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Savitribai Phule Pune University

DEPARTMENT OF LAW

One Year LL.M

Semester I
(2014-2015)

LONG TERM PAPER

Name of the Subject

COMPARATIVE PUBLIC LAW

Name of the Topic

SUPPRESSION OF FUNDAMENTAL RIGHTS DURING EMERGENCY:

JUDICIAL AND LEGISLATIVE RESPONSE.

Submitted to Submitted by
Prof. Durgambini Patel Anuj Shaha.

Division - A

Roll No - 95
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TABLE OF CONTENTS

NO. NAME OF THE CHAPTER PG. NO.

1 GENERAL INTRODUCTION 1
1.1 Introduction 1
1.2 Aims and Objectives 2
1.3 Statement of Problem 2
2
1.4 Hypothesis
3
1.5 Literature Review 3
1.6 Scope of the Study 3
1.7 Methods and Techniques to be Used 4
1.8 Scheme of Chapterization

2 SUPPRESSION OF FUNDAMENTAL RIGHTS DURING 6

EMERGENCY
6
2.1 Background

2.2 Proclamation of Emergency 6

7
2.3 Statutory Amendments
9
2.4 Abuse of Executive Powers

3 JUDICIAL RESPONSE TO EMERGENCY 10

LEGISLATIVE RESPONSE TO EMERGENCY 16

4 4.1 Emergency Provisions before 44th Amendment 16

4.2 Shah Commission of Enquiry 19

4.3 Changes made through 44th Amendment Act 20

5 CONCLUSION 22
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CHAPTER 1 GENERAL INTRODUCTION

INTRODUCTION:

A state of emergency in India refers to a period of governance under an altered constitutional

setup that can be proclaimed by the President of India, when he perceives grave threats to the
nation from internal and external sources or from financial situations of crisis. Under the advice
of the cabinet of ministers and using the powers vested in him/her largely by Part XVIII of the
Constitution of India, the President can overrule many provisions of the constitution, which
guarantee fundamental rights to the citizens of India and acts governing devolution of powers to
the states which form the federation.

The President can declare three types of emergencies:

National emergency
State emergency
Financial emergency

Proclamation of Emergency means Proclamation issued under clause (1) of Article 352.
Accordingly, wherever the expression Proclamation of emergency occurs, it should not include
the two other emergencies, namely, the emergency arising out of the failure of the constitutional
machinery in a state or the financial emergency. Proclamations of Emergency under Article 352
have been issued thrice- In October, 1962 during Chinese aggression which was revoked in
January 1968, December 1971 in connection with external aggression from Pakistan and while
this was in operation another in June 1975 on ground of internal disturbances both of which were
revoked in March 1977. While the provisions on the breakdown of the constitutional machinery
in the states have been invoked over a hundred times, the provisions on financial emergency
1
have never been invoked so far.

1
V. N. Shuklas Constitution of India Eastern Book Company Eleventh Edition. Pg. 952.
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AIMS AND OBJECTIVES:

The aim and objective of this study will be to critically analyze Emergency provisions in
Indian constitution, how they affect the fundamental rights of the citizens, judicial views and
legislative response to the same.

The aims and objectives of the study include the Following:

i. To study the provisions relating to Emergency in Indian Constitution?
ii. To analyze how the proclamation of Emergency affects Fundamental Rights of the
Citizens.
iii. To analyze judicial response to the Emergency.
iv. To study legislative response to the Emergency.

STATEMENT OF PROBLEM:

Proclamation of Emergency brings about the limitation on the fundamental rights. In such
situation problem arises as to what extent the state can suppress the fundamental rights of the
citizens.

HYPOTHESIS:

Excessive powers in hands of executive leads to authoritative regime.

Legislative and Judicial checks and balances can aptly prevent abuse of powers and
suppression of fundamental rights.
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LITERATURE REVIEW:

There is extensive literature on Emergency in India. The researcher has reviewed

following literature:

Contribution of the Supreme Court to the Growth of Democracy in India by Chief Justice
(Retd.) S Rajendra Babu
Indias Post Colonial Engagement with the Rule of Law by Moiz Tundawala
Duty of the union under Article 355 of the Constitution Remembering the
Constitutional Ideal of Co-operative Federalism by Jaideep Reddy.
The Judicial Management of State of Emergency: Reinforcing or curtailing the
judiciarys role? Michael Haile.

SCOPE OF THE STUDY:

The researcher has covered the scope of this research to constitutional provisions related
to Emergency before and after the 44th Amendment Act, 1978 and various cases in
respect of suppression of fundamental rights during emergency. This study will also
briefly discuss the events surrounding the National Emergency between 1975-77.

METHODOLOGIES AND TECHNIQUES TO BE USED:

The research methodology adopted is purely doctrinal in nature relying on primary and
secondary source material. The researcher has referred to Indian and International Journals,
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Reference Books, Case Laws, Articles, Constitution of India along with the Amendments made
post Emergency era.

SCHEME OF CHAPTERIZATION:

Chapter 1 General Introduction:

This chapter outlines the contents of this research work. It includes an introduction and
background of the research topic. In discusses aims and objectives of the research, scope of the
study and hypothesis. Further it also covers the literature review which consists of the survey of
the existing books which have been referred. Lastly it contains the Research Methodology used
in the conducting the research and lists down the primary and secondary sources applied for the
same.

Chapter 2 Suppression of Fundamental Rights During Emergency

This chapter covers the background events which led to imposition of National Emergency in
1975, the Proclamation of Emergency by the President, various amendments made by the
government for suppression of fundamental rights of the citizens.

Chapter 3 Judicial Response to Emergency

This chapter covers response of Indian courts to the emergency and fundamental rights of the
citizens during the emergency. Researcher has studied how court has interpreted preventive
detention in various cases with special focus ADM Jabalpur v. Shivkant Shukla i.e. Habeas
Corpus case.
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Chapter 4 Legislative Response to Emergency

This chapter studies the emergency provisions under the Indian constitution before the National
Emergency of 1975-77. Then the researcher has analyzed 44th Constitutional Amendment Act
and how court has interpreted the changes made in Emergency Provisions through this
Amendment.

Chapter 5 Conclusion
The concluding chapter outlines role of judiciary in protection of fundamental rights of the
citizens and importance of constitutionalism and rule of law for the survival of democracy in
India.
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CHAPTER 2
SUPPRESSION OF FUNDAMENTAL RIGHTS DURING EMERGENCY

Background:
In the Elections held to the Lok Sabha in 1971 from the Rai Bareily Constituency Smt. Indira
Gandhi was declared elected, defeating Shri Raj narain and other who had contested the election.
Shri Raj narain then filed a petition in the High Court of Allahabad challenging the election of
Smt. Indira Nehru Gandhi on a number of grounds, inter alia, alleging misconduct against her.
The High Court of Allahabad pronounced its judgment on June 12, 1975. Shri J. M. L. Sinha of
Allahabad High Court ordered:
In view of findings, this petition is allowed and the election of Smt. Indira Nehru Gandhi to the
Lok Sabha is declared void. Accordingly, the respondent stands disqualified for a period of six
years from the date of this order.
Prime Minister Indira Gandhi subsequently made an appeal to the Supreme Court. Justice
Krishna Iyer on 24h June, 1975 passed an interim order in which he suspended right of Mrs
Gandhi to take part in the proceedings in the Lok Sabha nor vote, nor draw a remuneration in her
capacity as a Member of the Lok Sabha.

Proclamation of Emergency:
Thereafter, on June 26, 1975, President Fakhruddin Ali Ahmed proclaimed an emergency under
Article 352(1) of the Constitution on the advice of Prime Minister Indira Gandhi. Later, he
issued a proclamation suspending the right to approach the courts for the enforcement of the
fundamental rights guaranteed under Articles 14, 21 and 22. The imposition of emergency was
necessitated, according to Mrs. Gandhi, because of the turmoil and incipient rebellion in the
country. Besides the maintenance of order justification, the government pointed to the
imperatives of saving democracy, protecting the social revolution and preserving national
integrity - all of which together compelled the resort to such a drastic step. On the contrary, for
the critics, the emergency was nothing short of a scandal on the Constitution, and smacked of
Mrs. Gandhi's dictatorial ambitions. The justifications notwithstanding, some of its tangible
consequences on the ground were the following: detention of nearly 1,11,000 persons, a
significant number of whom belonged to the opposition, under the Maintenance of Internal
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Security Act, 1971 and the Defense of India Act/ Rules, 1961; infliction of torture on many of
these detenues; press censorship and curbs on the freedom of speech and expression; demolition
of shanty towns in and around Delhi; and the subjection of rural and urban poor, and the lower
middle class in North India to forced sterilization programs. Fortunately for those who suffered,
the emergency was revoked and normalcy restored in eighteen months and for the first time in
the history of independent India, a non-Congress government came to power at the centre after
the Parliamentary elections in 1977.

What happens when the state, enjoying a monopoly over coercion, suspends the regular
constitution and decides to express its force and might, if its own security is under threat? Is the
rule of law a powerful enough check under such circumstances when all other protective
mechanisms are slowly taken away? And what exactly can we expect it to do as a final bastion
2
for actual or potential victims of state violence under emergency?

While the National Emergency of 1975 was in operation, the government made following
attempts to suppress Fundamental rights through various statutory provisions3:

a. The Defense of India (Amendment) Act, 1975 The Act extended the provisions of the
Defense of India Act, 1971, till the proclamation of Internal Emergency lasted and for a
period of six months thereafter. It also added words like internal security and internal
disturbances in the preamble of the principle Act.

b. The Maintenance of Internal Security (Amendment) Act, 1975 This Amendment

provided for (i) Revocation of a detention order shall not bar making another detention
against the same person; (ii) Person detained under Section 15 shall not be released on
bail, bail-bond or otherwise, (iii) a new Section 16A was added barring provisions of
grounds and approach to a law Court and (iv) making the grounds of detention as

2
On Indias Post-Colonial Engagement with the Rule of Law Moiz Tundawala NUJS Law Review, 2013.
3
Shah Commission Interim Report-1, Pg. 4, 5.
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confidential and barring its disclosure to anyone.

c. The Constitution (Thirty-eighth Amendment) Act, 1975 By this Amendment Act

power to issue Ordinances by the President, the Governor and the Administrator under
the relevant provisions of the Constitution was conferred, laying down that their
satisfaction as to the necessity of immediate action shall be final and conclusive and shall
not be questioned in any Court on any ground. It also entitled the President to issue
different proclamations on different grounds and to make satisfaction of the President as
to the emergency final and conclusive. During the Emergency the satisfaction and the
declaration of the Emergency could not be questioned in any court on any ground.

d. The Constitution (Thirty-ninth Amendment) Act, 1975 This Amendment inter alia
provided for:- (a) the election of President and Vice-President shall not be questioned in
any court; (b) similarly, elections of the Prime Minister and the Speaker of the House
were placed above the law Courts and were to be judged by a Body/Authority to be
constituted by the Parliament. This amendment prevented even filing of election petitions
against the named persons and even pending petitions abated.

e. The Press Council (Repeal) Act, 1976 The Press Council Act, 1965 was repealed
dissolving the Press Council of India and also abating of cases, suit, appeals etc. pending
before Court in which Press Council was a party.

f. The Prevention of Publication of Objectionable Matter act, 1976 The Act provided
for (i) inclusion in the expression objectionable matter any words, signs or visible
representations which are defamatory of the President of India, the Vice-President of
India, the Prime Minister or the Speaker of the House of the People or the Governor of a
State; (ii) Seizure of copies of the publication made in disobedience of the Central
Government Order prohibiting the printing or publication, closure of any printing press or
other instrument or apparatus used in the publication; (iii) power to demand security from
the presses, publishers and editors of newspapers and news sheets, when it spears to the
competent authority that the publication contains any objectionable matter; (iv) power of
P a g e 11 |

the Central Government to declare certain publications forfeited.

g. Parliamentary Proceedings (Protection of Publication) Repeal Act, 1976 By this

Act the Parliamentary proceedings (Protection of Publication) Act, 1965 was repealed.

h. The Constitution (Forty Second Amendment) Act, 1976 The constitution was
extensively amended by 59 clauses.

Some of the Instances of Abuse of Executive Power during National

Emergency included:-

a. Wrongful arrests: Invoking article 352 of the Indian Constitution, Mrs. Gandhi granted
herself extraordinary powers and launched a massive crackdown on civil liberties and
political opposition. The Government used police forces across the country to place
thousands of protestors and strike leaders under preventive detention. Critics were
detained by police without charge or notification to families and they were abused and
tortured in custody.

b. Family Planning and Forced Sterilizations: Sanjay Gandhi initiated a birth control
program, chiefly employing sterilization, primarily vasectomies. Quotas were set up and
the program counted as many as 8.3 million forceful sterilizations, up from 2.7 million
the previous year.

c. Use of public and private media institutions, like the national television network
Doordarshan, for government and party propaganda,

d. Destruction of the slum and low-income housing in the Turkmen Gate and Jama Masjid
area of old Delhi.
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CHAPTER 3
JUDICIAL RESPONSE

The discussion of cases falls into two parts: Cases decided during the emergency created by war
or external aggression and cases decided during the Emergency proclaimed on 25th June 1975 on
the ground of internal disturbance.

During first two emergencies which were declared in October 1962 and December 1971 on
ground of External Aggression, no attempt had been made to impair permanently the
fundamental rights embodied in our Constitution. Under the circumstances, the courts considered
the effect of proclamation of emergency in a number of cases: (1) On Preventive Detention, (2)
On the effect of the suspension of Article 19 following on a proclamation of emergency and
(3) on the effect of the Presidents Order under Article 359.

On 26th October 1962, the President issued a Proclamation of Emergency under Article 352. As
the Parliament was not in session, the President promulgated the Defense of India Ordinance,
1962. On 3rd November 1962, the President issued an order under Article 359, declaring that the
right of any person to move any court for the enforcement of the rights conferred by Article 14,
21 and 22 was suspended during the time the proclamation was in force.

In Mohan Chowdhary v. Chief Commr. Tripura 4 the Defense of India Ordinance and the
rules made there under were challenged. On a preliminary objection being taken that in view of
the Presidents Order made under Article 359, the petitioner was not entitled to move the court or
the enforcement of his fundamental rights, the petitioner contended that as Article 32 itself
conferred a fundamental right and as the Presidents Order had not suspended that rights, the
petitioner was entitled to move the court under Article 32. The Supreme Court held that the right
to move that court under Article 32 was subject to Article 32(4) under which the right could be
suspended in accordance with the provisions of the Constitution. Article 359 enabled the
President to suspend the right to move any court for the enforcement of the fundamental rights

4
(1964) 3 S.C.R. 442
P a g e 13 |

which may be named by the President. The Presidents Order did not suspend all rights vested in
a citizen to move the Supreme Court but only his right to enforce the provisions of Articles 21
and 22 in respect of anything done under the Defense of India Act:

As a result of the Presidents Order, the petitioners right to move this court, but not this courts
power under Article 32 has been suspended during the operation of the emergency with the result
that the petitioner has no locus standi to enforce his right, if any, during the emergency.

Thus, the validity of the statutory provisions authorizing the detention could not be challenged in
view of the Presidential Order. The Court, however, held that the pleas which were open to a
detenu were that the mandatory provisions of the Defense of India Act and rules had not been
observed and the plea not merely alleged but proved that the detention was mala fide.

Makhan Singh v. State of Punjab 5 showed that even when the Presidents Order suspended the
right of the detenu to move the Courts for the enforcement of his fundamental rights under
Articles 21 and 22, his right to challenge his detention on several other grounds was not taken
away These grounds were (i) the law authorizing detention was colorable or was passed by a
legislature which had no legislative competence, (ii) the detention was in violation of the
mandatory provisions of the law authorizing detention, (iii) the detention was in excess off the
powers conferred by the Act and the Rules, (v) the order of detention was passed mala fide. The
court has reiterated this position in Attorney General v. Amratlal Prajivandas. 6

In Ram Manohar Lohia v. State of Bihar 7 it was held unanimously that the Presidents Order
suspended the enforcement of a persons rights under Articles 21 and 22 if he had been deprived
of those rights by an order passed under the Defense of India Act, 1962 or the rules made there
under. But it was open to him to show that the order under the said Act and rules was a mala
fide, or an invalid, order, and in either event, he was entitled to move a court for the for the

5
AIR 1964 SC 381 : (1964) 4 SCR 797
6
(1994) 5 SCC 54 : AIR 1994 SC 2179
7
(1966) 1 S.C.R. 709
P a g e 14 |

enforcement of his rights under Articles 21 and 22.

What constitutes Mala fide has been interpreted in case of Jaichand Lal v. State of West
Bengal 8 in this contexta mala fide exercise of power does not necessarily imply any moral
turpitude as a matter of law. It only means that the statutory power is exercised for purposes
foreign to those for which it is in law intended i.e. for some indirect purposes not connected
with the object of the statute or the mischief it seeks to remedy.

In Ghulam Sarwar v. Union of India 9 Subba Rao C.J. delivering the majority judgment held
that an order passed by the President suspending the right to move the court for the enforcement
of rights under Article 14 was itself subject to a challenge that it violated Article 14.
In this, the court made a distinction between the order made by the President and the effect of the
order. Only a valid order could take away the rights under Article 14 therefore if the Presidents
Order violated Article 14, the order would be void from its inception.

The real import of the words used in Article 359 came up for consideration in Mohd Yaqub v.
State of J&K 10 which overruled Ghulam Sarwar v. Union of India. It was concerned with a
number of habeas corpus writ petitions to test the validity of arrests made under Rule 30(1) of
the Defense of India Rules, 1962 and the Presidents Order issued under Article 359(1)
suspending the enforcement of fundamental rights under Articles 14, 21 and 22 during the period
of emergency. Among other grounds, it was contented firstly, that the President being an
authority under Article 12, the order passed by him under Article 359 was a law within the
meaning of Article 13(2) and was, therefore, liable to be tested on the anvil of fundamental
rights, and secondly, that the enforcement of only such fundamental rights could be suspended
which had nexus with the reasons which led to the proclamation of emergency. The Supreme
Court rejected both the arguments. Firstly, because Article 13(2) and Article 359 being parts of

8
A.SC. 483, 485
9
(1967) 2 S.C.R. 271
10
AIR 1968 SC 765
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the same Constitution stand on an equal footing and the two provisions must be read
harmoniously in order that the intention behind Article 359 was carried out and not destroyed
altogether.
Thus though an order under Article 359 may be assumed to be law in the widest sense, it cannot
be law within the meaning of Article 13(2) for, if that were so, Article 359 would be nugatory. If
the order is a law within the meaning of Article 13(2), the result would be that though the order
says that the enforcement of a particular fundamental right is suspended during the period of
Emergency, the order can still be tested with the aid of Article 13(2) on the anvil of the same
fundamental right the enforcement of which it suspends and a declaration made there under has
no meaning whatsoever. Secondly, it is implicit that the enforcement of a particular fundamental
right suspended by the President is for the sake of the security of India, for which the Emergency
has been declared under Article 352, and no further proof of it is necessary. Declaration of
Emergency is for the subjective determination of the President, and he cannot be called upon to
justify his action in a court of law.
Hidaytullah, J, in his dissenting judgment suggested that Article 359 must be circumscribed in at
least those theoretically possible cases where the power may be misused or exercised mala fide,
and for that purpose room must be let for the operation of Article 14. However, it is submitted
that once this suggestion is accepted, it would unduly circumvent the ambit of Article 359.
Moreover, there has always been a remedy available in a court of law against misuse of power or
mala fides as an independent ground.

While considering the Right to Freedom guaranteed under Article 19, Supreme Court in
Makhan Singh v. State of Punjab 11 said that,

The suspension of Article 19 during the pendency of the Proclamation of emergency removes
the fetters created on the legislative and executive powers by Article 19 and if the legislatures
make laws or the executive commits acts which are inconsistent with the rights guaranteed by
Article 19, their validity is not open to challenge either during the continuance of the emergency
or even thereafter.

11
(1964) 4 S.C.R. 797
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Before 1975, the impact of Article 359 on the fundamental rights conferred by Part III had not
been fully realized, partly because the power of preventive detention was not as grossly abused
as it was during Emergency of 1975.
In 1975, for the first time after the constitution came into force, the Emergency was proclaimed
on the ground of internal disturbance, and it was made a cloak for gross abuse of political power.
After the declaration of Emergency, the President of India issued an order under Article 359 of
the Constitution on June 27, 1975 suspending the right to move any court for the enforcement of
fundamental rights conferred by Article 14, 19, 21 and 22 of the Constitution.

ADM Jabalpur vs. Shivkant Shukla 12, famously known as the Habeas Corpus Case,

The appeals decide by the Supreme Court in the Habeas Corpus case arose out of habeas corpus
applications filed by several detenues who prayed for their release from illegal preventive
detention. A preliminary objection was raised by the Union that in view of the Presidents Order
under Article 359 suspending the right of any person (including a foreigner) to move any court
for the enforcement of his fundamental rights under Articles 14, 19, 21 and 22, the petitioners
had no locus standi to maintain the petition, because, in substance, the detenues were seeking to
enforce their fundamental right under Article 21, namely, that they should not be deprived of
their personal liberty except by procedure established by law. The High Court of Allahabad,
Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab and Haryana and
Rajasthan, rejected this contention and held that though the petitioners could not move the court
to enforce their fundamental right under Article 21, they were entitled to show that the order of
detention was not under or in compliance with the law or was mala fide.

However, the Supreme Court held that:

In view of the Presidential Order dated 27th June 1975, no person has any locus standi to move
the High Court for habeas corpus or any other writ order or direction to challenge the legality of
an order of detention on the ground that the order is not under or in compliance with the Act

12
(76) A.SC Pg 1325
P a g e 17 |

(Maintenance of Internal Security Act, 1971) or is illegal or is vitiated by mala fides factual or
legal or is based on extraneous consideration.

The Order was passed as the result of four majority judgments delivered by Ray C.J., Beg,
Chandrachud and Bhagwati JJ. Justice Khanna gave dissenting judgment but he signed the
Courts order. The Supreme Court inflicted a deep wound on itself when four judges passed this
misleading order which barred and bolted the prison doors behind which helpless and innocent
persons were illegally detained and ill treated.

Dissenting judgment of Justice Khanna in Habeas Corpus case:

Justice Khanna dissented as in his opinion it takes us back to the pre constitutional British
period. The most salient feature of Justice Khanna's decision was that Article 21 could not be
viewed as the sole repository of the right to life and personal liberty, and that therefore its
suspension did not give executive officers of the government carte blanche powers to detain
persons without the authority of law. For him, this right was not the gift of the Constitution; it
had existed long before the Constitution came into force. Merely because an aspect of the right
was incorporated in the fundamental rights chapter did not mean that its independent identity had
been exterminated. In effect Article 21 required a proper procedure under a valid law before a
person could be deprived of his or her right. So at the most, its suspension meant the deprivation
of the right to a procedure, and not the denial of the right in the absence of authority of law.
P a g e 18 |

CHAPTER 4
LEGISLATIVE RESPONSE

Emergency provisions under Indian Constitution prior to passing of 44th Amendment Act:

Part XVIII of the Indian Constitution deals with the Emergency provisions. The relevant
provisions prior to passing of 44th Amendment Act are as following:

Article 352: Proclamation of Emergency.

(1) If the President is satisfied that a grave emergency exists whereby the security of India or of
any part of the territory thereof is threatened, whether by war or external aggression or internal
disturbance, he may, by Proclamation, make a declaration to that effect in respect of the whole of
India or of such part of the territory thereof as may be specified in the Proclamation.

Article 353: Effect of Proclamation of Emergency.

While a Proclamation of Emergency is in operation, then

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

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

Provided that where a Proclamation of Emergency is in operation only in any part of the territory
of India,
(i) the executive power of the Union to give directions under clause (a), and

(ii) the power of Parliament to make laws under clause (b), shall also extend to any State other
than a State in which or in any part of which the Proclamation of Emergency is in operation if
P a g e 19 |

and in so far as the security of India or any part of the territory thereof is threatened by activities
in or in relation to the part of the territory of India in which the Proclamation of Emergency is in
operation

Article 358: Suspension of provisions of Article 19 during emergencies.

(1) While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the
power of the State as defined in Part III to make any law or to take any executive action which
the State would but for the provisions contained in that Part be competent to make or to take, but
any law so made shall, to the extent of the in competency, cease to have effect as soon as the
Proclamation ceases to operate, except as respects things done or omitted to be done before the
law so ceases to have effect:

Provided that where a Proclamation of Emergency is in operation only in any part of the territory
of India, any such law may be made, or any such executive action may be taken, under this
article in relation to or in any State or Union territory in which or in any part of which the
Proclamation of Emergency is not in operation, if and in so far as the security of India or any part
of the territory thereof is threatened by activities in or in relation to the part of the territory of
India in which the Proclamation of Emergency is in operation

Article 359: Suspension of the enforcement of the rights conferred by Part III during
emergencies.

(1) Where a Proclamation of Emergency is in operation, the President may by order declare that
the right to move any court for the enforcement of such of the rights conferred by Part III as may
be mentioned in the order and all proceedings pending in any court for the enforcement of the
rights so mentioned shall remain suspended for the period during which the Proclamation is in
force or for such shorter period as may be specified in the order

(1A) While an order made under clause ( 1 ) mentioning any of the rights conferred by Part III is
in operation, nothing in that Part conferring those rights shall restrict the power of the State as
defined in the said Part to make any law or to take any executive action which the State would
but for the provisions containing in that Part be competent to make or to take, but any law so
made shall, to the extent of the in competency, cease to have effect as soon as the order aforesaid
P a g e 20 |

ceases to operate, except as respects things done or omitted to be done before the law so ceases
to have effect.

Provided that where a Proclamation of Emergency is in operation only in any part of the territory
of India, any such law may be made, or any such executive action may be taken, under this
article in relation to or in any State or Union territory in which or in any part of which the
Proclamation of Emergency is not in operation, if and in so far as the security of India or any part
of the territory thereof is threatened by activities in or in relation to the part of the territory of
India in which the Proclamation of Emergency is in operation

(2) An order made as aforesaid may extend to the whole or any part of the territory of India:

Provided that where a Proclamation of Emergency is in operation only in a part of the territory of
India, any such order shall not extend to any other part of the territory of India unless the
President, being satisfied that the security of India or any part of the territory thereof is
threatened by activities in or in relation to the part of the territory of India in which the
Proclamation of Emergency is in operation, considers such extension to be necessary

(3) Every order made under clause (1) shall, as soon may be after it is made, be laid before each
House of Parliament

Justice Khanna dissenting in ADM Jabalpur v. Shivkant Shukla (Habeas Corpus case), ended
his judgment with this note:

A dissent in a Court of last resort is an appeal to the brooding spirit of the law, to the
intelligence of a future day, when a later decision may possible correct the error into which the
dissenting Judge believes the court to have been betrayed."

On 18th January 1977, 19 months after Emergency was declared, Indira Gandhi announced
dissolution of Parliament, called fresh elections and released all political prisoners. The
emergency officially ended on 23rd March 1977.

Recent experience had shown that the fundamental rights, including those of life and liberty,
granted to citizens by the Constitution were capable of being taken away by a transient
P a g e 21 |

majority. It was, therefore, necessary to provide adequate safeguards against the recurrence of
such a contingency in the future and to ensure to the people themselves an effective voice in
determining the form of government under which they were to live.13

Thus, newly formed Janata Party government appointed the Shah Commission on 28th May
1977 under Section 3 of the Commissions of Inquiry Act, 1952 to inquire into all the excesses
committed during Indian Emergency (1975-77). It was headed by Justice J.C.Shah, a former
Chief Justice of India. The commission published its report on the illegal events during the
emergency and the persons responsible in three volumes totaling 525 pages. The first interim
report was submitted on 11 March 1978, dealing with the lead-up to the declaration of the
Emergency and the way in which the press was prevented from speaking out. The second interim
report discussed police actions and the role of Sanjay Gandhi at the Turkman Gate incident in
which police fired on a crowd of people protesting against demolition of their houses. The final
report was issued on 6 August 1978 and covered prison conditions, torture and family planning
atrocities.
In May 1978, after the second interim report of the commission had been issued, some leaders of
the Janata party began demanding that special courts be set up to ensure speedy trial of cases
related to the emergency. Parliament eventually passed an act establishing two special courts on
8 May 1979. However, it was too late. The government fell on 16 July 1979. After Indira Gandhi
returned to power in January 1980 the Supreme Court found that the special courts were not
legally constituted, so no trials were conducted.

Janata Party led government, however, passed 44th Constitutional Amendment act which made
major changes in Emergency provisions.
The Emergency Provisions of our constitution as embodied in Articles 352, 358 and 359 raise
three different questions: First, are they necessary at all? Secondly, what changes must be made
in these provisions to prevent abuse? Thirdly, how far has the 44th Amendment gone to prevent
the abuse of these provisions? The first two questions are outside the scope of this research. The
third question has been answered here under.

13
The Constitution (Forty Fourth Amendment) Act, 1978 Statement of Object and Reasons.
P a g e 22 |

After the Proclamation of Emergency, 39th Amendment Act inserted a law of preventive
detention into Schedule 9 namely, the Maintenance of Internal Security Act (MISA) thus
excluding all challenge to the Act on the ground that it violated fundamental rights, as Schedule
9 had been interpreted by the Supreme Court at that time. 44th Amendment Act took away the
Presidents power, under Article 359, to suspend by an order the right to move any Court for the
enforcement of the fundamental rights conferred by Articles 20 and 21. Also, the iniquity of
inserting MISA in Schedule 9 was realized and the 44th Amendment removed MISA from
Schedule 9.

Article 352 has been amended in several respects by the Forty-Fourth Amendment Act so as to
minimize the chances of abuse of power to declare Emergency.

Firstly, the expression internal disturbance has been replaced by armed rebellion in order to
delimit internal disturbance which has wide connotation.

Secondly, a Proclamation of Emergency will not be issued by the President unless a

recommendation of the Council of Ministers to that effect is communicated to him in writing.
This is done to eliminate any possibility of the Prime Minister alone taking a decision for the
imposition of Emergency as Mrs. Indira Gandhi is alleged to have done in June 1975.

Thirdly, the Proclamation of Emergency must be approved within one month instead of two
months as provided earlier, by resolutions of both Houses of Parliament and such a resolution
has to be passed by a majority of the total membership of the House and a majority of not less
than two thirds of the members present and voting. Before the Amendment such resolution could
be passed by simple majority.

Fourthly, a Proclamation of Emergency ceases to operate automatically at the expiry of six

months and can be continued beyond that period only on approval by a resolution of both Houses
of Parliament every six months.

Fifthly, the President shall revoke a Proclamation of Emergency on a resolution of the House of
the People to that effect and for that purpose a special sitting of the House can be called at a 14
days notice by one-tenth of the total members of that House. Before the Amendment once a
P a g e 23 |

Proclamation was made and approved by Parliament it could be continued indefinitely unless the
President revoked it on his own.

Sixthly, Article 19 which used to get suspended automatically on a Proclamation of Emergency

will now remain unaffected if the ground of Proclamation is only armed rebellion and not war or
external aggression. Moreover special conditions have been added to the suspension of Article
19 even when the proclamation is on the ground of war or external aggression.

Interpreting the changes made through 44th Amendment Act, Supreme Court in Naga Peoples
Movement of Human Rights v. Union of India 14 observed
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 pert 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 word internal
disturbance by the word armed rebellion in Article 352 is to limit the invocation of the
emergency powers under Article 352 only to more serious situation where there is a threat to the
security of the country or a part thereof on account of war or external aggression or armed
rebellion and to exclude the invocation of emergency powers in situations of internal disturbance
which are of lesser gravity.

After the Forty-Fourth Amendment the only difference left between Articles 358 and 359 is that
firstly, while the former is confined to Article 19, the latter extends to all fundamental rights
except those in Articles 20 and 21. Secondly, the former suspends the rights while the latter
suspends only the remedy. Thirdly, because of the preceding difference until the Thirty-eighth
Amendment, which introduced clause (1-A) in Article 359, while no actions could be initiated
against the violation of Article 19 either during or after the Emergency, actions could be taken
against the violation of other fundamental rights whose enforcement was suspended by the
President under Article 359.

14
(1998) 2 SCC 109 : AIR 1998 SC 431
P a g e 24 |

CHAPTER 5
CONCLUSION

The history of the 1975 Emergency and its aftermath has taught us the lesson: that if need be, the
peace loving masses in India will rise from their slumber to exercise their political sovereignty,
to take back from their representatives their solemn trust.
With the imposition of Emergency the executive had set up an aggressive front. In the face of
this aggression, the Court under the leadership of Chief Justices Ray and Beg, abdicated its
power of judicial review.
Subsequently during the tenure of the Janata Government in 1977-1980, it bounced in with
vengeance against the emergency and with massive public support, the Court under the
leadership of the Chief Justice Chandrachud endorsed the policy decision of the new
Government. The relaxed political atmosphere made the executive more liberal in its approach,
providing an opportunity for the Court to retrieve its lost judicial territory. It extended its
jurisdiction and acquired immense power of administration, becoming the most powerful
judiciary in the world. It extended the meaning of 'State', prescribed limits to executive
discretion, and redefined the scope of judicial interference, which was in fact unbounded and
limitless. The Court and Executive shared the glory of this brief but significant period in the
history of the country. These were the Court's finest years.
There has been vacillation between hope and disappointment, but ultimately hope has survived;
the Court is indeed the forum for legitimizing the establishment as well as the dissent. There is a
general feeling that whatever the failures and disappointments, the Court has inspired an anti-
establishment force to seek its intervention in defense of democracy and the rule of law, and thus
the Court remains the main bulwark of Indian democracy because other organs of the state have
not shown any promise of rejuvenation.15

The judiciary plays important role throughout a state of emergency, from the inception of the
declaration of the state of emergency to its termination. The rising skepticism about the role of
the judiciary in times of crises is based on an unbalanced evaluation of the past experience of the
judiciary and fails to take into account the resultant lessons and developments from these
15
Contribution of the Supreme Court to the Growth of Democracy in India NUJS Law Review, 2013
P a g e 25 |

experiences. The judiciary is reinvigorated by these experiences and more fortified for an ever
more audacious protection of human rights.

Dr. Babasaheb Ambedkar speaking in Constituent Assembly on 25th November 1949 rightly
concluded thus-:
However good a Constitution may be, it is sure to turn out bad because those who are called to
work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if
those who are called to work it, happen to be a good lot. The working of a Constitution does not
depend wholly upon the nature of the Constitution. The Constitution can provide only the organs
of State such as the Legislature, the Executive and the Judiciary. The factors on which the
workings of those organs of the State depend are the people and the political parties they will set
up as their instruments to carry out their wishes and their politics.16

16
http://parliamentofindia.nic.in/ls/debates/vol11p11.htm
P a g e 26 |

Bibliography

Books:
- H. M. Seervai, 4th Edition, Vol 2 & 3.
- Introduction to the Constitution of India Dr. Durga Das Basu.
- The Constitution of India P M Bakshi.
- Working of a Democratic Constitution A history of the Indian Experience by Granville
Austin, Oxford India Publications
- V. N. Shuklas Constitution of India by Mahendra P. Singh, Eleventh Edition Eastern
Book Company.

Acts:
- Constitution of India, 1950
- 44th Constitutional Amendment Act
- Maintenance of Internal Security Act, 1971. (MISA)
- Defense of India Act, 1962.

Web Bibliography:
- http://jstor.org
- http://www.en.wikipedia.org
- http://parliamentofindia.nic.in/ls/debates/vol11p11.htm