconstitutional.

CONCLUSION

Our Constitution talks about execution of power which may also lead to infringement of
Fundamental Rights during the emergency. As we have seen that there was misuse of power
during the third National Emergency i.e., National Emergency because of internal disturbance
as stated by the former Prime Minister Smt Indira Gandhi, this clearly shows the misuse of
the political power and playing with the basic democratic rights guaranteed by the
Constitution of the India to its citizens . It is suggested that there should be some effective
control mechanism to ensure limitation of this power within the purview of the Indian
Constitution. The actions taken up by the Government officials must be checked so as to stop
22
Minerva Mills v Union of India AIR 1980 SC 1789

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the political pickups and it should provide a way to the interest of general public. After the
44th Constitutional Amendment it has been made sure that proclamation of emergency will
be a tough task whereas previously it was not. It can be understood that nothing in this nation
is more important than the citizen of the nation. It is the duty of all the organs of government
to look after and to come up with the welfare of the citizens of the country, no one can escape
the ‘rule of law’.

A.D.M. JABALPUR V. SHIVKANT SHUKLA

Case Name : A.D.M. JABALPUR V. SHIVKANT SHUKLA

Equivalent citations: 1976 AIR 1207, 1976 SCR 172

Bench : Ray, A.N. (Cj), Khanna, Hans Raj, Beg, M. Hameed Ullah, Chandrachud Y.V.,
Bhagwati P.N.

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HISTORICAL BACKGROUND :-

It all started with the election of Mrs Indira Gandhi, the then Prime Minister, which had been
held to be invalid by the Allahabad High Court. Indira Gandhi lost her election case on June
12, 1975 and on her appeal in the Supreme Court she was only granted a conditional stay. As
a result, she could neither vote nor speak in the Lok Sabha. She became a dysfunctional
Prime Minister. Wanting to cling to the chair at any cost, she chose to declare an emergency
as on 25thJune 1975 – the pretext being ‘internal threat’ to India. Any person who was
considered to be a political threat, or who could politically voice his opposition was detained
without trial under Preventive Detention laws one of which was the dreaded MISA
(Maintenance of Internal Security Act).Immediately thereafter, on June 25, 1975, she
proclaimed a state of internal Emergency. In a midnight swoop, most of the prominent
Opposition leaders including Jayaprakash Narayan, Morarji Desai, Atal Behari Vajpayee and
L K Advani were detained without charges and trial. The fundamental rights to life and
liberty (Article 21) and equality (Article 14) were suspended.

FACTS

On June 25th, 1975 the President in exercise of powers conferred by clause (1) of Articles
352 (Proclamation of Emergency) of the Constitution declared that a grave emergency
existed whereby the security of India was threatened by internal disturbances. On June 27th,
1975 in exercise of powers conferred by clause (1) of Articles 359 the President declared that
the right of any person including a foreigner to move any court for the enforcement of the
rights conferred by Article 14, Article 21 and Article 22 of the Constitution and all
proceedings pending in any court for the enforcement of the abovementioned rights shall
remain suspended for the period during which the proclamations of emergency made under
clause (1) of Article 352 of the Constitution on December 3rd, 1971 and on June 25th, 1975
were in force. The Presidential Order of June 27, 1975 further stated that the same shall be in
addition to and not in derogation of any order made before the date of the aforesaid order
under clause (1) of Article 359 of the Constitution.

On January 8th, 1976 there was a notification passed in the exercise of powers conferred by
clause (1) of Article 359 of the Constitution whereby the President declared that the right of
any person to move any to court for the enforcement of the rights conferred by Article 19 of
the Constitution and all proceedings pending in any court for the enforcement of the
abovementioned rights would remain suspended for the period during which the proclamation

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of emergency made under clause (1) of Article 352 of the Constitution on December 3rd,
1971 and on June 25th, 1975 were in force. Several illegal detentions were thereupon made
across the country, pursuant to which various writ petitions were filed throughout the
country. Nine High Courts gave decision in favour of detunes, holding that though Article 21
cannot be enforced, yet the order of detention was open to challenge on other grounds such as
that the order passed was not in compliance of the Act or was mala fide. Against these orders,
many appeals were filed before the Supreme Court. Disposing of all the appeals together, the
Supreme Court set aside that the decisions of the High Courts which had held the declaration
and the subsequent detentions as illegal and upheld the declaration and suspension of the said
rights.

ISSUES

1. Whether a writ petition under art. 226 before a High Court is maintainable to enforce
the right to personal liberty during an emergency declared under clause (1) of art. 359
of the constitution?
2. If such a petition is maintainable, what is the scope of judicial scrutiny in view of
presidential order?

CONTENTIONS :-

PETITIONER’S CONTENTION :

 The State does not release any detainees while the Advisory Council was of the
opinion that there was no sufficient reason for his arrest and, therefore, continued to
detain him in violation of the provisions of Article 22; Habeas corpus and this is the
case even if Article 22 is itself a fundamental right. The right to appeal to a court for
the purpose of enforcing a right under Article 19 has now been suspended by the
President pursuant to an order made under Article 359(1).
 The suspension of the right of a person to transfer a court for the purposes of the
application of the right to life and liberty is exercised in accordance with a
constitutional provision and, therefore, it cannot be said that the result means the law.
state of the line.

RESPONDENTS’S CONTENTION :

 According to the respondents, the limited purpose of Article 359(1) is to remove the
restrictions on the legislature’s power so that, during the operation of the emergency,

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 it is free to legislate to violate the fundamental rights set forth in the presidential
order. The argument is made that there is a law in force governing pre-trial detention,
the Maintenance of Internal Security Act of 1971. Each arrest warrant approved by
the executive branch must comply with the conditions prescribed by this law. The
defendants’ argument that Article 21 is not the sole depository of the right to life and
personal liberty.
 Non-fundamental constitutional rights derived from Articles 256, 265 and 361(3),
neither the natural or contractual rights nor the legal rights to personal liberty are
unaffected by the presidential order. Legal rights can only be removed by law and not
by an executive department.
 Finally, it was requested that the preamble of the Constitution speaks of a sovereign
democratic republic and that, therefore, senior executives subordinated to the
legislature cannot act to the detriment of citizens, except to the extent permitted by
applicable law. chosen from the city.

OBITER DICTA:

A.N.RAY

“Freedom is limited and controlled by law, whether at common law or in law, which is,
according to Burke, regulated freedom, not abstract or absolute freedom. the good sense of
the people and the system of representative and responsible government that has developed:
if extraordinary powers are granted, they are granted because the urgency is extraordinary
and we are limited to the period of emergency.”

H.R. KHANNA

The observations in the above-mentioned cases show that the validity of the warrant of arrest
could be annulled despite the presidential orders of 1962 and 1974 under section 359 if the
right was not covered by these presidential orders. The protection granted by the absolute
presidents was conditional and limited to abandoning the challenge of the arrest warrants and
other measures adopted under the provisions mentioned in these presidential orders with
respect to the violation of the articles specified in these presidential orders.

If the detention of a detainee did not comply with the provisions mentioned in the presidential
orders, the presidential orders did not have the effect of protecting the warrant of arrest and it

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was permissible to question the validity of the detention at the prison. The reason was not
made under the specified provisions but in violation of those provisions.

M.HAMEEDULLAH BEG

We can say that the Constitution is dominated by the rule of law because its general
principles were, for example, the right to individual liberty or the right of public assembly.
the rights of private persons in special cases presented to the courts; whereas in many foreign
constitutions the security (as it is) conferred on the rights of individuals results or seems to
result from the general principles of the constitution.

P.N. BHAGWATI, J.

There are three types of crisis in the life of a democratic nation, three well-defined threats to
its existence: a nation and a democracy. The first is war, especially a war to repel the invasion
when a “state must transform its political and social order in peacetime into a combat
machine in wartime and surpass the skills and efficiency of war. the enemy. ”

There may be a real war or a threat of war or preparations to deal with the imminent
occurrence of the war, which can all create a crisis situation of the most serious order. The
need to concentrate more power within the government and the contraction of normal
political and social freedoms cannot be discussed in such a case, especially when people face
a horrendous horror of national slavery.

The second crisis is a threat or presence of internal subversion intended to disrupt the life of
the country and endanger the existence of a constitutional government. This activity can have
various causes. Perhaps the most common is disloyalty to the existing form of government,
often accompanied by a desire for change through violent means.

Another cause may be strong dissatisfaction with some government policies. State
applications within the federal government for linguistic or religious lines may fall into this
category. Or the presence of powerful elements without law, perhaps without political
motivation, but for various reasons that go beyond the scope of the ordinary mechanism of
law, can lead to this problem.

The third crisis, recognized today as a measure of emergency sanction by the constitutional
government is collapsing or causing a collapse of the economy. It must be recognized that an

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economic crisis is such a direct threat to the constitutional existence of a country at war or
internal subversion. These are three types of emergency that can normally endanger the
existence of constitutional democracy.

Y.V. CHANDRACHUD, J.

I must now consider a very important picture of the defendants’ argument that section 21 is
not the only depository of the right to life and personal liberty. This argument has been
presented to us in too many aspects to be mentioned and many cases have been cited in
support. This was to some extent unavoidable, as many councils defended the same argument
and each had its own particular and preferred accent. I will try to compress the arguments
without, I hope, sacrificing the thematic value.

In view of the Presidential order dated June 27, 1975, under Clause (1) of Art. 359, no person
has locus standi to move writ petitions under Art. 226 of the Constitution before a High Court
for habeas corpus or any other writ or order or direction to enforce any right to personal
liberty of a person detained under the Maintenance of Internal Security Act, 1971 on the
grounds that the order of detention or the continued detention is for any reason not in
compliance with the Act or is illegal or male fide. In times of emergency, the executive
safeguards the life of the nation and, therefore, its actions either on the ground that these are
arbitrary or unlawful cannot be challenged in view of the fact that considerations of security
forbid proof of the evidence upon which the detention was ordered.

JUDGEMENT :

The purpose and object of Art. 359(1) is that the enforcement of any Fundamental Right
mentioned in the Presidential order is barred or it remains suspended during the emergency.
The scope of Art. 359(1) is not only to restrict the application of the Article to the legislative
field but also to the acts of the Executive. The object of Article 359(1) is not only that the
right to move this Court only is barred but also the right to move any High Court the bar
created by Art. 359(1) applies to petitions for the enforcement of Fundamental Rights
mentioned in the Presidential order whether by way of an application under Art. 32 or by way
of an application under Art. 226. An application invoking habeas corpus under s. 491 of the
Code of Criminal Procedure cannot simultaneously be moved in the High Court. Article
359(1) makes no distinction between the threat to the security of India by war or external
aggression on one hand and treat to the security of India by internal disturbance to another
hand. Powers of President U/A 352(1) and 359(1) of our constitution are immune from

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challenge in courts even when the emergency is over. Section 16A(9) of maintenance of
internal security act (MISA), 1971is not unconstitutional on the ground that it constitutes an
encroachment on the writ jurisdiction of High Court under Art. 226.

Section 16A(9) of MISA enacts a genuine rule of evidence and it does not detract from or
effect the jurisdiction of the High Court under Article 226 of the constitution and hence
cannot be successfully assailed as invalid. Further section 18 of the MISA does not suffer
from the vice of excessive delegation and is valid piece of legislation. Part III of the
constitution confers fundamental rights in positive as well as in negative language. The limits
of judicial review have to be co-extensive and commensurate with the right of an aggrieved
person to complain of the invasion of his rights. The theory of the basic structure of the
constitution cannot be used to build into the constitution an imaginary part which may be in
conflict with the constitutional provisions.

DISSENTING JUDGEMENT BY JUSTICE KHANNA

Law of preventive detention, of detention without trial is an anathema to all those who love
personal liberty. It is with a view to balancing the conflicting viewpoints that the framers of
the Constitution made express provisions for preventive detention and at the same time
inserted safeguards to prevent abuse of those powers and to mitigate the rigour and harshness
of those provisions. The dilemma which faced the Constitution makers in balancing the two
conflicting viewpoints relating to liberty of the subject and the security of the State was not,
however, laid to rest for good with the drafting of the Constitution. Even in the absence of
Article 21 in the Constitution, the State has got no power to deprive a person of his life or
liberty without the authority of law. This is the essential postulate and basic assumption of the
rule of law and not of men in all civilised nations. Without such sanctity of life and liberty,
the distinction between a lawless society and one governed by laws would cease to have any
meaning.

It was held that in view of the presidential order dated June 27,1975 no person has any locus
standi to move any writ petition under article 226 before a High Court for habeas corpus or
any other writ or order or direction to challenge the legality of an order of detention on the
ground that the order is not under or in compliance with the Act or was illegal or was vitiated
by mala fides factual or legal or is based on extraneous consideration.

CONCLUSION

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The Proclamation and arbitrary use of power by the State machinery and taking away the
personal liberty of a number of people along with judicial stamp can be considered one of the
most erroneous judgment till date. Supreme Court went on to elaborate on the interpretation
of Article 21 and introduced Public Interest Litigation to gain public legitimacy after it faced
criticism over the judgment and damage it had done. The wrong interpretation led to
infringement of fundamental rights on whims and fancy of a political figure that had her
agenda to fulfil. While the judgment is said to be a mistake on many occasions by jurists and
apex court, the ruling has not been overruled formally even after admitting the error. This
was noted by the bench of Justice Ashok Ganguly and Justice Aftab Alam. In today’s
context, Dicey’s Rule of Law which was explained by Justice Khanna holds much greater
force than what it was in 1976. There has to be a clear overruling of this judgment so that the
theoretical nature of Rule of Law can be made clear along with its applicability to our justice
system. Also, further provisions shall be made to ensure that no political agenda should
overshadow the justice and equity of citizens.

CONCLUSION

Emergencies in India are imposed by the President after both the House of Parliament passed
the resolution of the Proclamation of Emergency. Where the State Emergency or President’s
Rule is quite frequently used by the President, National Emergency had become a part of
history.

The national emergency of 1975 shows the weaker or dark phase of the Judiciary. Cases like
Indira Gandhi v. Raj Narain and A.D.M Jabalpur v. Shiv Kant Shukla show loophole in the
judicial system. Both cases do not recognize the Fundamental Rights of citizens during

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emergencies. There was a need to change the mechanism and it was done in Kesavananda
Bharati’s case.

Where the Constitution provides for execution of power which may lead to infringement of
fundamental rights of the individual during Emergency, judicially guaranteed by Constitution
of India, there must also be effective control mechanism to ensure limitation of this power
within the ambit of the Constitution. The validity of actions must be reviewed to deter
political gains and give way to public interest. Despite the abuse of power the Emergency
provisions still have a role to play under conditions prevailing in India, though it still remains
a controversial issue in the country.

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BIBILIOGRAPHY

TABLE OF CASES

1. Rameshwar Prasad v. Union of India (2006)2SCCI: AIR 2006 SC980

2. Minerva Mills v. Union of India 1980 SCC 1781
3. Naga People’s Movement of Human rights v. Union of India 1998 2SCC109
4. SR. Bommai v. Union of India [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3
SCC1)
5. Samsher v. State of Punjab AIR 1974 SC 2192
6. Raj Narain v. State of UP AIR 865
7. Makhan Singh v. State of Punjab 1964 AIR 381
8. Kesavananda Bharathi v. State of Kerala AIR (1973) 4 SCC225
9. ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521; AIR 1976 SC 1207

ONLINE SOURCES:

1. http://www.legalservicesindia.com/article/1769/Emergency-Provisions:-Effects-and-
Impact..html
2. http://legislative.gov.in/amendment-acts
3. http://lawtimesjournal.in/indira-nehru-gandhi-v-raj-narain/#_ftn1
4. http://racolblegal.com/emergency-provisions-history-types-and-duration-in-
india/#_ftn9
5. http://racolblegal.com/emergency-provisions-history-types-and-duration-in-
india/#_ftn9
6. https://lawnn.com/top-20-landmark-judgements-interpretation-statute/
7. http://www.pathlegal.in/Landmark-Judgment---INDIRA-NEHRU-GANDHI-V-RAJ-
NARAIN-and-ANO-blog-1202833
8. https://www.gktoday.in/gk/constitution-42nd-amendment-act-1976/
9. https://indianlegalsolution.com/adm-jabalpur-v-shivkant-shukla-case-comment/
10. https://blog.ipleaders.in/adm-jabalpur-v-shivakant-shukla/

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