Invoking Emergency

40 years ago, on this day by a presidential proclamation under Article 352 emergency was invoked. This discussion opens due to a debate as to the possibility of another such event. To some degree, legally this seems improbable today given a change in the operative provisions of the Constitution. This must be credited to the 44th Amendment Act, 1978 to the Constitution of India. The 44th Amendment was introduced by Mr. Shanti Bhushan, Senior Advocate, the then Law Minister.

Introducing the Amendment Act, he stated that:

“6. A  Proclamation of Emergency under article 352 has virtually  the effect  of amending the Constitution by converting it for the duration into that of a Unitary State and enabling the rights of the citizen to move  the courts for the enforcement of fundamental rights—including the  right to life and liberty—to be suspended.  Adequate safeguards are,  therefore,  necessary  to  ensure that this  power  is properly exercised  and  is  not  abused.  It is, therefore,   proposed  that  a Proclamation  of Emergency  can be issued only when the  security of India  or  any part of its territory is threatened by war or  external aggression  or by armed rebellion.  Internal disturbance not amounting to armed  rebellion  would  not  be  a ground  for  the  issue  of  a Proclamation.

7.   Further,  in order to ensure that a Proclamation is  issued  only after due consideration, it is sought to be provided that an Emergency can  be proclaimed only on the basis of written advice tendered to the President by the Cabinet.  In addition, as a Proclamation of Emergency virtually  has  the effect of amending the Constitution, it  is  being provided  that  the Proclamation would have to be approved by the  two Houses  of Parliament by the same majority which is necessary to amend the  Constitution  and such approval would have to be given  within  a period of one month.  Any such Proclamation would be in force only for a  period  of  six  months  and  can  be   continued  only  by  further resolutions  passed by the same majority.  The Proclamation would also cease  to be in operation if a resolution disapproving the continuance of the Proclamation is passed by Lok Sabha.  Ten per cent.  or more of the  Members  of  Lok  Sabha can requisition  a  special   meeting  for considering a resolution for disapproving the Proclamation.”

Seervai’s Constitutional Commentaries note certain safeguards being placed in law by this amendment. He states,

“29.4 Article 352 was originally enabled a Proclamation of Emergency to be made if the President was satisfied that a grave emergency existed whereby the security of India or of any parts of its territory was threatened by war or external aggression or internal disturbance. The prevailing view of this Article was that even if the security of a part of India was threatened, the emergency had to be declared throughout the whole of India. The 42nd Amendment rightly removed this defect.  However, the 42nd Amendment added new sub-Articles to Article 352. Since the proclamation of emergency can be issued on the ground of, (i) war or external aggression, or (ii) internal disturbance, sub-Article (4) authorised the issue of a proclamation on one of the two aforesaid grounds even if a proclamation of emergency was in force on the other of those two grounds. The Shah Commission has expressed a view that since the proclamation of emergency was issued in 1971 (on the ground of external aggression), was in fore, Article 352, as it stood in June 1975, did not warrant the proclamation of the emergency on the ground of internal disturbance, and Mrs. Gandhi got sub-Article (4) inserted on the Constitution to legalise the second proclamation (para 5.69 of the Report). As sub-Article (4) has been deleted by the 44th Amendment, it is unnecessary to consider this view further.

29.5 Sub-Article (5) of Article 352 inserted by the 42nd Amendment made the President’s satisfaction in proclaiming an emergency final and conclusive and provided that such satisfaction shall not be questioned in any Court on any ground; and further barred the jurisdiction of any court to consider the validity of a proclamation made by the President and also continued operation of such proclamation. Sun-Art. (5) was clearly meant to exclude judicial scrutiny of a proclamation or its continuance. This is not surprising in view o the facts found by the Shah Commission that there was no justification for the proclamation of the Emergency.

29.6 The excesses of the Emergency have focussed attention on the following defects of Art. 352 as originally enacted : (a) Although in form the Proclamation is issued on the satisfaction of the President, in reality it is issued on the satisfaction of the Union Govt. The Article did not exclude the possibility of a Prime Minister advising the issue of a Proclamation on his or her own initiative without the authority of the Cabinet – as Mrs. Gandhi did, profession that a rule of business enabled her to act as she did. (b) Once the proclamation of emergency had been approved by both Houses within the stipulated period, no provision was made for bringing the continuance of the Proclamation before the House for approval every 6 months as had been provided for in Art. 356 (Proclamation on the failure of constitutional machinery in a State). Nor was any machinery provided for enabling members of Parliment to move that the Proclamation be disapproved or revoked. The 44th Amendment has removed these defects….”

Beyond the legality, what comes through from a review of literature is the very absence of respect for the letter and the spirit of the law. Even after these safeguards, there is ample wisdom in the remarks of the Shah Commission (Final Report) which stated that:

“Para 13.3111 In view of the commission the manner in which Shri Sanjay Gandhi functioned in the public affairs of Delhi in particular is the single greatest act of excess committed during the period of emergency for which there is no parallel nor any justification for such assumption of authority or power in the history of independent India. While the other acts of the excesses may have been in the nature of acts committed by functionaries having some shadow of authority acting in excess of their powers, here was a case of an individual wielding unlimited powers in a dictatorial manner without even the slightest right to it. If this country is to be rendered safe for future generations, the people owe it to themselves to ensure that an irresponsible and unconstitutional centre of power like the one which revolved around Shri Sanjay Gandhi during the emergency is not allowed to come up ever again in any form or shape or under any guise.”

Shah Commission Reports (Interim Report -IInterim Report – IIFinal Report)

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