The Proclamation Of Emergency And Its Effect On Fundamental

Rights In India
Kanishka, LLM
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.1 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.
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 Constitution is a big
reason why academicians are hesitant to call Indian Constitution as fully federal.
Background Of The Imposition Of 1975 Emergency In India:

1 ABROAD: Emergency in India ARTHUR LALL Challenge, Vol. 18, No. 5

(NOVEMBER/DECEMBER 1975), pp. 57-58

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.2 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.3 The justifications notwithstanding, some of its tangible
2 1975: Indira Gandhi found guilty by Allahabad High Court,
http://indiatoday.intoday.in/story/1975-indira-gandhi-found-guilty/1/155592.html
3 The Emergency in India: Background and Rationale V. P. Dutt Asian Survey, Vol. 16, No. 12
(Dec., 1976), pp. 1124-1138

consequences on the ground were the following: detention of nearly 1,11,000 persons, a
significant number of whom belonged to the opposition, under the Maintenance of Internal
Security Act, 1971 and the Defense of India Act/ Rules, 1961; infliction of torture on many of
these detenues; press censorship and curbs on the freedom of speech and expression; demolition
of shanty towns in and around Delhi; and the subjection of rural and urban poor, and the lower
middle class in North India to forced sterilization programs.4 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 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 provisions 3 :
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
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
4

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
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.

Judicial Response To The Imposition Of Emergency

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 5 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
5 Mohan Chowdhary v. Chief Commr. Tripura, (1964) 3 S.C.R. 442

petitioner was entitled to move the court under Article 32. The Supreme Court held that the right
to move that court under Article 32 was subject to Article 32(4) under which the right could be
suspended in accordance with the provisions of the Constitution. Article 359 enabled the
President to suspend the right to move any court for the enforcement of the fundamental rights
which may be named by the President. The 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 court s power under Article 32 has
been suspended during the operation of the emergency with the result that the petitioner has no
locus standi to enforce his right, if any, during the emergency. Thus, the validity of the statutory
provisions authorizing the detention could not be challenged in view of the Presidential Order.
The Court, however, held that the pleas which were open to a detenu were that the mandatory
provisions of the Defense of India Act and rules had not been observed and the plea not merely
alleged but proved that the detention was mala fide.
Makhan Singh v. State of Punjab6 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.7
In Ram Manohar Lohia v. State of Bihar8 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
6 Makhan Singh v. State of Punjab, AIR 1964 SC 381
7 Attorney General v. Amratlal Prajivandas, AIR 1994 SC 2179
8 Ram Manohar Lohia v. State of Bihar, (1966) 1 S.C.R. 709

under. But it was open to him to show that the order under the said Act and rules was a mala fide,
or an invalid, order, and in either event, he was entitled to move a court for the for the
enforcement of his rights under Articles 21 and 22.
ADM Jabalpur vs. Shivkant Shukla,9 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
(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:

9 ADM Jabalpur vs. Shivkant Shukla, (76) A.SC Pg 1325

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.

Legislative Response To The Imposition Of Emergency

Thus, newly formed Janata Party government formed in aftermath of emergency 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.
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
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 India10 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
10 Naga Peoples Movement of Human Rights v. Union of India, AIR 1998 SC 431

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.

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 antiestablishment 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.

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://epw.in
http://parliamentofindia.nic.in/ls/debates/vol11p11.htm