Emergency Research Paper Constitution Final.docx

Project on Emergency Provisions in India

Submitted to:

Submitted by:

Prof. Sunishtha Moghe

Sharanya Nair URN No.

2016-B-01061998 BA.L.L.B (SEMV)

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TABLE OF CONTENTS

Subject Matter

Page No.

 Introduction…………………………………………………………..……………….….5  Objectives………………………………………………………………………………...6  Methodology……………………………………………………………………………..6  Part I. Emergency Provisions in India………………………………………………….7 -

Types of Emergencies in India ………………………………………….8

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National Emergency ……………………………………………8-12

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State Emergency………………………………………………..12-15

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Financial Emergency…….…………………………..15-16

 Part II. Emergency of 1975(Raj Narain case)…….………………………………17-19 -

Background ………………………………………………….17

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Facts of the case……………………………………………….18

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Decision Overview…………………………………………….18

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Aftermath……………………………………………………….19

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The 44th Amendment …………..………………………………………………..20

 Suggestions and Conclusion………………………………………………………….21  Bibliography…………………………………………………………………………..22

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ABSTRACT Being a democratic nation emergency provision in India has been subject to a lot of debate and discussion as the ultimate control goes to one single authority. The paper talks about the historical development of emergencies in India and also the types of emergency provisions in India. This paper talks about the different types of emergency in India and the procedure , how the proclamation takes place. Moreover the author has focused on the emergency of 1975 and the aftermath of the emergency and what were the changes brought after the 44th amendment in 1978.

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INTRODUCTION Democracy is at the heart of governance in India. However, in its working, democracy has revealed several inadequacies. The chain of accountability from the civil service to legislature and political authority is weak; follow-through at higher levels of administration is poor; and limited oversight by Parliamentary committees is part of the problem. Good governance is Accordingly associated with accountable political leadership, enlightened policy-making and a civil service imbued with a professional ethos. The presence of a strong civil society including a free press and independent judiciary are pre-conditions for good governance. Emergency is a very serious matter as it disturbs the normal fabric of the constitution and adversely affects the rights of the people. Such a proclamation should, therefore, be issued only in exceptional circumstances and not merely to keep an unpopular government from office. Being a democratic nation emergency provision in India has been subject to a lot of debate and discussion as the ultimate control goes to one single authority that is the center. “Emergency” under the constitution means a situation which is not normal a situation which calls for urgent remedial action1. It is mandatory for the government to be prepared with all required measures to safeguard its people from any kinds of crisis. Hence, the Government has been conferred powers to be prepared for any such situations before it arrives. India being a democratic nation, when reaches to such severe crisis situations cannot deal with them in its normal process since it needs immediate action and therefore the president is given the authority to proclaim emergency after he is satisfied after discussion and advice with the council of ministers that it is the need of the hour. But that is the time when the president is the only controlling authority and being a democratic state, it creates the assumption of extraordinary powers in the hands of the president will be in derogation of the civil and political rights normally ensured to the citizens by the democratic situations. That is the reason why it is a topic of debate and discussion. Whenever there is a threat to the nation or any part of the territory OR there is a failure of the constitutional machinery OR the financial credibility of India is threatened, then as per the satisfaction of the President of India emergency can be declared in India. There are different procedures via which the emergency is declared in the nation. These procedures are discussed further in the paper. The authors tried to study the types of emergencies proclaimed in India and important cases to deal with the situation like armed rebellion, war or external aggression?’

1

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

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OBJECTIVES 1. To study the different types of emergencies in India, the procedure of proclamation and invocation of emergency. 2. To critically analyze the case of Raj Narain v. State of UP, and to study the 44th Constitutional Amendment 1978.

METHODOLOGY The present study has adopted the doctrinal method of study. The study has been divided into three parts based on the objectives sought to be achieved by the present study. The study has firstly tried to present the background of the subject matter in brief and then the main part of the study has been dealt with. The study concludes with the analysis of developments in brief.

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HISTORICAL BACKGROUND2 The conditions, which were at that time of framing the Constitution, played an important role for that the provisions of emergency were included. The framers of the Constitution compelled to think about such provisions after facing many incidents after and before of independence period. The disruptive forces of caste’s, regionalism, and communalism created cacophony and disturbed the peace and harmony of the country3. The communal riots were happening between Hindus and Muslims which were disintegrating dangers for the establishment and maintenance of democracy in India. Kashmir problem came up with the lapse of the Crown at the time of making of our Constitution. Danger from Pakistan was coming up. There was the recalcitrant attitude of some of the Native States (Junagarh and Hyderabad) towards joining the Indian Union. It was a biggest challenge for the government of India at that time because the government could not permit such separatist conduct Military action in Junagarh and Hyderabad was necessary as a matter of geographical compulsion. This all motivated to need of Art. 3524. 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 Constitutionmakers 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

SSRN/emergency provision of India

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B. C. DAS, The Indian Journal of Political Science, 237-252, (1977), http://www.jstor.org/stable/41854792. 4

Ibid

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TYPES OF EMERGENCIES UNDER THE INDIAN CONSTITUTION5: To protect the active order in the nation, Constitution provides the laws for emergency action. The unusual circumstances are to be dealt with by the provisions contained in Part XVIII of the Indian Constitution. These situations can be broadly classified under three head, which are given below6: 1. National Emergency- Emergency due to war, external aggression or internal disturbance – ( Art. 352 ), 2. State Emergency- Emergency in case of failure of Constitutional machinery in States – ( Art. 356 ); and 3. Financial Emergency- Emergency due to financial crisis (Art. 360).

1. NATIONAL EMERGENCY (Art. 352) PROCLAMATION OF EMERGENCY: “If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.7” A proclamation of emergency under Article 352(1) may be made before the actual occurrence of war, external aggression or armed rebellion8. Moreover, the forty fourth amendment introduced another innovation : where a notice in writing, signed by not less than 1/10th of the total members of the Lok Sabha has been given of their intention to move a resolution disapproving the proclamation of emergency, to the speaker if the house is in session or to the president, if the house is not in session, a special sitting of the house is to be held within 14 days from the date on

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Jain M.P., Indian Constitutional Law, 700 (8th Edition, 2018), Lexis Nexis, New Delhi Articles 352, 356 and 360, the Constitution of India, 1950.

6 7 8

The Constitution of India, bare Act , Article 352(1)

Naga people’s Movement of human rights V. Union of India, (1998) 2 SCC 109.

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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)]9 Judicial review of proclamation:10 A view was prevalent that the question whether emergency exists is essentially a political question entrusted by the constitution to the union executive and therefore not justifiable before the court. However, in Minerva Mills Ltd. verses UOI11, it was held that there is no bar to judicial review of the validity of a proclamation of emergency issued by the president under article. 352. Merely because a question has a political complexion, it is no ground why the court should shrink from performing its duty under the constitution if it raises an issue of constitutional determination. The court’s power, however, is limited only to examining whether the limitations conferred by the constitution have been observed or not. the court cannot go into question of adequacy of the facts and circumstances on which the president’s satisfaction is based unless it can be shown that there is no satisfaction of the president at all (in that case the exercise of the power would be constitutionally invalid). Where at all, the satisfaction is absurd or perverse or mala fide or based on wholly extraneous and irrelevant grounds, it would be no satisfaction at all and it would be liable to be challenged before a court of law.

CONSEQUENCES OF A PROCLAMATION OF NATIONAL EMERGENCY12 (a) There is a transformation in the behavior of the Indian federalism. The normal fabric of the Centre-State relations undergoes a fundamental change. Parliament becomes empowered to

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Art. 352 (8). The Constitution of India, 1950.

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https://www.legalbites.in/emergency-provisions/

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Minerva Mills vs. Union of India AIR 1980, SC 1789 http://www.advocatekhoj.com/library/bareacts/constitutionofindia/352.php?Title=Constitution%20of%20India, %201949&STitle=Proclamation%20of%20Emergency 12

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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]13 (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)].14 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]15. (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.

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Art. 250. (1), The Constitution of India, 1950, Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. (2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period. 14

Art. 353, the Constitution of India,1950. While a Proclamation of Emergency is in operation, the_

(a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised

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(b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List.

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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 emergency16. (e) During an emergency, Parliament can also levy any tax which ordinarily falls in the Sate list [Art. 250]17 (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 operate18.

(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 19.

INVOCATION OF NATIONAL EMERGENCY In India, national emergency has been invoked three times so far. First time, on October 26, 1962, in the wake of clash with china. It remained in force during the Indo-Pak conflict in 1965, and was revoked only in January, 1968. Second time, on December, 1971, as a result of the India and Pakistan dispute on the ground of external aggression.

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The President may, while a Proclamation of Emergency is in operation, by order direct that all or any of the provisions of articles 268 to 279 shall for such period, not extending in any case beyond the expiration of the financial year in which such Proclamation ceases to operate, as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit. 17 Supra note 12 18 Proviso to Art. 83(2), The Constitution of India, 1950, Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. 19

Provision to Art. 172, The Constitution of India, 1950, Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate

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While the 1971 was still effective, another proclamation was issued on June 26, 1975. This time the proclamation was issued on the ground of “internal disturbance” threatening the security of India. Bothe these proclamations were revoked in March 1977. One of the major result which come out after the proclamation of the emergency in 1975was the amendment of Article 352 by 44th Constitutional amendment so as to introduce some more safeguards therein against any unwarranted declaration of emergency in future. The main purpose of this amendment was that what happened in 1975 should not repeat in future.[21]

2. STATE EMERGENCY PROCLAMATION OF EMERGENCY Article 356 and 357 provide for meeting a situation arising from the failure of the Constitutional machinery in a state. “If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation” (a) Assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; (b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State. 12

CONSEQUENCES OF INVOKING STATE EMERGENCY Article 356(1) has been invoked a number of times since the advent of the Constitution reading Art. 356 along with Art. 357 a pattern has thus come into existence, whenever the centre takes over a state government. The centre has acted only when the governor has reported failure of the Constitutional machinery in the state and in no case has the centre acted ‘otherwise’. The governor makes the report to act in this matter on the advice of the council of ministers. The proclamation issued by the President under Art. 356(1) is placed before parliament. If it is expected to remain in force only for two months, then no further action is necessary. But if it is proposed to keep it in force for a longer period, it is to be ratified by both houses. Under Art.356 (1) (a), the President can assume to himself the powers of the Governor. One of the Governor’s powers is to dissolve the Legislative Assembly. Consequently, when the. President issues a proclamation and assumes the governor’s powers, the powers to dissolve the assembly and hold fresh elections is automatically transferred to the president. Therefore, the Presidential proclamation may dissolve the State Legislature and arrangements for holding fresh elections are set afoot.

INVOCATION OF STATE EMERGENCY The sweep of the phrase, “the government of the State cannot be carried on in accordance with the provisions of this Constitution” in Art. 356(1) has indefinite connotations. Failure of the Constitutional machinery in a State may arise because of various factors; these factors are diverse an imponderable. State Emergency or President’s Rule can be invoked after a receipt of report submitted by the Governor of a state to the President. Though Article 163(1) obliges the Governor to act according to the advice tendered by his Council of Ministers excepting those matter with respect to which the Constitution requires him to exercise his discretion, and because the furnishing of a report under Article 356(1) is not so mentioned by the constitution as a function to be exercised by him in his discretion, it is obvious that in the matter of the Governor reporting to the President that there has been a breakdown of the Constitutional machinery must 13

necessarily be a matter in which the Governor cannot possibly act according to the advice of the Council of Ministers20. Nevertheless, some situations of the breakdown of the Constitutional machinery may be as follows: (1) No party in the Assembly has a majority in the State Legislative Assembly to be able to form the government. (2) A government in office loses its majority due to defections and no alternative government can be formed. (3) A government may have majority support in the House, but it may function in a manner subversive of the Constitution. As for example, it may promote fissiparous tendencies in the State. (4) The State Government does not comply with the directions issued by the Centre Government under various Constitutional provisions. (5) Security of the State may be threatened by a widespread breakdown of law and order in the State. (6) It may be debatable whether Art. 356(1) can be invoked when there are serious allegations of corruption against the Chief Minister and the Ministers in a State. Reading Articles 355 and 356 together, it can be argued plausibly that the Constitutional machinery breaks down in the State when the government indulges in corruption. Article 356 has been invoked in the State of Uttar Pradesh because it did not appear to be feasible to form a stable government. In S.R Bommai v. Union of India21, the Supreme Court has laid down various guidelines in regard to the use of article. 356, which, it is hoped, would put a

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Samsher v. State of Punjab, AIR 1974 SC 2192 Id footnote no.2 SR Bommai v. Union of India [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1) 21

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

3. FINANCIAL EMERGENCY Article 360 makes a provision concerning financial emergency22. “If the President is satisfied that a situation has been whereby the financial stability or credit of India, or any part thereof, is threatened, he may by a proclamation make a declaration to that effect. When such a proclamation is in operation, the centre can give directions to any state to observe such canons of financial property as may be specified in the directions. It may give such other directions as the President may deem necessary and adequate for the purpose [360(3)].[30] Any such directions may provide for the reduction of salaries and allowances of all. Or any class of persons serving in the state. [Art. 360(4)(a)(i)]23 The centre may require that all money bills, or financial bills or those which involve expenditure from the state consolidated fund, shall be reserved for the President’s consideration after being passed by the state legislature [Art. 360(4) (a) (ii)].24 The President may also issue directions for reducing the salaries and allowances of persons serving the union including the Supreme Court and the high court judges [Article 360(4) (b).]25

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MP Jain eight edition pg no. 757 Art. 360 (4), The Constitution of India, 1950, Notwithstanding anything in this Constitution (a) any such direction may include (i) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State 24 (a) (ii). A provision requiring all Money Bills or other Bills to which the provisions of article 207 apply to be reserved for the consideration of the President after they are passed by the Legislature of the State 23

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A proclamation issued under issued under Art. 360(1) may be revoked or varied by a subsequent proclamation [Art. 360(2) (a)], and has to be laid before each House of Parliament [Art. 360(2) (b). The proclamation ceases to have effect after two months unless in the meantime it is approved by the Thirty-Eighth Amendment of the Constitution, the Presidential ‘satisfaction’ in Art. 360(1) was declared to be ‘final and conclusive’ and not questionable in any court on any ground. No court was to have jurisdiction to entertain any question, on any ground, regarding the validity of — 1. A declaration made by proclamation by the President to the effect stated in Article 360(1); or 2. The continued operation of such Proclamation. This provision has now been deleted by the Forty-Fourth Amendment of the Constitution. In India, there has not been financial emergency imposed till now.

DURATIAN OF EMERGENCY PROCLAMATION The Constitution specifically provides that a Proclamation of Emergency made by the President shall be valid for a period of two months only in the maximum within which it shall be laid before each House of Parliament and approved by them. But if within that period, Lok Sabha is dissolved, the proclamation shall be laid before Rajya Sabha only. On its approval, it shall continue beyond two months till the new Lok Sabha are elected, and it ratifies the proclamation within thirty days of its first session. Fixed time limit is always qualified by clauses like, “as soon as”, “for the time being”, etc. The Constitution also does not provided for the contingency of Parliament disapproving the proclamation. Parliament has three options before it – (a) it may approve the proclamation by a resolution; (b) it may take no action; or (c) it may reject or disapprove the proclamation. If the President feels the necessity of continuance of the proclamation beyond two months, and Parliament is opposed to its continuance, there is a deadlock. Its tenure can be extended by Parliament alone.[34] Ordinarily, the wishes of the legislature will prevail. If the executive persists in its view, it may issue another proclamation 25

Art. 360 (4) (b), The Constitution of India, 1950. it shall be competent for the President during the period any Proclamation issued under this article is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.

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

RAJ NARAIN vs. STATE OF UP (The case which led to the proclamation of emergency 1975) BACKGROUND:

Raj Narain was the political contender against Indira Gandhi for Rae Bareilly Constituency in 1971 Lok Sabha General Elections. Mrs. Gandhi won the election & congress won the house with sweeping majority. However, after the results of the polls, Raj Narain filed a petition before High Court of Allahabad contending that Indira Gandhi has performed Election malpractices. On 12 June1975, The High Court of Allahabad speaking under Justice Jagmohanlal Sinha found Indira Gandhi guilty of misusing government machinery u/s-123(7) of Representative of Peoples Act, 1951.26 Therefore, the court held that Indira Gandhi cannot continue as the Prime Minister of the nation, further, she cannot contest elections for another six years. Aggrieved by this decision Indira Gandhi went to appeal this ruling of Allahabad High court in Supreme Court.27there were huge protest and strikes under leadership of Jai Prakash Narayan , George Fernandez and others organized rallies and protest against the government of Indira Gandhi on the grounds of corruption and poor government etc. on June 25 1975 she took a decision to advice President to proclaim Article 352 of internal emergency. This phase was the darkest phase of Indian democracy, a special Act MISA (Maintenance of Internal Security Act) was enforced which converted India into police state. Almost all civil liberties of citizens were taken away and most shocking Article 20 and 21 were suspended. This suspension led to arbitrary arrest of many any person arrested under MISA (under article 16(A) or not was moreover deprived of the moral judicial guarantees and notably of the right to appeal against the decision. The nature of preventive detainments had become arbitrary. People were being arrested for common law crimes. The administrative authorities could arrest whomsoever they want for 2 years. The massive seizures that were carried out by the barbaric government in the wake of declaration of internal “emergency” on June 25th, 1975 provided the High Courts of India with writ petitions from people who had been detained under MISA. Several High courts decided, on the principles 26 27

Raj Narain v. State of Uttar Pradesh 1975 A.I.R. 865 http://lawtimesjournal.in/indira-nehru-gandhi-v-raj-narain/#_ftn1

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Of Makhan Singh28, that they had jurisdiction under Article 226 to issue the writ of habeas Corpus where detention orders were ultra vires or mala fide. During the Emergency in 1976, the Supreme Court (SC) delivered a shocking judgment in the habeas corpus case known as ADM Jabalpur v. Shivkant Shukla29, which stunned the whole country. The then Attorney General of India focused on the aspect of 'liberty' as found in Art.21 of the Constitution. “His central contention was that since the right to move any Court had been suspended, the detenue had no locus standi and their writ petitions would necessarily have to be dismissed.”30 However under pressure and criticism from national and international groups finally emergency was revoked on 21st March 1977.

Facts In this case, an appeal was filed by the appellant against the decision of the Allahabad High Court invalidating Smt. Indira Gandhi’s election on the ground of corrupt practices. In the meantime, the Parliament passed the 39th Constitutional Amendment31, which introduced and added a new Article 392A to the Constitution of India. It was stated by this Article 392A that the election of the Prime Minister and the Speaker cannot be challenged in any court in the country. It can be rather challenged before a committee formed by the Parliament itself. Although the Supreme Court validated the election of Indira Gandhi but declared the 39th Amendment to be unconstitutional as it violated the basic structure of the Constitution.

The 39th Amendment was made to validate with retrospective effect the election of the then Prime Minister which was set aside by the Allahabad High Court32.

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

The Supreme Court held clause (4) of the Constitution 39th Amendment Act, 1975 as unconstitutional and void on the ground that it was outright denial of the Right to Equality 28

Makhan Singh Tarsika v. State of Punjab [1964] A.I.R. 381

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ADM Jabalpur v. Shivkant Shukla (1976)2SCC 521 Jos. Peter D 'Souza (2001), When the Supreme Court Struck Down the Habeas Corpus, PUCL Bulletin (2001) 31 39th Amendment of the Constitution of India 1975 32 http://www.pathlegal.in/Landmark-Judgment---INDIRA-NEHRU-GANDHI-V-RAJ-NARAIN-and-ANO-blog-1202833 30

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enshrined in Article 14, It was held by the Court that these provisions were arbitrary and were calculated to damaged and destroy the Rule of Law. In the words of Mathew J. the said clause destroyed essential democratic feature of the Constitution viz. the resolution of an election dispute by ascertaining the adjudicative facts and applying the relevant laws. He was of the opinion that a healthy democracy can only function when there is possibility of a contest of free & fair elections. The impugned amendment destroyed that possibility therefore it is violative of Basic feature of Constitution33.

Justice H.R. Khanna held that the democracy is the Basic Structure of the Constitution and it includes free and fair election which cannot be violated. The Supreme Court, in this case, added the following feature as ‘Basic Features” to the list of basic features laid down in Keshavananda’s Case34. These are – Rule of Law: Democracy that implies free and fair elections. Judicial Review: Jurisdiction of Supreme Court under Article 32

Background of the introduction 44th Constitutional Amendment; The proclamation of emergency is a very serious matter as it disturbs the normal fabric of the constitution and adversely affects the rights of the people. Such a proclamation should, therefore, be issued only in exceptional circumstances and not merely to keep an unpopular government from office35. This happened in June 1975 when an emergency was declared on the grounds of internal disturbance without there being adequate justification for the same. The proclamation of 1975 was made on the ground of internal disturbance which proved to be most controversial because there was violation of fundamental rights of the people on a large scale; drastic press censorship was imposed. A large number of persons were put in preventive detention without justification. In the light of these amendments have thus be made by the 44th amendment Act to the emergency provisions of the constitution to make repetition of 1975 situation extremely difficult, if not possible.

Aftermath 33

https://globalfreedomofexpression.columbia.edu/cases/state-of-uttar-pradesh-v-narain/

34 35

Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR (1973) 4 SCC 225 Supra 33

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

The 44th amendment of Indian constitution36 The 44th amendment of Indian constitution substantially altered the emergency provision of the constitution to ensure that it is not abused by the executive as done by Mrs. Indira Gandhi in 1975. It also restored certain changes that were done by 42nd Amendment. The following are important points of this amendment:      

 

“internal disturbance was replaced by armed rebellion under article 352” The decision of proclamation of emergency must be communicated by the Cabinet in writing. Proclamation of emergency must be by the houses within one month. To continue emergency, it must be reapproved by the houses every six months. Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present and voting. 1/10th of the members of a house can move such a resolution. Article 358 provides that article 19 will be suspended only upon war or external aggression and not upon armed rebellion. Further, every such law that transgresses article 19 must recite that it is connected to article 358. All other laws can still be challenged if they violate article 19. Article 359, provides, suspension of the rights to move courts for violation of part III will not include articles 20 and 21 Reversed back the term of Lok Sabha from 6 to 5 years.

A GIFT FROM THE SUPREME COURT OF INDIA: Landmark judgement was passed in Minerva Mill’s case 198037. It provide that the emergencies are covered by Judicial review and can be declared null and void when finds it unconstitutional.

36 37

http://www.legalservicesindia.com/article/1769/Emergency-Provisions:-Effects-and-Impact..html Minerva Mills v Union of India AIR 1980 SC 1789

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Conclusion Our Constitution talks about execution of power which may also lead to infringement of Fundamental Rights during the emergency. As we have seen that there was misuse of power during the third National Emergency i.e., National Emergency because of internal disturbance as stated by the former Prime Minister Smt Indira Gandhi, this clearly shows the misuse of the political power and playing with the basic democratic rights guaranteed by the Constitution of the India to its citizens . It is suggested that there should be some effective control mechanism to ensure limitation of this power within the purview of the Indian Constitution. The actions taken up by the Government officials must be checked so as to stop the political pickups and it should provide a way to the interest of general public. After the 44th Constitutional Amendment it has been made sure that proclamation of emergency will be a tough task whereas previously it was not. It can be understood that nothing in this nation is more important than the citizen of the nation. It is the duty of all the organs of government to look after and to come up with the welfare of the citizens of the country, no one can escape the ‘rule of law’.

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BIBILIOGRAPHY  1. 2. 3. 4. 5. 6. 7. 8.

TABLE OF CASES Rameshwar Prasad v. Union of India (2006)2SCCI: AIR 2006 SC980 Minerva Mills v. Union of India 1980 SCC 1781 Naga People’s Movement of Human rights v. Union of India 1998 2SCC109 SR. Bommai v. Union of India [1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1) Samsher v. State of Punjab AIR 1974 SC 2192 Raj Narain v. State of UP AIR 865 Makhan Singh v. State of Punjab 1964 AIR 381 Kesavanada Bharathi v. State of Kerala AIR (1973) 4 SCC225

 ONLINE SOURCES: 1. http://www.legalservicesindia.com/article/1769/Emergency-Provisions:-Effectsand-Impact..html 2. http://legislative.gov.in/amendment-acts 3. http://lawtimesjournal.in/indira-nehru-gandhi-v-raj-narain/#_ftn1 4. http://racolblegal.com/emergency-provisions-history-types-and-duration-inindia/#_ftn9 5. http://racolblegal.com/emergency-provisions-history-types-and-duration-inindia/#_ftn9 6. https://lawnn.com/top-20-landmark-judgements-interpretation-statute/ 7. http://www.pathlegal.in/Landmark-Judgment---INDIRA-NEHRU-GANDHI-VRAJ-NARAIN-and-ANO-blog-1202833 8. https://www.gktoday.in/gk/constitution-42nd-amendment-act-1976/ 9.

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