DISSERTATION

ON

NATIONAL EMERGENCY

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 TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION……….

CHAPTER 2: EMERGENCY POWERS: THE HISTORICAL BACKGROUND

2.1 TYPOLOGY OF EMERGENCY POWERS

2.2 THE CONCEPT OF EMERGENCY IN THE GOVERNMENT OF INDIA ACT

CHAPTER 3: EMERGENCY PROVISIONS AND INDIAN CONSTITUTION

3.1 NATIONAL EMERGENCY

3.1.1 PARLIAMENTARY APPROVAL AND DURATION OF EMERGENCY

3.1.2 SCOPE OF JUDICIAL REVIEW

3.1.3 CONSEQUENCES OF PROCLAMATION OF EMERGENCY

3.1.4 EFFECT OF NATIONAL EMERGENCY

3.2 JUSTIFIABILITY OF PRESIDENT’S DISCRETION

3.3 CENTRE’S DUTY TO STATES

CHAPTER 4 THE 44th AMENDMENT AND THE EMERGENCY

CHAPTER 5 INDIA AND ITS PAST PROCLAIMED EMERGENCIES

5.1 FIRST PROCLAMATION OF EMERGENCY

5.1.1 THE JUSTIFICATION OF THE FIRST PROCLAMATION

5.2 SECOND PROCLAMATION OF EMERGENCY

5.2.1 THE JUSTIFICATION OF THE SECOND PROCLAMATION

5.3 THIRD PROCLAMATION OF EMERGENCY

5.3.1 THE JUSTIFICATION OF THE THIRD PROCLAMATION

5.4 POST EMERGENCY

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CHAPTER 6 CONCLUSION

CHAPTER 7 BIBLIOGRAPHY

7.1 BOOKS

7.2 ARTICLES

7.3 WEBSITES

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 CHAPTER 1

INTRODUCTION

“National Emergencies are usually a last resort; and moreover, a temporary one.”

Smt. Indira Gandhi, Former Prime Minister of India

The term ’emergency’ may be defined as ‘a difficult situation arising suddenly and
demanding immediate action by public authorities under powers specially granted to them by
the constitution or otherwise to meet such exigencies’. Dr. Ambedkar claimed that the Indian
federation was unique inasmuch as in times of emergency it could convert itself into an
entirely unitary state.

Federalism according to Dicey is a weak form of government because it involves division of

power between the Centre and the units. Every modern federation, however, has sought to
avoid this weakness by providing for the assumption of larger powers by the federal
government whenever unified action is necessary by reason of internal or external emergent
circumstances. For different kinds of emergencies, [The Indian Constitution] confers
extraordinary powers upon the union. The emergency provisions provided under the
Constitution enables the federal government to acquire the strength of a unitary system
whenever the exigencies of the situation so demand. There are times when a nation is
unexpectedly and suddenly overtaken by events and forces, which seriously endanger its
security and the lives of its citizens. Such situations may require that the individual liberties
of the citizens be temporarily suspended in order to cope with the dangers confronting the
nation. Emergency situations place democratic governments in a real dilemma by bringing
about a conflict between its primary obligation to protect the integrity of the State and its
equally important obligation to protect the human rights of its citizens and other persons
within its jurisdiction. The State is forced into a choice between competing values and the
sacrifice of one to the other. That is the rationale of emergency provisions, which finds place
in many national constitutions permitting the suspension of guaranteed fundamental rights.
It is necessary rather inevitable, that the government should be equipped with essential
safeguards to protect itself during crisis situations. Therefore confirming of the Government
with extraordinary powers to meet the crisis becomes essential. The principle of necessity
was well recognized even in ancient India. The great Hindu Jurist of ancient times Manu-the
law giver, recognize "Appad Dharma" as one of the Supreme duties or Dharma of a king as

4
protector of his subjects against disorder and anarchy. Emergency as crisis of government is
an old concept, many incidences are found in the politico developmental history of India. The
ancient Indian jurists greatly highlighted the importance of justice and righteousness with a
supreme law which bound all men including the King who has never been the creator of law
and beyond its pale such is the Upnishadik core content of legal system adopted in the code
of Manu one can find the following teachings. Justice destroyed, destroys its destroyer; and
justice preserved preserves its preserver,. Hence, never destroy justice, lest being destroyed, it
should destroy thee' Manu VIII 14]1

A notable feature of the Indian Constitution is the way in which the normal peace-time
federalism can be adapted to an emergency situation. The framers of the Constitution felt
that, in an emergency, the Centre should have overriding powers to control and direct all
aspects of administration and legislation throughout the country. The Constitution envisages
three types of emergencies: (i) emergency arising from a threat to the security of India; (ii)
breakdown of constitutional machinery in a State; (iii) financial emergency. Each of these
emergencies is discussed below. Proclamation of an 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 in office as happened in June 1975 when an
emergency was declared on the ground of internal disturbance without there being adequate
justification for the same. As a consequence thereof, the emergency provisions (especially
Arts. 352 and 356) have been extensively amended by the Constitution (Forty-fourth
Amendment) Act, with a view to introduce a number of safeguards against abuse of power by
the executive in the name of emergency. Amendments have thus been made by the Forty-
fourth Amendment to the emergency provisions of the Constitution to make repetition of the
1975 situation extremely difficult, if not impossible. Provisions of Constitution of India that
confer emergency power to the executive need to be studied in the light of philosophy need
and probable chance of abuse in future.

Emergency provision is a unique feature of Indian Constitution that allows the Centre to
assume wide powers so as to handle special situations. In emergency, the Centre can take full
legislative and executive control of any state. Emergency provision also allows the Centre to
curtail or suspend freedom of the citizens. Existence of emergency provision in the

1
Dhyani Dr. S.N ' Fundamentals of Jurisprudence- The Indian Approach' p.3.

5
Constitution is a big reason why academicians are hesitant to call Indian Constitution as fully
federal. The Indian system of government is of quasi-judicial nature where resembling a
federal government, powers are distributed between the centre and the state and similar to
unitary form because of retention of powers to the Union during emergency. Here the state
government relinquishes their rights to the central government to retain security and pursuit
of public welfare. It was at the time when neighbouring country, China attacked the northern
borders posing a threat to the security of India, when for the first time the Union assumed
powers to handle such a situation. Since then the President was assigned with extraordinary
powers to act in situations of Emergency.

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 CHAPTER 2

EMERGENCY POWERS: THE HISTORICAL BACKGROUND

2.1 TYPOLOGY OF EMERGENCY POWERS

Ferejohn and Pasquino distinguished two structural models for the exercise of emergency
powers: the executive and the legislative 4. Within each model, they divided emergency
powers into four characteristics to theorize the effect and impact of the model on the nature
of the emergency. These characteristics are: (i) proclamation or declaration of emergency
(who has the power to proclaim an emergency, in what circumstances, and with what
limitations or checks at the time of the proclamation); (ii) exercise of emergency powers
(what kind of emergency powers are constitutionally permissible, and who has the authority
to exercise them); (iii) determination of re-establishment of the norm (to what extent is the
emergency time-bound, who has the authority to terminate or to decide when to terminate the
emergency and how is the pre-emergency constitutional order to be restored); and (iv) review
of and control over the effects of emergency powers (that is, by the legislature or the
judiciary) at the time of proclamation or during the emergency.

According to Ferejohn and Pasquino, in the executive model of emergency, the executive
head (usually the president) has the effective power of proclaiming emergency and exercising
emergency powers, though the re-establishment of the norm is usually dictated by
predetermined constitutional provisions and some form of legislative check. In the legislative
model, on the other hand, the legislative body proclaims emergency and the executive head
or the president exercises emergency powers on the advice of the legislature. The re-
establishment of the norm is determined in a manner similar to the executive model, namely,
through legislative and judicial controls over emergency powers such as adjudication or
judicial review of emergency laws and actions. Although Pasquino provides a rough outline
for these models, variations within the distribution of these powers in each model exist. In
certain cases, the variations within models cause concentration of power in one or the other
limb of the government, resulting in an unbalanced model 6.

In terms of the simple typology presented by Ferejohn and Pasquino, India follow an
executive model. It is argued that colonial emergency law was not designed with the intent of
balancing powers among different branches of government or of preservation of
constitutional order and Fundamental Rights. The motive behind the legislation was to

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manage law and order in the colony and ensure effective administration of the British Raj,
even at the cost of Indian lives 2. Hence, this article argues that the adoption, in large part, of
the executive model by both Pakistan and India as newly independent nation states resulted in
the reinforcement of the concentration of power in the executive branch of the government,
with adverse consequences for their respective constitutional systems.

2.2 THE EVOLUTION OF EMERGENCY POWERS

Almost all constitutions are designed to cope with uncertain times and events, therefore,
emergency provisions are highly important. In constitutional terms, an emergency is a
situation which includes 'some imminent danger to the life of the nation, requiring some
immediate action' by the government to preserve the prevailing constitutional order 1.
However, the exercise of emergency powers is oftentimes curtailed by various conditions,
both in theory and in practice. In broad terms, scholarly literature in political science,
political philosophy and legal theory lays down three overarching limitations on emergency
laws which seek to ensure that such exceptional powers: (i) are used only as a last resort; (ii)
are expressly time-bound; and (iii) aim to preserve and restore the original constitutional
order after the emergency has lapsed 2. Generally, emergency measures include, amongst
other things, suspension of enforceable constitutional rights; takeover of the legislative and
executive authority of the states or provinces by the central government; and ousting of the
courts’ jurisdiction with regards to certain emergency actions of the government. Practically,
it means that the constitutional machinery is suspended, coupled with transfer of ‘full
powers’ to the executive branch of the government 3. Since necessity knows no law and the
will of the executive becomes the word of law, emergency is considered as the ultimate
measure to save the state from anarchy. The entire exercise of these exceptional powers is for
protecting the constitutional order and upholding Fundamental Rights in a state. The
emergency provisions under Indian constitution can be traced back to the British rule in
India, when by Act of parliament crown established its sovereignty over company's territories
in India in 18613 . The Governor General under the provisions exercised wide powers both
legislative and executive. He was also given power to legislate for emergencies. These
powers were very sparingly used till the outbreak of First World War, but between 1914 to

2
Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law (University of Michigan
Press, 2003); Rande W. Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (OUP, 2008);
Lauren Benton, Empires of Exception: History, Law, and the Problem of Imperial Sovereignty, 54 Relazioni
Internazionali, 2007.
3
Act LXVIIof 1861

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1918 it was used for about 26 times. Judicial challenges to invocation of these powers were
met with unsuccessful attempts. In 1919 the famous Rawlette act was passed. This law was
intended to be used as an emergency measures, very stringent in nature, it was setout to
control the terrorist activities in India. Other important laws used in those times were the
provisions in the Code of Criminal Procedure. The court held that the provision under the
code were to be used to meet the urgent and emergency situation.4 Then came the
Government of India Act 1919 which reaffirmed the powers of Governor General to
promulgate ordinances in emergency. Section 72 of the Government of India Act 1919 stated:
"The Governor General may, in cases of emergency, make and promulgate ordinances for
peace and good governance of British India or any part thereof.

Similar powers were conferred by the Government of India Act 1935. Under this Act, the
Governor General could issue a proclamation whenever he was of the opinion that 'a grave
emergency exists whereby the security of India was threatened by war or internal
disturbance5. It was used in 1939 for the first time following declaration of war between
Britain and Germany. In exercise of its power Defence of India Rules 1939 was framed. It
authorised the use of preventive detention powers extensively. It is evident that emergency
powers were quite liberally used during British period, which consequently had its effects on
the civil liberties of common man. In later period Rule 26 of the said Act. was challenged
many times in the Court of Law. The Court has time and again cautioned against the
excessive use of rule making power in the name of emergency. Detention powers also
attracted the Judiciary and important pronouncements were also made 6.

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.4 The disruptive forces of casteism, regionalism, communalism, and
languish 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

4
R. P. Dutt, India Today and Tomorrow , 267 (1955)

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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.

The early years of independence witnessed a spurt in the communist activities among the
workers and peasants in Telengana. 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.

2.2.1 The concept of emergency as in the Government of India Act, 1935

The 1935 Act was passed by the British Parliament for managing the affairs of the Indian
Colony. There were various provisions in the 1935 Act which established the executive's
supremacy over other branches of the government. The head of the executive was the
Governor General, a nominee of the British government, who had enormous powers over his
dominion. For the purposes of this analysis, one can consider the British Parliament as an
executive body, as the Parliament had no Indian legislators. The local Indian legislature,
known as Federal Legislature, consisted of two houses: the Council of States and the Federal
Assembly. As has been persuasively argued by scholars, emergency provisions in the 1935
Act were introduced not to preserve the constitutional order, but to provide an opportunity to
the colonial rulers to declare a state of siege or to take extra-constitutional steps5. Section
12(1) of the 1935 Act defines some special responsibilities of the Governor General,
including '(a) the prevention of any great menace to peace or tranquillity of India; [and] (b)
safeguarding of the financial stability and credit of the Federal government'. This section is
the source for granting a carte blanche to the Governor General and the Governors of Indian
states for proclaiming emergency and promulgating laws accordingly. It undertakes a clause
by clause analysis of emergency provisions of the 1935 Act, in light of the three limitations
of constitutional emergency powers, namely: last resort, time-bound and preservation and re-
establishment of constitutional norm.

5
Kalhan (n 7). 114-120.

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The 1935 Act defined two types of emergencies: those emerging from a failure of
constitutional machinery (s 45); and those arising due to 'war or internal disturbance' (s 102).
In the case of failure of constitutional machinery, the Governor General had vast
discretionary powers to proclaim emergency at the Federal level. In contrast, the Federal
Legislature was toothless and had no role to play in circumscribing the authority of the
Governor General either by ensuring that the emergency was proclaimed as a last resort or in
checking the Governor General's law making powers for the duration of the emergency.
Nonetheless, the proclamation of emergency had to be approved by the British Parliament
within six months of its proclamation, and this extended the period of the emergency for
another year from the date of such approval. Overall, an emergency could not carry on
continuously for more than three years. Thus, the Governor General's emergency powers
were time-bound under the first kind of emergency. However, the laws made pursuant to the
exercise of emergency powers could continue to have effect for up to two years after the
emergency had expired, unless repealed or re-enacted by the Federal Legislature. Similar
emergency powers vested in Governors in their respective provinces, empowering them to
proclaim emergency at the provincial level (s 93).

In the second type of emergency, emerging from war or internal disturbance, the power of
proclamation of emergency once again vested in the Governor General without any checks
and balances to ensure its use only in extreme circumstances. As with the first kind of
emergency, the British Parliament had to approve the proclamation within six months.
However, the second kind was not time-bound and was not subject to any form of legislative
approval for continuance in force. Nevertheless, the law making power with regards to
provinces during the emergency was granted to the Federal Legislature. Still, the ultimate
authority to repeal or approve a statute remained with the Governor General.

In effect, the 1935 Act authorized the exercise of virtually unqualified powers by the
Governor General without the input of the local legislative assemblies. Moreover, the 1935
Act was devoid of enforceable Fundamental Rights, which meant that to begin with, their
derogation or suspension through emergency powers was not an issue. As underscored, the
British Parliament was devoid of Indian representation, therefore, it had no interest in
protecting the rights and liberties of the Indian people or, in other words, it did not have the
incentive to serve as a watchdog on executive powers exercised in India.

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 CHAPTER 3

EMERGENCY PROVISIONS AND INDIAN CONSTITUTION

Proclamation of Emergency Under Art. 352(1), if the President is ‘satisfied’ that a grave
emergency exists whereby the security of India or any part thereof is threatened, whether by
war, or external aggression, or armed rebellion, he may, by proclamation, make a declaration
to that effect. Such a proclamation may be made in respect of the whole of India, or such part
of the Indian territory as may be specified in the proclamation. Article 352(1) thus means that
the proclamation need not extend to the whole of India. It may be restricted to a part of the
Indian territory. A proclamation of emergency under Art. 352(1) may be made before the
actual occurrence of war, external aggression or armed rebellion. Before 1978, an emergency
could be declared because of war, external aggression or ‘internal disturbance’. The
expression ‘internal disturbance’ was too vague and broad. The 44th Constitutional
Amendment substituted the words ‘armed rebellion’ for ‘internal disturbance’ with a view to
exclude the possibility of an emergency being proclaimed on the ground of ‘internal
disturbance’ only not involving armed rebellion, as happened in 1975. This change has
somewhat restricted the scope of what may be called as internal emergency. As the Supreme
Court has explained in the following case,6 the expression “internal disturbance” has a wider
connotation than “armed rebellion” in the sense that “armed rebellion” is likely to pose a
threat to the security of the country, or a part thereof, while “internal disturbance”, though
serious in nature, would not pose a threat to the security of the country, or a part thereof. The
intention underlying the substitution of the words ‘internal disturbance’ by the words “armed
rebellion” is to limit the invocation of Art. 352 only to more serious situations where there is
a threat to the security of the country, or a part thereof. The reason underlying restricting the
scope of Art. 352 is that a proclamation of emergency under Art. 352 has a very serious
impact on the powers of the States as well as the Fundamental Rights of the people. India
also has a parliamentary form of government whereas its emergency model, stipulated under
Articles 352 to 360 and 365 of the Indian Constitution, is an executive one. Due to the origin
of emergency provisions being the same in both countries, these provisions are very similar
as well. The Indian Constitution also has two primary reasons for declaring national and
regional emergencies, namely, due to 'war, external aggression and armed rebellion', and due
to 'financial instability'. In the same way, it also defines a third cause of regional emergency,

6
Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431 : (1998) 2 SCC 109.

12
that is, due to failure of constitutional machinery in states, and failure of a state to comply
with Union's direction. Both provisions become effective in the situation of failure of
constitutional machinery. The constitution of India is unique in respect that it contains a
complete scheme for speedy re-adjustment of the peace-time governmental machinery in
moments of national peril. These provisions may appear to be particularly in a constitution
which professes to be built upon an edifice of fundamental rights and democracy. But the
provisions must be studied in the light of India’s past history; India had her in glorious days
whenever the central power grew weak. It is far well that the constitution guards against the
forces of disintegration. events may take place threatening the very existence of the state and
if there are no safeguards against such eventualities the state together with all that is desired
to remain basic and immutable, will be swept away. 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.

The Indian Constitution provides for three different kinds of abnormal situations which call
for a departure from the normal governmental machinery setup by the Constitution:

a. An emergency due to war, an external aggression or armed rebellion [Article 352]. It is

also known as National Emergency.

b. Failure of constitutional machinery in states [Article 356]. Also known as Presidential

Rule.

c. Financial Emergency [Article 360].

Part XVIII of the Constitution permits the state to suspend various civil liberties and the
application of certain federal principles during presidential proclaimed states of emergency.

Emergency provision falls within the Article 352 to Article 360 of the Indian Constitution.
1. National emergency (Article 352)

2. State emergency (Article 356)

3. Financial emergency (Article 360)

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3.1 NATIONAL EMERGENCY

A nation is an entity that holds a number of lives together, and in times of emergency a nation
either stands together or perishes. History has taught us that much repeatedly. The framers of
the Constitution were conscious of this reality, which is why they inserted the provision for
the proclamation of emergency by the President of India under Article 352. Article 352
provides for the proclamation of emergency if there is a war or armed rebellion. This
proclamation can be made before the war or armed rebellion breaks out. Besides, financial
emergency can also be declared by the President if national economy becomes unstable. The
proclamation of emergency is to be discussed before both Lok Sabha and Rajya Sabha and
should be approved by both the Houses within one month from the date of issue. The period
of emergency exists up to six months and it can also be extended for up to further six months.
During the emergency the State Governments function under the direct control of the Central
Government. The fundamental rights of the citizens of India are also suspended during the
emergency. Uptill now only three times the emergency has been declared; in 1962, during
China-Indo War, in the year 1971 during Pak-India War and the third time in the year 1975
by the Indira Gandhi Government due to what was then called ‘internal disturbance’.

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
armed rebellion, he may, by Proclamation, made 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
Explanation A Proclamation of Emergency declaring that the security of India or any part of
the territory thereof is threatened by war or by external aggression or by armed rebellion may
be made before the actual occurrence of war or of any such aggression or rebellion, if the
President is satisfied that there is imminent danger thereof

(2) A Proclamation issued under clause (I) may be or revoked by a subsequent proclamation

(3) The President shall not issue a Proclamation under clause (I) or a Proclamation varying
such Proclamation unless the decision of the Union Cabinet (that is to say, the Council
consisting of the Prime Minister and other Ministers of Cabinet rank under Article 75) that
such a Proclamation may be issued has been communicated to him in writing

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(4) Every Proclamation issued under this article shall be laid before each House of Parliament
and shall, except where it is a Proclamation revoking a previous Proclamation, cease to
operate at the expiration of one month unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament Provided that if any such Proclamation
(not being a Proclamation revoking a previous Proclamation) is issued at a time when the
House of the People has been dissolved, or place during the period of one month referred to
in this clause, and if a resolution approving the Proclamation has been passed by the Council
of States, but no resolution with respect to such Proclamation has been passed by the House
of the People before the expiration of that period, the Proclamation shall cease to operate at
the expiration of thirty days from the date on which the House of the People first sits after its
reconstitution, unless before the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the People

(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a
period of six months from the date of the passing of the second of the resolutions approving
the proclamation under clause ( 4 ); Provided that if and so often as a resolution approving
the continuance in force of such a Proclamation is passed by both Houses of Parliament the
Proclamation shall, unless revoked, continue in force for a further period of six months from
the date on which it would otherwise have ceased of operate under this clause Provided
further that if the dissolution of the House of the People takes place during any such period of
six months an a resolution approving the continuance in force of such Proclamation has been
passed by the House of the People during the said period, the Proclamation shall cease to
operate at the expiration of thirty days from the date on which the House of the People first
sits after its reconstitution unless before the expiration of the said period of thirty days, a
resolution approving the continuance in force of the proclamation has been also passed by the
House of the People

(6) For the purpose of clause ( 4 ) and ( 5 ), a resolution may be passed by either House of
Parliament only by a majority of the total membership of that House and by a majority of not
less than two thirds of the members of that House present and voting

(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a
Proclamation issued under clause (l) or a Proclamation varying such Proclamation if the
House of the People passes a resolution disapproving, or, as the case may be, disapproving
the continuance in force of, such Proclamation

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(8) Where a notice in writing signed by not less than one tenth of the total number of
members of the House of the People has been given of, their intention to move a resolution
for disapproving, or, as the case may be, for disapproving the continuance in force of, a
Proclamation issued under clause (l) or a Proclamation varying such Proclamation,

(a) to the Speaker, if the House is in session; or

(b) to the President, if the House is not in session, a special sitting of the House shall be held
within fourteen days from the date on which such notice is received by the Speaker, or as the
case may be, by the President, for the purpose of considering such resolution

(9) The power conferred on the President by this article shall include the power to issue
different Proclamations on different grounds, being war or external aggression or armed
rebellion or imminent danger of war or external aggression or armed rebellion, whether or not
here is a Proclamation already issued by the President under clause (l) and such Proclamation
is in operation.

“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.”7

A proclamation of emergency under Article 352(1) may be made before the actual occurrence
of war, external aggression or armed rebellion.8Moreover, 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)].

National emergency can be declared on the basis of external aggression or armed rebellion in
the whole of India or a part of its territory. Such an emergency was declared in India in 1962
(China war), 1971 (Pakistan war), and 1975 (declared by Indira Gandhi). The President can
declare such an emergency only on the basis of a written request by the Cabinet headed by

7
Article 352(1), the Constitution of India, 1950
8
Naga people’s Movement of human rights V. Union of India, (1998) 2 SCC 109

16
the Prime Minister. Such a proclamation must be laid before both houses of Parliament, and
the state of emergency expires after one month unless approved within that time by both
houses sitting and voting separately. However, if the Lok Sabha (the lower house) has been
dissolved or dissolution takes place in the state of emergency, and the Rajya Sabha approves
of the state of emergency, the deadline for the Lok Sabha is extended until thirty days after
that house reconstituted. According to Article 352(6),[2] approval by either house requires a
special majority: those in favour of the motion must be two thirds of those present and voting,
and amount to a majority of the entire membership of that house. A Parliamentary resolution
extends the state of emergency for up to six months, and it can be extended indefinitely by
further resolutions in six-monthly increments.

During a national emergency, many Fundamental Rights of Indian citizens can be suspended.
The six freedoms under Right to Freedom are automatically suspended. By contrast, the
Right to Life and Personal Liberty cannot be suspended according to the original
Constitution. In January 1977, during the emergency declared controversially by Indira
Gandhi, the government decided to suspend even the Right to Life and Personal Liberty by
dispensing with Habeas corpus. Justice Hans Raj Khanna defended the Right to Life and
asked: "Life is also mentioned in Article 21 and would Government argument extend to it
also?". The Attorney General observed: "Even if life was taken away illegally, courts are
helpless".

A national emergency modifies the federal system of government to a unitary one by granting
Parliament the power to make laws on the 66 subjects of the State List (which contains
subjects on which the state governments can make laws). Also, all state money bills are
referred to the Parliament for its approval.

During an emergency, the term of the Lok Sabha can be successively extended by intervals of
up to one year, but not beyond six months after the state of emergency has been revoked.

The provision for National Emergency is provided for under the Article 352 of the
Constitution. The national emergency deals with constitutional provisions to be applied,
whenever there is an extraordinary situation that may threaten the peace, security, stability
and governance of the country or a part thereof. Under Article 352 of the Constitution
provides for the imposition of emergency when following situations is/are present:

i)War,

17
ii)External aggression or

iii)Internal rebellion.

Article 352 says that if the President is 'satisfied' that a grave emergency exists whereby the
security of India or any part of it is threatened due to outside aggression or armed rebellion,
he may make a proclamation to that effect regarding whole of India or a part thereof.
However, sub clause (3) says that President can make such a proclamation only upon the
written advice of the Union Cabinet. Such a proclamation must be placed before each house
of the parliament and must be approved by each house within one month of the declaration of
the proclamation otherwise it will expire. It should be noted herein, that in explanation to
Article 352 it has is provided that for proclamation of emergency, it is not necessary that
external aggression or armed rebellion has actually happened. It can be proclaimed even if
there is a possibility of the happening of external aggression or armed rebellion.

In the case of Minerva Mills vs Union of India9 it has been held that there is no bar to
judicial review of the validity of the proclamation of emergency issued by the president under
Article 352(1). However, court's power is limited only to examining whether the limitations
conferred by the Constitution have been observed or not. It can check if the satisfaction of the
president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant
grounds, it is no satisfaction at all. A proclamation can be made by the president of the
country, but there are some provision for that too. The President can declare such an
emergency only if the Cabinet recommends in writing to do so. Such a proclamation of
emergency has to be approved by both the Houses of Parliament by absolute majority of the
total membership of the Houses, as well as 2/3rd majority of members present and voting
within one month, otherwise the proclamation ceases to operate.

In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in
session, it has to be approved by the Rajya Sabha within one month and later on by the Lok
Sabha, within one month of the start of its next session. Once approved by the Parliament, the
emergency remains in force for a period of six months from the date of proclamation. In the
case it is to be extended beyond six months, another prior resolution has to be passed by the
Parliament. In this way, such emergency continues indefinitely.

9
AIR 1964 SC 381

18
The maker of the constitution of India have equipped the Union under Article 352 with
absolute control during time of emergency to preserve the integrity, security and stability of
the country. Proclamation of Emergency under this Article excludes the other two kinds of
Emergencies. President can impose National Emergency if he is satisfied that a grave
situation exists or is likely to arise due to war, external aggression or armed rebellion (earlier
it was internal disturbance). However his powers are subject to the recommendation of the
Cabinet. The proclamation must also be laid before the House of Parliament which may
approve it by passing a resolution, take no action or disapprove it within one month. Such a
proclamation is notified by publication in official gazette but this is not obligatory. So far
National Emergency has been declared three times in the country, first being in 1962-1968
when China attacked Indian borders, second in 1971-1977 during Second World War and the
third was imposed in 1975 on grounds of internal disturbances.

3.1.1 Parliamentary Approval and Duration of National Emergency

Every Proclamation of Emergency shall be laid down before each house of the Parliament
and must get approval in one month from its date of issue.

Provided that if at time of proclamation the Lok Sabha has been dissolved or dissolution of
the Lok Sabha takes place in mean time (i.e. within one month from date of issue), then the
Rajya Sabha must approve it within 30 days but such proclamation shall cease to operate
after 30 days from the first sitting of the Lok Sabha after its reconstitution, if not, then after
getting the approval of the new Lok Sabha in 30 days.

Originally, the period for approval was 2 months; but it was reduced to one month by the
44th Amendment passed in 1978.

If approved by both the houses of Parliament, then a National Emergency shall continue for 6
months and it can be renewed any number of times by approval of Parliament after every 6
months. But if the dissolution of the Lok Sabha takes place in those 6 months and a
resolution for renewal of National Emergency is under consideration, then the Emergency
continues till 30 days from the first sitting of the newly elected Lok Sabha provided that has
already been approved by the Rajya Sabha.

19
As per the the 44th amendment of 1978, if the Parliament approves proclamation of a
National Emergency, then it remains in operation on pleasure or desire of the Cabinet or the
Executive.

Any of above resolutions related to the proclamation or renewal of a National Emergency

must be passed by both houses of Parliament by special majority (i.e. majority of total
membership of that house or not less than 2/3rd of members present and voting).

This provision was again added by the 44th Amendment of 1978 and before that, such a
resolution could be passed by a simple majority, i.e. more than the total number of members
present and voting.

The President shall revoke the proclamation of an Emergency at any time, if the Lok Sabha
passes a resolution by simple majority in relation to disapproval of continuation of National
Emergency.

A notice in writing shall be given to the Speaker of the Lok Sabha or to the President if the
House is not in session, and that notice shall be signed by at least one tenth of the total
members of the Lok Sabha, in relation to their intention to move a resolution to revoke a
National Emergency.

A special sitting of the Lok Sabha shall be called within 14 days from date of such notice.

Until the 44th amendment, 1978, there was no requirement of resolution to be adopted by
Lok Sabha for the removal of proclamation of National Emergency.

The differences between Resolution of Proclamation and Revocation of National

Emergency are as follows:-

1. The approval resolution must be passed by both houses but disapproval resolution
is required to be passed by the Lok Sabha only.
2. The approval resolution must be passed by special majority but disapproval
resolution is need to be passed by simple majority.

20
3.1.2 Scope of Judicial Review

The 38th Amendment, 1975, states that proclamation of National Emergency by President is
immune from Judicial Review.

And the 42nd Amendment, 1976 states that constitutional amendments are not in scope of
judicial review to give effect to 38th amendment.

The above provisions are deleted by the 44th Amendment, 1978, and the power of Judicial
Review is restored.

Further, in the Minerva Mills case (1980), the Supreme Court held that the proclamation of a
National Emergency can be challenged in any court of law on ground of malafide intention.

3.1.3 CONSEQUENCES OF A PROCLAMATION OF 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].

21
(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].

(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.

The following drastic consequences follow from the issue of the proclamation of emergency
under Art. 352(1). (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]. It thus means
that the normal peace-time distribution of legislative powers is practically suspended so far as
Parliament is concerned. The State Legislatures continue to function as usual and may make
any law in their assigned area, viz., Lists II and III, but Parliament becomes empowered to
legislate even in the exclusive State sphere (List II) as a result of the Proclamation of
emergency. Parliament can meet the emergency by passing any law that it may regard
necessary without being trammelled by the scheme of distribution of powers [Art. 250(1)],
and a Central law would override a State law even with respect to a matter in the State List
[Art. 251]. Article 359 provides for suspension of the enforcement of the rights conferred by
Part III during emergencies. However, by the Constitution (Forty-fourth Amendment) Act,
1978, it has been provided that even during emergencies, the enforcement of the rights under
Articles 20 and 21 cannot be suspended. The life of a law made by Parliament which it would
not be competent to enact, but for the issue of a proclamation of emergency, comes to an end
to the extent of the emergency on the expiry of 6 months after the proclamation of emergency

22
cases to operate, except for things done or omitted to be done before the expiry of this period
[Art. 250(2)]. This provision means that a law enacted by Parliament during an emergency in
the exclusive State sphere ceases to exist six months after the emergency comes to end. This
means that six months after the ending of the emergency, the normal scheme of distribution
of legislative powers is fully restored. (b) Further, the Centre becomes entitled to give
directions to a State as to the manner in which it is to exercise its executive power [Art.
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 and 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]. This provision means that in such a case,
directions may be issued by the Centre to the States which are not included in the
Proclamation of Emergency. This provision has been inserted in the Constitution in order to
make emergency effective in the area where it has been imposed, by restricting undesirable
activities in the adjoining areas. Miscreants could not be allowed to take advantage of the fact
that the Proclamation does not relate to the particular spot where such activities are, for the
time being, being carried on. (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 its own financial capacity remains
unimpaired to deal with the emergency. An order suspending distribution of revenue is to be
laid before both Houses of Parliament, [Art. 354(2)] and it would not remain in force beyond
the end of the financial year in which the proclamation of emergency ceases to operate [Art.
354(1)].

(e) During an emergency, Parliament can also levy any tax which ordinarily falls in the State
List [Art. 250]. Thus, although the State Governments continue to operate, the Central
Government becomes omnipotent and the normal distribution of legislative, executive and

23
taxing powers, and the scheme of distribution of revenue between the Centre and the States,
all are undone so far as the Centre is concerned. The reason is that during an emergency, the
Central financial needs become greater than its peacetime commitments and, therefore, the
normal financial arrangements between the Centre and the States cannot continue to function.
The war-time experiences of Canada and Australia will bear out the wisdom of these
provisions. In both these countries, the Centre had to exclude the States from the field of
Income-tax. (f) As has already been pointed out, during the operation of the proclamation of
emergency, the life of the Lok Sabha 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. Parliament continues to function normally
during the emergency. However, to avoid any confusion which might arise from holding
fresh elections during the period of the emergency, if the life of Lok Sabha comes to an end,
this provision enables the same to be extended for the period of emergency. (g) Parliament
may by law extend the life of the State Legislatures by one year each time during an
emergency, subject to a maximum period of six months after the emergency ceases to operate
[Proviso to Art. 172]. (h) The proclamation of emergency also affects the operation of the
Fundamental Rights. The matter has been discussed in detail in another part of the book.

3.1.4 Effects of National Emergency

 Center State Relations during National Emergency:

1. Executive – When a National Emergency is in operation, the Union may, if

considered necessary, direct any state on any executive matter i.e. the State
Governments are under the full control of the Union, as the states have to follow
directions of Union, otherwise President Rule can be imposed.
2. Legislative –Although the State Legislature is remains in operation during a
National Emergency, it is subject to the overriding power of the Parliament. The
Parliament is empowered to make laws on any subject matter included in State List.
If any such law made by the Parliament is in conflict with the law made by the state
legislature either during or before the Emergency, then the former shall prevail.
The laws made by Parliament cease to operate on expiration of 6 months after
revocation of proclamation of emergency. The President can issue ordinances on
any matter in State List if either house of Parliament is not in session.

24
 3. Financial – While a National Emergency is in action, the President may by order,
direct the allocation of financial resources between the Union and the States,
subject to any modifications or exceptions as he thinks fit. But such an order shall
not extend beyond that financial year, and the order shall be laid before each house
of Parliament as soon as it is made.
4. Life of the Lok Sabha and State Assembly:
5. While a National Emergency is in action, the Parliament may by law extend the
normal term of the Lok Sabha for a period of a single year at a time, and it can
renew it any number of times as thinks fit. But it cannot extend to beyond a period
of 6 months after the Emergency has ceased to operate.
6. Similarly the Parliament empowers to extend life of state assembly for a period of 1
year at a time during a National Emergency and cannot extend to beyond a period
of 6 months after emergency has ceased to operate.

 Fundamental Rights during a National Emergency

During a national emergency, many Fundamental Rights of Indian citizens can be suspended.
The six freedoms under Right to Freedom are automatically suspended. By contrast, the
Right to Life and Personal Liberty cannot be suspended according to the original
Constitution. In January 1977, during the emergency declared controversially by Indira
Gandhi, the government decided to suspend even the Right to Life and Personal Liberty by
dispensing with Habeas corpus. Justice Hans Raj Khanna defended the Right to Life and
asked: "Life is also mentioned in Article 21 and would Government argument extend to it
also?". The Attorney General observed: "Even if life was taken away illegally, courts are
helpless".

 Article 358

Article 358 states that as soon as proclamation of National Emergency is made, each of the
six Fundamental Rights (FRs) under Article 19 (such as freedom of speech or expression) are
automatically suspended and no separate order is required.

Article 19 restricts power of state to make any law or take any executive action. But any such
law or executive action ceases to have effect as soon as the proclamation cease to operate,

25
except if provisions which are in conflict with Fundamental Rights under Article 19 are either
modified or omitted before law cease to have effect.

It means that legislative or executive action taken at the time of an Emergency cannot be
challenged even after the Emergency has ceased to operate.

The constraints imposed by the 44th Amendment, 1978 on Article 358 say that, firstly, all of
the six Fundamental Rights under Article 19 can be suspended only when National
Emergency is declared on grounds of war or external aggression and not on grounds of armed
rebellion.

Only laws related to emergency are in protection from being challenged and not other laws.
Also, any executive action related to only those laws are protected.

 Article 359

During a National Emergency, the President by order, can suspend the right to move court for
enforcement of such Fundamental Rights as mentioned in the order.

This means that the mentioned Fundamental Rights are alive but their enforcement is
suspended. The Fundamental Rights can be suspended for the whole of a National
Emergency or for a shorter duration, and the suspension can be applied to the whole or any
part of India as mentioned in the order.

But any such order must be laid before each house of Parliament for approval as soon as may
be after it is made. When the suspension order is in force, the States are empowered to make
any law or take any action either in violation of the mentioned Fundamental Rights. But any
such law or action cease to have effect as soon as proclamation of the National Emergency
ceases to operate.

Any such law made by parliament or any executive action taken by the Governmentt, while
suspension order is in action, cannot be challenged in any court on grounds of violation of
any Fundamental Rights as mentioned in the order, even after the order ceases to have effect.

26
Unlike Article 358, the President order in Article 359 can be issued after proclamation of a
National Emergency on any grounds (war or external aggression or armed rebellion).The
constraints imposed by the 44th Amendment, 1978 on Article 359 are as follows:-

“The Fundamental Rights under Article 20 and 21 (Right to life or Right against arbitrary
detention) can’t be taken away i.e. even at time of National Emergency, the enforcement of
Fundamental Rights under Article 20 and 21 by court of law can’t be suspended. Only laws
related to emergency are in protection from being challenged and not other laws. Also, any
executive action related to only those laws, is protected.”

3.2 JUSTIFIABILITY OF PRESIDENT’S DISCRETION

According to Art. 352(1), the President may make a proclamation of emergency only when
he is satisfied as to the existence of a threat to the security of India, or a part thereof. Thus,
the question whether the security of India is threatened or not lies within the subjective
satisfaction of the President acting on the advice of the Cabinet. The question has arisen from
time to time whether this satisfaction of the President is justiciable or not. In Bhut Nath v.
State of West Bengal,10 the Supreme Court refusing to hold the continuance of the emergency
under Art. 352 ‘void’ stated that the question is “a political, not justiciable issue and the
appeal should be to the polls and not to the courts.” Nevertheless, to put the matter beyond
any shadow of doubt, the Constitution (Thirty-eighth Amendment) Act, 1975amended the
Constitution by adding clause 5 to Art. 352 which declared that the “satisfaction” of the
President mentioned in Art. 352(1) and (3) “shall be final and conclusive” and “shall not be
questioned in any court on any ground.” It was further declared that “neither the Supreme
Court nor any other court shall have jurisdiction to entertain any question, on any ground,
regarding the validity of—(i) a declaration made by proclamation by the President to the
effect stated in clause (1); or (ii) the continued operation of such proclamation.” The
‘satisfaction’ of the President in declaring the emergency, and, thus, the proclamation of
emergency under Art. 352, were thus sought to be placed beyond the ken of judicial scrutiny.
In Bhut Nath, that was the view taken by the Supreme Court when it said that the
proclamation of emergency was not a justiciable issue but was essentially a political matter in
substance. The amendment sought to put this judicial view in the form of a constitutional
provision lest the court might change its opinion at some future date. Now, the Forty-fourth
Amendment of the Constitution has repealed Art. 352(5). The position has thus been restored
10
AIR 1974 SC 809

27
to what it was before the 38th Amendment. It is therefore for the Supreme Court to decide
whether it will treat the ‘satisfaction’ of the President to issue a proclamation of emergency,
or to vary it or to continue it, as ‘final’ and ‘non-justiciable’, or as being subject to judicial
review on some grounds. Since the passage of the Forty-fourth Amendment of the
Constitution, the question of judicial review of the discretion of the President to declare or
not to declare an emergency has not arisen as no emergency has been declared after 1975. In
Minerva Mills,11 however, BHAGWATI, J., did express the view that whether the President
in proclaiming the emergency under Art. 352 had applied his mind, or whether he acted
outside his powers, or acted mala fide in proclaiming the, emergency could not be excluded
from the scope of judicial review.12 The Constitution seeks to control the exercise of power to
proclaim an emergency in two ways: (i) The President must act on the advice of the Central
Cabinet and not in his own subjective satisfaction and also not on the advice of the Prime
Minister alone. Thus, the effective power to declare an emergency lies with the Cabinet. (ii)
The democratic control over the executive power in respect of proclaiming an emergency has
been strengthened in so far as parliamentary approval is necessary for the proclamation
immediately after it is made and, then, after every six months. But these safeguards may
prove tenuous in practice because the government of the day enjoys support of the majority
party, and the Cabinet functions on the principle of collective responsibility. A strong willed
Prime Minister may have his way as he may dominate his Cabinet as well as the party and,
thus, mobilise support for the emergency even though, in effect, there may be no need for the
same. A pliant Parliament may support the Government making any parliamentary control of
the emergency fictitious. It therefore appears to be essential that a limited judicial review of
the exercise of the power to proclaim emergency remains available. This extra-Parliamentary
check is extremely important for safeguarding democracy in the country.

3.3 CENTRE’S DUTY TO PROTECT THE STATES

Centre’s Duty to Protect the States Syn C Article 355 imposes a twofold duty on the
Centre:— (i) to protect every State against external aggression and internal disturbance, and
(ii) to ensure that the government of every State is carried on in accordance with the
provisions of the Constitution. The two limbs of Art. 355 are not interdependent as
constitutional break-down can take place in a State even without there being a situation of
‘external agression” or “internal disturbance”. A provision of this type is to be found in other

11
AIR 1980 SC 1789 : (1980) 2 SCC 591.
12
AIR 1980 SC, at 1840

28
federal constitutions as well. The American Constitution places a duty on the Central
Government to guarantee to every State a Republican form of government and to protect a
State against invasion, and, on application of the State Legislature, or, of the Executive
(when the Legislature cannot be convened), against domestic violence. A vast potential is
rooted in this clause. This clause does not mention the manner in which the guarantee as
regards the Republican form of Government may be enforced in a State. S. 119 of the
Australian Constitution provides in express terms that the Centre shall protect every State
against invasion, and, on application of the State Executive, against domestic violence. An
important distinction between the Australian and the American provisions, on the one hand,
and the Indian provision, on the other, is that while, in the former, application by the State to
the Centre is necessary for protection against domestic violence, no such condition is laid
down in India. The first limb of Art. 355, that of protecting the States, does not stipulate that
a State should request the Centre before it could send its forces into a State to counter the
breakdown of law and order therein. On the other hand, the parallel provisions, as stated
above, in other federations, do stipulate that request from the State is necessary to protect it
against domestic violence. The U.S. Supreme Court has, however, held that if internal
disturbance in any State interfered with the operation of the National Government itself, or
with the movement of inter-State commerce, the Centre can send force on its own initiative,
without waiting for the application of the State authorities.13 As the Court said, “the entire
strength of the Nation may be used to enforce in any part of the land, the full and free
exercise of all national powers and security of all rights entrusted by the Constitution to its
care.” After this ruling the requirement of an application by the affected State for aid for
suppression of internal violence has lost its importance. In 1963, the Central Government in
the U.S.A. did not hesitate to deploy the national militia in Little Rock to quell racial
disturbances, and to enforce the decisions of the Supreme Court on racial integration. This
was done very much against the wishes of the State concerned.

Under Art. 355, mentioned above, the obligation of the Centre to protect a State arises in the
following three situations: (i) external aggression; (ii) internal disturbance, and (iii) when the
State Government cannot be carried on in accordance with the Constitution. The word
“aggression” has been construed to be a word of very wide import not limited only to war but
as comprising many other acts which cannot be termed as war. A “bloodless aggression from
a vast and incessant flow of millions of human beings forced to flee into another State” could

13
In Re Debs., 158 US 564 (1895

29
constitute aggression under Article 355. Thus, it was found that the State of Assam is facing
“external aggression and internal disturbance” on account of large-scale illegal migration of
Bangladeshi nationals Article 355 uses the term “internal disturbance”, while Art. 352 uses
the term “armed rebellion”. The term “armed rebellion” is narrower in scope than “internal
disturbance” which is certainly broader. This means that a mere “internal disturbance” short
of armed rebellion cannot justify a proclamation under Art. 352. Further, Art. 356 only talks
of “breakdown of constitutional government in the State. This means that mere “internal
disturbance” does not justify a proclamation under Art. 356 unless it results in the
constitutional breakdown in the State. In India, law and order is a State subject40 and,
therefore, Central intervention under Art. 355 would be justifiable only in case of aggravated
form of disturbance, which a State finds beyond its means to control. Although not laid down
in the Constitution, a convention has arisen that ordinarily the Centre sends help to a State on
request by the State Government. In view of the specific constitutional obligation placed on
the Centre, it will be unjustifiable for the Centre to refuse to help a State when requested by
it. It cannot, however, be asserted that the Centre shall never intervene in a State suo motu
without its request, though it may be a difficult question to decide when it would do so. The
final decision appears to rest with the Centre. The controversy between the Centre and some
of the States regarding deployment of the Central Reserve Police to protect Central
Government property in these States without consulting them has already been referred to. To
get over these problems, the 42nd Amendment of the Constitution added a new provision,
Art. 257A, into the Constitution enabling the Centre to deploy any armed forces of the Union,
or any other force under its control, for dealing with any grave situation of law and order in
any State. Any such force had to act subject to the control and directions of the Centre and
not of the concerned State Government. Under Art. 257A, the Centre could act without the
concurrence of the concerned State Government. However, the Law Minister gave an
assurance on the floor of Parliament that the power under Art. 257A would be used only in
exceptional situations and in consultation with the concerned State Government. To give full
effect to Art. 257A, some changes were made in the legislative entries in the three Lists. A
new entry, 2A, was added to List I to the following effect: “2A: Deployment of any armed
force of the Union or any other force subject to the control of the Union or any contingent or
unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and
liabilities of the members of such forces while on such deployment.” Consequent changes
were made in entries 1 and 2 of List II to exclude any such force from the purview of the
States. Article 257A raised a good deal of controversy and was vehemently criticised. The

30
States regarded it as causing diminution in their autonomy. The 44th Amendment, therefore,
repealed Art. 257A, but entry 2A still remains a part of List I, giving legislative and executive
power to take necessary action to deploy armed forces in a State in aid of civil power. This
power vested in the Centre can be justified with reference to Art. 355. Also, the fact that Art.
352 permits declaration of emergency in a part of the country because of armed rebellion
means that the Centre has to take all possible steps necessary to maintain law and order in
any part of the country if there is a serious breakdown thereof. It appears that even under
entry 2A, List I, the Centre is entitled to deploy forces suo motu in a State to put down
internal disturbance in a State and restore peace therein. The words “in aid of the civil power”
in entry 2A mean in aid of State instrumentalities responsible for maintenance of law and
order. Thus, the Centre uses its forces to help the law enforcing authorites in the State. But
the abovementioned words do not necessarily imply that the Centre cannot introduce its
forces, if need be there, without the request of the State. If there is serious breakdown of law
and order in a State, the Centre will be justified to send its forces to meet the situation
without receiving any State request for the purpose. This result emerges by reading entry 2A,
List I, along with Art. 355. Article 355 also imposes a duty on the Centre “to ensure that the
government of every State is carried on in accordance with the provisions of the
Constitution”. The exact significance of this provision is not clear. It is in fulfilment of this
obligation that the Centre takes over the Government of a State (Art. 356) in case of
breakdown of the constitutional machinery therein. Recently, in the notable decision in
Sarbananda Sonowal, the Supreme Court held that since the State of Assam is facing
“external aggression and internal disturbance” on account of large-scale illegal migration of
Bangladeshi nationals, it was the duty of the Union of India to take all measures for
protection of the State of Assam from such external aggression and internal disturbance as
enjoined in Article 355 of the Constitution. The Illegal Migrants (Determination by
Tribunals) Act, 1983 (Act 39 of 1983) was held to be ineffective in comparison to the
Foreigners Act, 1946 in dealing with the influx of illegal immigration from Bangladesh.
Therefore, the Court struck down the Illegal Migrants (Determination by Tribunals) Act,
1983 (Act 39 of 1983) as being ultra vires the Constitution as it “clearly negated the
constitutional mandate contained in Article 355”.A parallel to this provision is to be found in
the American Constitution which places the Centre under a duty to maintain the republican
form of the government in each State,45 or in the provision in the Australian Constitution
which provides that the central executive power extends to the execution and maintenance of
the Constitution.46 There is, however, no specific provision in any of the three federal

31
constitutions enabling the Centre to take over the Government of a State in case of
breakdown of the constitutional machinery therein. The Indian provision stipulates, in
essence, that the form of the government prescribed in the Constitution must be maintained in
the States. INQUIRY INTO COMPLAINTS AGAINST STATE CHIEF MINISTERS An
interesting and significant question arising out of the obligation of the Centre to ensure that a
State Government is carried on in accordance with the Constitution is whether the Centre can
take cognisance of complaints made from time to time regarding the deeds of omission or
commission, bordering on corruption, against State Chief Ministers. It has been a common
feature of the Indian political life that such complaints are usually made to the Centre against
State Chief Ministers. Whether the Centre should take cognisance of these charges, or leave
the matter to the State Government concerned? The difficulty in following the second course
is that justice is not seen to have been done when charges against the Chief Minister are
referred to the very Chief Minister against whom they have been made. If no action is taken
then people are bound to lose faith in the democratic system of government based on rule of
law. On the other hand, if the Centre intervenes, it may be accused of interfering too much in
State matters and its bona fides may become suspect if the parties controlling the State and
the Centre happen to be of different political complexion. On several occasions, the Centre
has moved against the State Chief Ministers. It appointed a commission of enquiry to go into
certain charges against the Chief Minister of Punjab who later resigned because of an adverse
report by the commission. Then, the Chief Minister of Orissa resigned when a committee of
the Central Cabinet held that he had been guilty of administrative impropriety. In these cases,
matters were somewhat easy because all belonged to one and the same party, viz., the
Congress Party. But things may be very difficult when the Central and the State Governments
belong to different political parties. The Centre can easily be accused of political motives in
such a situation. In 1973, a centrally appointed commission, consisting of a Judge of the
Supreme Court, was appointed to enquire into some complaints against the members of the
Karunanidhi Ministry in Tamil Nadu which was dismissed earlier by the President under Art.
356. The Chief Minister had earlier asserted on the floor of the State Legislature that, under
the Constitution, the Centre had no right to interfere in the powers conferred on the State
under List II. The State cabinet was responsible only to the State Assembly which was
supreme in so far as the affairs of the State were concerned. These arguments did not,
however, prevail with the Centre. Later the legality and constitutionality of the appointment

32
of the commission was challenged in the Supreme Court but the Court upheld the same.14On
the question of ministerial corruption, it may be worthwhile to take note of the following: (1)
On several occasions, the State governments have appointed enquiry commissions to probe
into allegations of corruption and misuse of power against their ex-ministers and ex-chief
ministers. The legality and constitutionality of appointing such commissions has been
judicially upheld in several cases.15 But nothing concrete appears to have been achieved by
such an exercise as no conviction has ever resulted as a result of the reports of these
commissions. (2) For the first time, in 1984, a State minister was dismissed from office in
Andhra Pradesh on the charge of corruption.16 (3) A very significant chapter has been added
to the legal and constitutional history of India by the criminal prosecution of A.R. Antulay,
ex-Chief Minister of Maharashtra, under the Prevention of Corruption Act on a private
complaint. The Supreme Court ruled that a private citizen can launch a prosecution against
the ex-Chief Minister on charges of corruption. Earlier, the Governor of Maharashtra had
given permission to launch the prosecution. But a crucial question was raised during the trial:
whether an M.L.A. was a public servant and whether the permission of the legislature
concerned would be necessary to prosecute him? The Supreme Court had ruled that an
M.L.A. was not a public servant under S. 21 of the I.P.C., and, therefore, the question which
authority must give sanction to prosecute him was merely an academic one.17 But the Court
has now changed its view on this question.18 In 1977, the Central Government appointed a
commission of inquiry under S. 3 of the Commission of Inquiry Act to probe into certain
allegations of corruption, favouritism and nepotism against the Chief Minister and a few
Ministers of the State of Karnataka.19 The State filed a suit in the Supreme Court under Art.
49.

131 of the Constitution57 for a declaration that the appointment of such an inquiry
commission was illegal and ultra vires. An important question raised was whether the Centre
could appoint a commission of inquiry to probe into the allegations of corruption and misuse
of power by the State Ministers, and whether S. 3 of the Commissions of Inquiry Act was

14
M. Karunanidhi v. Union of India, AIR 1979 SC 898 : (1979) 3 SCC 431Krishna Ballabh Sahay v.
Commission of Inquiry, AIR 1969 SC 258 : (1969) 1 SCR 385
15
; State of Jammu & Kashmir v. Bakshi Gulam Mohamed, AIR 1967 SC 122 : 1966 Supp SCR 401;
16
P.V. Jagannath Rao v. State of Orissa, AIR 1969 SC 215 : (1968) 3 SCR 789.
BHARATIYA, Central Inquiry of State Ministers’ Accountability, (1976) 18 JILI 56.
17
A.R. Antulay v. R.S. Nayak, AIR 1984 SC 718 : (1984) 2 SCC 500.
18
R.S. Nayak v. A.R. Antulay, AIR 1984 SC 684 : (1984) 2 SCC 183.
19
P. V. Narasimha Rao v. State of Andhra Pradesh, AIR 1998 SC 2120 : (1998) 4 SCC 626.

33
constitutional? The Supreme Court ruled in Karnataka v. Union of India20 (6 : 1) that the
appointment of the inquiry commission was valid and that S. 3 of the Inquiry Commission
Act under which the commission was appointed was constitutional. The Court argued that the
commission of inquiry is a fact-finding body having no power to pronounce a binding or
definitive judgment. Its function is to ascertain facts, or to establish responsibility of
Ministers for particular decisions. Therefore, the appointment of an inquiry commission to
probe into allegations of corruption, etc., against the State Ministers does not constitute
interference with the executive functions of the State Government. Such an inquiry
commission does not raise directly or indirectly the subject of Centre-State relationship.
When the Centre takes some action on the commission’s report, then will be the time to
assess the constitutional validity of what the Centre proposes to do. Parliament has power to
enact the Commission of Inquiry Act under entries 94 of List I and 45 of List III, read with
entry 97 of List I21, and the Central Government has the executive power to appoint a
commission to inquire into matters relating to the entries in List II. A justification for
appointment of such an inquiry commission can be found in Art. 356. Whether a State
Government or its Chief Minister is or is not carrying out the trust placed in their hands so as
to determine whether use of power under Art. 356 is called for or not is certainly a matter
lying within the Centre’s power and is also a matter of public importance as envisaged by S.
3 of the Act in question. The Indian Federalism has a “strong unitary bias” and the Central
Government has powers to ‘supervise’, and even to supersede, in certain circumstances, a
State Government temporarily to restore normalcy or to inject honesty and integrity into the
State administration where these essentials of good government may be lacking. Over a
period of time, the Courts have, in a sense, facilitated this “unitary bias” as far as allegations
of corruption against Chief Ministers of a State are concerned. In M.C. Mehta v. Union of
India,60 the CBI was directed to take appropriate steps for holding an investigation against
the Chief Minister of Uttar Pradesh, Ms Mayawati. The CBI was also directed upon
conclusion of the inquiry to submit a self-contained note to the Chief Secretary to the
Government of Uttar Pradesh as well as to the Cabinet Secretary, Union Government. Again
in Vishwanath Chaturvedi (3) v. Union of India61, the Court directed an enquiry by the CBI
into alleged acquisition of wealth by Mulayam Singh Yadav, Chief Minister of Uttar Pradesh
and to submit a report to the Union of India. On receipt of such report, the Union of India was
permitted to take further steps depending upon the outcome of the preliminary enquiry.

20
AIR 1978 SC 68 : (1977) 4 SCC 608.
21
Ram Krishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538 : 1959 SCR 279

34
The doctrine of ‘implied prohibitions’ has been rejected by the Supreme Court and is not
applicable in India.62 The doctrine of collective responsibility of the State Ministers to the
State Legislature does not give them any immunity from such an inquiry.63 Collective
responsibility represents ministerial accountability to the legislature. If a minister uses his
office as a cloak for corruption, nepotism, or favouritism the entire council of ministers could
not be held collectively responsible to the legislature. Appointment of the commission does
not make ministers less answerable to the legislature. Maintenance of honesty and integrity in
the State administration is democratic and not anti-democratic. KAILASAM, J., alone ruled
against the inquiry on the ground that it would impinge on the right of the State to function in
its limited sphere allowed to it by the Constitution. According to his ruling: “As there is no
specific Article in the Constitution enabling the Union Government to cause an inquiry into
the governmental functions of the State the power cannot be assumed by ordinary legislation
but resort must be had to a constitutional amendment.” He also stated that the word
‘inquiries’ in entry 45, List III,64 should not be given a wide meaning as conferring on the
Union and the State Governments powers to enact a provision to embark on an enquiry as to
the misuse of governmental powers by the other. One interesting development in this matter
was that anticipating the appointment of an inquiry commission by the Centre, the State
Government had itself appointed an inquiry commission of its own. Thus, two commissions,
one Central and one State, came into existence to probe into the conduct of the State
Ministers. Under S. 3(b) of the Commissions of Inquiry Act, the Centre could not appoint a
commission of inquiry into a matter which was already the subject of inquiry by a State-
appointed commission. Thus, the question was whether the Central Commission could
function after the State Commission had been appointed. The Supreme Court concluded that
both the Commissions could continue to function as they were to inquire into different
matters. Although the Supreme Court referred to Art. 356 as a justification for appointing the
said commission by the Centre, it appears to be more appropriate to relate such an inquiry
commission to Art. 355 which obligates the Centre to ensure that State Governments are
carried on in accordance with the constitutional provisions. Certainly a corrupt State
Government cannot be regarded as a government being carried on in accordance with the
Constitution. In the opinion of the author, even Art. 356 emanates from Art. 355, and not vice
versa.

35
 CHAPTER 4

THE FORTY-FOURTH(44th) AMENDMENT

AND

THE EMERGENCY PROVISIONS

The 44th amendment of the Indian Constitution was significant as it removed partially the
distortions that were introduced into the Constitution by 42nd 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 ground 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 the 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 been made by the
44th amendment act to the emergency provisions of the constitutions to make repetition of
the 1975 situation extremely difficult, if not impossible. The 44th amendment substantially
altered the emergency provisions of the Constitution to ensure that it is not abused by the
executive as done by Ms. Indira Gandhi in 1975. It also restored certain changes that were
done by 42nd amendment. Article 352 was amended with the following changes: The ground
of “internal disturbance” was substituted by the ground of “armed rebellion”.
Proclamation of Emergency can be issued only when the security of India or any part of its
territory is threatened by war or external aggression or by armed rebellion. Internal
disturbance not amounting to armed rebellion would not be a ground for the issue of a
Proclamation.

The following are important points of this amendment-

1. "Internal disturbance" was replaced by "armed rebellion" under art 352.

2. The decision of proclamation of emergency must be communicated by the Cabinet in
writing.
3. Proclamation of emergency must be by the houses within one month.
4. To continue emergency, it must be re-approved by the houses every six month.

36
5. Emergency can be revoked by passing resolution to that effect by a simple majority of the
houses present and voting. 1/10 of the members of a house can move such a resolution.
6. 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.
7. Article 359, provides, suspension of the right to move courts for violation of Part III will
not include Articles 20 and 21.
8. Reversed back the term of Lok Sabha from 6 to 5 years.
Another important provision in the Indian Constitution which allows more flexibility in
this executive model is that the power of revocation of the same lies with the legislature,
along with the authority of renewal of the emergency. If one-tenth of the total members of the
House of People move a resolution for disapproving a proclamation or continuance in force
of an emergency, then that resolution will be presented to both houses for approval. This
adaptation allows challenging the credibility of exercise of emergency powers at any time
and serves as an important check on the executive power. Another significant change
introduced under the 44th Amendment is the imposition of qualifications on the suspension
of Fundamental Rights. Article 358 of the Constitution allows suspension of all Fundamental
Rights except Articles 20 and 21 in all types of emergencies. Thus, it imposes a substantial
restriction on the discretionary exercise of executive emergency powers, which previously
allowed their suspension as well. This also shows observance of the ICCPR, which declares
these rights as non-derogable. The 44th Amendment has introduced a clause, viz., Art.
352(3), to the effect that the President shall not issue a proclamation of emergency [under
Art. 352(1)], or a proclamation varying the same, unless the decision of the Union Cabinet
(that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet
rank appointed under Art. 75) that such a proclamation may be issued has been
communicated to him in writing. This means that the decision to issue such a proclamation
has to be arrived at collectively by the Cabinet and not by the Prime Minister alone without
consulting the Cabinet. It so happened in 1975 that the President proclaimed emergency on
the advice of the Prime Minister alone and the Council of Ministers was later presented with
a fait accompli. It is to avoid any such situation in future that Art. 352(3) has been introduced
in the Constitution. Every proclamation issued under Art. 352(1) is to be laid before each
House of Parliament [Art. 352(4)]. It ceases to operate (except when it is a proclamation
revoking the previous proclamation) at the expiration of one month unless, in the meantime,

37
it has been approved by resolutions of both Houses of Parliament [Art. 352(4)]. Thus, the
purport of Art. 352(1) is that Parliament must be convened within a month to consider the
proclamation of emergency. A proclamation will automatically cease after one month if not
approved by Parliament in the meantime. Formerly, the period allowed for parliamentary
approval of the proclamation was two months. The 44th Amendment has reduced it to one
month. If, however, at the time of the issue of the proclamation or thereafter, Lok Sabha is
dissolved without approving the proclamation, and the Rajya Sabha approves it, then the
proclamation ceases to operate 30 days after the Lok Sabha sits again after fresh elections,
unless in the meantime the new Lok Sabha passes a resolution approving the proclamation
[Proviso to Art. 352(4)]. Another significant safeguard introduced by the 44th Amendment is
to lay down that a resolution approving the proclamation of emergency (or one varying it) has
to be passed by each House by a majority of the total membership of each House and not less
than two-thirds of the majority of the members present and voting in each House [Art.
352(6)]. Before the 44th Amendment, passage of such a resolution by a simple majority in
each House was sufficient. Art. 352(6) introduces a very wholesome safeguard. Since a
proclamation of emergency virtually results in amending the Constitution for the period of
the emergency (Fundamental Rights are suspended5 and, from the legislative point of view, it
becomes practically unitary)6, it is desirable that the proclamation of emergency be approved
by the same majority in Parliament as is required for amendment of the Constitution.7 Once
approved by Parliament, the proclamation remains in force, unless revoked earlier, only for
six months from the date of the passing of the later of the resolutions [Art. 352(5)]. For
continuance of the emergency beyond that period, parliamentary approval is needed again.
Thus, each time Parliament approves the proclamation, its life is extended for six months
[Proviso to Art. 352(5)]. In this way, the question whether the emergency should continue in
force or not must periodically come before both Houses of Parliament. This provision has
also been added by the 44th Amendment. Previously, once approved by the two Houses, the
proclamation could remain in force as long as the executive desired. There was no provision
for periodical parliamentary review of the need for continuance of the emergency. This is a
very wholesome provision. Each resolution of approval is to be passed by Parliament by the
special majority mentioned above [Art. 352(6)]. It may however be noted that the Central
Executive can revoke the proclamation at any time it likes. Another safeguard introduced by
the 44th Amendment is that the President is obliged to revoke a proclamation of emergency
issued under Art. 352(1) (or one varying the same) if the House of People passes a resolution
disapproving the same [Art. 352(7)]. This resolution is to be passed by a simple majority of

38
the members of the House present and voting. Formerly the power to revoke the proclamation
vested in the executive and the House had no say in the matter. Now, the executive has to
withdraw the emergency if the Lok Sabha so desires. 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 [Art. 352(8)]. Thus, it does not
lie within the power of the government to convene or not a session of the House to consider
the resolution in question. According to Art. 352(9), the President has power to issue
different proclamations on different grounds, “being war or external aggression, armed
rebellion or imminent danger of war or external aggression or armed rebellion whether or not
there is a Proclamation already issued by the President under clause (1) and such
Proclamation is in operation.” This provision was introduced in 1975 by the 38th
Amendment after the proclamation was issued on the ground of internal disturbance. There
was already in existence at the time a proclamation of emergency (issued in 1971)8 on the
ground of external aggression. The provision was to ensure that there might be no legal
hurdle in the way of having two proclamations of emergency on two different grounds
operating at one and the same time. The 44th Amendment has continued this provision.

39
 CHAPTER 5

INDIA AND PAST PROCLAIMED EMERGENCIES

5.1 THE FIRST PROCLAMATION OF EMERGENCY-

On 26th October 1962, after China attack on India, the President issued a proclamation under
Article 352 declaring that a grave situation existed whereby security of India was threatened
by external aggression. Few days later, the President issued an Ordinance- The Defence of
India ordinance 1962' based on Defence of India 1939 that British Government used during
Second World War. This allowed the Government the power of preventive detention. The
rule also conferred extensive rule making power on Government. Another objectionable
feature of it was that it ousted jurisdiction of the court.

The President also made an order under Article 359 (1) suspending the right to move any
court for the enforcement of the fundamental rights relating to personal liberty, and right to
move any court for protection against arbitrary arrest embodied in Article 21 & 22
respectively. This order was later amendment to include Article 14 (right to equality before
the law) along with Articles 21 &22. Within 1 month of these rules coming into force, more
than 200 members of the Indian Communist Party in various Indian States, including leaders
of the opposition in West Bengal, Kerala and Andhra Pradesh, were arrested on the grounds
that their activities were against the national interest.

At the end of the fourth month the then Home Minister informed the Parliament that 957
persons had been detained under the Defence of India Rules, These figures show the
consequences of the first Emergency proclamation. The hostilities with China came to an end
with the cease fire on 21st November 1962. But the emergency lingered on amidst
widespread charges of abuse of its powers by frequent misuse of The Defense India Act. In
April 1965 an outbreak of armed conflict between India and Pakistan across the borders in
April 1965 followed by a war in September that year. A cease-fire took place, in accordance
with a U.N. Security Council resolution and the two Heads of Government signed a
declaration known as 'Tashkent’. Agreement' on 10th January 1966 down the procedure for
the normalization.

However, even after the normalization, the Emergency continued in force and criticism of
abuse of power began to be voiced even by the Courts. A public campaign led by the former
Attorney General Mr. Setalvad and 33 other prominent citizens issued a widely published

40
appeal calling on the Government to revoke the emergency. This campaign received further
boost when International Commission of Jurists expressed its concern in public statement
circulated world wide. Following these appeals the Government decided to revoke
emergency. On 18th March 1967, the Home minister announced that the Government of
India had decided to revoke the state of emergency with the effect from 1st July. A
Proclamation revoking the Proclamation of Emergency was issued.

5.1.1 Justifiability of the first proclamation of emergency-

The first proclamation was uncontroversial and every body accepted its need. There was
justification to the use of emergency power but the rules made can be said to be not in
proportion to the seriousness of situation. There was already Prevention Detective Act
sufficient to control the situation. There was no justification to barring the court and also
prolongation of emergency power was unjustified. There are three main issues that required
attention. First, from, the point of view of the international human rights standards, use of the
power of preventive detention without justification has no relevance. Secondly, principles of
proportionality, non - discrimination and also non- derogability of human rights clearly
offend suspension of basic rights of freedom. Thirdly, there is universally recognized
principle that emergency should not exceed the period strictly required. It should be restored
to the condition to normalcy, as soon as the situation normalizes. effect from 1st July. A
Proclamation revoking the Proclamation of Emergency was issued.

5.2 SECOND PROCLAMATION OF EMERGENCY

On 3rd December 1971, following the outbreak of hostilities between India and Pakistan, an
emergency was declared for the second time. Following the Declaration of emergency, the
parliament adopted the Maintenance Of Security Act 1971 and the Government Defence of
India rules, 1971. MISA replaced Preventive Detention Act. It allowed both center and state
Government to detain any one even a foreign citizen, if it was satisfied that detention is
necessary. Another Act providing for preventive detention was passed. COFEPOSA,
Conservation of Foreign Exchange and Prevention of Smuggling Activity. Hundred of
persons were detained under MISA and COFEPOSA, The power was used fairly responsibly.
Though ill-treatment, custodial death, encounter death were reported, sweeping powers were
given to security to Carry out national defence policies. As before, even after the hostilities
between India and Pakistan ceased, the Emergency continued. It was even reinforced by a
proclamation of the President in November 1974 suspending the right to seek the assistance

41
of the courts for enforcement of fundamental rights u/A 14, 21 and 22 with respect to orders
made under sec. 3(1) (c) of MISA. Even before the declaration of revocation to the second
emergency in July 1975, a new Emergency was declared. Based on wrongly assumed threat
of'Internal disturbance'.

5.2.1 Justification of proclamation second emergency

The government continued its practice of prolongation of emergency power, even after
cessation of war. This call for an analysis of the administrative ill practices. This attitude was
not in confirmation with the national as well as International guidelines regarding emergency.
Again there was no justification to the sudden reinforcement of suspension of rights u/a 14,
20, 21 along with Article 19, which was already under the effects of proclamation. 'India
failed all the tests. It also was against the International provision. Jurist and prominent
citizens belonging to no particular political creed prejudiced the President and Prime Minister
to remove the emergency."

5.3 PROCLAMATION OF THIRD EMERGENCY

On June 28, 1975, President Fakhruddin Ali Ahmed declared national emergency in the
country, which remained in operation for a period of 19 months. It was declared at a time
when emergency due to external aggression of 1971 was already in force. One of the main
causes responsible for the declaration of 1975 emergency was that certain persons were
inciting military and police not to obey the orders of the government and interrupt normal
functioning of government working. In 1974, an agitation was launched in Gujarat by some
opposition parties making it difficult for elected legislators to perform their duties towards
the electorates. They were made to resign in many cases. Not only this, but the central
government was forced to conduct fresh elections in the state. In the state there were also
many cases of looting, violence and arsons. There was also an agitation in Bihar which aimed
at getting the State Assembly dissolved.

Late in the night of 25th June 1975, the President of India signed the following proclamation-
"I, President of India, by this Proclamation declare that a grave emergency exists whereby the
security of India is threatened by internal disturbances."

This time an "Internal emergency, in earlier June, the High Court of Allahabad had allowed
an Election Petition file against Mrs. Indira Gandhi and found her to be guilty of "corrupt
practices". The High Court held that she was consequentially disqualified from holding any
public office for six years. She appealed to the Supreme Court of India. The Supreme Court

42
was in summer vacation. Justice Krishna Iyer refused to grant her an absolute stay of the
High Court judgment. Only a conditional stay was granted. Opposition's Calls for her
resignation as Prime Minister, followed widespread agitation throughout the country. The
President had been prevailed upon to sign a proclamation of Emergency under Article 352
.On the night of 25 June 1975, without even a prior meeting of the Council of Ministers. The
Cabinet met only the next morning endorsing what, as done the night before. Under the
constitution of India the President can only act on the aid and advice of his council of
ministers with the Prime Minister at its head and not on the advice of the Prime Minister
alone, nor of anyone else. On 27 June 1975, the President signed another Presidential order
suspending Articles 14,21 while both the External Emergencies of 1971, and 1974 prevailed
the new Internal Emergency proclaimed on 25 June 1975. This 'Internal Emergency' of 25*
June 1975, was the most repressive of all other states of Emergencies. Constitution was
unnecessarily amended, extra ordinary power was conferred on the general executives and
fundamental rights were severely abridged. Political opponents were taken into custody and
held without trial. Twenty-seven Organizations (political and social) were banned. Their
office bearers were arrested and detained The elimination of access to the courts, and in
sensitive implementation of forceful and insensitive Government programs like clearance of
slums and family planning were implemented rather ruthlessly.

A rigid and unprecedented press censorship was imposed. There was a complete ban on
reporting of speech in the parliament (other than Government Statements) and reports of all
cases in Courts, names of detainees, place of detention and all things likely to bring
Government hatred or contempt were barred. The President's satisfaction to declare an
Emergency (External or Internal) was declared to be not only final and conclusive, but also
non-justifiable. Fundamental rights under the constitution, rights guaranteeing equality before
the law (Art 14) protection of life civil liberty (Art 21) Fundamental freedoms (Art 19)
protection against arrest (Art 22) were suspended. A President Ordinance amending MISA
withdrew the statutory requirement of the detainee's right to be informed of the grounds of
detention. It was sufficient for the authorities to declare that the arrest was made to
"safeguards the security of India". The right of appeal to the government in case of an illegal
detention was abolished; The constitutional safeguard of scrutiny of every detention by an
Advisory Board was rendered useless, since the Advisory Board would have no right to
reverse the detention order (for any reason) for one year;

43
Grounds of arrest were forbidden to be disclosed even to the Courts.Assumably it could be
deemed that it was against public interest to disclose the grounds of arrest; Provision was
made that the expiry of a detention order was not a bar to the making of further detention
order against the same person. On 18 June 1977 Prime Minister announced her desire to hold
the election. This was followed by the release of opposition leaders in order to participate in
election. Press censorship was suspended. A coalition of five opposition parties won an
absolute majority in lower house of the Lok Sabha. When the election result were confirmed
Mrs. Gandhi revoked the proclamation before the new incumbent took the office. The formal
termination of emergency automatically received some of the most objectionable aspects of
legal situations. Numerous commissions were created to investigate complaints arising out of
the emergency The most important was the enquiry conducted by Justice Shah.

5.3.1 Justification of third emergency

Of the two emergencies India had known until 1975, during the first qjarter century since the
constitution came in to force, the justification for the initial proclamation in 1962 and in 1971
was never in doubt. The armed hostilities were there for all to see. Also the declaration
followed the constitutional process. But the 1975 emergency- the justification for the
proclamation on the basis of ilnternal disturbance was disputed. It exposed the weaknesses of
safeguards of emergency provisions provided in the constitution. This perhaps justifies the
fear that the founding fathers of India had in their minds and some had even expressed
openly. Following weaknesses got exposed: -

The emergency provisions under the constitution eliminate the judiciary and the parliament
alone is treated fully to review abuse of government powers. Ideally both the judiciary and
parliament together keep the balance during the normal times. Emergency does not effect the
relations between executive and the legislature President acts on the aids and advice of
council of ministers. Emergency provisions does not make the President more or less
powerful As legal luminary Alladi said in the constituent assembly "The president" in theory
and in practice means always the President advised by council of ministers. Abuse of powers
to some extent is inimitable but all such preventable abuse must be prevented by all possible
efforts.

If all the safeguards of Indian Emergency mechanism are carefully examined it will be found
that they have certain in -built weakness. The constitution provides for parliament to control
the executives' process. But the President has an unlimited power to dissolve the parliament.

44
Once the President uses that power, there remains no independent authority to control the
government misusing emergency power and to safeguard the citizens rights. President's
emergency proclamation stands for two months in spite of its disapproval by house of
parliament. It is only the President that can revoke a proclamation. The 1975 emergency
prevailed despite the fact that its proclamation was never put on the table of parliament,
which is mandatory under the constitution.

5.4 POST EMERGENCY PERIOD

Emergency was revoked in 1977. 44th Amendment was made to the constitution as a result
of horrifying experience the country faced during third emergency by the ruling Janta Party
in the center, . Efforts were made to plug the loopholes of the constitution to check further
misuse of emergency power. The polity of India after 1977 witnessed many other severe
problems facing the nation. Different types of demands from different states created intensive
situations specially Punjab, Jammu and Kashmir, Assam, Nagaland, Manipur Tripura ,
Meghalaya, Mizoram and Arunachal Pradesh and also Andhra pradesh posed lasting political
demands. Government had to enact anti-terrorist legislations to cope with such political
unrest and terrorist activities. From time to time the government enacted different laws.
National Security Act 1980. MISA was repealed and National Security Act was enacted. It
provided for preventive detention for purpose of internal security. Both Central and state
governments were empowered. The Act was further amended in 1984 and 1987 to make it
more stringent. This Act was widely exercised throughout India. What is mentionable is that
although the government assured the United Nations Working Group On Enforced or
Involuntary Disappearances in 1997 the Act was highly misused by the government against
innocent persons. Among other special security legislation certain Acts need mention. The
Prevention Of Black Marketing And Maintenance Of Supplies Of Essential Commodities Act
1980, The Illicit Traffic In Narcotic Drugs And Psy chotropic Substances Act 1988. The
Uttar Pradesh Gangster And Antisocial Activities Act 1986, The Assam Preventine Detertrori
Act 1980, The Bihar Control of Crimes Act 1981 The Gujrat Prevention of Anti Social
Activities Act 198 . The Maharashtra Prevention of Communal Anti Social and other
Dangers Act 1980, are to name the few.

MCOCA 1999 is a special enactment to deal with separate class of crimes it confers
tremendous powers to police also. General law systems were found inadequate to meet new
challenges of organized crimes in recent years . A special legislation was promulgated in

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state of Maharashtra. This Act presents special provisions for prevention and control of
criminal activities by organized crime syndicate. This Act provides for prevention of terrorist
activities and stringent and deterrent punishment. More powers are given to the prosecuting
agency e.g. any offence which results in a person's death would be subject to fine of Rs. 1
Lac to 5 Lacs and imprisonment of 5 years. Such stringent punishments are for the first time
prescribed under this Act. Prosecuting agencies have also been given power to attach the
property of accused, witness would also be more forthcoming in testifying against the
accused as this law provides special protection of them. Many cases are pending before the
special court Also there is no case reported by the supreme court which shows that organized
crime is under control. During Mumbai blast case, Anti terrorism squad filed an over 1 Lac
cases chargesheeted in special MCOCA Act.These Acts provided sweeping and uncontrolled
power to the concerned authorities and were bound to be misused by them. Constitutional
Validity of these Acts were challenged in the Court. Even the President's power to
promulgate such ordinances were also criticized and challenged. They were also against the
binding provisions of International human right instruments to which India is signatory.

Human right activists, NGOS and many social organizations have specially expressed their
concern over widespread misuse of these Acts, specially TADA was highly criticized on
numerous accounts. The attempts made to challenge these Acts were mostly unsuccessful.
The court gave several directions regarding greater degree of fairness in the application of
Acts. The main issues before the court were –

Without any official Proclamation of Emergency situations how can such stern laws can be
brought into force.

 Concern was shown about the government's mal intention to enact some of the much-
criticized provisions of TADA.
 Many provisions of these Acts were against the constitution as well as International
human right protection norms. They can be seen abrogating the binding provisions of
International law to which India is a signatory.
 Wide spread allegations of extra judicial execution, rape , torture harassment and
other abuses committed by armed forces acting under the Acts were reported.
 The application of special laws used in normal parts of the country is a serious
concern.

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 CHAPTER 6

CONCLUSION

Keeping in view the struggle which both the abovementioned systems are engaged with, the
application of the legislative model will not be a complete surprise. INDIA is amending their
respective constitutions to increase the role of the legislature and are also trying to impose
checks on executive power. The application of the legislative model will give the systems
more flexibility and control over the exercise of these powers. It will restrict the legislative
power only in the hands of legislature. Furthermore, as explained by Pasquino, in a country
which has a sitting legislature, the need of an executive model can be doubted. The Indian
legislature has amended its Constitution for the sake of accommodating an exceptional
emergency in Punjab, the aim of which was to increase the time period of emergencies from
three to five years under Article 356(4) of the Indian Constitution.
Similarly, INDIA is continuously under a threat of executive abuse of these powers.
Such a situation can be rectified if the powers are transferred to the legislature. The
legislative model will only allow exercise of emergency powers by the executive on the
advice of the legislature. Viewing on a spectrum, the Indian emergency model is now moving
towards the legislative end (as opposed to the executive end) as it appears to give more power
to the legislature as compared to the executive (especially the President). However, an
important step for both these countries is to make their emergency actions and laws
justiciable so as to reduce the scope of abuse by the executive or even the legislature. More
openness in the system will bring transparency with it, another important component of the
legislative model. One of the setbacks of the legislative model is the unwillingness and delays
on part of the Parliament, which can inhibit a timely decision. However, this problem can be
settled by improving the procedure. Additionally, a better decision may be reached through
the legislative model as more people would be the part of the decision-making process.
In conclusion, the confidence in the system can only be restored if it is legislated with
people's own rationale rather than by transplanting a borrowed system. Path dependency is a
myth and, if not destroyed at the right time, will lead only to perpetual existence of self-
created problems. The laws should not be amended just to meet the immediate needs or
threats but some cogent lessons should also be incorporated. We must question why a

47
presidential model is being followed in spite of having a parliamentary form of government.
The reasons for having an emergency law for colonizers were different than those for these
independent nations. Therefore, in order to protect the next generations from trivial yet
important procedural and practical flaws, it is important for India to amend their emergency
laws once again. Having dealt with all the Emergency provisions, it is easy to see what the
purpose was behind to make such provisions in available in the Constitution in the first place.
But while we did our study for the same we did realise that even if these provisions are
provided for the security of the nation and also the protection of the people, the provisions in
themselves give a lot of drastic discretionary powers in the hands of the Executive. It affects
the federal structure of the nation essentially turning it into a unitary one while it seeks to
safeguard the interests of the state and the people. Though the need for that is understood, we
still think a system of check and balance should be brought into place so that unlike in the
1975 emergency, there is no misuse of power by the ruling party and the executive.

Though suspension of Fundamental Rights has been time and again tried to be justified we
think that they are the most basic to the very existence of the citizens in a democracy. As the
experience has been so far we have observed in our study that inspite of the safety measures
that were added by the 44th Amendment to the Constitution in the emergency provisions
there is still chances for the unjust violation of the fundamental rights. Therefore as there is
provision in the other federal constitutions such as of the Australia and Canada the courts
should be given the power to agree to the extent the Centre can expand its powers, as it will
act as a built-in mechanism to check the arbitrary use of the discretionary powers available
under the emergency provisions to the parliament and the executive. 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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 CHAPTER 7
BIBLIOGRAPHY

 BOOKS
¤ PM BAKSHI’s THE CONSTITUTION OF INDIA, UNIVERSAL LAW
PUBLISHERS, NEW DELHI. 2017 EDITION
¤ PROFESSIONAL’S THE CONSTITUTION OF INDIA (BARE ACT) 2018
Ed.
¤ M.P. JAIN’s INDIAN CONSTITUTIONAL LAW, 2018 Edition
¤ Dr. JN PANDEY’S THE CONSTITUTION OF INDIA, CENTRAL LAW
AGENCY, ALLAHABAD.
¤ PRATHISHTHA VIJ’s CONSTITUTIONAL LAW-II, LEXIS NEXIS, FIRST
EDITION (2015)
¤ JUSTICE RAMA JOIS’s, LEGAL AND CONSTITUTIONAL HISTORY OF
INDIA, UNIVERSAL LAW PUBLISHING, 2017 Edition.

 ARTICLES
¤ Bina Agarwal, Redefining Constitutionalism, 306-354,(Routledge Delhi,2007)
¤ Paras Diwan, “The Indian Constitution” SC (J) 15. (1978)
¤ Madhu Kishwar,``Codifying the Constitution`` xxix/33,Economic and
Political Weekly, 2145(1994)
¤ Maine‟s Constitution and India , 1091(Bharat Law House, New Delhi 1986)
¤ Melanie P.Mejia. „`The emergencies in the modern India with reference to
1975 emergency `` Vol-1, No.1 Kritike, 1-24 (June-2007)
¤ Dr.A.K.Srivastava ``National Emergency and India in the 20th century‟`
Vol.3.SCJ.18 (2007).

 WEBSITES
¤ http://www.shareyouressays.com/essays/short-essay-on-national-
emergency/85850

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¤ https://www.lawteacher.net/free-law-essays/administrative-law/protection-of-
human-rights-during-national-emergency-administrative-law-essay.php
¤ http://www.politicalsciencenotes.com/national-emergency/national-
emergency-1975-india/928
¤ https://www.thehindu.com/specials/in-depth/the-emergency-imposed-by-
indira-gandhi-government/article7357305.ece

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