research paper on emergency provisions in india

The Law of Emergency Powers pp 175–297 Cite as

Emergency Powers in India

• Abhishek Singhvi 3 &
• Khagesh Gautam 4  
• First Online: 31 October 2020

221 Accesses

This chapter focuses on India but from a historico-legal rather than a purely legal perspective. Constitutional law commentaries in India usually focus on the development of legal doctrine regarding emergency powers and focus on important Supreme Court decisions to knit that narrative. Other contributions on emergency powers in India, made by way of book chapters and law review articles, tend also to focus either on doctrinal development or a human rights perspective. A third category tends to focus on a descriptive or political account of the so-called “internal emergency,” on which many important accounts and narratives have been written. This chapter however, and for the first time, takes a historical perspective and places the development of legal doctrine as a part of that historical narrative. Divided into three parts, Part I of this chapter starts where Chapter 1 ends. Whereas Chapter 1 provides an ancient Indian thought on emergency powers, Part I of this chapter gives a brief overview of “pre-British India” and then starts the narrative from “Company Rule.” It thus traces the development of emergency powers from the year 1600 to 1857, and then from 1857 to 1914, coming onwards to the First World War, the inter-war years, the Second World War, and then the years leading up to independence in 1947. This discussion, for holistic reading and comprehensiveness, may be read in the light of Part V of Chapter 2 that provides a similar history, albeit only of martial law. Part II focuses on the immediate post-independence period leading up to the establishment of the Indian Republic in 1950 followed by a legal discussion. In this manner, the “1975 Peacetime Emergency” is placed in a much larger perspective. Part III focuses only on President’s Rule since this emergency has been invoked the maximum number of times in India and has been on the receiving end of much academic and public critique. Part IV concludes by arguing that the development of legal doctrine in the famous Bommai decision and post- Bommai developments have resulted in preventing the abuse of article 356 proclamations. A detailed empirical analysis at the end of this chapter makes a useful contribution by providing a clear correlation between the expanding, aggressive and timely judicial review and the subsequent reduction in the use of article 356 proclamations, and lays down the foundation for further work for future scholars to attempt to find causation, now that a clear correlation has been established.

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Singh [ 1 ].

P ratap C handra R ay , M ahabharata , Book XII S anti P arva , A paddharmanusasana P arva CXXX V iii , 447. The Mahabharata is dated by some to around 1500–1000 B.C. and runs to seven times the combined length of the Iliad and the Odyssey.

The Manusmriti or Manava-Dharmashastra is a detailed legal code dated to around first century B.C. See English translation in 25 G eorg B uhler , S acred B ooks of the E ast , V iii , 213. (Max Mueller ed., Georg Buhler trans., 1886).

…[F]or times of need, let him preserve his wealth; at the expense of his wealth; let him preserve his wife; let him at all evens preserve even himself even by giving up his wife and his wealth.

K autilya , A rthasastra (R. Shamasastry trans. ed., 1951) ( circa 300 B.C.). Kautilya, also called Chanakya, is most famous for his classic treatise on polity, Arthasastra , which is a compilation of “artha”: property, economics, diplomacy, statecraft, politics, law and other secular affairs. The work is dated to about 300 B.C. and deals with central control by a king of a medium-sized realm. It speaks, inter alia , of the way the state’s economy is organized and how ministries should be arranged and distributed. Great emphasis is placed on the importance of a network of runners, informers and spies which functioned as a surveillance corps for the king, particularly focusing on external threats and internal dissidence.

Compared by many to Machiavelli and by others to Aristotle and Plato, Kautilya is alternately praised for his sound political wisdom and knowledge of human nature and condemned for his ruthlessness and trickery. All, however, agree that it was because of Kautilya that the Mauryan Empire under Chandragupta, (reign c. 321 B.C. to 297 B.C.), to whom Kautilya was advisor and counselor, and later under Ashoka… a model of efficient government. The best translation of Kautilya’s book is to be found in the book by Shamasastry, who discovered the lost treatise. This author has referred to the 1951 edition.

Spellman [ 2 ]

The fear of anarchy was almost pathological. Underlying every concept of kingship was the doctrine of Matsya Nyaya, the analogy of the big fish eating up the little fish

Atharva Veda VI. 87–88. Also Rig Veda X. 173 (slightly codified).

[R]emain firmly without faltering… be you firm like the mountain and may you not come down. Be you firm here like India; remain you here and hold the state… firm as the heaven, firm as the earth, firm as the universe, firm as the mountains, let this raja of the people be firm … Vanquish you firmly, without failing, the enemies …. And for firmness the Assembly here creates (appoints) you.

See also Jayaswal [ 3 , pp. 186–187], Prasad [ 4 , p. 16]. The Vedas are the sacred hymns and oblational verses of Indo-European peoples on a pre-Sanskrit language and are widely regarded as the oldest literature in the history of mankind.

Krishna Rao [ 5 , pp. 165–166] . See also Hasan [ 6 ].

The existence of the people, their happiness, the institutions of society and the rules of morality and religion depended upon the king’s office. Hence there is no wonder that the king’s importance is emphasized. He becomes supreme in his sphere.

See , inter alia , Prasad [ 4 , pp. 51–52] (“The … idea of protection as embodying the supreme function of royalty or government runs through the whole of Indian political speculation”). See also Jayaswal [ 3 , p. 321]

The theory that taxes were wages to the king for protection were wages to the king for protection was so ingrained in the constitution that even partial failure of protection was deemed to entitle the subject to claim refund of wages in proportion to loss.

The king has been described as “ preeminently the protector of this people …,” i.e., “gopajanasya” (Rig Veda III. 43.) and as “Dharampravartaka” See Krishna Rao [ 5 , p. 123]. See also , P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXXXIX, 459 which states that according to Manu, one of the seven attributes of a king include “protection,” the other six being “mother, father, preceptor, fire, vaicravana and Yama.” It sanctions abandonment of a king who fails to protect, as a leaky ship is dangerous and ought to be abandoned. To the same effect is Hobbes (Leviathan, XXI).

Prasad [ 4 , p. 16].

2 Beveridge [ 7 , pp. 107–108]. There is the example of Akbar who, in 1564, wanted the slave Fulad put to death immediately for firing an arrow at him.

K autilya , A rthasastra , V. 3 (R. Shamasastry trans. ed., 1951) ( circa 300 B.C.).

Yudhishtir uses graphic language in Mahabharata to describe seasons of distress:

When high righteousness suffers decay and is transgressed by all, when unrighteousness assumes the form of its reverse; when all wholesome restraints disappear, and all truths in respect of righteousness are disturbed and confounded; when people are oppressed by kings and robbers when men of all the four modes of life become stupefied in respect of their duties, and all acts lose their consequence of lust and covetousness and folly, when one another in their mutual dealings, when houses are burnt down throughout the country, when the Brahmanas become exceedingly afflicted, when the clouds do not pour a drop of rain, when every one’s hand is turned against every one’s neighbor, when all the necessaries of life fall under the power of robbers, when, indeed such a season of terrible distress sets in, by what means should a Brahmin live who is unwilling to cast off compassion and his children? How, indeed, should a Brahmin maintain himself at such a time? Tell me this, O grandsire? How also should the king live at such a time when sinfulness overtakes the world? How, O scorcher of foes, should the king live so that he might not fall away, from both righteousness and profit?

See P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXLI, 467–68.

Id . at 468. Described in the Mahabharata as follows:

[E]xtending for twelve years…. (when) the thousand eyed deity of heaven poured no rain…(when) agriculture and keep of cattle were abandoned, stakes for teethering sarcrifical animals disappeared, … festivals and amusements perished… the cities and towns … became empty of inhabitants…. Brahmins began to die on all sides, protection was at an end; herbs and plants were dried up; the earth became shorn of all her beauty and exceedingly awful like trees in a crematorium; … when righteousness was nowhere… men in hunger lost their senses and began to eat one another…

Indeed, the Arthasastra deals with “ alasya ” (laziness and inertia in the body politic) and “ premada ” (hedonism) as factors which undermine and subvert the foundation of the social and political order and must be combated. See Krishna Rao [ 5 , p. 155].

Prasad [ 4 , p. 66].

K autilya , A rthasastra , VIII. 2, IX. 5 (R. Shamasastry trans. ed., 1951) ( circa 300 B.C.). See also , Ramaswamy [ 8 , p. 143]. Indeed, Lord Buddha is said to have remarked that Republicans die of internal dissatisfaction, dissension and civil insurrection.

Manusmriti, supra note 4, II. 40.

Id . at II. 13.

Id . at III. 14.

Id . at V. 43.

Id . at IX. 313.

P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXXXIT, 425.

Id . at CXXXII, 423; CXXXII, 460; CLXVI, 531.

Id . at CXXXVI, 431.

P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXLI, 468 et. seq .

Id . at 470.

Id . at 468.

Id . See also Manusmriti X. 106 & 107, which tell of Vandeva and Bharadwaj, the former trying to eat dog’s flesh to save his life.

P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXLI, 473.

Manusmriti X. 105.

P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXLI, 471. Cf . H obbes , L eviathan , XXVII

If a man, by terror of present death, be compelled to an act against the law, he is totally excused; because no law can oblige a man to abandon his own preservation … When a man is destitute of food, or other thing necessary for his life, and cannot preserve himself in any other way but by some act against the law; as if in a great famine, he takes away the food by force or steals … or in defense of his life snatch away another man’s sword, he is totally excused.

P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXLI, 477.

See P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXXXVIII, 435 et seq , tells the story of a cat which was ensnared in a trap at the foot of a banyan tree. A mouse, who lived in a hole under the tree, one day found himself hunted by both a mongoose and an owl without any means of escape. “At such a season of great danger, when death itself was staring one in the face, when there is fear on every side” the mouse decided to befriend the trapped cat and hid under its belly on the condition that it (the mouse) would release the cat from the trap as soon as the danger to the mouse had passed away and before the comes for the cat. The story ends by narrating how the mouse wisely refused to release the cat at any time prior to the arrival of the hunter; when released just as the hunter was approaching, the cat could only escape to safety without making a meal of the mouse.

Manusmriti, X. 102.

Id . at X. 113.

Id . at X. 117.

Id . at XI. 128.

See , inter alia , P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXL, 461; [ 4 , pp. 60–61].

Manusmriti, supra note 4, X. 118

K autilya , A rthasastra , V. 2 (R. Shamasastry trans. ed., 1951) ( circa 300 B.C.).

P ratap C handra R ay , M ahabharata , Book XII S anti P arva , LXXXVII, 23–24.

K autilya , A rthasastra , II. 1 (R. Shamasastry trans. ed., 1951) ( circa 300 B.C.).

Id . at II 17.

Id . at III. 11.

Id . at III. 12.

See , inter alia , P ratap C handra R ay , M ahabharata , Book XII S anti P arva , CXXXII 423; id . at CXXXIII, 425; K autilya , A rthasastra , II. 5 (R. Shamasastry trans. ed., 1951) ( circa 300 B.C.).

Krishna Rao [ 5 , p. 132].

Id . at 131.

K autilya , A rthasastra , V. 1 (R. Shamasastry trans. ed., 1951) ( circa 300 B.C.).

See generally , Kaye [ 9 ], Ilbert [ 10 ], Keith [ 11 ], Patia [ 12 ], Pylee [ 13 ], Jain [ 14 ], Jois [ 15 ], Mittal [ 16 ]. Three good primary source books are Allen & Co [ 17 ], Eyre and Strahan [ 18 ], Banerjee [ 19 ] which contain a collection of statutes of that period and a detailed description of many charters issued to the East India Company.

Keith [ 11 , pp. 5–6].

See , inter alia , the commission on 24.1.1601; the charters of 1609, 1615, 1657, 1661, 1668, 1676, 1683, 1686 and 1693. Perhaps the only existing collection of charters of the East-India Company is in the not easily available book Shaw [ 20 ].

See, e.g ., Queen’s Comm’n of 24/1/1601.

Keith [ 11 , p. 6]. Cf . Kaye [ 9 ] where an account is given of the execution of Gregory Lellington under martial law, for having killed another Englishman Barton in the town of Surat in February 1616. Both the accused and the victim were, however, members of the ships anchored near Surat and Lellington was convicted and executed by the Captain of his ship. Kaye considers thus “ the earliest account of our judicial proceedings in India with which I am acquainted .” ( id .).

Jois [ 15 , p. 247].

Keith [ 11 , p. 5].

The princely sum of ten pounds was paid as annual rent by the company to the Crown (until 1730) for the transfer of Bombay by the latter to the company. See Keith [ 11 , p. 9].

See, e.g ., The British North American Act, 1857, 30 Vict. c. 3, §§ 91 & 92, which was applicable to Canada until the recent introduction of the Canadian Charter of Freedom in 1982.

See, e.g ., Act of Settlement of 1781, 21 Geo. 3, c. 70, which sought, inter alia , to remove doubts and difficulties regarding some clauses in the Regulating Act 1773, to support the lawful governance of Bengal, Bihar and Orissa and to maintain and protect the inhabitants in that enjoyment of laws, usages, rights and customs.

§ 35. See Banerjee [ 19 , p. 88].

See Banerjee [ 19 , p. 91] (§ 53).

See Act of 1786, 26 Geo III, c. 16.

33 Geo III, c 52.

Id . at § 30. See also Banerjee [ 19 , pp. 139–141] (§§ 31–33).

Banerjee [ 19 , p. 146] (§ 42).

53 Geo III, c 155.

3 & 4 Will IV, c 85.

16 & 17 Vict., c 95.

The 1833 Act provided that if there was a difference of opinion between the Governor-General and a majority of the Council over a measure thought by the Governor-General to “essentially affect” the “safety, tranquility or interests of the British possessions in India”, and if such difference persisted after each group had recorded and exchanged their views in writing, then the Governor-General shall be entitled to either reject or accept such measure in whole or in part as he shall deem “fit and expedient” (§ 49).

For a brief and pithy account of martial law during company rule, see Minattur [ 21 , pp. 15–17].

This difficulty to find regulation is reproduced in Clarke [ 23 ].

Minattur [ 21 , p. 15].

In Re Amir Khan (1870) 6 Bengal LR 392, 454 (SC Calcutta) (Norman, J.).

Id . at 455.

It was used, inter alia , in Cuttack (1817–18); Vizagapatnam and Palkonda (1832); Kimedi (1833); Gumsur (1835); Savantwadi (1844). Large parts of Northern India, including Meerut and other areas in U.P. were put under Martial Law during 1857 war of independence.

Elphinstone v. Bedreechund (1830) Knapp PC 316 (Privy Council).

Minnatur [ 21 , p. 19].

Full text in Basu [ 24 ].

The Government of India Act, 1858, 21 & 22 Vict. c. 106, § 54.

The Government of India Act, 1858, 21 & 22 Vict. c. 106, § 55.

See , inter alia , Ilbert [ 10 , pp. 338–344].

The Indian Council Act, 1861, 24 & 25 Vict. c. 67, § 23 reads as follows:

Notwithstanding anything in this Act contained, it shall be lawful for the Governor-General, in cases of emergency, to make and promulgate, from time to time, ordinances for the peace and good government of the laid territories or of any part thereof, subject, however, to the restrictions contained in the last preceding section, and every such ordinance shall have force of law with a law or regulation made by the Governor-General in Council, as by this Act provided, for the space of not more than six months from its promulgation, unless the disallowance of such ordinance by Her Majesty shall be earlier signified to the Governor-General by the secretary of state for India in Council, or unless some ordinance shall be controlled or superseded by some law a regulation made by the Governor-General in Council at a meeting for the purpose of making laws and regulations as by this Act provided.

See despatch of SOS Wood to G-G in 1861 as mentioned in Minattur [21, pp. 19–19].

By § 23 the Governor-General of India is vested with a new and extraordinary power of making his own authority. It is due to the supreme authority of India, who is responsible for the peace, security and good government of that vast territory, that he should be armed with this power, but it is to be called into action only on urgent occasions, the reasons for a resort to it should always be recorded, and these together with the ordinance should be submitted loss of time, for the consideration of Her Majesty’s government.

See speech of Secretary of State Wood, in House of Commons, June 6, 1861 as quoted in Minattur, Id . at 17–18.

The Bill also gives power to the Governor-General in cases of emergency to pass an ordinance having the force of law for a limited period. Questions might arise about the arms Act or the press, as to which it would be very injudicious that delay should occur; and we, therefore, propose to empower the Governor General on his own authority to pass an ordinance having the force of law, to continue for a period of six months, unless disallowed by the secretary of state superseded by an Act of the legislature.

Minattur [ 21 , p. 19]. Cf . Srivastava [ 22 ] where the figure of 5 is mentioned for the same period.

Ilbert [ 10 , p. 240].

See Export of Saltpetre Ordinance, Ordinance 1 of 1861, (Dec. 27, 1861). The ground of urgency stated was that information had been received by the Governor-General by telegraph that export of saltpeter from UK had been interdicted by royal proclamation. See also Export of Saltpetre Ordinance, Ordinance 1 of 1862, (Jan. 3, 1862) also dealing with export of saltpeter.

Ordinance of 24/2/1876. It is doubtful if any emergency existed to promulgate this ordinance. Other ordinances include those removing Angar Valley from the jurisdiction of the civil and criminal courts of Punjab (4/10/1869) and regulating meetings in various places including Bengal and Assam under the Regulation of meeting Ordinance 1907.

See Srivastava [ 22 ].

Minattur [ 21 , p. 19].

See The Indian Council Act, 1861, 24 & 25 Vict. c. 67, § 23; The Government of India Act, 1915, 5 & 6 Geo. 5 c. 61, § 72; Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, § 72, and 9th Sch; India (Provisional) Constitution Order 1947, § 62; I ndia C onst. art. 123 & 213.

The Impressment of Vessels Ordinance, Ordinance 2 of 1914 (Aug. 14, 1914).

The Ingress into India Ordinance, Ordinance 5 of 1914 (Sep. 5, 1914).

The Commercial Intercourse with Enemies Ordinance, Ordinance 6 of 1914 (Oct. 14, 1914).

The Indian Naval and Military News (Emergency) Ordinance, Ordinance 1 of 1914 (Aug. 7, 1914).

See also The Foreigners Ordinance, Ordinance 3 of 1914 (Aug. 20, 1914).; Defense of India Ordinance, Ordinance 3 of 1915 (Nov. 10, 1915); The Enemy Trading Ordinance, Ordinance 5 of 1916 (June 27, 1916); Indian Paper Currency (Amendment) Ordinance, Ordinance 1 of 1915 (Jan. 1, 1915); Indian Paper Currency (Amendment) Ordinance, Ordinance 1 of 1916 (Jan. 11, 1916); Indian Paper Currency (Amendment) Ordinance, Ordinance 6 of 1916 (Nov. 11, 1916); Indian Paper Currency (Amendment) Ordinance, Ordinance 7 of 1916 (Dec. 13, 1916); Indian Paper Currency (Amendment) Ordinance, Ordinance 2 of 1917 (Apr. 18, 1917); Indian Paper Currency (Amendment) Ordinance, Ordinance 1 of 1918 (Apr. 15, 1918); Indian Paper Currency (Amendment) Ordinance, Ordinance 3 of 1918 (Dec. 7, 1918); The Registration Ordinance, Ordinance 1 1917 (Feb. 2, 1917); The Foreigners (Trial by Court Martial) Ordinance, Ordinance 3 of 1916 (Jan. 26, 1916); The Gold Import Ordinance, Ordinance 3 of 1917 (June 29, 1917); The Silver Import Ordinance, Ordinance 4 of 1917 (July 11, 1917).

Act 1 of 1915. Other statutes included the Enemy Trading Act 1916; Indian Defence Force Act 1917; Transfer of ships Restriction Act 1917; Indian Companies (Foreign Interest) Act 1918; Cotton Cloth Act 1918; Excess Profits duty Act 1919.

In Re Jewa Nathoo & Ors, ILR 44 (Cal.) 459 (1917).

The Defence of India (Criminal Law Amendment) Act, No. 4 of 1915.

Parmeshwar Ahir v. Emperor, 1918 AIR 155 (Pat).

Sheo Nandan Prasad Singh v. Emperor 1918 AIR 103 (Pat).

See, e.g ., Textile Manufacturing Co. Ltd v. Saloman Bros. ILR 40 (Bom) 570 (1915) (defendants were entitled to return their deposits under § 65, Indian Contract Act as it became impossible for them to perform their part of the contract owing to the state of war; Hooper v. King Emperor ILR 40 (Mad) 34 (1916) (accused acquitted of trading with the enemy but convicted of attempting to trade with the enemy); Padgett v. Chottia ILR 41 (Bom.) 390 (1916) (the existence of a state of war between respective countries of the debtor and the creditor suspends the accrual of interest when it would ordinarily be recoverable as damages and not as a substantive part of the debt).

That is, the Anarchial and Revolutionary Crimes Act, No. 11 of 1919. Mr. Rowlatt was a judge of the Queen’s Bench Division of the High Court of England, who was appointed Chairman of the Committee to investigate into the extent of revolutionary crimes in the country and to recommend legislation to deal with it.

Id. at § 3. of the 1919 Act.

Id . at § 5. However, if the total number of judges of a High Court did not exceed three, the Chief Justice could nominate two of them and could co-opt either retired permanent judges of the High Court or sitting judges of another High Court. ( Id .).

Id . at §11.

Id . at § 12.

Id . at § 17. The Special Court’s order was to be final and conclusive, although death sentence could be imposed only upon unanimity amongst all trial judges. ( Id . at § 16, provision.).

Id . at §§ 21, 22 & 25.

Id . at §§ 25–27 & 30.

Id . at § 34 (1) (a).

Id . at cl. (c).

Id . at cl. (b).

Id . at § 35, proviso.

Cf. E.V. R ieu , T he R owlatt A ct , 4 (1919) where it is defined as “capricious propaganda and agitation with the object of overthrowing the government, upsetting established order and interfering with the administration of the law.”

Cf. Minattur [ 21 , p. 23] (“It was contended by many Indian lawyers and politicians that there was no concerted action on the part of the people to overthrow the government and that there was no open rebellion to justify the declaration of martial law”).

The Martial Law Ordinance, Ordinance 1 of 1919 (Apr. 14, 1919).

Id . at §.7. Although the ordinance was promulgated on April 14, 1919, it was stated to apply to persons charged with offences committed on or after April 13, 1919.

By Martial Law (Extension) Ordinance of April 16, 1919 martial law was extended to the District of Gujranwala.

Under the Martial Law (Sentences) Ordinance 1919, a convict could be sentenced to transportation for life, or for a period not less than ten years or to rigorous imprisonment for a period between seven and fourteen years.

The Martial Law (Trials Continuance) Ordinance, Ordinance 6 of 1919 (May 27, 1919).

The Martial Law (Further Extension) Ordinance of April 21, 1919, extended the first ordinance to offences committed on or after March 30, 1919.

Martial Law (Further Extension) Ordinance IV of 1919.

Bugga v. Emperor 1920 AIR 29 (Privy Council).

Id . § 2 of the Government of India Act 1915, reads: “A law made by any authority in British India and repugnant to any provision of this or any other Act of Parliament shall, to the extent of that repugnancy, but not otherwise be void.” See The Government of India Act, 1915, 5 & 6 Geo. 5 c. 61, § 2.

Kali Nath Roy v. Emperor 1921 AIR 29 (Privy Council).

Martial Law Ordinance, Ordinance 2 of 1921 (Aug. 26, 1921).

Martial Law (Supplementary) Ordinance, Ordinance 3 of 1921 (Sep. 5 of 1921).

Martial Law (Military Courts) Ordinance, Ordinance 4 of 1921 (Oct. 15, 1921).

R. v. Allen (1921) 2 Ir. R. 241; R. (Garde & Ors.) v. Strickland (1921) 2 Ir. R. 317, both of which proceed on the basis that trial would be by military courts sitting in the martial law area.

In Re R.K.E. Nair 1972 AIR 215 (Mad).

E.P. Govindan Nair v. Emperor 1922 AIR 499 (Mad).

Id . at 500.

These include the Malabar (Restoration of Order) Ordinance, Ordinance 1 of 1922 (Feb. 25, 1922); Malabar (Restoration of Order) Amendment Ordinance, Ordinance 2 of 1922 (Mar. 29, 1922); The Malabar (Completion of Trials) Ordinance, Ordinance 3 of 1922 (Aug. 19, 1922).

Hajee v. Crown 1923 AIR 95 (Mad).

Hameed Haji v. Crown 1923 AIR 598 (Mad). As the magistrate had retired prior to his appointment as Special Magistrate under the Ordinance, it was held that he was not a “Magistrate who (has) exercised the powers of a first class magistrate for not less than two years.”

In Re Pokker & Ors 1924 AIR 243 (Mad).

The Bengal Criminal Law Amendment Ordinance, Ordinance 1 of 1924 (Oct. 25, 1924).

Bengal Emergency Powers Ordinance 1931.

The Sholapur Martial Law Ordinance, Ordinance 4 of 1930, (May 15, 1930).

Minattur [ 21 , p. 31].

Chanappa Shantirappa v. Emperor 1931 AIR 57 (Bom.).

Id . at 58 C2–59 C1.

Id . at 63–65.

Id . at 60 C1.

Id . at 66.

Id . at 69.

The movement was led by Khan Abdul Ghaffar Khan, who came to be known as Frontier Gandhi.

The Martial Law Ordinance, Ordinance 8 of 1930 (Aug. 15, 1930).

No serious disorder occurred after mid-August; martial law was used in only one subdivision of the district; no Special Courts, Tribunals or Judges elaborately provided for in the ordinance were in fact constituted and the twenty-one persons convicted under martial law regulations were not sentenced to more than three months rigorous imprisonment. Minattur [ 21 , pp. 35–36].

The Martial Law Ordinance, Ordinance 8 of 1930 (Aug. 15, 1930) § 13.

Id . at § 2.

Id . at § 4(1).

Id . at § 4(3). See also statement of Objects and Reasons accompanying the Ordinance.

Id . at § 4(2).

Id . at § 5(2) and 6(1).

Id . at § 5(3) and 6(1) Proviso.

Id . at § 5(6) (i).

Id . at § 5(6) (iii).

Id . at § 5(7).

Id . at § 7(1) (a).

Id . at § 7(1) (b).

Id . at § 7(2).

Id . at § 7(4).

Id . at § 7, Explanation.

Id . at §§ 8 & 9.

Id . at §§ 11 & 12.

Id . at § 10.

Id . at § 13

Id . at § 1(3)

Id . at § 16.

Thus, Special Tribunals were to be manned by three persons appointed by the Local Government with the presiding officer being a sitting or retired judge of the High Court and the other members being persons who had acted as sessions Judge for at least two years (§ 17). They could try such offences as the local government may in writing direct (§ 18) and were to take cognizance without committal (§ 19 (1)) and apply the procedure of warrant cases tried by a Magistrate ( Id .). An appeal, as in the case of a sessions Court, was provided in case of sentences of death transportation for life or imprisonment of more than ten years (§ 21). The local government was authorized to notify the times and places for the setting of the Tribunals and also its procedure (§ 22). Special Judges, had to be persons who had acted as Sessions Judge for more than 2 years (§ 23), could try offences specified by the local government in writing (§ 24). They had the same power and followed the same procedure of Special Tribunals (§ 24 (2)). Appeals in cases of sentences of death, transportation or imprisonment of more than five years lay as from a Court of Session (§ 25). The Special Magistrate, who had exercised those powers for at least two years (§ 26), could try such offences, except those punishable by death, as specified earlier (§ 28) and the powers similar to that of a Magistrate under the Code of Criminal Procedure ( Id .). In sentences exceeding two years, an appeal lay to the Special Tribunal (§ 30). The Administrator of martial law in any area was authorized to empower any Magistrate in writing to exercise the powers of summary court (§ 32) to try such offences as the Administrator may direct except those punishable with imprisonment exceeding five years (§ 33). Summary Courts were to follow the procedure for trial of warrant cases (§ 34) but could not impose sentence exceeding two years or one thousand rupees (§ 35). However, it could record merely a memorandum of evidence and dispense with the framing of a formal charge (§ 34, first proviso). Finally, the military courts could also be set up, in the same manner and applying the same procedure as a Summary General Court Martial under the Indian Army Act 1911, if the Administrator of martial law in an area, or his delegate (not below the rank of Field Officer) so directed in view of the emergencies of a situation (§ 37 (1) and (2)). However, these courts could only try offences under §§ 121, 122 or 302 of the Code or committed under the Ordinance or any offence specified and notified by the local government or any offence specified and notified by the local government with the previous sanction of the Governor-General in Council or any attempts or abetments of such offences (§ 37 (1) (a), (b), (c) and (d)). It is noteworthy that these military courts could award any sentence but death sentences were required to be approved by the General Officer Commanding-in-Chief (§ 37 (3)).

Id . at § 38 (1) (a).

Id . at § 38 (1) (b).

Id . at § 3.

Id . at § 38 (1) (c).

The Bengal Criminal Law Amendment Ordinance, Ordinance 1 of 1930 (Apr. 19, 1930).

The Lahore Conspiracy Case Ordinance, Ordinance 3 of 1930 (May 1, 1930).

See , inter alia , Burma Criminal Law Amendment Ordinance 1, 1931; Burma (Rebellion) Trials Ordinance III of 1931; Burma Emergency Powers Ordinance V of 1931.

Bengal Criminal Law Amendment Ordinance IX of 1931; Bengal Emergency Powers Ordinance XI of 1931.

Kashmir State (Protection Against Disorders) Ordinance X 1931.

Other noteworthy ordinances of 1931 include the United Provinces Emergency Powers Ordinance 1931 and N.W. Frontier Province Emergency Powers Ordinance XIII of 1931.

Those relating to Bengal included: Bengal Emergency Powers (Supplementary) Ordinances 1 of 1932; Bengal Emergency Powers Ordinance IX of 1932; Bengal Emergency Powers (Amendment) Ordinance X of 1932; Bengal Emergency Powers (Second Amendment) Ordinance XII of 1932. Other ordinances of 1932 not relating exclusively to Bengal included the Emergency Powers Ordinance II of 1932; Unlawful Instigation Ordinance 1932; Special Powers Ordinance X of 1932.

§ 1 (2), Ordinance II of 1932.

Id . at § 3 (1).

Id . at § 3 (2).

Id . at § 4(1) (a), (b), (c) and (d).

Id . at § 8.

The ordinance also conferred power to take possession of buildings, ( Id . at § 5), to prohibit or limit access to certain places, ( Id . at § 6), to prohibit or regulate traffic, ( Id . at § 7), to take possession of movables, ( Id . at § 9), to regulate arms and ammunition, ( Id . at § 11), to employ additional police, ( Id . at § 12), to require the assistance of certain persons, ( Id . at § 13), to control public utility services, ( Id . at § 14), posts and telegraphs ( Id . at § 15) and use of railways and vessels, ( Id . at § 16), to secure reports of public meetings, ( Id . at § 17), and to conger general power of search ( Id . at § 19).

Id . at Chapter III, §§ 21–28.

Further, tampering with public servants with a view to make them disregard their duty ( Id . at § 23), discussion from enlistment into military service ( Id . at § 24), dissemination of false rumors ( Id . at § 25) or the contents of prescribed documents ( Id . at § 27) were all made offences under the Ordinance.

Id . at Chapter IV, §§ 29. 29–52 of the Ordinance.

Id . at Chapter V, §§ 53–56.

In Re M.K. Ghose and T.K. Biswas 1932 AIR 738 (Cal.).

But see A.K. Gopalan v. State of Madras, AIR 1950 SC 27 (India).

B.H. Phansalkar v. Emperor 1933 AIR 1 (Bom.).

In Re A.C. Parihal 1933 AIR 278 (Cal.).

Jethmal Pararam v. Emperor 1933 AIR 278 (Cal.).

R.G. Khadkikar v. Emperor 1933 AIR 58 (Bom.).

High Court Bar Association v. Emperor 1932 AIR 613 (Lah.).

Emperor v. Mulchand Chotiram 1932 AIR 166 (Sind). A man, directed by the District Magistrate under § 4 of Ordinance II of 1932 not to go outside the area of sanitary committee of Buria, convicted and sentenced to six months simple imprisonment and a fine of Rs. 100/- for being found sitting on a bridge at the very limits of the sanitary committee, though he professed that he did not realize that he had marginally crossed the limits by sitting on the bridge. The Sind High Court, though strongly inclined to set aside the conviction, found itself barred by the Ordinances and remarked:

There is, therefore nothing further which we can do. Nevertheless, since our attention has been drawn to this ordinance, we cannot help observing that extraordinary and very extensive powers have been conferred upon a large body of magistrates. Our experience leads us to suppose that powers of this kind cannot safely be exercised without some sort of supervision. Authority to exercise such supervision has been expressly withheld from us.

M. Kundu v. Emperor 1933 AIR 401 (Cal.).

G. Doshi v. Emperor 1933 AIR 148 (Bom.).

A. Majid v. Emperor 1933 AIR 537 (Cal.).

N.R. Ganguly v. Emperor 1933 AIR 124 (Cal.).

Jogendranath Ray v. Superintendent of Dum Dum Special Jail 1933 AIR 280 (Cal.).

P.C. Chakravarty v. Emperor 1933 AIR 186 (Cal.).

The Criminal Procedure Code 1973, No. 2 of 1974, C ode C rim . P roc . § 144 (1) (India).

Reference may be made, inter alia , to the following judicial decisions of that time dealing with § 144: Kamini Mohan Das Gupta v. H.K. Sarkar ILR 38 (Mad) 489 (1913); Emperor v. Bhure Mal ILR 45 (Alld.) 526 (1923); Gobind Ram Marwani v. B.L. Marwari ILR 7 (Pat.) 269 (1927); Emperor v. B.N. Sasmal ILR 58 (Cal.) 1037 (1930); S.C. Mukhirty v. L.L. Pal Choudhary ILR 39 (CWN) 1053 (1935); Emperor v. G.V. Mavlankar ILR 55 (Bom.) 322 (1931); Thakin Ba Thaung v. King Emperor ILR 12 (Rangoon) 283 (1935).

Kamini Mohan Das Gupta v. H.K. Sarkar ILR 38 (Mad) 489 (1913); Emperor v. G.V. Mavlankar ILR 55 (Bom.) 322 (1931).

October 31, 1934, hereinafter J t . C omm . (2 Vols.).

Id . at ¶ 19.

Id . at ¶ 23.

Id . at ¶ 78 (a)

Id . at ¶ 79.

Id . at ¶ 75.

Id . at ¶ 96.

See J t . C omm . R ep . ¶ 109:

… [T]o give the Governor power at his discretion, if at any time he is satisfied that a situation has arisen which for the time being renders it impossible for the government of the province to be carried on in accordance with the provisions of the Constitution Act, to assume to himself by proclamation all such powers vested in any provincial authority as appear to him to be necessary for the purpose of securing that the Government of the Province shall be carried on effectively. This proclamation will have the same effect as an Act of parliament, and will cease to be in force at the expiration of six months unless previously approved by resolutions of both Houses of Parliament, though it may at any time be revoked by similar resolutions.

Id . at ¶¶ 168 & 169.

Id . at ¶ 190.

Id . at ¶ 221.

Id . at ¶ 222.

Id . at ¶ 238.

Clause 53 of the Proposal by the Jt. Committee read:

The Governor-General will be empowered at his discretion, if at any time he is satisfied that the requirements of the Reserved Departments, or any of the “special responsibilities” with which he is charged by the Constitution Act render it necessary, to make and promulgate such Ordinances as, in his opinion, the circumstances of the case require, containing such provisions as it would have been competent, under the provisions of the Constitution Act, for the Federal Legislature to enact.

An Ordinance promulgated under the proposals contained in this paragraph will continue in operation for such period, not exceeding six months, as may be specified therein; the Governor-General will, however, have power to renew any Ordinance for a second period not exceeding six months, but in that event it will be laid before both Houses of Parliament.

An Ordinance will have the same force and effect; whilst in operation, as an Act of the Federal Legislature; but every such ordinance will be subject of the provisions of the Constitution Act relating to disallowance of Acts, and will be subject to withdrawal at any time by the Governor-General.

Clause 54 read:

In addition to the powers to be conferred upon the Governor-General at his discretion in the preceding paragraph, the Governor-General will further be empowered, if his ministers are satisfied, at a time when the Federal Legislature is not in session, that an emergency exists which renders such a course necessary, to make and promulgate any such Ordinances for the good government of British India, or any part thereof, as the circumstances of the case require, containing such provisions as, under the Constitution Act, it would have been competent for the Legislature to enact. An Ordinance promulgated under the proposals contained in this paragraph will have, while in operation, the same force and effect as an Act of the Federal Legislature, but every such ordinance—(a) will be required to be laid before the Federal Legislature and will cease to operate at the expiry of six weeks from the date of the reassembly of the Legislature, unless both Chambers have in the meantime disapproved it by Resolution, in which case it will cease to operate forthwith; and (b) will be subject to the provisions of the Constitution Act relating to disallowance as if it were an act of the Federal Legislature; it will also be subject to withdrawal at any time by the Governor-General.

Clause 55 read:

The Governor-General will be empowered at his discretion, if at any time, he is satisfied that a situation has arisen which renders it for the time being impossible for the government of the Federation to be carried on in accordance with the provisions of the Constitution Act, by Proclamation to assume to himself all such powers vested by law in Federal authority of securing that the government of the Federation shall be carried effectively. A Proclamation so issued will have the same force and effect as an Act of Parliament; will be communicated forthwith to a Secretary of State and laid before Parliament; will cease to operate at the expiry of six months unless, before the expiry of that period, it has been approved by Resolutions of both Houses of Parliament; and may at any time be revoked by Resolutions by both Houses of Parliament.

These were clauses 103, 104 and 105.

Clause 103:

The Governor will be empowered at his discretion, if at any time he is satisfied that the requirements of any of the “special responsibilities” with which he is charged by the Constitution Act render it necessary, to make and promulgate such Ordinances as, in his opinion, the circumstances of the case require, containing such provisions as it would have been competent, under the provisions of the Constitution Act, for the Provincial Legislature to enact.

An ordinance promulgated under the proposals contained in this paragraph will continue in operation for such period, not exceeding six months, as may be specified therein; the Governor will, however, have the power to renew any Ordinance for a second period not exceeding six months, but in that event it will be laid before both Houses of Parliament.

An Ordinance will have the same force and effect, whilst in operation, as an Act of the Provincial Legislature; but every such Ordinance will be subject to the provisions of the Constitution Act relating to disallowance of Acts and will be subject to withdrawal at any time by the Governor.

Clause 104:

In addition to the powers to be conferred upon the Governor at his discretion in the preceding paragraph, the Governor will further be empowered, if his Ministers are satisfied, at any time when the Legislature exists which renders such a course necessary, to make and promulgate any such Ordinances for the good government of the Province or any part thereof as the circumstances of the case require, containing such provisions as, under the Constitution Act. It would have been competent for the Legislature to enact.

An Ordinance promulgated under the proposals contained in this paragraph will have, while in operation, the same force and effect as an Act of the Provincial Legislature, but every such Ordinance—(a) will be required to be laid before the Provincial Legislature and will cease to operate at the expiry of six weeks from the date of the reassembly of the Legislature (or both Chambers, where two Chambers exist) has disapproved it by Resolution, in which case it will cease to operate forthwith; and (b) will be subject to the provisions of the Constitution Act relating to the disallowance as if it were an Act of the Provincial Legislature; it will also be subject to withdrawal at any time by the Governor.

Clause 105:

The Governor will be empowered at his discretion, if at any time he is satisfied that a situation has arisen which renders it for the time being impossible for the government of the Province to be carried on in accordance with the provisions of the Constitution Act, by Proclamation to assume to himself all such powers vested by law in any Provincial authority as appears to be necessary for the purpose of securing the government of the Province shall be carried on effectively.

A proclamation so issued will have the same force and effect as an Act of Parliament; will be communicated forthwith to the Governor-General and to a Secretary of State and laid before the Parliament; will cease to operate at the expiry of six months unless approved by Resolutions of both Houses of Parliament; and may at any time be revoked by Resolutions of both Houses of Parliament.

26 Geo V&I Edw VIII c. 1. The Government of India Acts of 1915, 1919 and 1935 are conveniently reproduced in Basu [ 43 ].

Omitted by the India (Provisional Constitution) Order 1947.

Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, § 57.

Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, § 102.

Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, § 126 cl. 5.

The Government of India Act, 1939, 2 & 3 Geo 6, c. 66, amending § 126.

India & Burma (Emergency Provisions) Act 1940.

India (Proclamation of Emergency) Act 1946.

India (Central Government and Legislation) Act 1946.

On Sept. 3, 1939.

The Defense of India Act, No. 35 of 1939, Act of Indian Legislature, 1939, available at http://lawmin.nic.in/legislative/textofcentralacts/1939.pdf .

K. Talpade v. Emperor AIR 1943 FC 1.

See Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, entries 1 & 2, list I, Sch. 7.

Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, entry 34, List III.

Cf . K. Talpade v. Emperor AIR 1943 FC 1 (Gwyer, C.J.), who thought that the 1939 Act and Rules were patterned after English Legislation “not altogether happily”.

The 1939 Act and Rules were conveniently reproduced in T he D efense of I ndia A ct 1965, (2nd edn.).

[1942] AC 206.

Id . at 6–7.

Ordinance 14 of 1943.

Shibnath Banerjee v. Porter, 1943 AIR 377 (Cal.).

Emperor v. Sibnath Banerji, AIR 1943 FC 75 (Federal Court of India).

Emperor v. Sibnath Banerji, AIR 1945 PC 156 (Privy Council).

Tan Bug Taim v. Collector Bombay, 1946 AIR 216 (Bom.).

Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, entry 9, List II, sch. 7.

Id . entry 21.

In Re Venkatasubbier, 1945 AIR 104 (Mad.).

The Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, entry 27, list II, sch. 7.

H.C. Gupta v. Mackertich John, 1946 AIR 140 (Cal.); Municipal Board v. Allah Tala (1951) All. L.J. 145.

Union of India v. Ram Prashad & others, 1952 AIR 116 (Punk.); Collector, Darjeeling v. Mackertich (1950) 54 CWN 853; West Bengal v. Board of Trustees 1946 AIR 416 (Cal.).

Cf . Srivastava [ 22 , p. 204] “It appears from these decisions that though DOI Rules did not provide expressly for fair compensation, as were done by the English Defense Regulations, the courts were ready to order payment of fair and reasonable compensation”.

Dina Nath v. Emperor 1946 AIR 117 (Alld.). See also Roshan Lal v. Emperor 1956 AIR 161 (Alld.).

Emperor v. Vimlabai Deshpande (1946) 73 I.A. 144 (Privy Council).

Teja Singh v. Emperor 1945 AIR 293 (Lah.).

Minattur [ 21 , p. 39].

Martial Law (Indemnity) Ordinance 1943 (XVIII of 1943).

Special Criminal Courts Ordinance 2 of 1942. It authorized the creation of Special Judges, Special Magistrates and Summary Courts.

Benoari Lal Sarma v. Emperor 1943 AIR 285 (Cal.).

Emperor v. Benoari Lal Sarma AIR 1943 FC 36.

Special Criminal Courts (Repeal) Ordinance XIX of 1943.

Id . at § 5.

Piare Dusadh v. King Emperor (1944) FCR 61.

Government of India Act, 1935, 9 & 10 Geo. 5 c. 101, entry 1, list II, sch. 7.

Id . Entry 2, List 2.

Emperor v. Benoari Lal Sarma, AIR 1945 PC 40, 51 C2 (Privy Council).

Emperor v. Benoari Lal Sarma, AIR 1945 PC 48, 50 C1 (Privy Council).

Id . at 50 C1.

In the present instance, such questions are immaterial, for at the date of the ordinance (2 nd January 1942) no one could suggest that the situations in India did not constitute an emergency of the most anxious kind. Japan had declared war on the previous 7 th December; Rangoon had been bombed by the enemy on 23 rd December and again on 25 th December: earlier Ordinances had recited that an emergency had arisen which required special provisions being made to maintain essential services, to increase certain penalties, to deal with looting of property left unprotected by evacuation of premises, and so forth.

These include, inter alia , Registration Ord. 1939; Requisitioning of Vessels Ord. 1939; Foreigners Ord. 1939; Civil Pioneer Force Ord. 1942 (X of 1942); Women’s Habeas Corpus Ord. 1942 (XIII of 1942). Railway Air Raid Precautions Ord. 1942 (XXI of 1942).

I ndia C onst . art. 352–360. See also I ndia C onst . art. 250.

I ndia C onst . art. 352 § 1.

I ndia C onst . art. 352 § 3.

I ndia C onst . art. 352 § 2 cl. a.

I ndia C onst . art. 352 § 2 cl. b.

I ndia C onst . art. 352 § 2 cl. c.

I ndia C onst . art. 352 § 2 cl. c., Proviso. The Upper House of the Indian Parliament is never “dissolved” as such, but one third of its members retire every two years: See I ndia C onst . art. 83.

I ndia C onst . art. 353 (b). Parliament has exclusive power to legislate in respect of subjects listed in List I of the Seventh Schedule (the Union List); the States have exclusive power to legislate in respect of List II (the State List); both Parliament and States have legislative power in respect of List 3 (Concurrent List) although the Parliamentary Law would prevail over State Law in case of irreconcilable conflict.

I ndia C onst . art. 353 (a).

I ndia C onst . art. 250.

I ndia C onst . art. 354 § 1. See also I ndia C onst . arts. 268–281 which prescribe in detail the rules governing such distribution of revenues during normal times.

I ndia C onst . art. 354 § 2.

I ndia C onst . art. 354 § 1.

See, e.g ., right to free speech, assembly, association, movement, residence and practice of any trade or profession.

I ndia C onst . art. 358.

I ndia C onst . art. 359 § 1.

… protection against deprivation of life or liberty except according to procedure established by law (Art. 21); protection against arrest and detention in certain cases (Art. 22); rights against exploitation (Arts. 23 and 24); rights to freedom of religion (Arts. 25–28); protection of interests of minorities and their cultural and educational rights (Arts. 29–30); right to move the Supreme Court for enforcement of any of the preceding rights (Art. 32).

I ndia C onst . art. 359 § 3.

I ndia C onst . art. 355.

Clause 15 of the memorandum of the Principles of a model Provincial constitution read as follows:

Special responsibilities of Governor:

(1) In the exercise of his responsibilities, the Governor shall have the following special responsibility, namely, the prevention of any grave menace to the peace and tranquility of the Province or any part thereof. (2) In the Discharge of his special responsibility, the Governor shall act in his discretion: Provided that if at any time in the discharge of his special responsibility he considers it essential that provisions should be made by legislation, but is unable to secure such legislation, he shall make a report to the President of the Federation who may thereupon take such action as he considers appropriate under his emergency powers.

See 4 C onstituent A ssembly D ebates , Book 1, 595 (Lok Sabha Secretariat, reprint 2014).

See 4 C onstituent A ssembly D ebates , Book 1, 708 (Lok Sabha Secretariat, reprint 2014) (amendment moved by H.N. Kunzru.)

See the discussion at 4 C onstituent A ssembly D ebates , Book 1, 763–782 (Lok Sabha Secretariat, reprint 2014). The main opposers were B.M. Gupta, K.M. Munshi, T. Prakasam, Pandit L.K. Maitra, B.G. Kher, P.K. Sen, N.G. Ranga, Vallabhbhai Patel.

See 4 C onstituent A ssembly D ebates , Book 1, 709 (Lok Sabha Secretariat, reprint 2014). Moved by K.M. Munshi, the amendment proposed the following clause in place of clause 15:

(1) Where the Governor of a Province is satisfied in his discretion that a grave situation has arisen which threatens the peace and tranquility of the Province and that it is not possible to carry on the Government of the Province, with the advice of his Ministers in accordance with the provisions of Section 9 he may by proclamation, assume to himself all or any of the functions, of Government and all or any of the powers vested in or exercisable by any Provincial body or authority; and any such consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the Proclamation including provisions for suspending in whole or in part of the operation of any provisions of this Act relating to any Provincial body or authority; Provided that nothing in this sub-section shall authorize the Governor to assume to himself any of the powers vested in or exercisable by a High Court or to suspend, either in whole or in part, the operation of any provision of the Act relating to High Courts. (2) The Proclamation shall be forthwith communicated by the Governor to the President of the Union, who may thereupon take such action as he considers appropriate under his emergency powers. (3) The Proclamation shall cease to operate at the expiration of two weeks, unless revoked earlier by the Governor himself or by the President of the Union.

The “reporting” amendment had been moved by H.N. Kunzru. He was supported by Pandit G.B. Pant and also by Mr. H. Imam. See 4 C onstituent A ssembly D ebates , Book 1, 774–776, 777–778 (Lok Sabha Secretariat, reprint 2014).

See, e.g ., 4 C onstituent A ssembly D ebates , Book 1, 769–70 (Lok Sabha Secretariat, reprint 2014) (T. Prakasa, mentioning the communal disorders of South India).

See, e.g ., 4 C onstituent A ssembly D, Book 1, 764, 778, 780 (Lok Sabha Secretariat, reprint 2014) (by B.M. Gupta, N.G. Ranga and Vallabhbhai Patel).

By B.N. Rau. See Shiva Rao [ 25 , p. 806]. See also the four volumes of Shiva Rao [ 26 ].

By A.K. Ayyar & N.G. Vyyangar. See , Shiva Rao [ 27 , p. 546].

By K.J. Shah. See Shiva Rao [ 25 , p. 806].

By K.M. Pannikar. Shiva Rao [ 25 , p. 806].

By S.P. Mukerjee. See Shiva Rao [ 25 , p. 806]. See also , Shiva Rao [ 27 , p. 529].

By K. Santhanam, 4 C onstituent A ssembly D ebates , Book 1, 1006 (Lok Sabha Secretariat, reprint 2014).

Santhanam’s provision is reproduced in 4 C onstituent A ssembly D ebates , Book 1, 1006 (Lok Sabha Secretariat, reprint 2014).

See , Shiva Rao [ 28 , pp. 75–76].

(1) Notwithstanding anything in the preceding sections of this Part, the Federal Parliament shall have power: (a) if the President has declared by proclamation that a grave emergency exists whereby the security of India is threatened, whether by war or internal disturbance, then, to make laws for any province or any part thereof, and (b) if the President has, on receipt of a proclamation issued by the Governor of a Province under Section 160, declared by proclamation under this sub-section that a grave emergency exists whereby the peace and tranquility of that province is threatened, then, to make laws for that province or any part thereof, with respect to any of the matters enumerated in the Provincial Legislative List. (2) Nothing in this section shall restrict the power of Provincial Legislature to make any law which under this Constitution it has power to make, but if any provision of a Provincial law is repugnant to any provision of a Federal law, which the Federal Parliament has under this section power to make, the Federal law, whether passed before or after the Provincial law shall prevail, and the Provincial law to the extent if the repugnancy, but so long only as the Federal law continues to have effect, be inoperative. (3) A proclamation issued under clause (a) of clause (b) of sub-section (1) (in this Constitution referred to as “a Proclamation of Emergency”)—(a) may be revoked by subsequent proclamation; (b) shall be laid before each House of the Federal Parliament; (c) shall cease to operate at the expiration of six months, unless before the expiration of that period if it has been approved by resolutions of both houses of the Federal Parliament. (4) A law made by the Federal Parliament which the 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. (5) A proclamation of Emergency declaring that the security of India is threatened by war or by internal disturbance may be made before the actual occurrence of war or any such disturbance if the President is satisfied that there is imminent danger thereof.

See , Shiva Rao [ 28 , p. 79].

See Shiva Rao [ 28 , p. 79].

See 7 C onstituent A ssembly D ebates , Book 2, 34–35 (Lok Sabha Secretariat, reprint 2014).

9 C onstituent A ssembly D ebates , Book 4, 104 (Lok Sabha Secretariat, reprint 2014).

9 C onstituent A ssembly D ebates , Book 4, 105 (Lok Sabha Secretariat, reprint 2014) (H.V. Kamath).

Id . at 109–110 (S.L. Saksena); Id . at 116 (Naziruddin Ahmed); Id . at 118 (Tajaul Hussain); Id . at 119 (M. Tyagi); Id . at 123 (T.T. Krishnamachari).

Id . at 125 (T.T. Krishnamachari).

Id . at 116 (N. Ahmed).

Id . at 123 (T.T. Krishnamachari).

Id . at 116 (Kazi Syed Karimuddin).

Id . at 110 (Brajeshwar Prasad).

Id . at 120 (M. Tyagi).

Id . at 112–113 (K.T. Shah); Id . at 115 (Kazi Karimuddin).

Id . at 115 (Kazi Karimuddin).

Id . at 107 (H.V. Kamath).

Id . at 121 (M. Tyagi).

Id . at 125 (T.T. Krishnamachari). Cf . remarks of W. Ahmed ( Id . at 117) who felt that the power to revoke a proclamation and issue a new one adequately covered the power to “vary” a proclamation.

By H.V. Kamath ( Id . at 108); P.S. Deshmukh ( Id . at 114).

See 9 C onstituent A ssembly D ebates , Book 4, 110 (Lok Sabha Secretariat, reprint 2014) (S.L. Saksena); id . at 117 (N. Ahmed); id . at 119 (T. Hussain); id . at 124 (T.T. Krishnamachari).

Id . at 126.

Mr. N. Ahmed’s suggestion for transporting the non-obstante portion in the provision to the beginning of the article was not seriously pressed. See 9 C onstituent A ssembly D ebates , Book 4, 129–130 (Lok Sabha Secretariat, reprint 2014).

9 C onstituent A ssembly D ebates , Book 4, 514 (Lok Sabha Secretariat, reprint 2014). (Biswanath Das).

Id . at 508 (H.N. Kunzru).

Id . at 511 (Renuka Ray).

Id . at 513 (B. Das).

Id . at 517 (B. Das).

Id . at 515 (K. Chaha).

Id . at 518 (B. Das).

See, e.g., Renuka Ray ( Id . at 511); B. Das ( Id . at 513); K. Chahha ( Id . at 515).

Id . at 505–507.

Id . at 522–23.

Id . at 510 (Ayyar). See also Id . at 515–16 (Mrs. Durgabai); Id . at 516 (Krishnamoorthy Rao).

Id . at 509.

Id . at 510.

Id . at 514–15 (Mr. Brayeshwar Prasad).

Id . at 515–16 (Mrs. Durgabai).

Id . at 508 (S.L. Saksena).

Id . at 183 (P.S. Deshmukh).

Id . at 181 (S.L. Saksena); 183 (H.V. Kamath); 184 (P.S. Deshmukh).

Id . at 180 (S.L. Saksena).

Id . at 182 (H.V. Kamath).

Id . at 185 (B.R. Ambedkar).

The critics included H.V. Kamath, S.L. Saksena, H.N. Kunzru, M. Tyagi, K.T. Shah and Thakur Das Bhargava. See 9 C onstituent A ssembly D ebates , Book 4, 180–86, 523–554 (Lok Sabha Secretariat, reprint 2014).

9 C onstituent A ssembly D ebates , Book 4, 554 (Lok Sabha Secretariat, reprint 2014).

With effect from Aug 1, 1975.

Id . cl. 4.

Id . cl. 5 (a).

Id . cl. 5 (b).

This was done by inserting clause (1A) in article 359, which read:

(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 contained in that Part to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the orders aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect.

With effect from December 18, 1976.

Id . cl. 48 (a).

Id . cl. 48 (b) and (c).

Id . cl. 49.

Id . cls. 52 and 53.

With effect from June 10, 1979.

Id . cl. 37 (a).

Id . cl. 37 (b) inserting article 352(3).

See generally the three volumes of the R eport of S hah C ommission of I nquiry , dated 11/3/78, 26/4/78 and 6/8/78. See also 1 R eport of S hah C ommission of I nquiry (1978) at ¶¶ 5.47, 5.49, 5.51, 5.55, 5.59 & 5.68.

Constitution (Forty-Fourth) Amendment Act, No. 88 of 1978, I ndia C ode , ( http://indiacode.nic.in/coiweb/amend/amend44.htm ), cl. 37(b), inserting article 352(4).

See I ndia C onst. art. 352 § 5.

See I ndia C onst. art. 352 § 5 proviso.

See I ndia C onst. art. 352 § 6.

See I ndia C onst. art. 352 § 7.

See I ndia C onst. art. 352 § 8.

Constitution (Forty-Fourth) Amendment Act, No. 88 of 1978, I ndia C ode , ( http://indiacode.nic.in/coiweb/amend/amend44.htm ), cl. 37(d), inserting article 352(4).

Id . cl. 39. See also I ndia C onst. art. 358 § 1.

See I ndia C onst. art. 358 § 2 cls. a & b.

See I ndia C onst. art. 359 § 1.

See I ndia C onst. art. 359 § 1B.

See I ndia C onst. art. 77 § 3, which reads, “The President shall make rules for more convenient transaction of the business of Government of India, and for the allocation among Ministers of the said business.”

Rule 7 of Government of India (Transaction of Business) Rules 1961; hereafter Rules of Business of Transaction of Business Rule.

Mrs. Gandhi’s letter to President Ahmed, dated 25.6.75, read:

Dear Rashtrapatiji, As already explained to you, a little while ago, information has reached us which indicates that there is an imminent danger to the security of India being threatened by internal disturbance. The matter is extremely urgent. I would have liked to have taken this to Cabinet but unfortunately this is not possible tonight. I am, therefore, condoning or permitting a departure from the Government of India (Transaction of Business) Rule 1961, as amended up-to-date by virtue of my powers Rule 12 thereof. I shall mention the matter to the Cabinet first thing tomorrow morning. In the circumstances and in case you are so satisfied, a requisite Proclamation under Article 352(1) has become necessary. I am enclosing a copy of the draft Proclamation for your consideration. As you are aware, under Article 352(3) even when there is an imminent danger of such threat, as mentioned by me, the necessary Proclamation under Article 352(1) can be issued. I recommend that such a Proclamation should be issued tonight, however, late it may be and all arrangements will be made to make it public as early as possible thereafter. With kindest regards, Yours Sincerely, (sd/- Indra Gandhi)

1 R eport of S hah C ommission of I nquiry , 25 (1978).

1 R eport of S hah C ommission of I nquiry (1978) at ¶ 5.47.

Id . at ¶ 5.68.

Id . at ¶¶ 5.49 & 5.51.

Id . at ¶¶ 5.55 & 5.59.

See, inter alia , State of UP v. Om Prakash Gupta AIR 1970 SC 679 (India); Arun Kumar Bhattacharjee v. State of West Bengal 1968 AIR 35 (Cal.); Khirod Saha v. State of Orissa (1982) Cri L.J. 1928 (Orissa HC); Chandrakant Karkharnis v. State of Maharashtra 1977 AIR 193 (Bom.) (Full Bench). A decision of the Supreme Court, Sanjeevi Naidu v. State of Madras AIR 1970 SC 1102 (India), relied upon in the Karkhanis decision, did not directly involve Article 77 (3) or 166 (3).

Chandrakant Karkharnis v. State of Maharashtra 1977 AIR 193 (Bom.) at ¶ 22.

Hardwar Singh v. Bagun Sumbrui AIR 1972 SC 1242 (India). With one exception, this solitary decision of the Supreme Court, which invests Rules of Business with some force, has not been cited in any of the contrary decisions cited earlier. However, in Khirod Saha v. State of Orissa (1982) Cri L.J. 1928 (Orissa HC), Misra, C.J. cited Hardwar Singh’s case, but did not discuss it at all, much less distinguish it.

Fonseca v. L.C. Gupta AIR 1973 SC 563, 566 (India) (Grover & Mukherjea, JJ.) See also Administrator, 24 Parganas v. State of West Bengal, 1970 AIR 346 (Cal.).

Ray v. State of Orissa, 1952 AIR 200 (Orissa) (Order of detention not passed by Home Minister, as required by Rules of Business, quashed); Jay Engg Works v. West Bengal 1968 AIR 407 (Cal.), (Government circular directing police to refer certain law and order questions to Labour Minister and not to intervene directly held invalid, inter alia , because Cabinet or Government cannot transfer matters to different Department or Minister in violation of Business Rules; para 189 (Roy, J.), amongst Special Bench of five judges).

P.L. Lakhanpal v. Union of India, AIR 1967 SC 243 (India).

I ndia C onst. art. 352 § 5 proviso as it stands present.

Joh Cheng Poh v. Public Prosecutor, Malaysia (1979) 2 WLR 623. See also Minerva Mills v. Union of India AIR 1980 SC 1789, 1839–40 (India).

1 R eport of S hah C ommission of I nquiry (1978) at ¶ 5.69.

I ndia C onst. art. 358 § 2.

The following are some decisions upholding laws or executive actions on grounds of Article 358 (the nature of action law protected is given in brackets): Kesho Ram Kale Ram v. State of Punjab, 1964 AIR 307 (Punj.) (Order of Punjab Govt. U/r 125 (2), DOI Rules 1962, prohibiting production of gur); Girdharilal v. State of Punjab (1966) 68 Punj LR 390 (Cancellation of license quota by licensing authority); Himachal Transport Workers Union v. Secy H.P. Govt. 1967 AIR 21 (HP) (Scheme of modification u/Motor Vehicles Act); Devkumarsinghji Kasturichandji v. State 1967 AIR 268 (M.P.) (Constitutionality of § 4(4) of 1964 i.e. M.P. Tax statute); Gangadhar v. Union of India, 1967 AIR 142 (Goa) (Customs Act); Prithvi Cotton Mills v. Broach Borrough Municipality, 1968 AIR 124 (Guj.) (Levy of house tax) ( see Prithvi Cotton Mills v. Broach Borrough Municipality, AIR 1970 SC 192); Puri v. Asst Controller RBI, 1969 ILR 698 (Del) (§ 18 B Foreign Exchange Regulation Act); Sushil Chander Anand v. State of UP, 1969 AIR 317 (Alld.) (Vritti, Vapar, Aajevika Aur Sevayojan Adhiniyam); Jaichand Lal Sethia v. State of West Bengal, AIR 1967 SC 483 (detention U/DoI Rules 1965); Marikar Motors v. Chief Enforcement Officer Madras, AIR (1973) Ker 2 (Emergency Risks (Goods) Insurance Act 1962); The Mirzapur Electric Supply v. State of Uttar Pradesh 1975 AIR 29 (Alld.) (Mirzapur Electricity (Supply) Act 1948); Shankarappa v. State of Karnataka (1975) 2 Kant LJ 288 (Cinema Rules 1974); Mathura Prasad Singh v. State of Bihar 1975 AIR 295 (Pat.) (Bihar Cooperative Societies (Second Amendment) Ordinance 1975); Gangadhar Sadhashiorao Watane v. State of Maharashtra, 1976 AIR 13 (Bom.) (Maharashtra Raw Cotton (procurement, processing and marketing) Act 1971); Amadalavalasa Cooper v. Union of India, AIR 1976 SC 958 (India) (Emergency (Risks) Goods and factories Insurance Act 1962); Kailashchand Khusalchand Bakliwal v. State of Maharashtra, (1977) 79 Bom. LR 449 (Maharashtra Debt Relief Act).

State of Madhya Pradesh v. Thakur Bharat Singh, AIR 1967 SC 1170 (India) (Shah, J.).

S.B. Tewari v. Union of India, 1963 AIR Assam 94 (Rule 149 Indian Railway Establishment Code challengeable as is it pre-emergency); Appukutty v. State of Kerala (1969) Lab IC 30 (Action U/ Essential commodities Act 1955, challengeable as 1955 Act is a pre-emergency statute); Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106 (India) (Newsprint Import Policy of 1972–73, challengeable as it is continuation of earlier policy continued form year to year.); Delhi Police Karamchari Sangh v. Union of India (1974) 2 SLR 574 (Police forces (Restriction of Rights) Act 1966 challengeable as made before 1971 emergency proclamation) ( see also Delhi Police Non-Gazetted Karamchari Singh v. Union of India, AIR 1987 SC 379, where the Supreme Court dismissed the appeal); Laxmi Touring Talkies v. State of Karnataka, 1975 AIR 37 (Kant) (Cinemas Act 1964) and 1971 Rules U/ it challengeable as pre-emergency law); Sadanand Shenoy v. State of Kerala (1975) KLT 647 (Motor Vehicles Rules 1961 challengeable as pre-emergency law); Pratap Singh Kadian v. State of Punjab, 1975 AIR 324 (P&H) (Punjab Wheat Order 1974 challengeable because it is under pre-emergency 1955 Essential Commodities Act); Bijoy Kumar v. State of Orissa, AIR 1976 SC 138 (India) (Orissa Paddy Procesment (Levy) Order 1974, made during emergency, challengeable as it is under pre-emergency 1955 Act); Dhanna Mal Sehaj Ram v. State of Punjab 1976 AIR 365 (P&H) (Punjab Wheat Dealers Licensing & Price Control (4th Amendment) Order 1974 challengeable as it is under pre-emergency 1955 Act); Shree Meenakshi Mills v. Union of India, 1974 AIR 200 (Alld.) (Executive action u/1955 by-law challengeable as it is pre-emergency law).

See, inter alia , Pratap Singh Kadian v. Punjab, 1975 AIR 324 (P&H); Bijoy Kumar v. Orissa, AIR 1976 SC 138 (India); Dhanna Mal Sehaj Ram v. State of Punjab 1976 AIR 365 (P&H).

See Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106 (India).

Gordhanlal Ramgopal v. Rajasthan 1976 AIR 151 (Raj.).

District Collector, Hyderabad v. Ibrahim & Co., 1966 AIR 310 (Andhra Pradesh).

Jaichand Lal Sethia v. State of West Bengal AIR 1967 SC 483 (India).

See District Collector, Hyderabad v. Ibrahim & Co., 1966 AIR 310 (Andhra Pradesh); Jaichand Lal Sethia v. State of West Bengal AIR 1967 SC 483 (India).

See, inter alia , Makhan Singh Tarsikka v. State of Punjab (1964) 4 SCR 797, (India) AIR 1964 SC 381 (India) paras 8 and 9; Union of India v. Bhanudas Gawde AIR 1977 SC 1027, 1041 (India).

M.M. Pathak v. Union of India AIR 1978 SC 803, 811–12 (India) (Beg J.). On nature of Presidential Order under Article 359. See also Golak Nath v. Punjab, AIR 1967 SC 1643, 1656 (India); K.P. Singh v. Bihar, 1976 AIR 248 (Pat.).

Pre-emergency laws were held unchallengeable because of a Presidential Order U/A 359 in Bhaskay Textile Mills v. Jharsugda Municipality (1977) Tax LR 2177; Bhokta v. Bihar AIR (1976) Patna 345. A number of cases held detentions or other action under DOI Acts or MISA unchallengeable on grounds of violation of Articles 14, 19 or 21, due to the Presidential Order: Mohan Chowdhary v. Chief Commr, U T Tripura, AIR (1964) SC 173; Promode Das Gupta v. Deputy Secretary, West Bengal (1964–65) 69 CWN 913; Acharaj Singh v. Bihar, 1967 AIR 114 (Pat); Karunanidhi v. Raman, 1968 AIR 54 (Mad.); Niaz Khan v. UP (1973) Cri LJ 1344; Thomas v. Kerala, 1976 AIR 94 (Ker.); Patel v. West Bengal (1976) Cri LJ 783; Faridi v. Union of India, 1970 AIR 383 (Alld.); Das v. Union of India (1979) Cri LJ 493; Mali v. Maharashtra (1977) 79 Bom LR 189; Naidu v. AP, AIR 1977 SC 854; Uttarwar v. Maharashtra AIR (1977) Bom 99; Dharmarajan v. Union of India (1977) Cri LJ 230.

Makhan Singh Tarsikka v. State of Punjab AIR 1964 SC 381 (India). On the Constitutionality of the Order, paras 13 & 33; Ghasi Ram v. Rajasthan, AIR (1966) Raj 247; Ananda Nambiar v. Chief Secy. Madras, AIR 1966 SC 657 (India).

Makhan Singh Tarsikka, id ; Ghatate v. Union of India 1975 AIR 324 (Bom); Joshi v. Maharashtra (1977) 79 Bom. LR 289; Sindha v. Ghosh (1975) 16 Guj LR 642; Milapchand v. Union of India (1975) WLN 750; Ghasi Ram v. Rajasthan AIR (1966) Raj 247; Atma Singh v. Punjab ILR (1976) 1 Punj 879; State of MP v. Thakur Bharat Singh, AIR 1967 SC 1170 (India); Kapoor v. Union of India (1975) Cri LJ 1376; Kasinathan v. Madras 1967 AIR 21 (Mad.); Venkateshamma v. State of A.P. 1976 AIR 1 (AP); Bhagwat Devi Paranjape (1976) Cri LJ 534.

These grounds of invalidity were urged as additional grounds in many of the cases cited in the preceding note and were held not to be excluded by Article 359.

Makhan Singh; Darshan Singh v. State of Punjab (1975) Cri LJ 1974; Ghasi Ram v. Rajasthan AIR (1966) Raj 247; Kapoor v. Union of India (1975) Cri LJ 1376; Ram Manohar Lohia v. State of Bihar AIR 1965 SC 740 (India).

Awasthi v. UP AIR (1976) Alld. 414; Abdulla v. State (1976) Cri LJ 320; Dholakia v. Pillai (1975) LJ 1813; Gordhanla Rangopal v. Rajasthan AIR (1976) Raj 157; Maharashtra v. Sanzgiri AIR 1965 SC 424 (India).

Jamdade v. Maharashtra AIR (1977) Bom. 355. Nene v. Secy. Urban Development AIR (1977) Bom. 367.

Makhan Singh AIR 1964 SC 381, 400 (India) (per Gajendragadkar J.).

Manekben v. Union of India ILR (1975) Del. 820; State of MP v. Thakur Bharat Singh, AIR 1967 SC 1170 (India); Joshi v. Maharashtra (1977) 79 Bom. LR 289; Maharashtra v. Sanzgiri AIR 1965 SC 424 (India); District Collector, Hyderabad v. Ibrahim & Co. AIR 1966 AP 310 (India).

Arjun Singh v. Rajasthan AIR (1975) Raj 217; Iswahrbhai v. Gujarat (1978) Lab IC 235; Lt. Governor v. Dalip Singh (1976) 2 SLR 156; Sahay v. Bihar (1979) 3 SLR 635; Narain v. Bihar (1973) BLJR 122; Rameshwar Pd. v. Union of India (1977) Lab IC (NOC) 31; Sharma v. Director Public Rel. (1977) Lah IC (Noc) 59.

Manjulaben v. Pillay (1976) Cri LJ 889.

Krishen Lal v. Babboo Raj AIR (1977) J&K 58.

Lt. Governor Dalim Singh (1976) 2 SLR 156; State of Orissa v. Khageshwar Das, AIR 1975 SC 1906 (India).

Kanhaialal Agarwal v. Union of India (1976), 1 Cal LJ 293; K.P. Singh v. Bihar 1976 AIR 248 (Patna); Moyin v. Pathumma (1976) Ker LT 87.

Radha Krishna Agarwal v. Bihar AIR 1977 SC 1496 (India); K.P. Singh v. Bihar 1976 AIR 248 (Patna).

Raj Kr. Rajindra Singh v. Union of India AIR (1976) HP 34. Indeed, if the reason of the only Supreme Court judgement on the subject (Radha Krishna Agarwal v. Bihar AIR 1977 SC 1496 (India)—that the grant of an interim order during Article 359 Presidential Order would amount to enforcement of fundamental right—were extended, it would suggest that pre-existing interim order must be vacated during the pendency of a Presidential Order, otherwise they would amount to indirect enforcement of fundamental rights.

ARN Ct. Firm, Chettiar Bank v. Tamil Nadu (1978) 11 Mad LW 438; Atma Singh v. Punjab ILR (1976) 1 Punj 879; Watane v. Maharashtra AIR (1976) Bom 13.

Ghulam Sarwar v. Union of India, AIR 1967 SC 1335 (Subba Rao, C.J.).

Mohd. Yakub v. J&K AIR (1969) SC 765. See Niaz Khan v. UP (1973) Cri LJ 1344.

A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207 (India) (hereafter Shukla’s Case ).

The majority comprised Ray, C.J. Beg, Chandrachud and Bhagwati JJ.; Khanna, J. dissented.

The Court held that during the operation of a Presidential Order under Article 359, detenus under MISA 1971 could challenge their detention only if it was ex facie bad (e.g., not signed by the proper authority or issued for a different purpose) and not on any ground, including mala fides. Even the limited grounds of challenge mentioned above were accepted only on the basis of concession made by the Attorney General on behalf of the State. In view of the preceding discussion showing how courts have often avoided the preclusive effects of an Article 359 Order on other grounds, it is not clear that the decision in Shukla’s Case is irreconcilable with earlier precedents.

Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, 419–20.

These were the High Courts of Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab & Haryana; and Rajasthan.

These were the High Courts of Kerala and Andhra Pradesh.

455A A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, 1392 (India).

Makhan Singh Tarsikka v. State of Punjab, AIR 1964 SC 381 (India).

See the distinction drawn in A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, 1227 (Ray, C.J.,); id at 1341–42 (Chandrachud, J.); 1377–79 (Bhagwati, J.).

That is, Defense of India Act.

On conditionality, see also Seervai [ 30 , pp. 1045–1046].

A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, 1392 (India).

It is also submitted that the acceptance of this one ground of challenge is irreconcilable with the acceptance of lawless executive action. As Seervai puts it:

Once it is admitted that non-compliance with the law in respect of the aforesaid three specified requirements furnishes a ground for setting aside the order of detention, and releasing the detenu on a petition for habeas corpus, there is no justification for limiting illegality to these three grounds … King Canute is said to have bid the waves of the sea “to go thus far and no further”. A court must equally fail if it says to illegality “thus far and no further.

Seervai [ 30 , p. 1040].

See In Re Shyam Lal, AIR 1978 SC 489, 494–95 (India) (Beg, J.):

It is true that this Court held that preventive detention was practically removed from judicial supervision during an Emergency. The common statement of a conclusion at the end of the judgements in the Habeas Corpus cases based on the majority view but signed by all the judges, including Khanna J., was perhaps misleading as it gave the impression that no petition at all would lie under either Article 226 or 32 to assert the right of personal liberty because the locus standi of the citizen was suspended. Had a review petition been filed before us, I would have certainly made it clear that the statement of a conclusion reached by the majority did not accurately set out at least my conclusion which is found at the end of my judgement. It seems to me that the majority conclusion is rather loosely and vaguely expressed at the end of our judgements. A legitimate criticism could, therefore, be that the Court should draft and state its majority conclusions better.

See, e.g ., relating to Makhan Singh Tarsikka v. State of Punjab.

Id . at 1384–85 (Bhagwati, J.).

…[T]he rule of law which, since the dawn of political history, both in the India of Brahadaranyaka Upanishad and Greece of Aristotle, has tamed arbitrary exercise of power by the Government and constitutes one of the basic tenets of constitutionalism.

Id . at 1349 (Chandrachud, J.).

Counsel after counsel expressed the fear that during the emergency, the executive may whip and strip and starve the detenu and if this be out judgement even shoot him down. Such misdeeds have not tarnished the record of Free India and I have diamond-bright diamond-hard hope that such things will never come to pass.

Id . at 1319 (Beg, J.)

Furthermore, we understand that the care and concern bestowed by the state authorities upon the welfare of detenus who are well housed, well fed and well treated, is almost maternal.

See A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, 1392 (India).

(1941) 3 ALL E.R. 338.

Seervai [ 30 , p. 1048].

The Proclamation issued on October 26, 1962 read:

In exercise of the powers conferred by clause (1) of Article 352 of the Constitution, I, Sarveplalli Radhakrishnan, President of India, by this proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression.

It was revoked on Jan 10, 1968.

The Proclamation of the powers conferred by clause (1) of Article 352 of the Constitution, I, V.V. Giri, President of India, by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by external aggression.”It was revoked on March 27, 1977.

The third emergency proclamation was issued during peacetime on June 25, 1975 during the subsistence of the second, and both were revoked on March 27, 1977.

The first Presidential Order read:

In exercise of the powers conferred by clause (1) of Article 359 of the Constitution, the President hereby declares that the right any person to move any court for the enforcement of the rights conferred by *Article 21 and Article 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Article 252 on the 26 th October, 1962 is in force, if such person has been deprived of any such rights under the Defense of India (Ordinance, 1962 (of 1962)) or any rule or order made thereunder.

*Art. 14 was later added.

By the Defense of India (Amendment) Act, 1975, No. 32, Acts of Parliament, 1975 (India) at § 4.

The Defence of India Act, No. 51 of 1962, G azette of I ndia , Pt. II sec. 1 (Dec. 12, 1962) at § 1 (3); The Defence of India Act, No. 42 of 1971, G azette of I ndia , Pt. II sec. 1 (Dec. 4, 1971) at §1 (3).

The Defence of India Act, No. 51 of 1962, G azette of I ndia , Pt. II sec. 1 (Dec. 12, 1962) at § 3.

Id . at § 3(2).

Id . at § 3(2) (13).

Id . at §§ 7–12.

Id . at §§ 19–28.

Id . at §§ 29–39.

Id . at § 15.

Id . at § 13.

The Rules can be found, inter alia , in Shukla [ 32 ].

The Defence of India Act, No. 51 of 1962, G azette of I ndia , Pt. II sec. 1 (Dec. 12, 1962) at § 5.

Id . at § 43.

Id . at § 41.

Re Venkat Raman AIR (1949) Madras 529; Kamla Kant Azad v. Emperor 1944 AIR 354 (Patna).

Shibnath Banerjee v. Porter AIR (1943) Cal. 377; Prabhakar Kesheo Tare v. Emperor 1943 AIR 26 (Nag).

Maintenance of Internal Security Act, No. 26 of 1971, I ndia C ode , § 8 http://indiacode.nic.in/fullact1.asp?tfnm=197126 .

Id. at § 10.

Id. at § 9.

Id. at § 11.

Id. at § 12 cl. 1.

Id. at § 12 cl. 2.

Id. at § 13 read with § 17.

The emergency proclamation read:

In exercise of the powers conferred by clause (1) of Article 352 of the Constitution, I Fakhruddin Ali Ahmad, President of India by this Proclamation declare that a grave emergency exists whereby the security of India is threatened by internal disturbances.

Summarizing the position existing during the 1975 emergency, a judge of the Supreme Court noted: “(1) That grave emergency was clamped in the whole country; (2) that civil liberties were withdrawn to a great extent; (3) that important fundamental rights of the people were suspended; (4) that strict censorship on the press was placed; and (5) that the judicial powers were crippled to a large extent.”) State of Rajasthan v. Union of India, AIR 1977 SC 1361, 1438–39 (India) (Fazl Ali, J.). See also In Re Special Courts Bill 1978, (1979) 1 SCC 380, 426–27 (Chandrachud, C.J.).

It must be remembered that the Commission was appointed during a period of national euphoria by a successor government to investigate the alleged malpractices of a predecessor government; that some of its procedures for the collection and analysis of evidence have been found by a single judge of the Delhi High Court to have been contrary to the law and unconstitutional ( See Indira Nehru Gandhi v. J.C. Shah Commission of Inquiry (ILR (1980) 1 Del 552) and that an inquisitorial Commission of Inquiry is fundamentally different from an “adversarial” court of law. See also Jagmohan [ 33 ] passim .

On the other hand, it equally needs to be remembered that the Commission was headed by a former Chief Justice of India; it conducted both suo moto inquiries and also invited statements and other data from those allegedly involved in the acts or events under scrutiny; and it gave reasons and data for its findings.

See 3 R eport of S hah C ommission of I nquiry , 134 (1978). The figures for individual states varied widely, ( Id .) with Sikkim and Himachal Pradesh having 4 and 34 detenus respectively, compared to 6956 for Uttar Pradesh and 5620 for Madhya Pradesh. Other states found by Shah Commission to have detained significant numbers of individuals under MISA included Maharashtra (5473), West Bengal (4992), Bihar (2360), Gujarat (1762), Andhra Pradesh (1135), Tamil Nadu (1027) and Delhi (1012).

Id . The total detentions under MISA and arrests under DISIR, thus aggregated 1,10,806.

Id . at §16A. It was introduced by The Maintenance of Internal Security (Amendment) Act, 1975, No. 39, Act of Parliament, 1975 (India).

Id . at§ 18.

By The Maintenance of Internal Security (Amendment) Act, 1976, No. 14, Act of Parliament, 1976 (India).

The section authorized action by the State on the basis of information or material in its possession without affording the detenu any material in its possession without affording the detenu any opportunity to make a representation (§ 16 A (5)). It also treated as confidential the grounds and underlying materials on which a detention order was made and to deem them matters of state not disclosable in the public interest (§ 16 A (9) (b)). Finally, it disallowed communication of any ground or the material on which it was based, to the detenu.

3 R eport of S hah C ommission of I nquiry (1978) at ¶ 19.8.

See, e.g. , Jagmohan [ 33 ].

Id . at ¶ 19.18. For example, non-confirmation occurred only in the following cases: Goa: nil out of 113; Tamil Nadu: 1 out of 1027; Rajasthan 8 out of 542; Haryana: 5 out of 200 etc. ( Id .).

Report, ¶ 19.15, Id . Indeed, in Assam it was found that detentions under § 16A were allowed to continue without confirmation much after fifteen days, allegedly under the un-amended original provisions of MISA ( Id . at ¶ 19.16).

Id . at ¶ 19.23.

Id . at ¶ 19.25.

Id . at ¶ 19.25 (II). Although it is well established that single offences or isolated acts of crime or illegality cannot be valid grounds for detention, detention orders were passed against single offenders (albeit involved in serious offences like murder and dacoity) and also against minor offenders, e.g., those against railway property ( Id . at ¶ 19.25 (IV).). Although circulars by the Government of India warning against the use of MISA for ordinary criminal activities not impinging upon the security of state or public order were issued (e.g., Message No. 1372JS (IS)/75 dated (10/9/1975.) such detentions continued to occur (Report, ¶ 19.27.). There was also evidence of detention orders being issued by the detaining authority at the behest of other individuals.

Although the Indian Constitution guarantees, subject to reasonable restrictions, the right to free speech and expression (under Article 19(1)(a)) and although this has judicially been held to include freedom of press (most recently affirmed by the Supreme Court in Express Newspapers Pvt. Ltd. v. Union of India (1986) 1 SCC 133 (Sen A.P., J.); see also Romesh Thapar v. Madras (1950) SCR S 94; Sakal Papers Ltd. v. Union of India (1962) 3 SCR 842; Bennett Coleman & Co. v. Union of India AIR 1973 SC 106 2 SCR 757), the proclamation of emergency under Article 352 and the consequential effects under Articles 358 and 359 precluded challenges based upon this constitutional guarantee.

As the 1971 emergency was in existence when emergency was declared on 25-6-75, the DISIA 1971 Rules thereunder were also in force.

Id . at§ 3 (1), DISIA 1971.

Id . at§ 3 (2)(7) (a).

Id . at§ 3 (7) (b).

Id . at§ 3 (2)(7) (c).

Id . at§ 3 (2)(7) (d).

Rule 48 (1).

Rules 48(1A) and (3).

Cl. 1(a). Rules specified included Rules of Part III of DISIR Rules 31 and 33 of Pt. IV; Rules 37–39, 43, 46–48, 50–52 of Pt. V; Pt. VIII and Pt. IX.

Id . atcl. 1 (c).

Id . atcl. 1 (d).

Id . atcl. 1 (e).

Id . atcl. 1 (f).

Id . atcls. 1 (h) & (i).

High Court had, before 1975, adopted the view that pre-censorship is not necessarily unconstitutional and can be justified if it falls within the ambit of Article 19(2); see Rama Shankar v. U.P., 1954 AIR 562 (Alld.) 565; Yagnik v. Gujarat, 1963 AIR 259 (Guj.) 264; In Re Alavandar, 1957 AIR 427 (Mad.) 430.

A learned writer on press censorship has opined that: “The net cast by Rule 48 is wider and indiscriminate. Even innocuous matters or subjects are brought within its mischief…wide and blanket powers are conferred by clauses (a) and (b) of Rule 48 (1). The touchstone of precision so vital in the sensitive area of free speech is apparent by its absence. The Rule does not contain any of the requisite safeguards. It does not provide for a notice and hearing before any adverse action is taken for prohibiting…publication…does not ensure any effective machinery for redress or correction in respect of an adverse order by way of an appeal or revision and does not cast any obligation to assign reasons in support of the action…. The Censorship Order is open to the same objection of clause (g), it indiscriminately requires all news, comments, rumors or other reports irrespective of their nature and character relating to the matters mentioned in clauses (a) to (f) and (h) to be submitted for scrutiny prior to publication. The Censorship Order also does not provide for the requisite procedural safeguards noticed above.”): Sorabjee [ 44 , p. 40].

Although constitution challenges based upon Articles 301 or 304 would be open despite the emergency, it is doubtful if they would be of any avail. (The legal viability of such challenges is discussed in Sorabjee, Id . at 37–39). Under Article 304, it would be difficult if not impossible to show that the restriction imposed by Rule 48 or the Censorship Order were not in the public interest.

Although interference with the running of a Press or vocation of an editor may conceivably be held to violate the mandate of Article 301 which declares that “trade, commerce and intercourse throughout the territory of India shall be free,” it must be remembered that such a challenge would be a very long shot indeed because courts have rarely dealt with press freedom under this provision. Cf. S. Ahmed v. State of Mysore, AIR 1975 SC 1443, where restrictions on trade (not press or publication) were tested on the anvil of Article 304.

The Court held: “(1) The Court’s scrutiny and review are not totally barred in a case where in the exercise of statutory powers an authority is empowered to make an order in its discretion on its subjective satisfaction. (2) An order made by an authority on its subjective satisfaction can be set aside by the court on the following grounds: (a) Where the authority has not applied its mind; (b) Where the power is exercised dishonestly; (c) where the power is exercised malafide; (d) where the power is exercised for a purpose not contemplated by the statute, that is to say, where it is exercised for a collateral purpose;

(e) Where the authority has acted under the dictate of another body or authority; (f) Where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner; (g) where the satisfaction of the authority is based on the application of a wrong test; (h) Where the satisfaction of the authority is based on the misconstruction of a statute; (i) where the grounds on which the satisfaction is based are irrelevant to the subject matters of the enquiry and extraneous to the scope and purpose of the statute;

(j) Where the authority has failed to have regard to matters which the statute expressly or by implication requires it to take into consideration; and (k) Where the decision based on subjective satisfaction is such that no reasonable person could possibly arrive at it, that is to say, the satisfaction of the authority is not real and rational. (3) If one of the several grounds relied upon by the authority to support an order passed on subjective satisfaction is vague or irrelevant or bad the whole order must fall because it would not be possible for the court to say whether the impugned order would have been passed in the absence of such ground, though if it were the case of an order passed on objective satisfaction the court might endeavor to uphold the order on surviving grounds.

(4) The authority cannot avoid the scrutiny of the Court by failing to give reasons. In such a case the court can compel the authority to state its reasons. (5) Where the reasons given are bad and the authority has not taken into consideration the relevant matters or real grounds on which the order could have been passed, the Court can direct the authority to reconsider the matter in the light to such relevant matters. (6) Where, however, all the reasons which can be given for upholding the validity of the order have been found by the Court to be bad and unsustainable, the Court will not direct the authority to reconsider the matter, for then there is nothing for the authority to carry out what it has by the impugned order refused to do.”

The Shah Commission found that electricity supply was disconnected for a day or so to all newspapers on Bahadur Shah Zafar Marg on June 25, 1975 and in respect of newspapers elsewhere on June 26. See 1 R eport of S hah C ommission of I nquiry (1978) at ¶¶ 6.10.). The Guidelines prevented editors leaving editorial columns blank or filling them with quotes from great works of literature or from national leaders like Mahatma Gandhi and thus arguably violated even the DISIA and DISIR. Id . at ¶ 6–14.

A bill was passed repealing the 1956 Act ( See 1 R eport of S hah C ommission of I nquiry (1978) at ¶ 6.45). However, the 44th Constitutional Amendment inserted Article 361 into the Constitution which writes into the Constitution the protection originally given by the 1956 Act. See Constitution (Forty-Fourth) Amendment Act, No. 88 of 1978, I ndia C ode , ( http://indiacode.nic.in/coiweb/amend/amend44.htm ).

§ 5(1) of the 1976 Act.

Ch. III, §§ 8–18.

Ch. IV, §§ 19–23. A Censor Room started functioning in Parliament which considerably modified or diluted the news emanating from Parliament. See 1 R eport of S hah C ommission of I nquiry , (1978) at ¶ 6.20. As regards judgements, instructions were often given for publication of operative parts only and aspects meriting publicity or exclusion, as the case may be, were specified. ( Id . at 6.23). The Shah Commission has given a number of extracts from the Censor’s orders on particular matters ( id. at ¶ 6.80. See also Appendix to Ch. 6, Id . Vol. I.) and concludes that: “In practice, censorship was for suppressing news unfavorable to the government or to play up news favorable to the Government and to suppress news unfavorable to the supporters of the Congress Party”. ( Id . at ¶ 6–30).

Id . at ¶ 6–46, et seq .

Id . at ¶ 6–49.

Report, Vol. II, Ch. XII, ¶¶ 12–1 to 12–23.

The Commission said that it was done to reconstitute the Board of Trustees and include more government nominees. The Commission also felt that in this case, the initial requisition of the property for purposes of maintenance of public order and services essential to the community, then keeping it vacant for a few months and then allotting it to an organization not connected with maintenance of public order or maintenance of essential supplies (viz. Delhi State Industrial Development Corporation) “were steps not consistent with the provisions of the DISI Act.” ( Id . at ¶ 12–15).

Id . Ch. XIII, ¶ 13–6. Moreover, the alleged legality of construction of many structures could not be properly investigated under municipal laws; no provision for alternative resettlement was made in some genuine and deserving cases; resettlement facilities, where offered, were sometimes poor and inadequate and located miles away from the place of work of the person uprooted. ( See, e.g., Id . at ¶ 13–22). Serious allegations of physical brutality during some cases of demolition were also made. ( Id .). Cf . Jagmohan [ 33 ], passim , where many such allegations are controverted with vehemence.

Seervai [ 31 , pp. 2265–2266].

Union of India v. Sankalchand Himatlal Sheth AIR 1977 SC 2328 (India). On the issue of transfer, the majority comprised Chandrachud, Krishna Iyer and Fazl Ali JJ. Bhagwati and Untwalia dissented.

S.P. Gupta v. Union of India, AIR 1982 SC 149 (India). Only Bhagwati dissented on the transfer issue; six other judges upheld the power of transfer of High Court Judges when exercised in the public interest.

A policy of transfers of judges is also being implemented currently by the government. Although no consensual transfers of High Court judges be criticized in principle, if it can be shown in individual cases that it was actuated by ulterior motives or without appropriate consultation as required by the constitution or by way of punishment, it would be invalidated. The Shah Commission did not deal with evidence of illegal transfers in particular cases.

Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328, 2329 (India).

Kuldip Nayyar’s Case. See also Seervai [ 31 , p. 2294]. However, Justice Rangarajan’s transfer has not been the subject of judicial pronouncement and has not been separately considered by the Shah Commission.

Mr. Justice Aggarwal.

Mr. Justice Lalit.

1 R eport of S hah C ommission of I nquiry (1978) at ¶¶ 7.1–7.23.

According to the Shah Commission, this was done primarily because the judge had been a member of the Division Bench which had decided Kuldeep Nayyar’s case and which is supposed to have led to the transfer of the presiding judge of that bench. The Government file also noted his alleged connection with an organization known as the RSS during the 1950’s and early 1960’s. According to the Shah Commission, he was not confirmed on the basis of an order on the file by the Prime Minister herself, which did not state any reasons, and even though there were no adverse reports against the judge.

See I ndia C onst. art. 224 which reads:

Appointment of additional and acting Judges: - (1) If by reason of any temporary increase in the business of High Court or by reason of arrears of work therein it appears to the President that the number of Judges of that court should be for the time being increased, the President may appoint duly qualified person to be additional judges of the Court for such period not exceeding two years as he may specify. (2) When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as Judge of that Court until the permanent Judge has resumed his duties. (3) No person appointed as an additional or acting Judge of High Court shall hold office after attaining the age of sixty-two years.

S.P. Gupta v. Union of India, AIR 1982 SC 149 (India).

The earlier oft cited decisions include Bhagat Singh v. King Emperor AIR (1931) PC 111; Emperor v. Sibnath Banerji AIR (1943) FC 75; Emperor v. Benoari Lal Sarma AIR (1945) PC 48; Lakhi Narayan Das v. Province of Bihar AIR (1950) FC 59. Other decisions supposedly supporting this view include Ghasi Ram v. State, 1966 AIR 247 (Raj.); Rao v. State of AP, 1966 AIR 229 (AP); Ghulam Sarwar v. Union of India, AIR 1967 SC 1335; Rattan Lal v. State, 1969 AIR 5 (J&K); Bhut Nath Mate v. State of West Bengal, AIR 1974 SC 806 (India); Milapchand v. Union of India (1975) WLN 750; Darshan Singh v. State of Punjab (1975) Cri LJ 1974; Manekben v. Union of India ILR (1975) Del 820; Venkateshamma v. State of A.P. AIR (1976) AP 1; Lekhi v. Union of India 1977 AIR 167 (Del.); V.K. Singh v. District Magistrate (1977) Cri L.J. (Noc) 89; A.D.M. Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, 1325 (India) (Chandrachud J.).

Decisions under Article 356 of the Constitution, like State of Rajasthan v. Union of India AIR 1977 SC 1361 (India); Rao Birendra v. Union of India 1968 AIR 41 (Punjab & Haryana) and Sreeramulu’s Case 1974 AIR 106 (Andhra Pradesh), may also be referred to.

State of Rajasthan v. Union of India AIR 1977 SC 1361, 1403–04 (India). (Chandrachud J.).

See e.g. , Baker v. Carr, 369 U.S. 186 (1962).

See Madhav Rao Scindia v. Union of India, AIR 1971 SC 531, 565–579 (India) especially at ¶¶ 96,110,132, 143.

In A.K. Roy v. Union of India, AIR 1982 SC 710, 724 (India) (Chandrachud, J.) (national Security Ordinance case); and in Minerva Mills v. Union of India AIR 1980 SC 1789, 1836–37 (India) (Bhagwati, J.).

Id. at 233–34 (Bhagwati, J.); id at 636–38 (Venkataramiah, J.).

Id. at 233–34.

Id. at 233.

Id. at 251–53.

Id. at 234–38, 240–41, 244 (Bhagwati, J.)

Id. at 230–31 (Bhagwati, J.)

Id . at 221 (Desai, J.). See Duncan v. Cammell Laird [1942] AC 124 [U.K.].

Examples of judicial notice of well-known facts and circumstances relating to war in the forties can be found in Emperor v. Sibhath Banerjee AIR (1943) FC 75 and Emperor v. Benoari Lal Sarma AIR (1945) PC 48. In Swadeshi Cotton Mills v. Sales Tax Officer AIR (1965) Alld. 86, para 30, the Allahabad High Court took judicial notice of the proclamation of emergency since 1962.

See the host of cases supporting this preposition, listed and discussed in Jain and Jain [ 34 ].

See Madhav Rao Scindia v. Union of India AIR 1971 SC 531 (India) (11 judges; 8 in majority; 1 concurring; 1 dissenting on some points; 1 dissenting).

Dr. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579. The petitioner is the author of the book [ 35 ] which shows how Government of Bihar, especially after 1968, has repromulgated Ordinances en masse and subverted the principle of rule of law. The Ordinance making powers in the Constitution in Articles 123 and 213 are clearly designed as an exceptional power usable when the legislature is temporarily not in session. In Bihar, Wadhwa shows how the exception has become the rule. For example, between 1971 and 1981, 161 Acts and 1958 Ordinances were passed, i.e., on average 12 Ordinances to each Act. By the device of re-promulgation, used more frequently since 1968, Ordinances with life spaces of 13 years, 11 years, 10 years and 7 years became common. The petition in the Supreme Court is based upon the study by Mr. Wadhwa. See also , Seervai [ 30 , pp. 2139–2140].

See, e.g. , Emperor v. Sibnath Banerji AIR (1943) FC 75; Emperor v. Benoari Lal Sarma AIR (1945) PC 48.

See, e.g., Milapchand v. Union of India (1975) WLN 750; Darshan Singh v. State of Punjab (1975) Cri LJ 1974; Manekben v. Union of India ILR (1975) Del 820; Venkateshamma v. State of A.P. AIR (1976) AP 1; Lekhi v. Union of India 1977 AIR 167 (Del.); V.K. Singh v. District Magistrate (1977) Cri L.J. (Noc) 89. Although the existence of emergency was not a question in issue in Shukla’s case id . at 1321–25, Chandrachud, J. relied on the conclusiveness clauses of Article 352 in an obiter upon the non-reviewability of an emergency proclamation.

See, e.g ., Lakhi Narayan Das v. Province of Bihar AIR (1950) FC 59 (India) (relying on Bhagat Singh, Sibnath Banerji and Benoari Lal Sarma).

See, e.g ., State of Rajasthan v. Union of India, AIR 1977 SC 1361 (India); Rao Birendra Singh v. Union of India 1968 AIR 441 (Punjab & Haryana); In Re Sreeramulu 1974 AIR 106 (Andhra Pradesh).

See, e.g ., Ghulam Sarwar v. Union of India, AIR 1967 SC 1335 (India); Bhut Nath Mate v. West Bengal, AIR 1974 SC 806 (India).

A recent Indian decision reaffirming the power and duty of the Court to judicially ascertain the existence of conditions justifying institution of martial law is Chinta Subba Rao v. Supreme Commander, Defense Forces 1980 AIR 172 (Andhra Pradesh).

Minerva Mills v. Union of India, AIR 1980 SC 1789 (India).

With effect from Aug. 10, 1976.

With effect from Dec. 18, 1977.

This provision, in Part XX of the Constitution, provides for the power and procedure to amend the Constitution.

As his discussion of judicial review of emergency powers is inextricably intertwined with his analysis of the constitutionality of § 55, on which there is unanimity, his views on emergency and judicial review cannot be said to be part of a dissent on this issue. It is also noteworthy that Bhagwati J’s remarks on this issue arose directly from the grounds of challenge put forth by the petitioners. In challenging §§ 4 and 55 of the forty-second constitutional amendment, one of the arguments raised by the petitioners was that Parliament, in its constituent capacity, was not competent to pass the forty-second constitutional amendment. This, the petitioners argued, was because the amendment was passed by a Parliament whose term of five years had expired earlier, but which had continued to sit illegally beyond five years. The submission of the petitioners was summarized by Bhagwati J., as follows:

It is no doubt true that the House of People (Extension of Duration) Act 1976 was enacted by Parliament under the proviso to Article 83 (2) (of the constitution) extending the duration of the Lok Sabha for a period of one year, but the argument of the petitioners was that this act was ultra vires and void, because the duration of the Lok Sabha could be extended under the proviso to Article 83(2) only during operation of a proclamation of an Emergency and, in the submission of the petitioners, there was no proclamation of Emergency in operation at the time when the House of People (Extension of Duration) Act 1976 was passed (Minerva Mills v. Union of India, AIR 1980 SC 1789, 1834 (India)….The argument of the petitioners however, was that, though the first proclamation of emergency was validly issued by the President (in 1971) on account of external aggression committed by Pakistan against India, the circumstances changed soon thereafter and the emergency which justified the issue of the proclamation ceased to exist and consequently the continuance of the Proclamation was mala fide and colorable and hence the proclamation though not revoked until 21 st March 1977, ceased in law to continue in force and could not be said to be in operation at the material date (of the passage of the 1976 Act). So far as the second proclamation of emergency (in 1975) is concerned it was illegal and void on three grounds: (1) ………………………. (2) ……………………….

(3) there was no threat to the security of India on account of internal disturbance, which would justify the issue of a proclamation of emergency, and the second proclamation was issued not for a legitimate purpose sanctioned by clause (1) of Article 352 but with a view to perpetuating the Prime Minister in power and it was clearly mala fide and for collateral purpose and hence outside the power of the President under Article 352(1).

Id . at 1834–35 (Words in brackets supplied).

Bhagwati, J. was aware of this and said: “It may be conceded straightaway that, strictly speaking, it is superfluous and unnecessary to consider this argument, because … we have already held that it is outside the constituent power of the Parliament in so far as it seeks to include sub clauses (4) and (5) an Article 368.” ( Id . at 1834). It is submitted that there is nothing improper about giving a decision on both of the alternative points urged before a court of law, even though the first is sufficient to dispose of the matter, especially where a “long argument… seriously pressing the alternative ground of challenge is addressed to the court.” ( Id . at 1834).

Many of the most important and far reaching judgements have involved just this technique. ( See , inter alia , Marbury v. Madison (1803) 1 Cranch 137, where CJ Marshall “took the engaging position of declining to exercise power which the Constitution withheld from him, by making the occasion an opportunity to assert a far more transcendent power”. See Corwin [ 36 ]. See also Shetty v. IAAI, AIR 1979 SC 1028 (Bhagwati, J.) where judicial review of grant of property rights in the form of contracts and leases, was undertaken, although, the applicant was held ineligible for relief on other grounds.

Minerva Mills v. Union of India, AIR 1980 SC 1789, 1838–39 (India).

Id. at 1839.

Id. at 1839–40.

Id. at 1838–39.

Minerva Mills v. Union of India, AIR 1980 SC 1789, 1838–39 (India) (Bhagwati J.).

The tremendous advances made in public interest litigation in India, primarily through a striking application of judicial review, have recently been outlined and discussed in an article by the judge of the Indian Supreme Court mainly responsible for them viz. Bhagwati, P.N.

600B Shetty v. IAAI AIR 1979 SC 1028 (India).

600C Dr. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.

600D S.P. Gupta v. Union of India, AIR 1982 SC 149 (India).

600E D.S. Nakna v. Union of India (1983) SCC 305 (India).

Indira Nehru Gandhi v. J.C. Shah Commission of Inquiry in 1980 AIR 552 (Del).

Id . at 835. Words in brackets supplied. An appeal was filed from this judgement to the Supreme Court but was later withdrawn.

1 R eport of S hah C ommission of I nquiry (1978) at ¶ 5.61.

On the contrary, the whole-sale price index had declined by 4 percent between December 3, 1974 and the last week of March 1975 as per the Economic Survey 1975–76, a Government of India Publication.

I ndia C onst. art. 355.

I ndia C onst. art. 356 § 1.

I ndia C onst. art. 356 § 1 cl. a.

I ndia C onst. art. 356 § 1 cl. b.

I ndia C onst. art. 356 § 1 cl. c.

I ndia C onst. art. 356 § 2.

I ndia C onst. art. 356 § 2, proviso.

I ndia C onst. art. 356 § 3.

I ndia C onst. art. 356 § 4.

In respect of the proclamation issued under Article 356 on Oct. 6, 1983 for the state of Punjab, this period of one year was increased to two years by the forty eighth constitutional amendment assented to by the President on Aug. 26, 1984. This had to be done because in the then existing state of affairs in Punjab, it was not considered advisable to revoke President’s Rule.

I ndia C onst. art. 356 § 5 cl. a.

I ndia C onst. art. 356 § 5 cl. b.

I ndia C onst. art. 357 § 1 cl. a.

I ndia C onst. art. 357 § 1 cl. b.

I ndia C onst. art. 357 § 1 cl. c.

I ndia C onst. art. 357 § 2.

Clause 160 is reproduced Shiva Rao [ 26 , pp. 65–66].

Clause 188 is reproduced Shiva Rao [ 29 , pp. 587–588].

Shiva Rao [ 29 , p. 411].

Id . at 365.

Id . at 697.

See 9 C onstituent A ssembly D ebates , Book 4, 130–32 (Lok Sabha Secretariat, reprint 2014). The scheme proposed by the Drafting Committee contemplated as follows:- (i) the deletion of Article (188); (ii) the insertion of an entirely new Article 277-A (later to become Article 355) declaring that it shall be the duty of the Union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with provisions of the Constitution; (iii) the insertion of Article 278 (later Article 356) authorizing Presidential action pursuant to the Governor’s report or otherwise if “satisfied that the Government of the state cannot be carried on in accordance with the provisions of the Constitution”; (iv) the insertion of Article 278-A (later Article 357) empowering Parliament to legislate for the State assembly or delegate such legislative power to the President who, in turn, may delegate to the provincial Governor.

See 9 C onstituent A ssembly D ebates , Book 4, 180–80 (Lok Sabha Secretariat, reprint 2014).

Shiva Rao [ 26 , pp. 217–220].

This suggests that the provision partakes primarily of the character of the Article 276.

See 9 C onstituent A ssembly D ebates , Book 4, 133 (Lok Sabha Secretariat, reprint 2014). See also remarks of Raj Bahadur, Id . at 148.

Id . at 150 (Alladi K. Ayyar). There thus appears to be contradiction in the conception of articles 356 and 357 as being provisions implementing the mandate of Article 355 while the latter is closer in form and substance to Article 352 than to Article 356 and 357.

9 C onstituent A ssembly D ebates , Book 4, 138 (Lok Sabha Secretariat, reprint 2014) (By H.V. Kamath).

Many speakers, however, criticized Article 277-A as nothing but a pious declaration. See 9 C onstituent A ssembly D ebates , Book 4, 147 (Lok Sabha Secretariat, reprint 2014) (P.S. Deshmukh); id . at 162–63 (Naziruddin Ahmed); id . at 167 (Thakur Das Bhargava).) which arguably had nothing to do with emergency powers and was in any event unnecessarily in view of the other emergency provisions found in the Draft Constitution.

Id . at 133 (B.R. Ambedkar).

These were presented as a composite whole, being merely divisions of the original Article 276. The reason given for the partition into two articles was that “otherwise the whole Article 278 would have been such a mouthful that probably it would have been difficult for Members to follow the various provisions contained therein.” ( Id . at 133–34 (B.R. Ambedkar).).

Id . at 140 (H.V. Kamath). See also id . at 142–43 (S.L. Saksena).

Id . at 152 (B.M. Gupte).

Id . at 141 (H.V. Kamath).

Id . at 146 (P.S. Deshmukh).

Id . at 147 (P.S. Deshmukh); 158 (L. Krishnaswami Bharati).

Id . at 154 (K. Santhanam).

Id . at 155, 157 (H.N. Kunzru).

Id . at 166 (N. Ahmed).

Id . at 161(Naziruddin Ahmad).

Id . at 145 (B.H.Zaidi).

Id . at 146 (B.H.Zaidi).

Id . at 168 (T.D. Bhargava).

Id . at 149 (Raj Bahadur).

Id . at 168 (Thakur Das Bhargava).

Id . at 169 (T.D. Bhargava).

Id . at 170 (T.D. Bhargava).

Id . at 170 (Brajeshwar Prasad).

Id . at 171 (B. Prasad).

Id . at 152 (B.M. Gupta). However, it was said that mere danger of potential abuse of the constitutional provision should not be a ground for its deletion as every provision in the Constitution can potentially be abused ( Id . at 168 (T.D. Bhargava); 177 (B.R. Ambedkar).).

The proposed amendments are at 9 C onstituent A ssembly D ebates , Book 4, 135–36 (Lok Sabha Secretariat, reprint 2014) via substitution of “Union Government” for “Union,” substitution of “or” for “and” where the latter first occurs and substitution of “internal insurrection or chaos” for “internal disturbance.”

Four amendments were moved in respect of Article 276—two by Mr. Kamath and two by Professor Saksena—but all four were rejected. Mr. Kamath proposed that the word “otherwise” be deleted and that the President be empowered to act only if, additionally, he is satisfied that a “grave emergency has arisen which threatens the peace and tranquility of the state.” Professor Saksena wanted “Rajpramukh” in place of “Ruler of a state.” See 9 C onstituent A ssembly D ebates , Book 4, 136 (Lok Sabha Secretariat, reprint 2014) (this was later done but deleted by the seventh constitutional amendment with effect from November 1, 1956) and argued for the inclusion of a proviso in Article 278 empowering the President, if he thinks fit, to order dissolution of the State legislature followed by a fresh election and declaring that the proclamation shall cease to have effect from the day on which the newly elected legislature meets in session. ( Id .).

Id . at 175.

Id . at 175–76.

Id . at 176.

Id . The query was by Mr. H.N. Kunzru.

Id . at 177.

Relatively few changes have been made to constitutional provisions dealing with President’s Rule in post-independent India. Those that have been made have mostly occurred after the 1975 emergency. Prior to the latter, the only amendment was the innocuous deletion of the word “Rajpramukh” from Article 356(1) in 195 (by the seventh constitutional amendment with effect from 1.11.1956) consequent to the reorganization of states and abolition of the title of “Rajpramukh.”

By the forty-second constitutional amendment with effect from December 18, 1976.

By the forty-fourth constitutional amendment with effect from June 10, 1979.

By the thirty eighth constitutional amendment, with effect from Aug. 1, 1975.

The earlier version until 1975 continued in force such laws for a period of one year after the expiry of the proclamation “except as respects things done or omitted to be done before the expiration of the said period.”

Behari Lal v. Kesari Nandan 1970 AIR 201 (Alld.).

Debnath v. Radharani Mondal 1971 AIR 534 (Cal.).

Bose v. Union of India 1971 AIR 123 (Cal.) at para 5.

Shamsher Singh v. Punjab, AIR 1974 SC 2192, 2198 (India).

I ndia C onst. sch. 7, list 3.

I ndia C onst. art. 254.

I ndia C onst. sch. 7, list 7.

See, e.g ., S. Mohan Singh v. PEPSU, 1954 AIR 136 (PEPSU).

S. Mohan Singh v. PEPSU, 1954 AIR 136 (PEPSU).; Associated Transports v. Union of India 1978 AIR 173 (Madras).

Behari Lal v. Kesari Nandan 1970 AIR 201 (Alld.); Debnath v. Radharani Mondal 1971 AIR 534 (Cal.).

As he was, e.g., in Sujan Singh Matu Ram v. Punjab 1968 AIR 363 (Punjab and Haryana).

Associated Transports v. Union of India 1978 AIR 173 (Madras).

Burman v. West Bengal (1977) Lab. IC 628.

S. Mohan Singh v. PEPSU, 1954 AIR 136 (PEPSU).

Bose v. Union of India 1971 AIR 123 (Cal.).

Associated Transports v. Union of India 1978 AIR 173 (Madras); Bose v. Union of India 1971 AIR 123 (Cal.); Burman v. West Bengal (1977) Lab. IC 628; Gokulnanda v. Tarapada 1973 AIR 2330 (Cal.).

See , e.g. , Patiala and East Punjab States Union Legislature (Delegation of Powers) Act 1953, Gazette of India, pt. II sec. 1 (Nov. 16, 1953). See also , Andhra State Legislative (Delegation of Powers) Act 1954, Gazette of India, pt. II sec. 1 (Dec. 7, 1954); Travancore-Cochin State Legislative (Delegation of Powers) Act 1956 Gazette of India, pt. II sec. 2 (May 18, 1956); Kerala State Legislative (Delegation of Powers) Acts 1959, Gazette of India, pt. II sec. 1 (Dec. 17, 1959); Orissa State Legislative (Delegation of Powers) Act 1961, Gazette of India, pt. II sec. 2 (Mar. 29, 1961); Punjab State Legislative (Delegation of Powers) Act 1966.

See, e.g. , in The Punjab State Legislature (Delegation of Powers) Act, No. 46 of 1951, G azette of I ndia , pt. II sec. 1 (Aug. 29, 1951).

E.g., in AP(1954) and PEPSU(1953), the committee consisted of ten members from Lok Sabha and five from Rajya Sabha; in Orissa (1961) it involved fourteen from Lok Sabha and seven from Rajya Sabha; in Kerala (1959) and Punjab (1966 & 1968), it comprised thirty from Lok Sabha and fifteen from Rajya Sabha. This last figure has generally been adhered to in all states after 1959 (barring Orissa in 1961).

See, e.g ., The Punjab State Legislature (Delegation of Powers) Act, No. 46 of 1951, G azette of I ndia , pt. II sec. 1 (Aug. 29, 1951) which mentioned “Parliament,” while the Patiala and East Punjab States Union Legislature (Delegation of Powers) Act 1953, Gazette of India, pt. II sec. 1 (Nov. 16, 1953) mentioned “either House of Parliament.”

See Siwach [ 37 ].

I ndia C onst. art. 111, proviso.

Mohd. Salim Khan v. Bose AIR 1972 SC 1570 (India); Mondal v. West Bengal AIR (1972) SC 1497 (India).

With effect from Aug. 1, 1985.

I ndia C onst. art. 357 § 2. Under the pre-1975 law, even after the expiry of a year, “things done or omitted to be done” before such expiry would continue to have effect. It was decided in 1966 by the Supreme Court that the question whether actions taken during the pendency of an expiry of one year from the date of expiry of Article 356 proclamation would be dependent on whether the primary delegated legislation in question was intended to last longer than the President’s Rule. (Ram Prasad v. State of Punjab (1966) SC 1607). In that case, it was held that the bank of Patiala Regulation and Management Order 1954, under which the petitioner was compulsorily retired, would continue to have effect even after one year from the date of revocation of President’s Rule (thus making the petitioner’s compulsory retirement permanent) since the 1954 Order was for the better management and regulation of the bank was interned to have effect for a longer period.

Remarks of Zakhir Hussain speaking during the Rajya Sabha debate on President’s Rule in Rajasthan in 1967.

Even a proclamation altogether revoking an earlier one would not appear to be excluded from the requirement of laying before Parliament because Article 356(3) exempts such a revocation of proclamation only from expiring after two months but does not exempt it from the requirement of laying before Parliament. Yet, proclamations under Article 356 have been issued—notably in Orissa on January 11, 1971; January 23, 1971 and March 23, 1971—which were never placed before Parliament. The 11/1/71 proclamation was revoked on 22/1/71 without being placed before Parliament. On the same day (i.e., 23/1/71) a new proclamation was issued which expired on 22/3/71 without being placed before the Lok Sabha, which had already been dissolved. A third proclamation was issued on 23/3/71 re-imposing President’s Rule which was revoked on 3/4/71 without being placed before Parliament. Only the last revocation proclamation was placed before Parliament. See L.S. Deb. Vol. 1, Nos, 1–12, 1971, col. 151 & Vol. II, No. 1–10, May 24, 1971, col. 159.

See, e.g. , Kerala, issued 31/7/59, placed 10/959; AP issued 18/1/73, Parliamentary session commenced 2/2/73, placed 20/2/73; Gujarat issued 9/2/74, session commenced 18/2/74, placed 11/3/74; Nagaland issued 23/3/75, placed in Lok Sabha on 25/3/75 and in Rajya Sabha a day later.

The two-month initial scrutiny was avoided in Orissa in 1971 and in Bihar in 1972. The six-month scrutiny was similarly bypassed in Kerala in 1966 when the existing proclamation issued on September 16, 1961 was revoked on March 24, 1965 and a fresh proclamation was issued the same day.

See Wadhwa [ 35 ].

Dr. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.

See, e.g ., I ndia C onst. art. 174 § 2.

L.K. Advani said in Rajya Sabha in 1973: “The new post 1969 theory of suspending legislatures rather than dissolving them is politically dubious and possibly constitutionally bad.” See Rajya Sabha Deb, Vol. 85, No. 2, July 24, 1973 Col. 79. See remarks to same effect by P.G. Mavlankar, L.S. Deb., 5th Series, Vol. 35, no. 14, March 11, 1974, col. 856.

It has been judicially suggested that challenges to exercise of power under article 352 are less likely to succeed than challenges in respect of Article 356: State of Rajasthan v. Union of India AIR 1977 SC 1361, 1389 (Beg CJ). On this reasoning, the conclusions reached earlier in respect of judicial review under Article 352 would apply, a fortori, to Article 356.

See also Beg CJ in AIR 1977 SC 1361, 1379–80 (India).

Gokulnanda v. Tarapada 1973 AIR 233 (Cal.).

Patnaik v. Orissa, 1974 AIR 52 (Orissa); Rao Birendra Singh v. Union of India 1968 AIR 441 (Punjab & Haryana); In Re Sreeramulu, 1974 AIR 106 (Andhra Pradesh).

Although not fully articulated, this promise clearly underlies the decisions. See Rao Birendra Singh v. Union of India 1968 AIR 441 (Punjab & Haryana); In Re Sreeramulu 1974 AIR 106 (Andhra Pradesh).

See, e.g. , Rao Birendra Singh v. Union of India 1968 AIR 441 (Punjab & Haryana).

Vide the Constitution (Forty-Fourth) Amendment Act, No. 88 of 1978, I ndia C ode , ( http://indiacode.nic.in/coiweb/amend/amend44.htm ), which came in effect on June 20, 1979.

In the leading decision on the nature of President’s powers under the Indian Constitution, the Supreme Court said:

Whenever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or function or the Governor, as the case may be, as for example in Article 123, 213, 311(2), Proviso (c), 317,352(1),356 and 360, the satisfaction required by the Constitution is not the personal satisfaction of the President or of the Governor but it is the satisfaction of the President or of the Governor in the Constitutional sense under the Cabinet system of Government.

Shamsher Singh v. Punjab AIR 1974 SC 2192, 2198, 2202 (India) (overruling Sardari Lal v. Union of India AIR 1971 SC 1547).

The question has now been settled by a seven judge bench of the Supreme Court dealing specifically with Article 356, where all judges agreed with the view that “there can be no doubt that the decision under Article 356 of the Constitution which is made by the President is a decision of the Council of Ministers”. See State of Rajasthan v. Union of India, AIR 1977 SC 1361, 1420 (India) (per Goswami, J.).

State of Rajasthan v. Union of India, AIR 1977 SC 1361 (India).

These were: Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa.

A sample letter to one state is at AIR 1977 SC 1361, 1373 (India).

The judges were: Beg, C.J., Chandrachud, Bhagwati, Goswami, Gupta, Untwalia and Fazl Ali JJ. Each except Gupta, J., delivered a separate judgement; the latter concurred with Bhagwati, J.

State of Rajasthan v. Union of India, AIR 1977 SC 1361, 1390–91 (India).

Id . at 1400–01.

Id . at 1414–15.

Id . at 1420.

Id . at 1422.

Id . at 1437.

See, e.g. , Beg, C.J., Id . at 1375–76.

See, e.g ., remarks of Goswami, J.: “The matter would have been entirely different if there were no proposal, pari passu, for an appeal to the electorate by holding elections to these Assemblies”. ( Id . at 1420).

State of Rajasthan v. Union of India, AIR 1977 SC 1361, 1376 (India).

Baxi [ 38 ].

S.R. Bommai v. Union of India, (1994) 3 SCC 1 (India).

Nicholas Aroney & Khagesh Gautam, Federalism—A Selected Comparison , in Shaun Star [ 39 ].

See e.g. , S.R. Bommai v. Union of India, (1994) 3 SCC 1, 80 (India) (Ahmadi, J. for himself, concurring with Ramaswamy, J.) observing that,

Since it was not disputed before us by the learned Attorney General as well as Mr. Parasaran, the learned counsel for the Union of India, that a Proclamation issued by the President on the advice of his Council of Ministers headed by the Prime Minister, is amenable to judicial review, the controversy narrows down to the determination of the scope and ambit of judicial review i.e. in other words, to the area of justiciability.

See also id . at 93 (Sawant, J. for himself and Kuldeep Singh, J.) observing that,

It is not disputed before us that the Proclamation issued under Article 356(1) is open to judicial review. All that is contended is that the scope of the review is limited.

S.R. Bommai v. Union of India, (1994) 3 SCC 1, 125–26 (Sawant, J., for himself and Kuldeep Singh, J.) (Pandian, J. concurring).

Id . at 129–30.

Id . at 131–32.

Id . at 65–67 (Pandian, J. for himself, concurring with Sawant, J. and Reddy, J.).

Id . at 67–83 (Ahmadi, J. for himself, concurring with Ramaswamy, J.). In the context of the federalism and limited state sovereignty angle mentioned at the start of this part, and discussed in detail elsewhere by one of us, we may note that Ahmadi, J. was in minority on that issue. See Id . at 74 (Ahmadi, J. for himself, concurring with Ramaswamy, J.) (observing that, “Under our Constitution the State as such has no inherent sovereign power or autonomous power which cannot be encroached upon by the Centre .”), and Nicholas Aroney & Khagesh Gautam, Federalism—A Selected Comparison , in Shaun Star [ 39 ]. Given the nature of this work, a detailed discussion of the correctness or sustainability of the minority view as represented by Ahmadi, J.’s opinion and any further mentions to the same of other justices who concurred in Ahmadi, J.’s view is omitted.

S.R. Bommai v. Union of India, (1994) 3 SCC 1, 68 (Ahmadi, J. for himself, concurring with Ramaswamy, J.)

Id . at 79.

Id . at 80.

Id . at 82.

Id . at 83 (Verma, J., for himself and Dayal, J.)

Id . at 85.

Id . at 87 (Ahmadi, J. for himself, concurring with Ramaswamy, J.).

Id . at 112 (Sawant, J. for himself and Kuldeep Singh, J.).

Id . at 87.

Id . at 102.

Id . at 93 (Sawant, J. for himself and Kuldeep Singh, J.) observing that,

In other words, the President's satisfaction has to be based on objective material. That material may be available in the report sent to him by the Governor or otherwise or both from the report and other sources. Further, the objective material so available must indicate that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Thus the existence of the objective material showing that the Government of the State cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the President issues the Proclamation. Once such material is shown to exist, the satisfaction of the President based on the material is not open to question. However, if there is no such objective material before the President, or the material before him cannot reasonably suggest that the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the Proclamation issued is open to challenge.

See Id . at 109 (Sawant, J. for himself and Kuldeep Singh, J.) observing that,

The courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice. The courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. Hence when the courts undertake an enquiry into the existence of such material, the prohibition contained in Article 74(2) does not negate their right to know about the factual existence of any such material. This is not to say that the Union Government cannot raise the plea of privilege under Section 123 of the Evidence Act.

We should note here that on this point Pandian, J., Ahmadi, J., and Verma, J. (for himself and Dayal, J.) also agreed. With the concurrence of Sawant, J. (for himself and Singh, J.) we have a majority of 6 out of 9 judges on this issue.

Id . at 103, 109 (Sawant, J. for himself and Kuldeep Singh, J.) (Emphasis Added).

Id . at 122 (Sawant, J. for himself and Kuldeep Singh, J.) observing that,

The question then arises is whether the Council of Ministers and the Legislative Assembly can be restored by the Court when it declares the Proclamation invalid. There is no reason why the Council of Ministers and the Legislative Assembly should not stand restored as a consequence of the invalidation of the Proclamation the same being the normal legal effect of the invalid action. … Unless such result is read, the power of judicial review vested in the judiciary is rendered nugatory and meaningless. To hold otherwise is also tantamount to holding that the Proclamation issued under Article 356(1) is beyond the scope of judicial review. For when the validity of the Proclamation is challenged, the court will be powerless to give relief and would always be met with the fait accompli .

Id . at 123–24.

Id . at 124 (Sawant, J. for himself and Kuldeep Singh, J.).

Id . at 128 (Sawant, J. for himself and Kuldeep Singh, J.) observing that,

… [I]t was incumbent upon the Governor to ascertain whether any other Ministry could be formed. … What is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a constitutional Government in the State before reporting that the constitutional machinery had broken down.

Id . at 131 (Sawant, J. for himself and Kuldeep Singh, J.) observing that,

[The facts disclose] in unmistakable terms the Governor’s unnecessary anxiety to dismiss the Ministry and dissolve the Assembly and also his failure as a constitutional functionary to realize the binding legal consequence of and give effect to the orders of this Court.

Id . at 127 (Emphasis added).

Id . at 132 (Emphasis added).

Id . at 148.

Id . at 133 (Sawant, J. for himself and Kuldeep Singh, J.) observing that,

As a result of the demolition of the structure which was admittedly a mosque standing at the site for about 400 years, there were violent reactions in this country as well as in the neighbouring countries where some temples were destroyed. This in turn created further reactions in this country resulting in violence and destruction of the property. The Union Government tried to cope up with the situation by taking several steps including a ban on several organisations including Rashtriya Swayamsevak Sangh (RSS), Vishva Hindu Parishad (VHP) and Bajrang Dal which had along with BJP given a call for kar sevaks to march towards Ayodhya on December 6, 1992. The ban order was issued on December 10, 1992 under the Unlawful Activities (Prevention) Act, 1967. The dismissal of the State Governments and the State Legislative Assemblies in Madhya Pradesh, Rajasthan and Himachal Pradesh were admittedly a consequence of these developments and were effected by the issuance of Proclamations under Article 356(1), all on December 15, 1992.

Id . at 133–34.

Id . at 134.

Id . at 134–35 (Sawant, J. for himself and Kuldeep Singh, J.) noting that,

The Governor, however, opined that since the Chief Minister himself was a member of RSS, he was not in a position to implement the directions honestly and effectively and that most of the people in the State felt the same way. … It is on the basis of this report that the Proclamation in question was issued.

Id . at 135.

Id . at 142–43 (Sawant, J. for himself and Kuldeep Singh, J.) citing Sunderlal Patwa v. Union of India, 1993 Jab.L.J. 387 (FB).

Id . at 149 (Sawant, J. for himself and Kuldeep Singh, J.) (Summary of Conclusions, Conclusion VIII.).

Id . at 147.

See , e.g. , Sathe [ 40 ] (hailing Bommai was the most important and politically significant decision given by the Supreme Court of India since Kesavananda Bharati ).

Mate [ 41 ] (noting the use of doctrine of basic structure to review presidential proclamations under article 356).

Gautam [ 42 ]. See also S.R. Bommai v. Union of India, (1994) 3 SCC 1 at 148.

See, e.g ., Harish Chandra Singh Rawat v. Union of India, W.P. (M/S) No. 795 of 2016 (Uttarakhand High Court at Nanital) where one of us appeared for the petitioner.

Ministry of Home Affairs, Govt. of India, Statement Showing Date of Proclamation and Revocation Regarding President’s Rule in State under Article 356 of the Constitution (on file with authors; hereinafter “Ministry of Home Affairs, Article 356 Statement ”). The statistics were released by the Ministry of Home Affairs, CS Division, via a response dated May 3, 2016 (in response to two Right to Information (RTI) queries dated April 10, 2016 and April 13, 2016). It might be pertinent to note that this list is restricted to states and does not include the data on union territories.

Ministry of Home Affairs, Article 356 Statement , entries 21 and 26 (proclamations were issued three times in Orissa 1971 (on January 11, 1971, January 23, 1971 and March 23, 1971, respectively), and twice in Bihar (on January 9, 1972 and March 9, 1972, respectively)). The problem with computation is that serial numbering of all proclamations is by state where it was issued and the total comes to 112. The document counts all proclamations issues in one state is a single proclamation. But we count the total number of proclamations and count multiple proclamations in one state individually thus increasing the total number by 3 and bringing the total to 115, not 112.

S.R. Bommai v. Union of India, (1994) 3 SCC 1, 1. The first page of the law report SCC shows the date of decision as March 11, 1994.

Ministry of Home Affairs, Article 356 Statement , entries 1–91 (taking into account the method of calculation explained in supra note 782).

Id . entries 92–112.

Rameshwar Prasad v. Union of India, (2006) 2 SCC 1 (India).

Id . at 1. The first page of the law report SCC shows the date of decision as January 24, 2006.

See Ministry of Home Affairs, Article 356 Statement , entries 102–112.

See, e.g. , N.T. Rama Rao v. His Excellency The Governor 1995 (3) ALT 929 (Andhra Pradesh); Jagdimbika Pal v. Union of India (1999) 9 SCC 95; Anil Kumar Jha v. Union of India (2005) 3 SCC 150; Rameshwar Prasad v. Union of India (2006) 2 SCC 1; Yitachu v. Union of India 2008 (2) GLT 284 (Gawahati); Union of India v. Harish Chandra Singh Rawat (2016) 16 SCC 744; Nabam Rebia v. Deputy Speaker (2016) 8 SCC 1; Chandrakant Kavlekar v. Union of India (2017) 3 SCC 758; P. Vetrivel v. P. Dhanabal (Madras) W.P. No. 25260 of 2017; Dr. G. Parmeshwara v. Union of India W.P. (Civil) 536 of 2018.

Indeed, this point was stressed by the Court in Bommai itself. See S.R. Bommai v. Union of India, (1994) 3 SCC 1, 149 (Conclusion IX in Sawant, J.’s decision where the judge declares proclamations dated August 7, 1988, April 21, 1989, and October 11, 1991 as unconstitutional but still doesn’t grant any actual relief to the petitioners since fresh assembly elections had been conducted in these states and ministries had been sworn in).

See Anil Kumar Jha v. Union of India (2005) 3 SCC 150. In its interim order, the Supreme Court directed that, “… the only agenda in the assembly … would be to have a floor test between contending political alliances … to see which political party or alliance has a majority in the House.”

See Harish Chandra Singh Rawat v. Union of India (2016) SCC Online 502 (Utt.). The appeal from Uttarakhand High Court is pending in the Supreme Court and is understood by all parties to be practically completely infructuous but kept alive in the Supreme Court to lay down the law, which, obviously would be of no relevance on the ground since successive governments have changed after that episode.

See Dr. G. Parmeshwara v. Union of India, W.P. (Civil) 536 of 2018.

See Id . at 149 (Sawant, J. for himself and Kuldeep Singh, J.) (Summary of Conclusions, Conclusion IX).

Id . at 61. (Sabharwal, C.J.).

Id . at 64–65 (Sabharwal, C.J.). The entire report dated March 6, 2005 is reproduced at id . 62–65 and makes for a very interesting reading.

Id . at 66. The entire report dated April 27, 2005 is reproduced id . at 66–67.

Id . at 67.

The entire report dated May 21, 2005 is reproduced Id . at 68–69.

Id . at 86.

Id . at 90.

Id . at 90–91.

Id . at 111.

Id . at 121.

Id . at 129 (Sabharwal, C.J.) observing that,

If a political party with the support of other political party or other MLAs stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of the Government and override the majority claim because of his subjective assessment that the majority was cobbled up by illegal and unethical means. No such power has been vested with the Governor. Such a power would be against the democratic principles of majority rule. … The remedy for corruption or similar ills and evils lies elsewhere and not in Article 356(1). In the same vein, it has to be held that the power under the Tenth Schedule for defection lies with the Speaker of the House and not with the Governor.

Id . at 130.

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Singhvi, A., Gautam, K. (2020). Emergency Powers in India. In: The Law of Emergency Powers. Springer, Singapore. https://doi.org/10.1007/978-981-15-2997-9_5

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JOURNAL FOR LAW STUDENTS AND RESEARCHERS

ISSN[0] : 2582-306X

EMERGENCY PROVISIONS IN INDIA – A CRITICAL ANALYSIS by Lakshay Kumar

Author: Lakshay Kumar, Student (LL.M.), Law College Dehradun, Uttaranchal University, Dehradun

As the name “emergency” implies, it refers to an unexpected turn of circumstances that forces public authorities to take immediate action within their jurisdiction. During an emergency, human civil rights are stripped from the state or nation, with the exception of Articles 20 and 21 of the Indian Constitution. The majority of emergencies are caused by malfunctioning administrative structure.

The Indian federal system, according to Dr. B.R. Ambedkar, is unique in that it can become unified when administrative machinery fails.

The main goal of emergency legislative measures was to protect the region from tyranny, domestic upheaval, wars, and foreign attacks. Any emergency, according to the Black Law Dictionary, necessitates rapid involvement and warning since it poses harm to both people and liberty in the territory.

Thus the research work is the attempt to throw light on the provision of emergency in India. The researcher also emphasis on the origin and historical context and explain different types of emergency in a precise manner and explaining the effect of the proclamation of emergency following with the conclusion.

Keywords : Emergency, State, Financial, National, Country, India.

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13 Emergency Powers

Rahul Sagar is Associate Professor of Political Science at Yale-NUS College and Associate Professor at the Lee Kuan Yew School of Public Policy. Previously he was Assistant Professor in the Department of Politics at Princeton University.

This chapter is dedicated to my father, Jyoti Sagar, who taught me to love the rule of law. I am indebted to Madhav Khosla and Varun Srikanth for their advice and help in crafting this chapter.

• Published: 06 February 2017
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This chapter examines constitutional provisions regarding emergency powers in India. It begins with an overview of the emergency provisions enumerated in Part XVIII of the Indian Constitution, with particular emphasis on three types of extraordinary situations. It then considers a curious feature of Part XVIII, the inclusion of Articles 356 and 360, which address failures of constitutional machinery in the States as well as threats to financial stability and credit. It also explores how Articles 352 and 356 have been interpreted over time, focusing on the extent of the executive power once an emergency has been proclaimed and whether the presidential proclamation is subject to judicial review. The chapter concludes by suggesting that the safeguards found in Part XVIII of the Indian Constitution may not be as resilient as they seem.

I. Introduction

Part XVIII of the Constitution of India provides for three types of extraordinary situations: national security emergencies owing to military conflict or armed rebellion; failures of constitutional machinery in the States; and financial emergencies. An observer surveying the contemporary record might conclude that Parliament’s veto power, the Supreme Court’s activism, and the growing pluralism of the body politic have ‘tamed’ these provisions. Consider the facts: no financial emergency has ever been declared; no security emergency has been declared since 1975; and proclamations of failure of constitutional machinery have declined steeply since 1994 (after serial abuse prompted the Court to enhance procedural safeguards). Yet it would be a mistake to conclude from these facts that all is well. This chapter contends that the Constitution’s emergency provisions have escaped controversy only because contingent factors—relative calm on the international front and the feebleness of the Centre in an era of coalition politics—have made it harder to exploit these provisions’ ambiguities.

This chapter proceeds as follows. Section I briefly outlines the emergency provisions enumerated in Part XVIII of the Constitution. Section II investigates why Articles 356 and 360, which address failures of constitutional machinery in the States and threats to financial stability and credit, respectively, were included in Part XVIII of the Constitution. Sections III and IV survey how Articles 352 and 356 have been interpreted over time. The chapter concludes in Section VI with the warning that the safeguards found in Part XVIII of the Constitution may not be as resilient as they seem.

II. The Provisions

As mentioned above, Part XVIII of the Constitution contains provisions directed at three types of extraordinary situations. The first is Article 352, which allows the President to proclaim an emergency when ‘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’. 1 Following such a proclamation, the Union is allowed to direct, and Parliament is allowed to legislate for, any State. 2 This includes the authority to control the distribution of revenues. 3 In the event of military conflict, the President is also authorised to suspend Article 19 (which protects freedom of speech, assembly, association, and movement). More generally, the President is permitted to restrict the ability of citizens to move courts for the enforcement of the fundamental rights listed in Part III of the Constitution (except for Articles 20 and 21). 4

The invocation and exercise of powers during an emergency is hedged about by various safeguards. First, the President may not issue or alter a proclamation unless directed to do so, in writing, by the Union cabinet. 5 Secondly, no proclamation shall extend beyond a month, unless confirmed by both Houses of Parliament (and then too by majorities of the total membership of each House and two-thirds of those present and voting). 6 Thirdly, proclamations approved by both Houses must be reconfirmed on a six-monthly basis (by similar majorities, as described above). 7 Fourthly, if one-tenth of the members of the Lok Sabha submit in writing to the President or the Speaker their intention to move a resolution disapproving the proclamation, a special session of the Lok Sabha must be called within fourteen days for the purposes of considering such a resolution, whereupon a simple majority vote in favour of revoking the proclamation would be conclusive. 8 Finally, once a proclamation has been issued, laws or actions that curtail rights or remedies under Part III of the Constitution must contain a ‘recital’ making explicit that they are ‘in relation to the Proclamation of Emergency’ (with the additional proviso that laws or actions suspending remedies must also be laid before Parliament). 9

A second extraordinary situation foreseen by Part XVIII relates to the failure of constitutional machinery in States. Article 356 permits the President to proclaim such a breakdown should he be 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’. 10 A number of consequences follow from such a proclamation, the most important being that the President can ‘assume to himself all or any of the functions of the Government of the State’, and that ‘the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament’. 11 Concomitantly, Article 357 allows Parliament to delegate the legislative power of the State to the President (or to another specified authority). 12 This includes the power to impose duties and powers on officers of the Union, and to sanction expenditure from the Consolidated Fund of the affected State. 13 The completeness of these powers explains why commentators typically describe Articles 356 and 357 as leading to ‘President’s Rule’.

There are a number of safeguards with respect to Article 356. Most immediately, a proclamation expires after two months unless its continuance is approved by Parliament, whereupon its life is extended to six months. 14 Extensions are not permitted beyond one year unless there is a national security emergency, and the Election Commission certifies ‘difficulties’ in holding elections to the Legislative Assembly of the State in question. 15 And even when these conditions are met, proclamations under Article 356 still cannot be extended beyond three years. Furthermore, Article 356 does not allow the President (or the Union) to assume ‘any of the powers vested in or exercisable by a High Court’. 16

The third extraordinary situation anticipated in Part XVIII is financial emergency. Article 360 allows the President to proclaim such an emergency when he is ‘satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened’. 17 Thereupon the Union receives the right to give ‘directions to any State to observe such canons of financial propriety’, and Money Bills passed by States are ‘reserved for the consideration of the President’. 18 The President may also reduce the salaries of public officials, including judges. 19 The safeguards associated with Article 360 are comparatively minimal: a proclamation of financial emergency must be laid before Parliament, and stands to expire after two months, unless extended by resolutions approved by both Houses. 20

III. A Curious Feature

A curious feature of Part XVIII is the inclusion of Articles 356 and 360. An emergency is typically described as ‘an unexpected and usually dangerous situation that calls for immediate action’. 21 Since the extraordinary situations envisaged by Articles 356 and 360 are not likely to be characterised by the sense of immediate danger associated with the usual meaning of the term ‘emergency’, the framers’ thinking with respect to the inclusion of these provisions in Part XVIII is not self-evident.

The present categorisation of emergencies was not inherited from the colonial period. As Gopal Subramanium has observed, Article 356 derives from Section 93 of the Government of India Act 1935, which was not categorised as an emergency provision. 22 So why did the framers include Article 356 in Part XVIII? The Constituent Assembly debates reveal that when Article 356 was criticised as contrary to federalism, the delegates who stood up to defend it pointed to dark clouds on the near horizon. Algu Rai Sastri, for instance, observed that:

Freedom brings in its wake various problems, and difficulties which have to be faced by a nation. Anti-social elements are very active in Bengal today. They are trying to uproot the Government of the Province. The same thing is happening in Madras. Hyderabad too has been the scene of these activities. All these disturbances that we are witnessing today are no doubt local in character but they may create a grave situation necessitating immediate intervention. 23

Such statements indicate that the delegates that spoke up on behalf of Article 356 misunderstood its purpose. The threats they cited—the States being afflicted by insurrection and disorder—did not actually fall under the purview of Article 356. Such threats came under the purview of Article 352, which, at the time at least, authorised the President to proclaim an emergency on account of ‘internal disturbance’ (subsequently amended to ‘armed rebellion’ by the Forty-fourth Amendment in 1978).

The Drafting Committee saw Article 356 quite differently. They seem to have been thinking along the lines of what Karl Loewenstein has termed ‘militant democracy’. 24 That is, their objective was to establish a provision that could be used to tackle political forces, principally communism, that might come to power in the States through the ballot box and then proceed to subvert constitutional democracy. The Committee hoped that Article 356 would be a ‘dead letter’—that is, they hoped that Indian democracy would not need to resort to militant methods to preserve itself against extremism. 25 But unwilling to take chances, they wanted the Union to have in reserve legal authority suitable for dealing with the menace of communism.

The delegates who spoke up on behalf of Article 356 also had the threat of communism on their minds, but they appear to have thought that communism would advance through violence and destabilisation rather than through the ballot box. This appears to be the reason why they did not find it problematic to place Article 356 under the heading ‘Emergency Provisions’. This explanation still leaves unanswered why the Drafting Committee included Article 356 in Part XVIII. This was a puzzling choice on their part, since militant democracy is a considered response to an incipient threat to the constitutional order rather than an immediate response to a clear threat to public safety.

The inclusion of Article 360 under the heading ‘Emergency Provisions’ is equally perplexing since financial crises typically follow in the wake of prolonged financial mismanagement, and do not simply spring out of nowhere. What kind of situation did the framers envisage when they endorsed this provision? The debates show members worrying about a particular source of trouble well before Article 360 was drafted. K Santhanam summarised the fear vividly:

Suppose for instance in a State the Ministry is all right, but it wants to make itself popular by reducing or cancelling all taxes and running its administration on a bankrupt basis. Suppose the Government servants are not paid and the obligations are not met and the State goes on accumulating its deficits. Of course this also is a difficult case. The Centre will have to be very careful and indulgent; it will have to give the longest possible rope but at some time or other in the case of economic breakdown also the Centre will have to step in because ultimately it is responsible for the financial solvency of the whole country and if a big province like the United Provinces goes into bankruptcy it will mean the bankruptcy of the whole country. 26

This presentation did not go unchallenged. Hriday Nath Kunzru observed that the scenario Santhanam had sketched out need not amount to an emergency, as the term was commonly understood. ‘If misgovernment in a province creates so much dissatisfaction as to endanger the public peace’, Kunzru argued, then the Union could rely on Article 352 to intervene. 27 But in the absence of violence and disorder, electors ought to be allowed to apply the ‘proper remedy’ themselves. 28 Kunzru subsequently cornered BR Ambedkar on this point before Article 356 went to vote. Pushed by Kunzru to clarify whether Article 356 allowed the Union to intervene in the States for the sake of ‘good government’, Ambedkar responded firmly that ‘whether there is good government or not in the province is [not] for the Centre to determine’. 29

It would seem that after the exchange between Kunzru and Ambedkar clarified that Article 356 would not allow the Union to pre-empt the mismanagement of State-level finances, the Drafting Committee felt compelled to insert Article 360. This is not, however, the explanation that Ambedkar offered when introducing the provision. He informed the assembly that the Article ‘more or less’ followed ‘the pattern’ of the United States’ National Industrial Recovery Act 1930, which sought to restructure the American economy in the face of the Great Depression. 30

Kunzru promptly pushed back. Ambedkar’s claim was unpersuasive, he asserted, because unlike the National Industrial Recovery Act, which had sought to stimulate economic growth, Article 360 was aimed at enforcing fiscal prudence. 31 As such the real purpose of Article 360, Kunzru contended, was to address the kind of scenario previously envisioned by Santhanam. The drafters were concerned about the fiscal impact of populism at the State level, as a number of States had recently enacted laws prohibiting the sale of liquor and narcotics, thereby denying themselves an important source of revenue. The introduction of such laws was indeed unwise, Kunzru conceded—the States in question ought to have shown ‘self-restraint’ in view of prevailing ‘financial difficulties’. 32 Nonetheless the Union ought not to be allowed to intervene, he insisted, for a ‘Province can by itself hardly do anything that would jeopardise the financial stability or credit of India’. 33 Moreover, ‘even if a province by its foolishness places itself in a difficult financial position, why should it not be allowed to learn by its mistakes?’ 34

Kunzru’s critique was immediately rebutted by KM Munshi, a key member of the Drafting Committee, who deemed such a laissez-faire approach impractical. The financial health of the States and the Centre was too interlinked to permit such laxity, he argued. As he put it:

This article in the Constitution is the realization of one supreme fact that the economic structure of the country is one and indivisible. If a province breaks financially, it will affect the finances of the Centre: if the Centre suffers, all the provinces will break. Therefore the interdependence of the provinces and the Centre is so great that the whole financial integrity of the country is one and a time might arise when unitary control may be absolutely necessary. 35

If we take Munshi’s response as indicative of the Drafting Committee’s position, then it seems reasonable to interpret Article 360 as the financial equivalent of the concept of militant democracy. That is, the provision was intended to provide the Union with the authority to arrest the sort of profligacy that could undermine the Union’s own financial standing. Even so we are still left wondering why the Drafting Committee included this provision in Part XVIII, since what Article 360 addresses is not an immediate threat to the survival of the Union but rather a slow-growing poison.

IV. Article 352: Central Issues

Let us now examine how Article 352 has been interpreted. As a comprehensive review cannot be undertaken here, the following discussion focuses on two questions: first, how extensive is the President’s power once an emergency has been proclaimed, and secondly, is the President’s proclamation subject to judicial review? It is contended below that the Court’s answers to both these questions have been overly deferential, rendering Article 352 a graver threat to liberty than it need be.

Article 352 has been invoked three times since the Constitution was adopted: in 1962, following war with China; in 1971, following war with Pakistan; and in 1975, following ‘internal disturbances’. In each of these periods the Court has interpreted Article 352 in new ways. An early landmark case was Sree Mohan Chowdhury v Chief Commissioner , where the Court heard a habeas corpus petition filed by an individual detained under the 1962 Defence of India Act. 36 Pointing to the Presidential Order issued under Article 359 that prohibited individuals from approaching any court for the enforcement of rights conferred by Articles 21 and 22, the Court declined the appeal, declaring that ‘as a result of the President’s Order aforesaid, the petitioner’s right to move this Court … 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’. 37 The Court also refused to inquire into the validity of the Act on the grounds that the appellant was ‘arguing in a circle’ since:

In order that the Court may investigate the validity of a particular ordinance or act of a legislature, the person moving the Court should have a locus standi … In view of the President’s Order passed under the provisions of Art. 359 (1) of the Constitution, the petitioner has lost his locus standi to move this Court during the period of Emergency. 38 38 Sree Mohan Chowdhury (n 36 ) [6].

Shortly after came Makhan Singh Tarsikka v State of Punjab , where the appellants questioned whether the High Courts of Bombay and Punjab were justified in refusing to entertain their petitions questioning the constitutionality of the Defence of India Act. 39 The appellants argued that strictly construed Article 359 did not forbid their seeking the High Court’s intervention under Section 491 of the 1898 Code of Criminal Procedure provided that ‘any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public custody be set at liberty’. 40 The Court disagreed, declaring that seeking any writ in ‘the nature of habeas corpus ’ fell foul of the ‘substance’, if not the ‘form’, of Article 359. 41

Though the Makhan Singh Court concurred with Mohan Chowdhury that detainees had no locus standi to question the validity of the Act, it voluntarily addressed the question of what avenues remained open to detainees wishing to challenge ‘the legality or the propriety of their detentions’. 42 It indicated at least three possible grounds. First, a detainee could approach the courts to enforce fundamental rights not specified in the Presidential Order. 43 Secondly, a detainee could move the courts on the ground that his detention ‘has been ordered mala fide ’. 44 Thirdly, a detainee could challenge the Act on the grounds that they suffer ‘from the vice of excessive delegation’, that is, they transferred to the executive ‘essentially legislative powers’. 45

The Court was willing to venture only so far though. When pressed on the point that a prolonged emergency could leave citizens bereft of their rights for an extended duration, PB Gajendragadkar J responded that this spectre:

[H]as no material bearing on the points with which we are concerned. How long the Proclamation of Emergency should continue and what restrictions should be imposed on the fundamental rights of citizens during the pendency of the emergency, are matters which must inevitably be left to the executive because the executive knows the requirements of the situation and the effect of compulsive factors which operate during periods of grave crisis, such as our country is facing today. 46 46 Makhan Singh Tarsikka (n 39 ) [47].

The appellants decried the Court’s reticence, arguing it would leave citizens exposed to the ‘abuse of power’. Unmoved, Gajendragadkar J replied:

This argument is essentially political and its impact on the constitutional question with which we are concerned is at best indirect. Even so, it may be permissible to observe that in a democratic State, the effective safeguard against abuse of executive powers whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public opinion. 47 47 Makhan Singh Tarsikka (n 39 ) [47].

Unfortunately, the Court chose not to reflect on the soundness of these recommendations. It did not discuss whether public opinion could be reliably informed and aware when Article 358 allowed the President to suspend Article 19. It also failed to address whether the preventive detention could be used to intimidate or silence critics.

The cases that followed immediately thereafter, principally Ananda Nambiar v Chief Secretary 48 and Ram Manohar Lohia v State of Bihar , 49 solidified the precedents set by Makhan Singh . In Ananda Nambiar , the Court outlined two further scenarios under which detention might be challenged in spite of the Presidential Order—namely by contending that the detention order was employed by a person or under circumstances not authorised by the Defence of India Act. 50 The latter criterion was employed in Ram Manohar Lohia , where the appellant’s detention was overturned on the ground that the detention had been justified on the grounds of maintaining ‘law and order’ when the Act only permitted detention for reasons of ‘public order’. 51

A final case from this period that deserves mention is Ghulam Sarwar v Union of India . 52 Note that in Lohia the Court had declined to allow the appellant to argue, contra Makhan Singh , that ‘the satisfaction of the President under Art 359 is open to scrutiny of the court’. 53 In another case, PL Lakhanpal v Union of India , the Court dismissed the appellant’s claim that the continuance of Emergency was a ‘fraud on the Constitution’ because ‘for some time past there was no armed aggression against the territory of India’. 54 A proclamation of Emergency, AK Sarkar CJ opined, could only be revoked by Parliament. 55 But in Ghulam Sarwar the Court’s opinion, penned by K Subba Rao CJ, now prevaricated on this crucial point. At first glance the Court implicitly concurred with Makhan Singh , observing that:

[T]he question whether there is grave emergency … is left to the satisfaction of the Executive, for it is obviously in the best position to judge the situation. But there is the correlative danger of the abuse of such extra ordinary power leading to totalitarianism … What is the safeguard against such an abuse? The obvious safeguard is the good sense of the Executive, but the more effective one is public opinion. 56 56 Ghulam Sarwar (n 52 ) [11].

But pushed by the appellant to note the continuation of the emergency—‘four long years after the cessation of the hostilities’—the Chief Justice remarked:

A question is raised whether this Court can ascertain whether the action of the Executive in declaring the emergency or continuing it is actuated by mala fides and is an abuse of its power. We do not propose to express our opinion on this question as no material has been placed before us in that regard. It requires a careful research into the circumstances obtaining in our country and the motives operating on the minds of the persons in power in continuing the emergency. As the material facts are not placed before us, we shall not in this case express our opinion one way or other on this all important question which is at present agitating the public mind. 57 57 Ghulam Sarwar (n 52 ) [11].

The full force of the concern highlighted above was made clear by Additional District Magistrate Jabalpur v Shivakant Shukla . 58 This case arose after individuals detained under the 1971 Maintenance of Internal Security Act filed writs of habeas corpus in various High Courts. The High Courts declared that they were entitled to examine the propriety of the detention orders notwithstanding the 1975 Proclamation of Emergency on grounds of ‘internal disturbance’, and a subsequent Presidential Order suspending the enforcement of Articles 14, 21, and 22. Upon appeal the Court disagreed, arguing that unlike the 1962 Presidential Order, which suspended appeal only with respect to detentions under the Defence of India Act, the 1975 Presidential Order was ‘unconditional’, that is, it suspended appeal without reference to any particular statute, leaving the High Courts no standard against which to evaluate detentions. 59 Hence, the Court concluded, ‘no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or 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 or is illegal or is vitiated by mala fides factual or legal or is based on extraneous consideration’. 60

The ‘startling consequence’ of this decision, HR Khanna J’s famous dissent summarised, was that:

[I]f any official, even a head constable of police, capriciously or maliciously, arrests a person and detains him indefinitely without any authority of law, the aggrieved person would not be able to seek any relief from the courts against such detention during the period of emergency … In other words, the position would be that so far as executive officers are concerned, in matters relating to life and personal liberty of citizens, they would not be governed by any law, they would not be answerable to any court and they would be wielding more or less despotic powers. 61 61 Shivakant Shukla (n 58 ) [538].

Khanna J declared this outcome unacceptable because ‘the essential postulate and basic assumption of the rule of law’ is that ‘the State has got no power to deprive a person of his life or liberty without the authority of law’. 62 This observation provoked strong reactions from the Court’s majority, who argued that the rule of law actually lay on the side of the Presidential Order, which was issued under Article 352. As Mirza Beg J sharply replied:

If on a correct interpretation of the legal provisions, we find that the jurisdiction of Court was itself meant to be ousted, for the duration of the emergency … because the judicial process suffers from inherent limitations in dealing with cases of this type, we are bound … to declare that this is what the laws mean … it does not follow from a removal of the normal judicial superintendence … that there is no Rule of Law during the emergency. 63 63 Shivakant Shukla (n 58 ) [304].

Khanna J’s retort was that a ‘state of negation of rule of law would not cease to be such a state because of the fact that such a state of negation of rule of law has been brought about by a statute’. 64 To this an exasperated Beg J replied, not entirely unreasonably, that Khanna J’s reasoning passed over the positive law in favour of a ‘brooding omnipotence’. He observed:

It seems to me to be legally quite impossible to successfully appeal to some spirit of the Constitution or to any law anterior to or supposed to lie behind the Constitution to frustrate the objects of the express provisions of the Constitution … What we are asked to do seems nothing short of building some imaginary parts of a Constitution, supposed to lie behind our existing Constitution, which could take the place of those parts of our Constitution whose enforcement is suspended and then to enforce the substitutes. 65 65 Shivakant Shukla (n 58 ) [165].

Unfortunately, this sharp exchange did not address the central point of contention. Khanna J’s fundamental objection was that the rule of law did not, in a deep sense, tolerate absolute power. The rule of law requires that powers must ‘be granted by Parliament within definable limits ’. 66 For the most part, the Shivakant Shukla majority ignored this point, preferring to defend their decision to focus on the letter of the law. PN Bhagwati J, for example, stated:

I do not think it would be right for me to allow my love of personal liberty to cloud my vision or to persuade me to place on the relevant provision of the constitution a construction which its language cannot reasonably bear … the Constitution is the law of all laws and there alone judicial conscience must find its ultimate support, and its final resting place. 67 67 Shivakant Shukla (n 58 ) [487].

The only substantive response came from AN Ray CJ, who claimed there were limits: the Maintenance of Internal Security Act provided for periodic internal review of detentions; and the infringement of fundamental rights could be challenged in a court of law following the termination of the emergency. 68 But as in Makhan Singh , the Court did not address the satisfactoriness of these limits. As Khanna J noted, the safeguards cited by the Chief Justice left the executive with sole discretion to decide when, if ever, to release detainees. 69

The Shivakant Shukla Court also missed the opportunity to address whether it was entitled to review the underlying Proclamation of Emergency. A passing mention from Bhagwati J focused, once again, on formal rather than substantive legitimacy:

We must also disabuse our mind of any notion that the emergency declared by the Proclamation dated 25th June, 1975 is not genuine, or to borrow an adjective used by one of the lawyers appearing on behalf of the interveners, is ‘phoney’. This emergency has been declared by the President in exercise of the powers conferred on him under Article 352, clause (1) and the validity of the Proclamation dated 25th June, 1975 declaring this emergency has not been assailed before us. 70 70 Shivakant Shukla (n 58 ) [436].

The only clear observation on this front came from YV Chandrachud J, who contradicted Subba Rao CJ’s statement in Ghulam Sarwar by declaring in line with Makhan Singh that ‘it is difficult to see how a Court of law can look at the declaration of emergency with any mental reservations’, seeing as ‘imminent danger of these occurrences depends at any given moment on the perception and evaluation of the national or international situation, regarding which the court of law can neither have full and truthful information nor the means to such information’. 71

This question of justiciability received only slightly more consideration in a subsequent case, Minerva Mills v Union of India , where the petitioner challenged the constitutionality of legislation passed by the 1976 Parliament on the grounds that its life had been extended by Proclamations that were unreasonably prolonged (the 1971 Proclamation) or mala fide (the 1975 Proclamation). 72 Confronted with the Attorney General’s claim that a Proclamation was not justiciable because ascertaining whether the country faced a grave emergency was a ‘political question’, PN Bhagwati J responded that it would be improper for the Court to decline to investigate whether the President had failed to abide by the provisions of Article 352. 73 Bhagwati J then speculated on what would follow should such a determination be made. Initially, per Makhan Singh , he argued that security was to be found in the political process:

It is true that the power to revoke a Proclamation of Emergency is vested only in the Central Government and it is possible that the Central Government may abuse this power by refusing to revoke a Proclamation of Emergency even though the circumstances justifying the issue of Proclamation have ceased to exist and thus prolong baselessly the state of emergency obliterating the Fundamental Rights and this may encourage a totalitarian trend. But the Primary and real safeguard of the citizen against such abuse of power lies in ‘the good sense of the people and in the system of representative and responsible Government’ which is provided in the Constitution. 74 74 Minerva Mills (n 72 ) [101].

However, he then abruptly wheeled around and made explicit what had been implicit in Subba Rao CJ’s comments in Ghulam Sarwar :

Additionally, it may be possible for the citizen in a given case to move the court for issuing a writ of mandamus for revoking the Proclamation of Emergency if he is able to show by placing clear and cogent material before the court that there is no justification at all for the continuance of the Proclamation of Emergency. 75 75 Minerva Mills (n 72 ) [101].

Adding the usual caveat that:

This is not a matter which is a fit subject matter for judicial determination and the Court would not interfere with the satisfaction of the executive Government in this regard unless it is clear on the material on record that there is absolutely no justification for the continuance of the Proclamation of Emergency and the Proclamation is being continued mala fide or for a collateral purpose. 76 76 Minerva Mills (n 72 ) [101].

The foregoing review prompts three observations. First, the Court’s substantive engagement with Article 352 has been patchy. It remains unclear, for instance, whether a Proclamation is justiciable, much less what would follow from an adverse determination. In Waman Rao v Union of India , which followed on the heels of Minerva Mills , YV Chandrachud J’s opinion for the majority cast doubt on Bhagwati J’s earlier forthright dicta, further muddying the waters. 77

It is now clear that detention orders passed during an emergency can always be reviewed. But this outcome is not a product of the Court having absorbed Khanna J’s dissent in Shukla . It owes instead to the Forty-fourth Amendment to the Constitution in 1978, which disallows the suspension of the enforcement of Articles 20 and 21 during an emergency. This means that the Court does not have precedents favouring liberty to fall back upon should habeas corpus come to be suspended at a future date. And such a day may come. The framers who welded together a nation understood a fundamental truth—that Indian society is ‘fissiparous’—and provided a remedy that may have to be reclaimed.

A second observation follows from the above. India has not experienced national security emergencies since 1977. There is, however, no guarantee that these fortuitous circumstances will persist. There continue to be audacious attacks such as the attack on Parliament in 2001, which sought to wipe out the national leadership. Assuming, then, that emergencies will come, bringing with them demands for decisive action, how confident should we feel about the non-judicial safeguards established by the Forty-fourth Amendment? These safeguards, which are essentially parliamentary in nature, may prove fragile when tested, for Parliaments are not immune from panic; they may be misled; they may lack access to classified information; and they may simply lack courage, as they did between 1975 and 1977.

Here it is worth reflecting on the fundamental dichotomy exposed by ‘The Emergency’. Its origin encapsulates the many perversities of Indian political culture—the personalisation of offices, the fragility of institutions, and the unmanly proclivity for sycophancy. Its end underscores the irrepressibility of political opposition—that often vexing but sometimes invaluable tendency of pluralistic societies to stymie the little and grand plans of those in positions of authority. The brevity of this chapter forbids venturing which of these tendencies can be counted upon more, but the question needs posing, because it focuses attention not on the ‘parchment barriers’ that lawyers and textbooks cite with great certainty, but on estimating whether the relevant safeguards will hold firm on the day of reckoning.

A third observation follows from the above. If we have reason to believe that India will sooner or later confront national security emergencies, and that Parliament cannot be relied upon to stand up to the executive, then the Court must be prepared to intervene. Thus far the Court has proven, to use Lord Atkin’s famous phrase, ‘more executive-minded than the executive’. 78 Consider, for instance, the views expressed in Shivakant Shukla : Ray CJ chided counsel for the detainees that it could ‘never be reasonably assumed’ that they would be mistreated, adding that ‘people who have faith in themselves and in their country will not paint pictures of diabolic distortion and mendacious malignment of the governance of the country’. 79 Beg J declared ‘the care and concern bestowed by the State authorities upon the welfare of detenus … is almost maternal’. 80 Chandrachud J criticised the High Courts for having at the back of their minds a ‘facile distrust of executive declarations which recite threat to the security of the country, particularly by internal disturbance’. 81 Bhagwati J stated that though ‘unlawful detentions’ were a possible outcome of unchecked executive power, ‘the fact remains that when there is crisis-situation arising out of an emergency, it is necessary to [trust] the Government with extraordinary powers in order to enable it to overcome such crisis’. 82

That the above are the views of four successive Chief Justices says much about the Court’s steadfastness in the past. The point here is not that the separation of powers cannot be relied upon in the Indian context. Rather it is that if Article 352 is to be interpreted in consonance with the preamble, then much depends on the Court exhibiting a willingness to defer in the face of crisis and an unwillingness to bow in the face of indecency. This willingness remains to be estimated.

V. Article 356: Central Issues

In Part II of this chapter we questioned the inclusion of Article 356 in Part XVIII of the Constitution on the grounds that this Article is not intended to address emergencies (as they are conventionally understood). Let us now briefly survey how Article 356 has since been interpreted. Since a comprehensive review is not possible here, the following discussion focuses on two key questions: first, under what circumstances may President’s Rule be imposed; and secondly, who decides whether these circumstances exist? It is contended that the prevailing answers to these questions, as settled by the Supreme Court, exhibit some weaknesses.

Article 356 has been employed more than a hundred times since the adoption of the Constitution. This remarkable statistic can be attributed to the impudence of India’s political leadership, as well as to a permissive interpretation of the purpose of the Article. At least the former of these points is widely acknowledged. From 1959 onward Union governments used Article 356 to dismiss (or to prevent the formation of) State governments controlled by rival political parties, ostensibly on the grounds that the latter had lost the trust of the people. This practice reached its apogee in the 1970s when, in the wake of the Congress Party’s rout in the post-Emergency elections, the Janata Party sought to displace nine Congress-led State governments. The States responded by approaching the Supreme Court. The resulting case— State of Rajasthan v Union of India —led to the first important judgment on the purpose of Article 356. 83

In Rajasthan , the Court flatly rejected the contention that ascertaining whether Article 356 ought to be invoked was a non-justiciable ‘political question’. The Court was entitled to investigate, Bhagwati J declared, ‘whether the limits on the power conferred by the Constitution have been observed or there is transgression of such limits’. 84 With respect to Article 356 the relevant limit was that the President had to be satisfied that a situation had arisen where the government of the State cannot be carried on in accordance with the provisions of the Constitution.

On the whole, the Justices declined to establish a standard for satisfaction. As Bhagwati J explained:

The satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. It is deliberately and advisedly subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the executive branch of Government. There may be a wide range of situations which may arise and their political implications and consequences may have to be evaluated in order to decide whether the situation is such that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. 85 85 State of Rajasthan (n 83 ) [150].

A number of explanations were offered in defence of this stance. The above passage from Bhagwati J’s opinion references the mutability of circumstances. Fazal Ali J, by contrast, pointed to the Court’s incapacity —it did not ‘possess the resources which are in the hands of the government to find out the political needs that they seek to subserve and the feelings or the aspirations of the nation that require a particular action to be taken at a particular time’. 86 A third explanation came from Beg CJ, who emphasised the problem of subjectivity :

What is the Constitutional machinery whose failure or imminent failure the President can deal with under Article 356? Is it enough if a situation has arisen in which one or more provisions of the Constitution cannot be observed? Now what provisions of the Constitution, which are not being observed in a State, or to what extent they cannot be observed, are matters on which great differences of opinion are possible. 87 87 State of Rajasthan (n 83 ) [46].

These differences, Beg CJ went on to argue, were a consequence of the adoption of the ‘rather loose’ concept of the ‘basic structure of the Constitution’ established by Kesavananda Bharati , 88 which made it impossible for the Court to say ‘that the Union Government, even if it resorts to Article 356 of the Constitution to enforce a political doctrine or theory, acts unconstitutionally, so long as that doctrine or theory is covered by the underlying purposes of the Constitution found in the preamble which has been held to be a part of the Constitution’. 89

Though the Rajasthan Court declined to second-guess the President’s decision to invoke Article 356, the Justices agreed that scrutiny may follow should the circumstances indicate bad faith. They established, in other words, a threshold rather than a substantive test. Bhagwati J put the point most strongly:

Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can the so-called satisfaction of the President in such a case not be challenged on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all? 90 90 State of Rajasthan (n 83 ) [150].

This declaration forced the Rajasthan Court to address an obvious question. In the cases before them the States had argued that ‘the sole purpose of the intended Proclamations’ was to dissolve the State legislatures ‘with the object of gaining political victories’. 91 Had not the Union acted mala fides then? The Court’s response revealed that the threshold for satisfaction was so low that only an imprudent Union leadership would fail to meet it. Broadly, the Justices held that the charged political environment following the end of the Emergency meant that one could not conclusively impute mala fides to the Janata Party’s proposal. As Beg CJ put it:

[A] dissolution against the wishes of the majority in a State Assembly is a grave and serious matter … The position may, however, be very different when a State Government has a majority in the State Assembly behind it but the question is whether the State Assembly and the State Government for the time being have been so totally and emphatically rejected by the people that a ‘critical situation’ has arisen or is bound to arise unless the political sovereign is given an opportunity of giving a fresh verdict. A decision on such a question undoubtedly lies in the Executive realm. 92 92 State of Rajasthan (n 83 ) [74].

Moreover, the Union government had merely proposed to ‘give electors in the various States a fresh chance of showing whether they continue to have confidence in the State Governments’. Since ‘one purpose of our Constitution and laws is certainly to give electors a periodic opportunity of choosing their State’s legislature’, the Chief Justice opined, ‘a policy devised to serve that end could not be contrary to the basic structure or scheme of the Constitution’. 93

Following Rajasthan , the Janata Party proceeded to dismiss the nine Congress-led State governments. Upon its return to power in 1980, the Congress settled scores by dismissing nine Janata-led State governments. These depressing events contributed to the establishment in 1983 of the Sarkaria Commission, which was tasked with reviewing Union–State relations. 94 The Commission acknowledged the difficulty in supervising the employment of Article 356:

A failure of constitutional machinery may occur in a number of ways. Factors which contribute to such a situation are diverse and imponderable. It is, therefore, difficult to give an exhaustive catalogue of all situations which would fall within the sweep of the phase, ‘the government of the State cannot be carried on in accordance with the provisions of this Constitution’. 95 95 Report of the Sarkaria Commission on Centre–State Relations (n 94 ) para 6.1.07.

Nonetheless, the Commission went beyond the Rajasthan Court by identifying four conditions under which the exercise of Article 356 might be justified: a political crisis arising from the inability of any party to cobble together a workable majority in the State legislature; internal subversion resulting from an effort of a State government to undermine responsible government; physical breakdown following an inability to respond to internal disturbance or natural calamity; and non-compliance with the Union, for instance by failing to maintain national infrastructure or refusing to follow directions during war. 96 The last of these conditions, the Commission noted, is made explicit by Article 365 of the Constitution, which states that:

Where any State has failed to comply with or to give effect to any directions given in the exercise of the executive power of the Union … it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. 97

Based on the above criteria, the Commission had no trouble reaching the conclusion that Article 356 ought not to be employed, as it had in recent times, ‘for superseding the duly constituted Ministry and dissolving the State Legislative Assembly on the sole ground that, in the General Elections to the Lok Sabha, the ruling party in the State has suffered a massive defeat’. 98

The Commission also recommended bolstering the ‘tenuous’ standard of judicial review established by Rajasthan . The ‘[j]udicial remedy of seeking relief, even against a mala fide exercise of the power, will remain more or less illusory’, it warned, ‘if the basic facts on which the President, in effect, the Union Council of Ministers, reaches the satisfaction requisite for taking action under Article 356(1), are not made known’. 99 Hence it recommended:

[T]o make the remedy of judicial review on the ground of mala fides a little more meaningful, it should be provided, through an appropriate amendment, that notwithstanding anything in clause (2) of Article 74 of the Constitution the material facts and grounds on which Article 356 (1) is invoked should be made an integral part of the proclamation issued under that Article. 100

The Union government did not formally accept the Sarkaria Commission’s Report. Not surprisingly, controversies over the use of Article 356 then continued, eventually prompting a second prominent case, SR Bommai v Union of India . 101 This case had its genesis in the decision of the Congress-led Union government to impose President’s Rule in six States. In half these cases, Article 356 was invoked without allowing rival political parties to prove they had the support of the Legislature; in the other half, State governments led by the Bharatiya Janata Party (BJP) had been dismissed in the wake of communal violence stemming from the destruction of the Babri Masjid. Following mixed verdicts in the relevant High Courts, the cases were brought before the Supreme Court, which was asked to clarify the constitutional position.

The Bommai Court followed the Rajasthan Court in emphasising that the Court was entitled to review the exercise of Article 356. Where the Justices differed was on the question of justiciability. AM Ahmadi, JS Verma, Yogeshwar Dayal, and K Ramaswamy JJ voiced a preference for the minimal standard established by the Rajasthan Court. As Verma J opined:

It would appear that situations wherein the failure of constitutional machinery has to be inferred subjectively from a variety of facts and circumstances, including some imponderables and inferences leading to a subjective political decision, judicial scrutiny of the same is not permissible for want of judicially manageable standards. These political decisions call for judicial hands off envisaging correction only by a subsequent electoral verdict, unless corrected earlier in Parliament. 102 102 SR Bommai (n 101 ) [45].

But a slim majority composed of PB Sawant, Kuldip Singh, BP Jeevan Reddy, SC Agrawal, and SR Pandian JJ challenged the Rajasthan precedent in two important respects. Though they agreed that the Court ought not to question the President’s subjective satisfaction, they argued the Court was entitled to inquire into the material basis of the President’s satisfaction to ascertain the relevance of the evidence and the reasonableness of the inference drawn from it. Sawant J put the point most strongly, writing: 103

[T]he existence of the objective material showing that the Government of the State cannot be carried on in accordance with the provisions of the Constitution is a condition precedent before the President issues the Proclamation. Once such material is shown to exist, the satisfaction of the President based on the material is not open to question. However, if there is no such objective material before the President, or the material before him cannot reasonably suggest that the Government of the State cannot be carried on in accordance with the provisions of the Constitution, the Proclamation issued is open to challenge.

The Justices also emphasised that should it prima facie appear that Article 356 had been invoked in bad faith, the Court would be entitled to demand the production of the material that had served as the basis of the President’s decision. Once again Sawant J put the point most bluntly, warning the Union that it did not enjoy a blanket privilege against disclosing such evidence because:

[A]lthough Article 74(2) bars judicial review so far as the advice given by the Ministers is concerned, it does not bar scrutiny of the material on the basis of which the advice is given. The courts are not interested in either the advice given by the Ministers to the President or the reasons for such advice. The courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President could have acted on it. 104 104 SR Bommai (n 101 ) [86].

Applying the above standard, the Bommai Court declared unconstitutional the imposition of President’s Rule in States where political formations had not been allowed to test their strength on the floor of the State legislature. In these cases the Union had failed to show that the States cannot be carried in accordance with the Constitution. To the contrary, the ‘undue haste’ shown by the Union in invoking Article 356 ‘clearly smacked of mala fides ’. 105

The Bommai Court did not engage fully with the Sarkaria Commission’s Report on the circumstances under which Article 356 may be legitimately invoked. Sawant and Singh JJ expressed their ‘broad agreement’ with the Commission’s views, but did not enter into specifics, 106 whereas Jeevan Reddy and Agrawal JJ expressed some scepticism, stating that:

It is indeed difficult—nor is it advisable—to catalogue the various situations which may arise and which would be comprised within [the scope of Article 356]. It would be more appropriate to deal with concrete cases as and when they arise. 107 107 SR Bommai (n 101 ) [281].

Ramaswamy J meanwhile passed over the Report and struck out on his own. Undeterred by the caution sounded by Reddy and Agrawal JJ, he identified a number of circumstances, aside from non-compliance with Union directions, where Article 356 could be lawfully invoked:

While it is not possible to exhaustively catalogue diverse situations when the constitutional breakdown may justifiably be inferred from, for instance (i) large-scale breakdown of the law and order or public order situation; (ii) gross mismanagement of affairs by a State Government; (iii) corruption or abuse of its power; (iv) danger to national integration or security of the State or aiding or abetting national disintegration or a claim for independent sovereign status and (v) subversion of the Constitution while professing to work under the Constitution or creating disunity or disaffection among the people to disintegrate democratic social fabric. 108 108 SR Bommai (n 101 ) [219].

The only criterion that received support from seven of the nine members of the Bommai Court was that Article 356 could be invoked to dismiss a State government acting contrary to the ‘basic structure’ of the Constitution. As Sawant and Singh JJ pronounced:

Secularism is a part of the basic structure of the Constitution. The acts of a State Government which are calculated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. 109 109 SR Bommai (n 101 ) [153].

Given the above, the Bommai Court held that the dismissal of the BJP-led State governments on account of their complicity in the destruction of the Babri Masjid, and the ensuing communal violence, was constitutional.

The foregoing review prompts three observations. First, in view of the political class’s inability to develop and maintain conventions relating to the appropriate use of Article 356, the Court’s decision in Bommai to scrutinise the procedures employed prior to the imposition of President’s Rule is to be welcomed. 110 This stance, combined with the Court’s declaration that the imposition of President’s Rule does not permit the dissolution of the State legislature unless Parliament concurs, provides a much-needed corrective against mala fides (as is borne out by the decline since 1994 in controversial invocations of Article 356).

Secondly, the Bommai Court’s unwillingness to clarify the grounds on which Article 356 may be invoked is a cause of concern. As discussed earlier, the framers intended Article 356 to be employed to combat what the Sarkaria Commission described as ‘internal subversion’ or ‘non-compliance’. By contrast, it is not clear how a political crisis (for example, a hung assembly) or physical breakdown (for example, due to extensive flooding) can be described as leading to a failure of constitutional machinery. Unless there is greater clarity on the purpose of Article 356, it may be employed to serve ends other than what the framers intended. For instance, in Rameshwar Prasad v Union of India , Arijit Pasayat J supported Governor Buta Singh’s decision to dissolve the Bihar Assembly following allegations of horse trading on the grounds that Article 356 could be invoked to pre-empt the corruption of the political system:

When the sole object is to grab power at any cost even by apparent unfair and tainted means, the Governor cannot allow such a government to be installed. By doing so, the Governor would be acting contrary to very essence of democracy. The purity of electorate process would get polluted. The framers of the Constitution never intended that democracy or governance would be manipulated. 111 111 (2006) 2 SCC 1 [223].

It is submitted that YK Sabharwal CJ’s response was more in keeping with the framers’ intentions:

The ground of maladministration by a State Government enjoying majority is not available for invoking power under Article 356. The remedy for corruption or similar ills and evils lies elsewhere and not in Article 356(1). 112 112 Rameshwar Prasad (n 111 ) [165].

A final set of observations flows from the above. In both Rajasthan and Bommai the Court permitted Article 356 to be invoked on the grounds that the States had violated the ‘basic structure’ of the Constitution. This approach is troubling because the normative concepts the preamble references are ‘essentially contested’. The Court’s expositions on these concepts (for example, on the meaning of ‘secularism’ in Bommai ) are therefore unlikely to eliminate the problem of vagueness. The preambles normative commitments may also conflict with each other. For instance, republican governments have historically featured a state-sanctioned religion, as Jean-Jacques Rousseau famously emphasises in The Social Contract . 113 Had the Bommai Court been aware of this basic fact it would have struggled to reconcile the preambles commitments to Republicanism and Secularism. Finally, if violations of the ‘basic structure’ of the Constitution are sufficient grounds for the invocation of Article 356, then the Union will find the requisite evidence easy to come by because political reality rarely matches political ideals. Hence, if the Court does not want to hand the Union an excuse to employ Article 356—an excuse that has not been utilised in recent times because political fragmentation has made it harder for the Centre to secure parliamentary approval—then it ought to consider stating that Article 356 should be used only to combat internal subversion and non-compliance.

VI. Conclusion

This chapter has outlined the Constitution’s emergency provisions and described how they have been interpreted over time. It has suggested that the lull in the employment of these provisions may owe less to how these provisions have been constructed and interpreted, and more to contingent factors—principally, relative calm on the international front and the weakening of the Centre in an era of coalition politics. These circumstances, which may prove transient, have made it much more difficult for the political class to exploit the ambiguities in Articles 352 and 356. Hence until these provisions are tested more thoroughly on the anvil of fear and cravenness, respectively, we should not assume that the Constitution’s emergency provisions have been tamed.

Constitution of India 1950, art 352(1).

Constitution of India 1950, arts 353(a) and 353(b).

Constitution of India 1950, art 354(1).

Constitution of India 1950, art 359(1).

Constitution of India 1950, art 352(3).

Constitution of India 1950, arts 352(4) and 352(6).

Constitution of India 1950, art 352(5).

Constitution of India 1950, arts 352(7) and 352(8).

Constitution of India 1950, arts 358(2), 359(1B), and 359(3).

Constitution of India 1950, art 356(1).

Constitution of India 1950, arts 356(1)(a) and 356(1)(b).

Constitution of India 1950, art 357(1)(a).

Constitution of India 1950, arts 357(1)(b) and 357(1)(c).

Constitution of India 1950, arts 356(3) and 356(4).

Constitution of India 1950, arts 356(5) and 356(6).

Constitution of India 1950, art 360(1).

Constitution of India 1950, arts 360(3) and 360(4)(ii).

Constitution of India 1950, arts 360(4)(a)(i) and 360(4)(b).

Constitution of India 1950, arts 360(2)(b) and 360(2)(c).

Merriam Webster < http://www.merriam-webster.com/dictionary/emergency >, accessed November 2015.

Gopal Subramanium , ‘Emergency Provisions Under the Indian Constitution’ in BN Kirpal and others (eds) Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (Oxford University Press 2004) 14 .

Constituent Assembly Debates , vol 9 (Lok Sabha Secretariat 1986) 173, 4 August 1949 .

Karl Loewenstein , ‘Militant Democracy and Fundamental Rights I’ (1937) 31(3) The American Political Science Review 417, 430–31 .

Constituent Assembly Debates , vol 9 (Lok Sabha Secretariat 1986) 177, 4 August 1949 .

Constituent Assembly Debates , vol 9 (Lok Sabha Secretariat 1986) 154, 3 August 1949 .

Constituent Assembly Debates , vol 9 (Lok Sabha Secretariat 1986) 155, 3 August 1949 .

Constituent Assembly Debates , vol 9 (Lok Sabha Secretariat 1986) 156, 3 August 1949 .

Constituent Assembly Debates , vol 9 (Lok Sabha Secretariat 1986) 176, 4 August 1949 .

Constituent Assembly Debates , vol 10 (Lok Sabha Secretariat 1986) 361, 16 October 1949 .

Constituent Assembly Debates , vol 10 (Lok Sabha Secretariat 1986) 368, 16 October 1949 .

Constituent Assembly Debates , vol 10 (Lok Sabha Secretariat 1986) 370, 16 October 1949 .

Constituent Assembly Debates , vol 10 (Lok Sabha Secretariat 1986) 369, 16 October 1949 .

Constituent Assembly Debates , vol 10 (Lok Sabha Secretariat 1986) 371, 16 October 1949 .

AIR 1964 SC 173.

Sree Mohan Chowdhury (n 36 ) [5].

AIR 1964 SC 381.

Makhan Singh Tarsikka (n 39 ) [20].

Makhan Singh Tarsikka (n 39 ) [30].

Makhan Singh Tarsikka (n 39 ) [36].

Makhan Singh Tarsikka (n 39 ) [37].

Makhan Singh Tarsikka (n 39 ) [39].

AIR 1966 SC 657.

AIR 1966 SC 740.

Ananda Nambiar (n 48 ) [7].

Ram Manohar Lohia (n 49 ) [55]–[58].

AIR 1967 SC 1335.

Ram Manohar Lohia (n 49 ) [57].

AIR 1967 SC 243 [4].

PL Lakhanpal (n 54 ) [4].

(1976) 2 SCC 521.

Shivakant Shukla (n 58 ) [273].

Shivakant Shukla (n 58 ) [596].

Shivakant Shukla (n 58 ) [530].

Shivakant Shukla (n 58 ) [544].

Shivakant Shukla (n 58 ) [544] (emphasis added).

Shivakant Shukla (n 58 ) [130]–[132].

Shivakant Shukla (n 58 ) [583]–[587].

Shivakant Shukla (n 58 ) [347].

(1980) 3 SCC 625.

Minerva Mills (n 72 ) [97]–[98].

(1981) 2 SCC 362.

Liversidge v Anderson [1942] AC 243 (HL).

Shivakant Shukla (n 58 ) [36].

Shivakant Shukla (n 58 ) [324-A].

Shivakant Shukla (n 58 ) [486].

(1977) 3 SCC 592.

State of Rajasthan (n 83 ) [150].

State of Rajasthan (n 83 ) [208].

Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.

State of Rajasthan (n 83 ) [48].

State of Rajasthan (n 83 ) [77].

State of Rajasthan (n 83 ) [31]–[32].

Report of the Sarkaria Commission on Centre–State Relations (n 94 ) para 6.5.01.

Constitution of India 1950, art 365.

Report of the Sarkaria Commission on Centre–State Relations (n 94 ) para 6.6.24.

Report of the Sarkaria Commission on Centre–State Relations (n 94 ) para 6.6.25.

(1994) 3 SCC 1.

SR Bommai (n 101 ) [59].

SR Bommai (n 101 ) [118].

SR Bommai (n 101 ) [80]–[82].

The procedures that the Court has started to scrutinise include the formulation of the Governor’s Report, the efforts of the Union Council of Ministers to ascertain relevant facts, and the President’s justification for the decision to suspend or dissolve the Legislative Assembly. On these fronts the Court has sought to examine the cogency of the grounds and the necessity of the remedy in order to minimise needlessly drastic action. It has, for instance, encouraged Union officers to employ objective floor tests rather than their subjective judgments to ascertain the extent of support enjoyed by claimants to office. It has also emphasised that it could reverse unjustified action, for instance, by reinstating a hastily dissolved Legislative Assembly. For such scrutiny in action, see Rameshwar Prasad v Union of India (2006) 2 SCC 1.

Jean-Jacques Rousseau , The Social Contract , tr Marice Cranston (first published 1762; Penguin 1998) .

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• Feb 9, 2021
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NATIONAL EMERGENCY: A COMPARATIVE ANALYSIS OF EMERGENCY LAWS IN INDIA, U.S.A. AND GERMANY

Category: Research Paper

Paper Code: RP-AK-02

Page Number: 107 - 124

Date of Publication: February 10, 2021

Citation: Abhishek Kumar Khaund, National Emergency: A Comparative Analysis of Emergency Laws in India USA and Germany, 1, AIJACLA, 107, 107-124, (2021), https://www.aequivic.in/post/aijacla-national-emergency-a-comparative-analysis-of-emergency-laws-in-india-u-s-a-and-germany-1.

Details Of Author(s):

Abhishek Kumar Khaund, Advocate, Gauhati High Court

ABSTRACT Emergency can be defined as a situation where the Government of a country either alters or suspends the normal functioning of a nation by holding in a state of abeyance the Constitution and other organs of the Government. Different conditions can be referred to as the reasons in light of which the Government of a nation may pronounce a state of emergency, for example, civil unrest, calamity or disaster, armed rebellion or conflict, war, etc. When the emergency is proclaimed in a nation, the typical texture of its Constitution is upset, the political, financial, and social climate of that nation is changed and the privileges of the citizens are either curtailed or suspended. The power of emergency thus can be described as both a curse and a gift as it can be used to tackle sudden, unsuspecting threats, while on the other hand, it can become a tool in the hands of a Government to carry out its agendas and suppress its dissidents. In this study, we will look at the various emergency laws and conditions of India, the U.S.A., and Germany and how each of these countries differ and are similar in the implementation of their emergency laws. KEYWORDS Constitution, Emergency, Germany, India, and USA

INTRODUCTION Even though it is not uncommon for a country to declare a state of emergency, it is still a very rare phenomenon that occurs only in exceptional circumstances, especially in democratic regimes. An emergency is a situation in which the Government of a state suspends the normality of Constitutional, legal, political, and economic procedures. If we look at the dictionary meaning of emergency, it means, “ an unforeseen combination of circumstances or the resulting state that calls for immediate action .” [1] Various circumstances can be cited as the reasons because of which the Government of a country may declare the existence of a state of emergency, such as, civil unrest, calamity or disaster, armed rebellion or conflict, war, etc. Whatever may the reasons be, when an emergency is declared in a country, the normal fabric of its Constitution is disturbed, the political, economic, and social environment of that country is altered and the rights of the citizens are affected. The power of emergency thus can be described as both a curse and a gift as it can be used to tackle sudden, unsuspecting threats, while on the other hand, it can become a tool in the hands of a Government to carry out its agendas and suppress its dissidents. Different countries have different procedures for declaring a state of emergency and the consequent effects of such declaration vary from country to country. However, in this study, the emergency provisions of India, the U.S.A., and Germany have been dealt with, more specifically national emergencies. As far as India is concerned, the President has the power to declare emergencies of three kinds: · National Emergency · State Emergency · Financial Emergency The President can do so with the advice of the cabinet ministers and because of the power vested in him by Part XVIII of the Constitution of India which contains laws relating to Emergency provisions in India. When it comes to the U.S.A., the situation is somewhat similar to India as the President of the U.S.A., being the Chief Executive of the nation, has the power to declare an emergency in the country. Similarly, a Governor or a Mayor has the power to declare a state of emergency within his jurisdiction. Emergency at the federal level in the U.S.A. is regulated by the National Emergency Act. When we talk about National emergency in India, it is important to also look at the German model of emergency as India has borrowed its emergency provisions from Germany. In Germany, Article 48 of the Constitution of the Weimar Republic permitted declaration of emergencies mainly to suppress rebellions and opposition. In modern Germany however, the Emergency Acts also known as “Notstandsgezetse” basically deal with emergency provisions. The German Emergency Acts state that when it comes to a state of defense, a state of tension, internal states of emergency or disaster, certain constitutional rights may be limited. Whenever an emergency is declared by the Government, the normal procedures of a nation are drastically altered and the rights of the people are affected, adversely in most cases. Hence, most nations refrain from taking such a drastic step and only do so under exceptional circumstances. India, U.S.A., and Germany are three different examples of federal states with different laws and procedures. They can also be described as model examples of democratic states in their respective continents, Asia, North America, and Europe. Since many consider emergency provisions as being the antithesis of democracy, it is worthwhile to analyze how such laws find a place within democratic principles. This study will extensively deal with the National Emergencies in these three countries and will try to make an analytical study between them.

STATE OF EMERGENCY IN INDIA Historical Background The inclusion of the emergency provisions in the Constitution of India was greatly influenced by the circumstances and the conditions prevalent at the time of framing the Constitution. The communal tension between the Muslims and the Hindus at that time was thought of as a great threat to the newly established democratic set up of India. Moreover, casteism, regionalism communal disharmony was at a peak at that time. Again, some states were hesitant to join the Union especially Junagarh and Hyderabad. All of this led to the inclusion of Article 352 in the Constitution. Communist activities taking place at that time also played a major role in the inclusion of the emergency provisions especially Article 356. The weak financial situation of the country at the time of independence due to the partition and plummet of the foreign exchange reserves led to the inclusion of Article 360. [2] The emergency provisions in India are contained in Part XVIII of the Constitution of India. It contains nine Articles in total, Article 352-360. Under Part XVIII of the Constitution, three kinds of emergencies are envisaged, namely; national emergency, state emergency, and financial emergency. Article 352 of the Constitution provides for national emergency, Article 356 of the Constitution lays down “provisions in case of failure of constitutional machinery in states” and Article 360 deals with financial emergency. Under Article 356, if the Governor of a state sends a report to the President stating that “the Government of the State cannot be carried on following the provisions of the Constitution” and the President, on the receipt of such report, is satisfied that such a circumstance has arisen, he may after proclaiming that effect assume all or any functions and powers of the concerned State Government or the Governor of that state to himself. He may also give such powers to any other body in the State other than the State Legislature. He can also empower the Parliament to perform and exercise all the functions and powers of the State Legislature. Article 360(1) provides that: “ If the President is Satisfied that a situation has arisen whereby the financial stability or credit of India or any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect .”

National Emergency(Article 352) Besides state emergency and financial emergency, there is another kind of emergency in India that is of great importance and is the main focus of this study, i.e., national emergency. National emergency in India is dealt with under Article 352 of the Constitution of India. It is perhaps the most important provision relating to emergency in India. Article 352 (1) of the Constitution of India provides that, “ If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether, by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation .” An important aspect of this clause is that a proclamation of emergency need not extend to the entire India. It can be limited to a specific part of the territory of India. [3] It is worthwhile to note that the term “armed rebellion” was only brought in by the 44th Constitutional Amendment and before the amendment, the term “internal disturbance” was used instead of armed rebellion. However, it was felt that the expression internal disturbance was too vague and hence it was replaced. The main objective was to limit the imposition of an emergency under Article 352 only to serious situations. It was held by the Supreme Court in Naga People’s Movement of Human Rights v. Union of India [4] that the term “internal disturbance” has a broader implication than “armed rebellion” as the latter is more likely to pose a threat to the security of India whereas the former though could be serious, might not pose a threat to the security of India. Under Article 352(2), an emergency proclamation made under Article 352(1) may be subsequently varied or revoked by another proclamation. Article 352(3) was also a result of the 44th Amendment. It provides that, “ The President shall not issue a Proclamation under clause (I) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank under Article 75) that such a Proclamation may be issued has been communicated to him in writing .” Thus, the President is not entitled to proclaim Article 352(1) unless the Cabinet collectively writes to the President about its decision for the issuance of such proclamation. The Prime minister also has to consult the Cabinet in this regard and such a decision cannot be taken by the Prime Minister alone. In 1975, the Prime Minister without consulting with the Cabinet advised the President to declare an emergency and the President obliged. The Council of Ministers was only presented with a fait accompli. [5] Therefore, to make sure that such a situation doesn’t arise again, this clause was inserted. Clause 4 of Article 352 lays down that, “every Proclamation issued under this article shall be laid before each House of Parliament.” A proclamation will stop affecting the expiry of a month if it is not approved by the Parliament (Lok Sabha and Rajya Sabha). However, if the Lok Sabha is dissolved, at the time of the issuance of the proclamation or thereafter, without approving it and consequently the Rajya Sabha approves it, then it will cease to operate thirty days after the Lok Sabha sits again. But if in the meantime, the Lok Sabha approves the proclamation by a resolution then it will continue. [6] After the proclamation is approved, it remains in force for six months, unless it is revoked earlier as provided under Article 352(5). For a proclamation to continue beyond that period, it has to be approved by both the houses again. Clause 6 of Article 352 states that “ For clause (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting .” This is kind of like a safeguard that was introduced by the 44th Amendment as before the amendment such a resolution could be passed only by a simple majority in each House. Clause 7 of Article 352 limits the power of the President in the sense that he is under the obligation to revoke a proclamation of emergency which is issued under Article 352(1) if the Lok Sabha disapproves it through a resolution. A simple majority voting in this respect is enough by the members who are present. This can be deemed as another safety measure that the 44th amendment has introduced to ensure that there is no abuse or misuse of the powers entrusted to the executive. Article 352(9) empowers the President to declare an emergency on different grounds, “ being war or external aggression or armed rebellion or imminent danger of war or external aggression or armed rebellion, whether or not there is a Proclamation already issued by the President under clause (l) and such Proclamation is in operation. ” The 38th Constitutional Amendment introduced this provision in 1975 after the proclamation of emergency was issued on the ground of internal disturbance. This provision was inserted to make sure that there arises no problem when two proclamations are in operation despite them being on two different grounds. It is worthwhile to note that it is the President’s “subjective satisfaction” which decides whether the security of India is under threat or not, however he still has to act on the advice of the Cabinet of the Union. In Bhut Nath v. State of West Bengal, [7] it was held by the Supreme Court that the continuance of emergency under Article 352 is not void and that the question is “apolitical, not justiciable issue and the appeal should be to the polls and not to the court.”

Emergency of 1975-77 One of the most notorious and controversial incidents of invocation of Article 352 was the emergency of 1975-77 where gross violations of human and fundamental rights took place, elections were suspended, democratic values were violated, massive press censorship took place and dissidents and critics of the Government were detained under preventive detention. A state of emergency was declared by then President Fakhruddin Ali Ahmed on the advice of the then Prime Minister Indira Gandhi, thus giving her wide discretionary power to do whatever she wanted and to keep herself in power. The emergency was declared on the ground of “internal disturbance” and the reasons thereof were given by the Government on a white paper on 21st July, 1975. The emergency which became effective on 25th June 1975 lasted for almost two years and finally came to an end on 21st March 1977. This move of the then Government and Indira Gandhi was highly criticized by the general public at that time. The people didn’t see any genuine reason for the invocation of an emergency. The result was that when finally elections were held in 1977 for Lok Sabha after the emergency had ceased, Congress lost and the Janata Party came to power. Another consequence of the emergency of 1975-77 was the amendment made to Article 352 because of the 44th Amendment. The main aim was to introduce certain restrictions on governmental power and to provide safeguards to the citizens against abuse of power. Besides the emergency of 1975-77, a state of emergency under Article 352 has been declared two times. It was done for the first time in 1962 during the Indo-China conflict. It also continued through the Indo-Pakistan conflict period in 1965 and was only revoked in 1968. [8] Again, the emergency was proclaimed during India’s conflict with Pakistan in 1971 on the ground of external aggression. The emergency of 1975-77 was proclaimed while this emergency was already subsisting.

Changes in Centre-State relations When an emergency is proclaimed under Article 352 certain changes take place in the Centre-State relations of the country. The federal nature of the country goes through a drastic change. One such change is that the Parliament gets the power to legislate on any matter enumerated in the State List, however such a law will continue to be in operation for six months after the proclamation of emergency ceases. [9] In case of any inconsistency between a law made by a State Legislature and the Parliament, the law made by the Parliament will prevail, even if such law relates to any matter in the State List. [10] Moreover, under Article 353(a), the Centre becomes empowered to give directions to a State with regard “to how the executive power thereof is to be exercised.” It is also provided under this Article that, “the power of Parliament to make laws under clause (b), shall extend to any State other than a State in which or in any part of which the Proclamation of Emergency is 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 concerning the part of the territory of India in which the Proclamation of Emergency is in operation.” Article 354(1) allows the President to direct by an order that any provision of Articles 268-279, which deal with distribution of revenue between Centre and States, shall take “ effect subject to such exceptions or modifications as he thinks fit. ” Moreover, when an emergency is in place, the Parliament becomes empowered to levy taxes that fall in the State List. [11] Under Article 172, the life of the State Legislatures can be extended by the Parliament by one year each time during an emergency, however, only for six months after the emergency ceases to exist.

STATE OF EMERGENCY IN USA Historical Background The President of the U.S.A. has been bestowed with great powers when it comes to emergency by the federal laws to meet any crisis, exigency, or emergency in the nation. It is worthwhile to note that these powers are not restricted to just situations or circumstances relating to war or the military. Some of these powers are Constitutional or statutory and are always accessible to the President, while certain other powers are “statutory delegations” of the congress and remain silent and latent till the time a national emergency has been declared by the President. Some of these powers empower the President to seize properties and commodities, control production, impose martial law, consign military forces outside the country, control travel laws, transport, and communication among other things. These powers were used by the Presidents at their discretion until World War I. After World War I, there was the availability of a great number of standby emergency powers in the hands of the then Presidents. These powers would become active when a national emergency was proclaimed on any condition thereof, sometimes confining the subject of emergency to a specific field of policy, and sometimes no restrictions were placed on the pronouncement by such proclamations. There was very little restriction on the discretionary powers of the Chief Executives as far as emergency provisions were concerned. In Youngstown Sheet & Tube Co. v. Sawyer, [12] although the Supreme Court limited what a President could do in emergencies but did not limit the power of the President to declare an emergency at his discretion. Therefore, to impose certain checks and balances on the President concerning his exercise of emergency powers the National Emergencies Act was passed in 1976. When discussing the history of emergency in the U.S., it is also important to discuss the U.S. reaction to the 9/11 terrorist attack and the consequences emanating from it. A state of emergency was declared by the then-President George W. Bush at that time and a joint declaration was issued by the Congress which authorized the President to use all " necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 .” Following this various other enactments and policy decisions were introduced, key among them being the Patriots Act which Congress passed and was subsequently signed by President George W. Bush on 26th October, 2011 as an immediate reaction against the 9/11 attacks. The Act the concerned authorities to wiretap and to use surveillance to deal with activities that may be related to terrorism. It also permitted the Federal agents to acquire bank and business records and details of certain suspects after attaining the permission to do so by the Federal Court. The Act made it harder for immigrants to enter the U.S. as border security was tightened. Although many were in support of the Act, many people were against it because it violated their privacy and led to unnecessary harassment of innocent immigrants. Thus, whether or not the Patriot Act was successful in effectively dealing with terrorism might be a subjective issue, however, it still can’t be denied that since the Act came into force, the authorities and intelligence agencies have been successful in thwarting fifty attempted terrorist attacks.

National Emergencies Act As already stated above, the National Emergencies Act was passed to impose certain restrictions on the powers of the President of the U.S. to invoke an emergency. In 1973, a Special Committee was set up to look into the subject-matter of national emergency. However, while investigating, it was found that there were already four national emergencies in effect at that time, the emergency of 1933 relating to the banking crisis, the Korean War emergency of 1950, the emergency of 1970 relating to a strike by postal workers, and the 1971 emergency due to inflation. It was found that with the proclamation of just one emergency, all other statutory provisions related to emergency were activated. The nation was under emergency for forty-one years. [13] So to make sure that when an emergency was declared for a specific purpose, it also incidentally didn’t trigger every other executive power related to emergency, the National Emergencies Act was passed by Congress in 1976. The President can declare a national emergency under Section 201of the National Emergencies Act; however, he has to communicate the proclamation of emergency to the congress and the publication of such emergency in a Federal Register is necessary. The Act consists of five titles as enacted. By Title I, all the emergency powers delegated by statutes that remained on standby and which were triggered by a proclamation of emergency were returned to a dormant state. The second title prescribed a new procedure to declare an emergency. Moreover, a proclamation of emergency would cease to remain active after one year if the President did not renew it. Congress also has the power to terminate an emergency through a resolution. According to Title III, The President activating the emergency provisions has to now specify the provisions activated by him and the Congress has to be notified by him. Title IV lays down some provisions relating to the President’s accountability while declaring an emergency whereas Title V deals with repeal provisions. Since the passing of this Act, various national emergencies have been declared by the U.S. Presidents in compliance with the provisions of this Act. Some of them have been revoked while others are still in operation.

Constitutional provisions relating to emergency It is worthwhile to note that the term “emergency” finds no mention in the U.S. Constitution, however, certain provisions have been included in the Constitution to deal with an emergency or any exigency. For instance, Section 8 of Article I empower Congress to take necessary steps concerning war and military-related issues for the following reasons: v For the declaration of war v For the maintenance of the navy, for raising and supporting an army, and for making rules to regulate naval and land forces. v For calling the militia to ward off invasions, for the executions of union laws, and the suppression of any kind of insurrections. Section 2 of Article II provides that the President is the “ Commander in Chief of the army and navy, as well as of the militia when called into actual federal service.” The President is charged under Section 3 of Article III with the duty to ensure the proper implementation and execution of laws. Moreover, Section 4 of Article IV imposes a duty on the federal government to protect every state from any kind of invasion or domestic violence. [14] Even though these provisions do not expressly provide for an emergency, it can be seen that there are implied recognition emergency laws within these provisions that seek to safeguard the nation and the states from invasion, war, insurrection, domestic violence, and other kinds of threats. All of the threats would generally result in the declaration of a state of emergency in a state. However, certain safeguards have also been provided to the citizens in this regard, for instance, the non-suspension of habeas corpus, “unless when in Cases of Rebellion or Invasion the public Safety may require it.” [15] Another safeguard that is provided to the citizens is that unless a grand jury indicts a person, that person cannot be charged with any capital crime, " except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger ." [16] Thirdly, a state cannot engage in war " unless invaded, or in such imminent Danger as will not admit of delay ." [17]

STATE OF EMERGENCY IN GERMANY Historical Background A look back at the history of Germany will provide us with the necessary information concerning the emergency provisions in the nation. While discussing emergency in Germany, it is important to discuss the Constitution of the Weimar Republic. Germany was unofficially termed the Weimar Republic from the period of 1918 to 1933, however, the term only became widely known after 1933. When the German revolution began, Germany was acknowledged and declared as a Republic in 1918, and soon after that the Weimar Constitution was adopted which was democratic, in 1919. Article 48 of the Weimar Constitution permitted the declaration of an emergency mainly to suppress rebellions. Article 48 stated that: “ If a state does not fulfill the obligations laid upon it by the Reich Constitution or the Reich laws, the Reich President may use armed force to cause it to apply. In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary using armed force. In pursuit of this aim, he may suspend the civil rights described in articles 114, 115, 117, 118, 123, 124, and 154 partially or entirely. The Reich President has to inform the Reichstag immediately about all measures undertaken which are based on paragraphs 1 and 2 of this article. The measures have to be suspended immediately if the Reichstag demands so. If danger is imminent, the state government may, for their specific territory, implement steps as described in paragraph 2. These steps have to be suspended if so demanded by the Reich President of the Reichstag. Further details are provided by the Reich law .” In 1932 however, the Adolf Hitler-led Nazi Party was successful in winning the Special Federal Election, and soon after Hitler was appointed as Germany’s Chancellor by the then President Hindenburg. But only one month after Hitler’s appointment, an arson was committed on the Parliament, the “Reichstag Building” on 27 February 1933, which is now popularly known as the “Reichstag fire” as a protest against Hitler’s appointment. As a result, a state of emergency was immediately declared by Hitler under article 48. The then President Von Hindenburg signed the “Reichstag Fire Decree” which indefinitely suspended the Weimar Constitution and then essentially ushered in the beginning of “Nazi Germany”. After World War II, the German Emergency Acts, which were also known as “Notstandsgezetse” were passed on May 30th, 1968 as a pre-condition imposed by the Allied countries before transferring the sovereignty over to the Federal Republic of Germany. Due to the very unpleasant emergency experience of Germany during the time of the Weimar Constitution which granted almost absolute powers to the President to impose emergency within the state and the 1933 emergency declared by Hitler, the post-war legislators of Germany were very reluctant in including any emergency provisions in the Constitution. This was the 17th Amendment to the “Grundgesetz”, the Constitution of Germany. It is also known as the “basic law for the Federal Republic of Germany”, however, initially the proposition to include emergency provisions was highly criticized by various groups.

German Emergency Acts and Constitutional provisions The German Emergency Acts known as “Notstandsgezetse” introduced various changes to the German Constitution and led to the incorporation of certain emergency provisions in the Constitution. It gave the federal government tooth to act in a situation of crisis such as a natural disaster, war, or any kind of rebellion. The Constitution of Germany has very comprehensive and thorough provisions concerning emergency that permit the proper functioning of the basic democratic rules and regulations even during the period of an emergency. [18] Moreover, in a state of defense, [19] the Emergency Acts provide that certain essential and fundamental rights can be suspended. For instance, Article 10 states that “ the privacy of correspondence, posts and telecommunications shall be inviolable ” but certain restrictions may be imposed to safeguard the democratic order and to protect the federal state. Similarly, under Articles 11 and 12 restrictions may be imposed on the freedom of movement and freedom of occupation on similar grounds. Article 12a provides for compulsory military service at the time of a state of defines. The most important part of the German Constitution is however Part X (a), which deals with the state of, defines, and lays down explicit provisions regarding German emergency legislations. It contains eleven articles, from Article 115a to Article 115l. Article 115a provides that a determination of an attack on the German federation by armed forces has to be made by the German Parliament(Bundestag) with the Council’s (Bundesrat) consent on an application made by the federal government with a majority of two-thirds votes. However, if a situation arises due to which the Parliament cannot convene then its functions are to be performed by the Joint Committee. Such determination shall then be proclaimed by the President. Moreover, a determination will automatically come into effect, if the federation is under attack by armed forces and a determination cannot be made, at the time of the attack. Article 115 (b) provides that when a state of defense is declared the Federal Chancellor assumes control over the armed forces. Article 115 (c) lays down that the Federation can legislate concerning matters falling within the legislative powers of the Länder (states). However, the Bundesrat must consent to that. Article 115 (d) deals with legislation concerning urgent bills. It states that federal bills that are considered to be urgent are to be submitted to the Bundesrat and the Bundestag at the same time and both have to discuss and debate the bill in a joint session without any kind of delay. Article 115 (e) provides that if it is determined by the Joint Committee by a two-thirds majority that because of insuperable problems or obstacles, the Bundestag cannot be convened or cannot amass its quorum, then the functions and powers of both the Bundestag and Bundestrat are to be performed by the Joint Committee as a single body. However Joint Committee cannot suspend, amend or abrogate the basic law in part or whole. Article 115 (f) deals with the power of the Federal Government concerning the employment of the federal border police and the issuance of instructions by the Federal Government to the administrative authorities, land governments, and the delegation of this power by it to the land governments. Article 115 (g) provides some safeguards to the Federal Constitutional Court by providing it with immunity from any kind of impairment concerning its Constitutional status and its powers and functions. The legislative provisions that govern the Federal Constitutional Court can only be amended with the Court’s consent insofar as it is agreed by the Court that it is necessary for ensuring its smooth functioning. Article 115 (h) states that the electoral terms of the Bundestag or the state parliaments shall come to an end only after six months after the termination of the state of defense. The same applies to the term of a member of the Federal Constitutional Court. As far as the term of the President is concerned, it shall come to an end after the expiry of nine months after the termination of the state of defense. It is also provided that the Bundestag shall not dissolve during the period of a state of defense. Article 115 (i) empowers the State Governments or their representatives to exercise the powers mentioned in Article 115 (f) if the Federal Government is not being successful in averting the threat and if the circumstances are such that immediate independent action is required. According to Article 115 (k), laws that are enacted as a result of Articles 115 (c), 115 (e), and 115 (g) will suspend any other law that is inconsistent with such laws for as long as they are in effect. Moreover, the laws enacted by the Joint Committee will cease to be in effect six months after the state of defense comes to an end. Article 115 (l) deals with the repeal of the measures taken as a result of an emergency. It provides that any law enacted by the Joint Committee can be repealed by the Bundestag after it takes the consent of the Bundestrat. Moreover, any methods adopted by the Federal Government or the Joint Committee to deal with a threat to the Federation can be rescinded by the Bundestag and the Bundestrat. It is further provided that the Bundestag with the consent of the Bundestrat can terminate a state of defense provided a decision is promulgated by the President. The German Constitution differentiates between the three types of emergencies; “internal emergency” (innerer not stand), [20] a “state of tension” (spanning fall) [21] , and a “state of defense” (Verteidigungsfall). [22] As stated in Article 91(1), an internal emergency occurs when it is important “to avert an imminent danger to the existence of free democratic basic order of the Federation or of a Land”. As already discussed above a state of defense can be proclaimed when “the federal territory is under attack by armed force or imminently threatened by such an attack” as provided under Article 115(a). However, what amounts to a state of tension has not been provided in the German Constitution. But similar to a state of defense, before declaring a state of tension, two-thirds majority votes of both the Bundestag and Bundestrat are necessary and the Federal President must then promulgate the decision. The German Constitution has very detailed provisions to deal with emergencies and hence it inspired the makers of the Constitution of India to borrow some provisions and apply them in our nation.

COMPARATIVE ANALYSIS Even though all three of the countries discussed above have different provisions and legislations that differ from each other, there are, however, various laws and provisions that are similar. The same goes for the emergency provisions of these countries. While India borrowed its emergency laws from Germany, the modern emergency provisions in Germany and the U.S.A. are reactions against years of abuse and misuse of the older laws. The type of emergency laws that are present in India and Germany are very detailed and meticulously dealt with and are not to be found in the U.S. as the provisions relating to emergency there are somewhat vague. In U.S.A, the courts decide whether a specific act of the Central Government is justifiable or not as far as the emergency laws are concerned. The courts have the power to decide whether an emergency law is justified or not even during the time of war. For instance, in the case of Hirabayashi v. United States, [23] certain regulations were upheld by the court that imposed certain restrictions on people of Japanese origin in the U.S. by requiring them to stay in their residences during specific hours to prevent any activities relating to espionage or sabotage. As a result, this has resulted in an uncertain process because it becomes difficult to be sure of the court’s decision and which way it will go. Moreover, the courts decide the operational area of the Centre as far as emergency laws are concerned. It is also important to note that the U.S.A. has faced situations of emergency during the first and second world wars and during these periods a very expansive and liberal interpretation of the terms ‘war’ or ‘defense’ concerning the center’s power to declare them were given and this is how the emergency was dealt with in the U.S. during the two world wars. This gives the center a wider scope and area of operation to allow it to take all the necessary steps to defend and protect the country from any kind of threat or for the efficient execution of war. [24] In India and Germany however, the emergency provisions are dealt with more overtly and directly and are a lot simpler as it depends on the central executive who has proclaimed emergency. The consequences of such emergencies are dealt with by the Constitution itself and there is no dependence on the judiciary or its interpretation. [25] Moreover, if we look at the U.S. Constitution, there is no mention of the term “emergency” in it, and the laws and provisions to deal with a crisis there are provided implicitly in the Constitution such as in Articles I, II, and IV. Whereas, the Constitutions of India and Germany explicitly lay down provisions relating to emergency. Both Germany and India have two houses and for declaring a national emergency both houses must vote by two-thirds majority which then must be promulgated by the Presidents of the respective countries. Both Germany and India have national and state emergencies whereas the U.S.A. has national and financial emergencies, the latter of which it has in common with the Indian Constitution. Another important element that is present in the Constitutions of all these three countries is the swift change from being federal states to unitary states during the period of a national emergency. A national emergency is generally declared whenever there is a threat that is likely to affect the entire nation and even though in a true federal state, both the center and the states are considered to be equal when it comes to the distribution of powers and functions, in the case of a national emergency, the center assumes the majority of powers and functions as the center is usually entrusted with the duty or responsibility to protect the country in a crisis. This is why we in India only have the ‘Indian army’ and not any ‘state’ army. Similar is the case with the United States of America and the Federal Republic of Germany. Another important thing that is common between all three countries is that during a national emergency, even though the Central Government assumes more powers and functions, they still have to be within the limit prescribed by their respective Constitutions. During a national emergency, even though certain basic rights of the citizens are taken away from them, there can still be no violation of the constitutional safeguards provided to them. For instance, in India, Articles 20 and 21 which provide for “protection in respect of conviction for offenses” and “protection of life and personal liberty” cannot be suspended even if there is a national emergency. Similarly in Germany, Article I makes certain basic human rights to be inviolable and alienable. Therefore, even though the Constitutions of these countries allow for some discourse from regular law procedures in their respective countries, the governments of these countries during a national emergency cannot go beyond the Constitution.

CONCLUSION AND SUGGESTIONS As already discussed, the emergency provisions of India, the U.S.A., and Germany are similar on certain points and different on others. As India has borrowed its emergency provisions from Germany, it has a lot more in common with the German system than the American. While in the U.S.A. the courts play a crucial role in determining whether the emergency provisions are justified or not, it is not so in the case of India and Germany. In A.K. Gopalan v. State of Madras, [26] it was held that a judge cannot determine whether the grounds of detention were justifiable or not, it can only pronounce whether the grounds are invalid or vague. However, it is not to be confused with the complete incompetence of the judiciary when it comes to an emergency. In Minerva Mills v. Union of India, [27] Justice Bhagawati held that “whether the President while proclaiming the emergency had applied his mind or whether he had acted outside his powers could not be excluded from the scope of judicial review.” Where the U.S. Constitution does not explicitly mention the term “emergency”, very elaborate provisions have been laid down in the Constitutions of both India and Germany concerning emergency. It is also worthwhile to note that various safeguards have been provided in all three Constitutions to ensure that there’s no abuse of such laws. All three countries have learned from their past experiences and subsequently have made certain amendments to prevent the misuse of emergency powers. While India learned from the horrors of the 1975-77 emergency period and brought in the 44th Constitutional Amendment Act thereby replacing the term “internal disturbance” with “armed rebellion”, U.S.A. passed the National Emergencies Act to impose restrictions on the earlier unchecked emergency powers of the President and Germany took a similar step after the failures of the Weimar Constitution in preventing the abuse of emergency laws in the country and enacted the However, even after ensuring the safeguards, there is still scope of abuse of such laws. The Constitutions of India, the U.S.A., and Germany can still adopt certain provisions from each other to improve their situations especially when it comes to national emergency. For instance, both India and Germany can perhaps strengthen their judiciary in matters relating to emergencies like the U.S. where courts are in a much stronger position to decide the justiciability of emergency laws. Similarly, the U.S. can perhaps make its emergency provisions a bit more unambiguous and detailed like that of India and Germany. The inclusion of explicit provisions dealing with emergencies is another feature that the U.S. can borrow from India and Germany. Another improvement that can be made by the three states is the recognition and observance of international norms and standards of non-violation of human rights during emergency periods. It is often seen that during a state of emergency, many human rights are violated and citizens of a nation have to go through a lot mainly because of abuse of such laws by the concerned authorities, and hence, it is important that such atrocities are not committed. One of how it can be done in observance of standard international norms of basic human rights. By adhering to their international commitments concerning preserving basic human rights, each of these countries can ensure the protection and safeguard of the life and liberty of their citizens.

[1] Webster’s New Collegiate Dictionary (Springfield, MA: G & C Merriam, 1974), 372. [2] Shivam Saxena, Emergency provisions: History, type and duration in India, IPLEADERS, (Nov. 2020, 28 10:10 AM), https://blog.ipleaders.in/emergency-provisions-history-types-duration-india/. [3] Constitution of India 1950. [4] Naga People’s Movement of Human Rights v. Union of India,AIR 1998 SC 431: (1998) 2 SCC 109. [5] M.P. Jain, Indian Constitutional Law, 786-787 (5th edin., 2003, Wadhwa and Company Nagpur). [6] Ibid. [7] Bhut Nath v. State of West Bengal , AIR 1974 SC 806: (1974) 1 SCC 645. [8] Shylashri Shankar, The State of Emergency in India: Bockenforde's Model in a Sub-National Context, 19 German L.J. 197 (2018). [9] Constitution of India 1950, Art. 250. [10] Constitution of India 1950, Art. 251. [11] Constitution of India 1950, Art. 250. [12] Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 (1952). [13] Patrick A. Thronson, Toward Comprehensive Reform of America's Emergency Law Regime, 46 Michigan L.J. 737 (2013). [14] William B. Fisch, Emergency In The Constitutional Law Of United States, 38 Am. J. Comp. L. Supp. 389(1990). [15] U.S. Constitution, Art. I § 9, cl. 2. [16] U.S. Constitution Amend. V, cl 1. [17] U.S. Constitution Article I § 10, para. 3. [18] Anna Khakee, Securing Democracy? A Comparative Analysis Of Emergency Powers In Europe, ( Geneva Centre for the democratic control of armed forces, 2009). [19] Germany Constitution, Art.115a-115l. [20] Germany Constitution Art. 91. [21] Germany Constitution Art. 80a. [22] Germany Constitution Part Xa. [23] Hirabayashi v. United States , 320 U.S. 81 (1943). [24] M.P. Jain, Indian Constitutional Law, 791- 792 (5th edin., 2003, Wadhwa and Company Nagpur). [25] Ibid. [26] A.K. Gopalan v. State of Madras , A.I.R 1950 SC 27: 1950 SCR 88 : 1950 SCJ 174. [27] Minnerva Mills v.Union of India , A.I.R 1980 SC 1789: 1981 SCR (1) 206: 2 SCC 591.

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President’s rule and the indian federalism: a critical analysis of article 356 of the indian constitution, author: pari agrawal, table of contents.

• Introduction
• Research Problem
• Existing Legal Situation
• Literature Review
• Scope and Objectives
• Research Questions
• Research Methodology
• National Emergency
• State Emergency
• Financial Emergency
• S. R. Bommai v Union of India
• Political Misuse of Article 356
• Sarkaria Committee Report
• Suggestions
• Bibliography

1 . Introduction:

Part XVIII of the Constitution of India lays down the emergency provisions under Article 352 – 360. Article 352 provides for the proclamation of emergency concerning the security of India or any State from war, external aggression, or armed rebellion. Article 353 lays down the effects of the proclamation of emergency under Article 352, and Article 354 states the application of the provisions relating to the distribution of revenues when a Proclamation of Emergency is in operation. Article 355 states that it is the duty of the Union to protect the States from external aggression and internal disturbance, and Article 356 provides for the emergency provisions in case the constitutional machinery in States fails.

Under the provisions of Article 350, 352, and 356 the president has the power to declare an emergency either in the whole territory of India or in any State or part of it.

During an emergency, any rights including Fundamental rights except for Article 20 and 21 can be suspended by the President, and the Parliament can also pass a resolution to impose President’s rule in any State.

1.1 Introduction:

The emergency provisions of the Indian Constitution have been amended by the constitution (44th Amendment) Act, to prevent the misuse of power by the executive in the name of emergency. In 1975, an emergency was declared due to internal disturbance and no other concrete justification was provided. Hence, amendments have been made so that the repetition of these situations becomes difficult.

Article 352 provides that if the president is satisfied that a serious emergency exists wherein the security of India or any part of it is threatened, either by war or external aggression or armed rebellion, he may proclaim an emergency in the whole country or any part of it, as specified in the proclamation.

Article 356 of the constitution provides that when a proclamation is made, the powers of the state legislatures are to be exercised by or under the authority of the parliament. It also states that the parliament can then confer on the president, the power of the state legislature to make law. This happens when the constitutional machinery of a state fails.

Article 360 provides that if the president is satisfied that a situation has occurred wherein the financial stability of India or part of the territory is threatened, he may make a declaration to that effect by a proclamation.

1.2 Research Problem:

The main aim of this research paper is to study the emergency provisions when the constitutional machinery in a state fails i.e., state emergency or Article 356. It also includes the detailed study of landmark cases like S.R Bommai vs Union of India, State of Rajasthan vs Union of India. The research work also focuses on the justiciability of the proclamation under Article 356 and the scope and reach of judicial review of Article 356. It also focuses on certain notable recommendations of the Sarkaria Commission Report. Finally, the research work ends by giving a brief note on the recent developments of Article 356 after the landmark Bommai’s judgment.

1.3 Existing Legal Situation [1] :

India’s first prime minister, Jawaharlal Nehru, invoked Article 356 eight times, during his 17 years in power. Later, Lal Bahadur Shastri imposed President’s rule in Kerala (in September 1964).

Indira Gandhi holds the record for implementing Article 356 a total of 50 times in 14 years, the maximum number of times.

More recently, after the landmark verdict of the Supreme Court on the S.R. Bommai case in 1994, the article is being used cautiously. The argument that the president’s rule was being misused by parties in power was accepted, with the court issuing strict guidelines on its imposition.

The United Progressive Alliance (UPA) government, led by Manmohan Singh, invoked the president’s rule 12 times in different states. Similarly, the National Democratic Alliance government, led by Narendra Modi, resorted to the president’s rule three times during its 20-month rule.

Besides Arunachal Pradesh, the president’s rule was imposed in Maharashtra after the Congress-Nationalist Congress Party alliance split ahead of the assembly elections in October 2014. It was also imposed in Jammu and Kashmir after the latest assembly election.

1.4 Literature Review:

Mohapatra, Sudhanshu Ranjan, President’s Rule in the States of India A critical assessment of Article 356 of the Indian constitution, Shodhganga

This research paper talks about the origin of the President’s Rule in India and the Imposition of State emergency and its evaluation. It also studies the presidential proclamation under article 356 and the judicial review and the legal and constitutional ramifications of the president’s rule.

Ayush Verma, State emergencies and the fundamental rights, iPleaders

This article talks about the emergency provisions and the amendments to these provisions. It also talks about the state emergencies, previous state emergencies, and the fundamental rights during such emergencies. It also discusses the Sarkaria Committee and its landmark cases.

Krishnendra Joshi, Position and Powers of the President, iPleaders

This article provides the basics of the Constitution of India such as how is the President of India elected, what are the qualifications of a President, and the manner of election of the President. It also talks about the meaning of impeachment and the powers of the President.

Venkat Ananth, How President’s Rule in India has been imposed over the years, Mint

This article studies the President’s rule in India with the help of statistics and numbers to support their ideologies and arguments. It states when does President’s rule gets imposed and how has it been imposed over the years.

Sakshi Saroha, What is Article 356 of the Indian Constitution, Jagran Josh

This article explains why article 356 is in the news and the provisions under this article. It also discusses the political misuse of Article 356. This article also studies the landmark case of S. R. Bommai vs Union of India along with the guidelines laid down by the Supreme Court.

1.5 Scope and Objectives:

This research paper talks about Article 356 of the Indian Constitution and the President’s Rule in India and its justiciability with reference to the Sarkaria Committee and the Landmark cases. This paper also analyses Article 356 and the types of emergencies that can be imposed or declared by the President. Not only does this paper discusses the power to declare emergencies, but also brings forth the idea of how it has been imposed in the past years.

The objectives of this research paper are:

• To understand the meaning of emergency, President’s Rule and Article 356 of the Indian Constitution.
• To find out the justiciability of proclamation and misuse of powers under Article 356.
• To study the notable recommendation of the Sarkaria Committee and the landmark case S. R. Bommai vs Union of India.

1.6 Research Questions:

• Is the proclamation made under Article 356 of the constitution of India justiciable?
• What is the relevance of Bommai’s case for preventing the misuse of power by the executive under Article 356?
• How has the Sarkaria Committee Report helped to frame guidelines for the prevention of misuse of power under Article 356?

1.7 Hypothesis:

The Indian Constitution (38 th Amendment) Act added clause 5 in Article 356 preventing judicial review on any grounds. It declared the satisfaction of the President as final and conclusive which shall not be questioned in any court on any ground. However, the Indian Constitution (44 th Amendment) Act removed this clause in the year 1978. The case of State of Rajasthan vs The Union of India and S. R. Bommai vs Union of India have a great significance for getting a clear idea about the justiciability of the proclamation under Article 356 of the Constitution.

Article 356 of the Indian Constitution has led to great misuse of political powers of the same article. After the landmark case of Bommai, the misuse of powers under Article 356 has reduced to great extent. However, it is still being used.

Although Article 356 is still in use, The Sarkaria Committee Report directed for the rarest use of this article. The Sarkaria Committee Report provides safeguards against situation where there has been a breakdown of the constitutional machinery in the state. It suggests that any misuse of the power under Article 356 of the constitution would destroy the democratic feature of the Indian Constitution. The report has recommended to issue warning to the states where the constitutional machinery has failed. It further recommends that there should be proper amendment of Article 356 to include in the proclamation the material facts and ground for the invocation of Articl2 356 clause 1. This will help in preventing the misuse of powers under the article.

1.8 Research Methodology:

The doctrinal method was followed for conducting research on this topic. Various books were referred to, and so were many websites and journal articles, for a clear view of the research paper. Journals and websites such as SCC, Lexis Nexis, iPleaders, Mint, etc. were used for conducting research. Cases referred were taken from case law search engines like Casemine and Supreme Court Observer.

2. What is an Emergency?

Emergency means a situation in which there is a failure of the governance system and which calls for immediate action to be taken so that the appropriate steps can be taken timely to tackle such situation.

In an Emergency, the Centre takes control over all the powers relating to decision-making to ensure that speedy remedies are provided for the situation which has arisen. Thus, it can be said that while the Emergency is imposed in India, it becomes a Unitary form of Government for the period of Emergency.

In India, the makers of the constitution had realized that some situations may arise in the future in which there will be a need for such provisions and therefore they had adopted this provision in the constitution to ensure that India would be ready for such situations.

While Emergency provisions are necessary, it should not be resorted to by the Government for every problem which arises in the nation and thus all of the other alternative methods for solving such a situation should be used, and only when these methods cannot be used to effectively tackle such a situation, Emergency can be used for solving the grave problem.

2.1 Types of Emergencies:

Part- XVIII of the Indian Constitution deals with the Emergency provisions i.e., Articles 352 to 360. The constitution provides for three types of emergencies. The power of imposing all types of emergencies is bestowed upon the President. This concept of emergency is taken from the Weimar Constitution of Germany. The three types are as follows –

2.1.1 National Emergency:

Article 352 of the Constitution of India lays down the provision of a National Emergency. This emergency can be applied if any extraordinary situation arises that may threaten the security, peace, stability, and governance of the country or any part of it.

An emergency can be imposed whenever any of the following grounds occur:

Article 352 states that if the President is ‘satisfied’ that the security of India is threatened, then he can proclaim that effect regarding the whole of India or a part thereof.

For the proclamation of National emergency, it is not necessarily important that external aggression or armed rebellion actually takes place. Even if there is a possibility that such a situation occurs, a national emergency can be proclaimed.

The case of Minerva Mills vs Union of India was an important judgment. It was held in this case that there can be no bar to judicial review of determining the validity of the proclamation of emergency issued by the President under Article 352 (1) of the constitution. The powers of the courts are limited to examining whether the limitations discussed by the Constitution have been observed or not. It can check whether the President’s satisfaction is on valid grounds or not. If the President is satisfied that the grounds for national emergency exist but the grounds of the same are irrelevant, then the President will not be considered ‘satisfied’.

In India, National Emergency has been enforced 3 times to date.

2.1.2 State Emergency:

Article 356 states that if the President, after receiving a report from the Governor of a State or otherwise, is satisfied that such a situation exists where the Government of a State cannot be carried according to the provisions of the Constitution, he may issue a proclamation. Article 355 enforces the center to provide security to the States from any external aggression or internal disturbance to continue their governance in an orderly manner. Article 356 provides for the provisions for imposing an emergency in the state where its constitutional machinery has failed. This is known as State Emergency.

The Judiciary has played an important role in cases of State emergencies as well. It ensures that no random emergency is declared in a State. In Rameshwar Prasad vs Union of India, the proclamation of emergency imposed in Bihar under Article 356 was challenged. The Assembly had not even met once and it was dissolved because there was an attempt to gather the majority by illegal means but there no material at all, let alone relevant material, for proving the same. The Court held that the grounds provided for in this proclamation were irrelevant and therefore, the proclamation was held unconstitutional.

A state emergency can be proclaimed on the ground that the constitutional machinery of that state has failed to work properly. In this Emergency, when the Governor of the state is satisfied that the State is not functioning as per the Constitutional provisions, then he may write his report to the President of India. Further, if the President is satisfied by the report, he may impose the President’s rule. Subsequently, the President will become the executive head of the state.

In India, till 2018, President’s Rule was imposed 126 times by the President of India. Maximum times the President’s Rule was imposed during Indira Gandhi’s regime i.e., 35 times.

2.1.3 Financial Emergency:

The Constitution of India not only provides for Emergency in cases of threat of security to India at the National and State level, but it also gives recognition to the economic threat that may also arise in certain situations. Therefore, in case of occurrence of such an occasion, Article 360 provides for the provision for imposing Financial Emergency in the Country.

As per Article 360, a Proclamation of Financial Emergency may be issued, if the President believes that such a situation exists where the financial stability of India or any part of the territory is threatened.

Financial Emergency can be proclaimed on the ground that when a situation arises in the country which leads to a financial crisis, the President of India may impose an emergency to tackle the situation. In such a situation, the Central Authority may reduce the budget or cut the budget given to the State, and salaries of the government officials may be deducted.

3. Justiciability of Proclamation under Article 356:

A proclamation is made under Article 356 of the constitution when the state fails to work as per the constitution. This is when Article 356 declares that the parliament will exercise all the powers of the state legislature and also the parliament can confer this power to the president who can then make laws for the state. When a proclamation is issued under Article 356 by the president, it has to be placed before both the houses of the parliament and it is effective for two months. But if the circumstances are such that it has to be in force for a longer period then it has to be ratified by both the houses of the parliament.

There were several attempts to bring the matter of invocation of Article356 before the courts for scrutiny, but such attempts have not succeeded.

In Bijayananda vs President of India, the high court of Odisha gave a very instructive judgment. The court held that “in sending his report to the president under Article 356, the governor is to act directly and not with the aid and advice of the council of ministers”. Whether the governor’s report is malafide or is based on some extraneous facts cannot be questioned in a court of law. It is not justiciable against the governor because of the protection and immunity provided under Article 361 (1).

Due to this immunity and protection, there is the misuse of power by the executive which ultimately creates problems for the common public. When the president proclaims Article356 he has to consider the advice tendered by the council of ministers. The information upon which the president shows his “satisfaction” is of very wide amplitude. It is upon him, whether he decides based on the governor’s report or relies on any other information. This clearly showed that the satisfaction of the president and the source of information is not justiciable.

The satisfaction of the president with the declaration of emergency is purely subjective in nature and is not subjected to objective tests by judicial review. The Andhra Pradesh High Court also held that the “satisfaction” of the president was not justiciable in any court of law.

These cases settled the principle that the action of the president and the governor under Article 356 was not questionable and hence not justiciable. The constitution (thirty-eighth Amendment) Act added to clause 5 in Article356 preventing judicial review on any grounds. It made the “satisfaction” of the president “final and conclusive” which “shall not be questioned in any court on any ground”. However, the constitution (44th Amendment) Act removed this clause in the year 1978.

The case of the State of Rajasthan vs Union of India and S.R Bommai vs Union of India has great significance for getting a clear idea about the justiciability of the proclamation under Article 356 of the constitution.

• S. R. Bommai vs Union of India:

President’s Rule was imposed in 1989. As a result of which, the government of S.R. Bommai, the Chief Minister of the Janata Dal government in Karnataka between 1988 and 1989 was dismissed on April 21, 1989. This was done under Article 356 of the Constitution as it was the most common way to keep opposition parties away. The government was dismissed because the Bommai government lost the majority resulting in large-scale defections engineered by several party leaders of the day. P. Venkata Subbaiah, the then-governor, refused to allow Bommai to test his majority in the Assembly despite presenting him with a copy of the resolution passed by the Janata Dal Legislature Party.

Bommai first moved to the Karnataka High Court against the Governor’s decision to recommend President’s Rule, where his writ petition was dismissed. He then moved to the Supreme Court.

• Whether the president’s rule inflicted in the six states is constitutionally valid?
• Whether the president has unchained rules to proclaim Article 356(1) of the Indian Constitution. The answer to this question depends upon the answers to the questions below:

– If yes, what is the scope of the judicial review in this regard?

– What does the phrase “a situation has arisen in which the government of the state cannot be carried on under the provisions of this constitution” used in Article 356 (1) mean?

Supreme Court Judgement:

The case took almost five years to get to a logical conclusion. On March 11, 1994, a Constitution Bench of nine-judges of the Supreme Court issued the historic order. This put an end to the arbitrary dismissal of State governments under Article 356 by providing for the restrictions.

4. Misuse of Powers:

A quick peek at the data shows that Article 356 has been used over 100 times since independence as noted by the Sarkaria Committee Report.

Sometimes, the legitimate state governments have been fired to either make them fall in line or to give the Union government’s own party a chance to obtain power in the state. To claim authority, Union governments have precisely assumed the role Dr. Ambedkar feared they would – that of being determinants of quality of governance in the states [2] .

The 1970s and 80s will be remembered for the most vindictive use of Article 356. From 1971 to 1984, it was used 59 times. During the period 1977-79, it was used the maximum number of times during which the Morai Desai government ruled. It was used by the post-emergency Central government as a vendetta against state governments ruled by Congress. Later, Indira Gandhi returned the favour after coming back to power in 1980. Thereafter, during the period 1980-84, it was used 17 times.

Although Jawaharlal Nehru also misused Article 356 to dismiss the majority Communist government of Kerala, Indira Gandhi is known for having used it as a weapon against state governments most of the time. Its frequency increased sharply post-1967 when the Congress party lost power in several states of India.

In fact, Indira Gandhi during an emergency closed judicial review of even the Presidential order securing Article 356 through the 38th Constitutional Amendment Act. However, thanks to the 44th Constitutional Amendment Act brought forth in 1978 by Morarji Desai, the original Article 356, as predicted by Dr. Ambedkar, was restored.

4.1 Political Misuse of Article 356:

In the report of 2015, Sarkaria Committee noted that since independence, Article 356 has been used over 100 times. In almost all the cases, it was used for political concerns rather than any genuine problem.

Indira Gandhi, the former Prime Minister, used Article 356 nearly 27 times to remove majority governments on the ground of political stability, absence of clear mandate or withdrawal of support, etc.

In 1977, when the Janata government formed the government for the first time, it removed nine state Congress governments.

Manipur witnessed the repeated application of Article 356 and long periods of violence due to the uneven internal politics of the state.

The states of Uttar Pradesh and Bihar have been on the center’s radar due to their fragmented polity.

4.2 Sarkaria Committee Report:

The Sarkaria Commission was headed by Justice R.K Sarkaria. It was appointed in the year 1983 and worked to improve center-state relations. The Sarkaria Commission Report clearly shows that this power has been used over 100 times since independence. Despite the precautions laid down in Article 356, this article had been invoked several times by the center that has resulted in its gross misuse. Article 356 was misused the most in the period of the 1970s- 80s.

In fact, Indira Gandhi during an emergency closed judicial review of even the Presidential order clamping Article 356 through the 38th Constitutional Amendment Act. However, the 44th Constitutional Amendment Act was introduced in 1978 by Morarji Desai. Further, the original Article 356, as predicted by Dr. Ambedkar, was restored.

The Sarkaria Commission directed the rare use of Article 356. According to this commission, Article 356 provides safeguards against situations where there has been a breakdown of the constitutional machinery in the state. It also suggests that any misuse of this power would destroy the democratic feature of the Indian Constitution. This report after considering all the suggestions came to the opinion that this article should be used sparingly and in the rarest of rare cases where no other alternative is there. The report also recommended issuing a warning to the particular state where the constitutional machinery had failed.

Before proclaiming Article 356, the explanation received from the state should be properly analysed and considered. Also, the report recommends that the government should try its best of having a government with majority support in the Assembly. In case the same is not possible there should be fresh elections without any delay and the Governor should request the outgoing ministry to act as a caretaker government. The commission also recommends that the state legislative assemblies should not be dissolved before the proclamation of emergency. It further recommends that there should be a proper amendment of Article 356 to include in the proclamation the material facts and grounds for the invocation of Article 356 (1). This will prevent the misuse of power under Article 356.

5. Conclusion:

The provisions of emergency were added in the constitution for national security and countering extraordinary issues. Even the forefathers of the Constitution figured that in the future such situations may occur which would require special powers, for the State to respond and handle the situation. The emergency provisions since independence have been used multiple times. For a significant period, the use of these by the State was not ethical and was used as a political tool to continue their political control. The procedure laid down for the proclamation of emergency by the President was not followed and was misused. The limitation of maximum time till when an emergency can continue as set by the Constitution was breached in the State of Punjab and Jammu & Kashmir as well.

Due to these incidents of misuse, some amendments were introduced to these provisions in the 44th Amendment Act. Meanwhile, the Indian Judiciary to an extent closed its doors to any sort of human rights violation. In many judgments of the Supreme Court, the power of a person to approach the court of law in case their Fundamental Rights violation was discussed. After the 44th Amendment Act, it was agreed by the Court that in any case, no person can be stripped of his right to life and personal liberty. Articles 20 and 21 could not be suspended even in case of an emergency. The Supreme Court also made it clear that all the fundamental rights remain for its only power to move to court for their enforcement is suspended. Hence, when during an emergency, if any person is stripped of his fundamental rights, he can move to the court for remedy.

6. Suggestions:

The landmark judgment of S.R Bommai vs Union of India has a great significance in improving center-state relations. In this case, the Supreme Court provided the guidelines and discussed in detail the provision of Article 356 and its related issues. The present scenario in India shows that the “dead letter” provision has been invoked several times in all these years. According to a report given by NCRWC, out of hundred times of invocation of this provision at least twenty times, it has been misused. From this, it shows that there is a lack of safeguard against the misuse of power under Article 356.

To overcome this problem, amendments should be made that check the exercise of power under Article 356. However, after Bommai’s judgment, the misuse of power under Article 356 has reduced to a great extent. This double-edged sword called Article 356 should be used as a last resort in cases where the constitutional machinery in a state fails, otherwise, this will become a noose that will tighten around the neck of the Indian democracy and would defeat the rights of people under the constitution.

7. Bibliography:

Table of Books:

• M.P. Jain, Indian Constitutional Law (7 th edn, Lexis Nexis 2016).
• Dr. J. N. Pandey, Constitutional Law of India (54 th edn, Central Law Agency).
• Dr. Durga Das Basu, Introduction to the Constitution of India (20 th edn, Lexis Nexis 2010).

Table of Journals:

• Jaimin R. Dave, “A Key to Presidential Proclamation under Article 356 of Constitution of India”, Institute of Law, Gujarat.
•  Surendra Pandey, Article 356: Its Use and Misuse.

[1] https://www.livemint.com/Politics/SJ3mETZ7H1cjKNlodkcM8O/How-Presidents-Rule-in-India-has-been-imposed-over-the-year.html

[2] https://www.livemint.com/Politics/x3cSvcJAHHtHZmdwPONeCI/Has-Article-356-been-the-Centres-AK56.html

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COVID ‐19 and the legislative response in India: The need for a comprehensive health care law

Kiran kumar gowd.

1 Department of Political Science, University of Hyderabad, Hyderabad India

Donthagani Veerababu

Veeraiahgari revanth reddy.

2 Symbiosis Law School, Symbiosis International (Deemed) University, Hyderabad India

Associated Data

The data that support the findings of this study are available in the World Health Organization (WHO) at https://covid19.who.int/ (WHO,  2020a ; WHO,  2020b ). These data were derived from the following resources available in the public domain: https://www.who.int/news-room/detail/27-04-2020-who-timeline–covid-19%20 , https://covid19.who.int/

The outbreak of the SARS CoV2 virus, commonly referred to as the COVID‐19 pandemic, has impacted the social, economic, political, and cultural lives of citizens around the world. The sudden outbreak of the pandemic has exposed the legal preparedness, or lack thereof, of governments to reduce and contain its drastic impact. Strong legislative measures play a crucial role in any epidemic or pandemic situation. In this situation, the Indian Government has requested all state governments to invoke the Epidemic Disease Act (EDA) of 1897 to address the COVID‐19 emergency. The Central Government has also used the powers provided in the Disaster Management Act (DMA) of 2005. As the country is facing its first major health emergency since independence, the existing legislative measures to deal with a COVID‐19 like situation are lacking and require certain amendments to address such situations in the future. This paper aims to present the current constitutional and legislative response to health emergencies in India and attempts to identify gray areas in the statutory provisions. Based on the analysis, this paper suggests several recommendations for amending current legislation and suggests the promulgation of comprehensive public health law. This paper is largely based on primary sources such as the EDA and the DMA, regulations, guidelines, rules issued by the public authorities and court cases related to health and health emergencies along with secondary resources such as newspaper articles and published papers.

1. INTRODUCTION

A new coronavirus that causes acute respiratory disease in humans was identified in Wuhan City, Hubei Province of China (WHO,  2020a ) in late 2019 and is most commonly referred to as COVID‐19. Coronaviruses are a large family of viruses that cause respiratory infections ranging from the common cold to severe diseases like the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak and the 2011 Middle East Respiratory Syndrome (MERS) outbreak. The Novel Coronavirus (2019—NCoV), the cause of the current outbreak, is the seventh identified member of the family of coronaviruses that infect humans (Zhu et al.,  2020 ). The outbreak in China has now spread across the globe and was officially declared a pandemic by the WHO on March 11, 2020. As of June 4, 2020, there are more than 10 million confirmed cases and 520,000 fatalities globally and over 640,000 confirmed cases and 18,000 deaths in India (WHO,  2020b ).

There are numerous hotspots throughout the country, predominantly in urban areas. While the Government has now sealed the areas in these hotspots, the nation also implemented a 21‐day lockdown as a measure to curb the spread of the virus by breaking its chain on March 25, 2020, which was extended until May 3, 2020 by the Narendra Modi Government. As the virus is highly contagious, many countries have implemented similar lockdowns in an attempt to control the spread of the virus as there is currently no vaccination or approved treatment. India also completely closed all kinds of transportation. The COVID‐19 pandemic is a global medical emergency and requires immediate and stringent action by the Government to control human loss. Apart from medical preparedness, legal provisions play a significant role in managing and controlling the disease. It is against this background that this paper focuses on identifying the present constitutional and statutory provisions in India that are available to face a health emergency like the COVID‐19 pandemic and identify possible areas for strengthening the legislative structure to face health emergencies in the future. This paper also stresses the need for comprehensive public health law for effective prevention, control, and management of pandemics. Largely, this paper is based on primary sources like laws, statutes, regulations, notices, and court cases related to health and health emergencies in the country. Various acts and laws that are included in this research are the Epidemic Disease Act, 1897 (EDA), the Disaster Management Act, 2005 (DMA) along with bills introduced in parliament and which have lapsed like the National Health Bill ( 2009 ) and the Public Health (Prevention, Control, and Management of epidemics, bio‐terrorism, and disasters) Bill, 2017 along with regulations, notices, and guidelines issued during the COVID‐19 crisis by the Central Government along with state governments. The paper also concentrates on recently published articles from journals and newspapers at the national and international levels.

2. INDIAN CONSTITUTIONAL AND LEGAL FRAMEWORK RELATED TO HEALTH EMERGENCIES

The Indian Constitution is the longest constitution in the world including a preamble and 448 articles. The Constitution is divided into 12 schedules and 22 parts. India is declared as a “sovereign, socialist, secular, democratic republic” and secures all its citizens “justice, liberty, equality, and fraternity.” Considering these broader principles, legislations are drafted, discussed, and passed in Parliament and state legislatures, and executed. In this context, it is a basic responsibility of the state to protect the lives of its citizens in unforeseen situations and calamities. From this point forward, this paper is divided into two sections. The first section concentrates on the health‐related provisions mentioned in the Indian Constitution with the second section providing an analysis of various legislations which the Indian Government has evoked during this pandemic, including the EDA and the DMA.

2.1. Health‐related constitutional provisions

The constitutional and legal framework of the management of epidemics and health emergencies has been at the forefront of discussions and debates throughout and outside of the nation since the nationwide lockdown order. The Indian Constitution ensures the Right to Health for all without any discrimination (Kumar,  2015 ; Mathiharan,  2003 ). Article 21 in the Indian Constitution states explicitly the citizen's fundamental right to life and personal liberty, which can be argued was violated as the country enacted a complete nationwide lockdown. Provisions related to health are mentioned in Part IV of the Constitution in terms of the Directive Principles of State Policy. Article 39(a) mentions the responsibility of the State to provide security to citizens by ensuring the Right to adequate means of Livelihood. Article 39(e) mentions the State's responsibility to ensure that “health and strength of workers, men, and women and the tender age of children are not abused.” Article 41 imposes a duty on the State to “provide public assistance in cases of unemployment, old age, sickness, and disablement.” Article 42 makes provision to “protect the health of the infant and mother by maternity benefit.” Article 47 is about “raising the level of nutrition and the standard of living of people and improving public health.”

India is a union of 28 states and 8 Union Territories. There is a constitutional distinction between the working rights and responsibilities of the government bodies of the central government and the states and territories. The seventh schedule under Article 246 of the Indian Constitution deals with the division of powers between the Union and the States, and legislation can be made, respectively. The Seventh Schedule contains three lists: the Union List, the State List, and the Concurrent List. The Parliament can make laws on 97 items that are mentioned in the Union List, whereas the state legislatures can make laws related to the 62 items in the State List. The Concurrent List, on the other hand, has subjects over which both Parliament and state legislatures have jurisdiction on 52 items. However, the Constitution gives federal supremacy to Parliament on the Concurrent List items in case of a conflict. Both the Central Government and the states are empowered to make laws related to public health. Items related to public health are mentioned in all three lists of the Indian Constitution. Quarantine, including all issues related to seamen's and marine hospitals and medical institutions, are mentioned in numbers 28 and 81 of the Union List. The states can make legislation related to “health care, sanitation, hospitals, dispensaries, and prevention of animal diseases” under item six of the State List. The Union and states can make laws related to the health profession and the prevention of the extension from one state to another of infectious or contagious diseases or pests affecting people, animals, or plants under entries 26 and 29 of the Concurrent List. The High‐Level Group (HLG), formed for the health sector by the 15th Finance Commission, recommended moving health subjects to the Concurrent List (Narayanan,  2019 ). It also recommended mentioning the “Right to Health” as the fundamental right.

The Right to Health is not explicitly mentioned in the Indian Constitution as is the Right to Education, but various judgments—Consumer Education and Resource Centre versus Union of India (1995), State of Punjab and others versus Mohinder Singh Chawala (1997) and Paschim Banga Khet Mazdoor Samity versus State of West Bengal (1996) included the Right to Health as part of Article 21 of the Indian Constitution (i.e., Right to Life, and the Government has a constitutional obligation to provide health facilities to citizens) (Mathiharan,  2003 ). Hence, the role of government at all three levels—Union, State, and local (panchayats and municipalities) level is crucial in providing health care to all citizens. However, “health emergency” is not part of the emergency provisions of the Indian Constitution. The Indian Constitution empowers the President of India to declare three kinds of emergencies: national emergency, state emergency, and financial emergency. A national emergency is imposed if the security of the country is threatened on the grounds of war, external aggression, or armed rebellion. A state emergency is imposed if there is a constitutional breakdown in the respective state. A financial emergency is imposed if the financial stability of the country is threatened. As imposing a lockdown or keeping strict measures to contain the spread of disease will impact citizens' fundamental rights, there is a need to explore various constitutional methods to include health emergencies in the emergency provisions with proper consultations with various stakeholders.

2.2. Existing laws for facing health emergencies in India

2.2.1. the epidemic diseases act, 1897 ( eda ).

The EDA, which was enacted during the British colonial era, was promulgated to tackle the bubonic plague which broke out in the Bombay State (now Maharastra State). The Act is 125 years old, with only four sections. The law is described as “extraordinary” but “necessary” by John Woodburn, the Council Member of the Governor‐General of India in Calcutta during the discussion on the bill introduced in 1897 and emphasized that people must “trust the discretion of the executive in the grave and critical circumstances” (Rai,  2020 ). Hence, any action taken on the grounds of epidemics must take into consideration all grave and critical circumstances. Such decisions may not be opposed by the general public for the “greater good” for all. The law was vital in containing other outbreaks in the country like Cholera (1910), Spanish Flu (1918–20), Smallpox (1974), Swine flu (2014), and the Nipah Virus (2018). The EDA is the only act that provides legal interventions in the case of a national or sub‐national epidemic (Patro et al.,  2013 ). The first section gives the title and the extent of the implementation of the act. The second section deals with the power to take special measures and prescribe regulations during times of dangerous diseases by the central and state governments. Under section 2 of the act, the state government may take or empower any person to issue notices or regulations to be observed by people during the outbreak. Section 2A empowers the Central Government to take precautions and issue regulations for the inspection of ships and vessels and also to regulate any person who intends to sail. Penalties are included in the third section, and the fourth section covers the protection of persons acting under the act. The disobedience to the directions of public servants under the act is considered an offense and punishable under section 188 of the Indian Penal Code 45 of 1860 (i.e., imprisonment of 6 months and/or a fine of 1000 rupees).

On April 22, 2020, using the powers under Article 123, the Modi Cabinet issued an ordinance to amend the EDA, as there had been incidents of attacks on health care workers. The ordinance amended section 3 of the EDA. If anyone causes damage or loss to the property, then they may be punished with “imprisonment for a term of 3 months to 5 years and with a fine of Rs. 50,000/‐ to Rs. 200,000/‐.” In case of violence and physical attack on health care workers, they can be imprisoned “for a term of 6 months to 7 years and with a fine of Rs. 100,000/‐ to Rs. 500,000/.” In addition, “the offender shall also be liable to pay compensation to the victim and twice the fair market value for damage of property.”

The Ministry of Health and Family Welfare (MoHFW, 2020), which is a nodal agency for issuing guidelines and bulletins to other ministries in the Central Government and state governments, is actively involved in directing and advising the states on COVID‐19. Since COVID‐19, the Secretary of MoHFW has been holding regular press briefings to disseminate information. The state/UT governments under section 2 of the act are issuing regulations and notifications related to measures to be taken for containing the spread of COVID‐19. The following part of this section concentrates on state‐level legislative measures.

The Odisha State government has brought in another ordinance, which provides that any person violating the epidemic regulation shall be imprisoned for a period of 2 years and given a fine of Rs. 10,000 (The Economic Times,  2020 ). This, therefore, replaces section 3 of the main act, which provides only for imprisonment to a maximum of 6 months and a fine of Rs. 1000. The ordinance is normally issued by the elected executive when the State Assembly is not in session. Hence, the state governments had implemented the Odisha COVID‐19 Regulations, 2020, using the main act.

Telangana, a south Indian State, invoked the EDA by issuing a regulation called “the Telangana Epidemic Disease (COVID‐19) Regulation 2020” (PRS India,  2020a ). The regulation empowers the Director of Public Health (DPH), the Director of Medical Education, all the District collectors, Commissioner of Police, District Superintendent of Police, and all Municipal Commissioners of Corporations in the State to take measures to control and contain COVID‐19. The regulation brings all hospitals, both public and private, under the purview of the regulations and directs them to report all cases to the State Integrated Surveillance Units and Collector of the District or the Commissioner of Corporations. The empowered officials can take action on persons who refuse to comply with the regulation under Section 188 of the Indian Penal Code. The regulation also prohibits the spread of misinformation on social media and in print media, and necessary action may be taken on violators. Hence, the State Government of Telangana emphasized keeping the institutional structures strong and powerful to contain COVID‐19.

Another south Indian State promulgated the Karnataka Epidemic Diseases, COVID‐19 Regulations, 2020, using the powers under the EDA (PRS India,  2020b ). The regulations bar private laboratories from conducting COVID‐19 testing. All samples must be collected by the designated laboratory by the District Nodal Officer of the Department of Health and Family Welfare of the concerned district. The samples are collected according to guidelines issued by the Central Government. The interesting point of the regulation is that it makes the District Disaster Management Committee headed by the Deputy Commissioner the main authority for preparing strategies regarding containment measures at the district level. Similarly, many state governments have issued regulations according to their institutional setup and strategized their plans to counter COVID‐19.

Prior to the COVID‐19 pandemic, some state governments had their own public health acts or had amended the EDA to include certain provisions at the state level. The Madras Public Health Act, 1939 in the State of Tamil Nadu, is one example of comprehensive public health law at the state level. The act includes a Public Health Board being constituted at the state level that includes a Minister of Public Health, other coordination ministers, the surgeon general, Director of Health Services, Sanitary Engineer and other members nominated by the state government. The Board's role is to advise the state government. The act also includes prevention, notification, and treatment of diseases. There is a similar act in the State of Madhya Pradesh, namely the Madhya Pradesh Public Health Act, 1949. In the State of Kerala, the Travancore‐Cochin Public Health Act, 1955 and the Malabar Public Health Act, 1939 are both in place in the case of any major public health issue. The Madhya Pradesh State Government is planning to combine both acts and bring them into a single act for covering the entire state. Compulsory provision of vaccinations is included by the state government of Himachal Pradesh under the Himachal Pradesh Vaccination Act,  1968 . Bihar gave the state governments the power to make requests for vehicles during epidemics (Rakesh,  2006 ).

The EDA is not comprehensive and left to state governments to devise their own public health laws. However, only some state governments like Madhya Pradesh and Bihar have their own laws related to public health. Though the EDA has been invoked during the COVID‐19 pandemic by various state governments after directions from the Central Government, there is a need for an integrated, comprehensive, actionable, and relevant legal provision for the control of outbreaks in India (Rakesh,  2006 ). The EDA in the present form is not sufficient to face health emergencies like COVID‐19 as it is silent on technical and operational mechanisms of the control and management of epidemics.

2.2.2. Disaster Management Act, 2005

It was the Disaster Management Act under which the nationwide lockdown of 21 days was declared on March 25, 2020 by the Modi Government and was then extended until May 31, 2020. The DMA was enacted in 2005 with the objective “to provide for the effective management of disasters and for matters connected therewith or incidental there to.” The act consists of 79 sections and covers a wide range of issues like the establishment of the National Disaster Management Authority (NDMA), State Disaster Management Authority (SDMA), District Disaster Management Authority (DDMA), measures to be taken by the Governments during the disaster, penalties, and offenses of the violators. The NDMA was established under the act, and the Prime Minister is the ex‐officio Chairperson along with nine other members. Subsequently, a guideline on the Management of Biological Disaster 2008 was passed and currently the NDMA deals extensively with biological disasters and health emergencies.

There are certain sections in the NDMA that helped the Central Government to impose the lockdown and restrict all kinds of transportation in the country. Section 62 of the DMA gives powers to the Central Government to issue directions to all ministries or departments of the Government of India and state/UT governments. On 11 April 2020, the Central Government invoked section 69 of the DMA, which delegated the powers of the Home Secretary to the Secretary, Ministry of Health and Family Welfare for coordinating various activities among ministries and states/UTs. Unlike the other laws, this act “provides for an exhaustive administration set up for disaster preparedness.” Violators are punishable up to 1 year in jail or a fine or both under Sections 51 to 60 of the Act. The law describes the offense as obstructing any officer or employee from performing their duty or refusing to comply with directions (RSTV Bureau,  2020 ). For the better execution of the national lockdown, numerous states likewise summoned section 144 of the Criminal Procedure Code (CPC).

One of the major issues with the DMA is whether epidemic or pandemic can be considered “disaster” as per its definition. Section 2(d) of the DMA States that: “Disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man‐made causes, or by accident or negligence which results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area.” One can interpret that a health emergency of the kind created by the COVID‐19 pandemic falls under “grave concerns,” but such interpretation will not serve any purpose in effectively managing the epidemic. There are intricacies and technicalities associated with the health emergency that is not covered by this legislation.

2.2.3. Other legislative provisions

Terms like “quarantinable disease” and “isolation,” have been defined under the Indian Aircraft (Public Health) Rules, 1954 as “yellow fever, plague, cholera, smallpox, typhus, and relapsing fever” and “when applied to a person or group of persons means the separation of that person or group of persons from other persons, except the health staff on duty, in such a manner as to prevent the spread of infection.” respectively. Along with these, it provides definitions of various other words such as “Health Officer,” “Infected Aircraft,” “Infected Area,” “Infected Person.” Similar restrictions are found under the Indian Port Health Rules, 1955, framed under the Indian Port Act, 1908, for the quarantining and isolation of passenger ships, cargo ships, and cruise ships. It further provides for the provision, which states that the Central Government has the power of inspection of any ship or vessel leaving or arriving at the port at any point of time which comes under its jurisdiction. Similarly, the provisions in the Livestock Importation Act, 1898, cover the issue of quarantine of animals to protect and maintain their good health. Where the word “Quarantine” means “to separate and restrict the movement of healthy animals which may have been exposed to a communicable disease to see if they become ill” while the word “Isolation” means “to separate the ill having communicable disease from those who are healthy.” Later, under the same act, Animal Quarantine and Certification Service Station was created for the same purpose. While the Drugs and Cosmetics Act, 1940 provides provisions related to public health on the grounds of availability of and distribution of vaccines and drugs during an outbreak of dangerous and infectious disease.

A Public Health Bill was introduced in 2009, but it was not passed because many states objected to it as health is a subject under the State List. The bill was extensively drafted and mandated health as a right and also recommended the establishment of a National Public Health Board. The bill also advocated for the convergence of various national, state, district, block, and village level planning and implementation authorities. The redressal and communication mechanisms were also clearly mentioned in the bill. The bill was introduced during the United Progressive Alliance (UPA)—II regime under Manmohan Singh as Prime Minister. Subsequently, in 2017, during the Modi government's first term, the Public Health (Prevention, Control, and Management of Epidemics, Bio‐fear based oppression, and Disasters) Bill 2017 was introduced, but the bill ultimately faced the same fate as the previous bill. The 2017 bill clearly defines epidemics, isolation, quarantine, public health emergency, and social distancing. Section 3 of the bill gives powers to state/UT, district, and local authorities, whereas section 4 of the bill defines powers of the Central Government in giving directions. Penalties are also high when compared to other acts and bills. Section 14 (1) of the bill repeals the EDA.

2.3. COVID ‐19 health emergency: Union response and federal concerns

For the first time since independence, India is facing a major health emergency in the form of the COVID‐19 pandemic. The decision to impose a nationwide lockdown by the Central Government using the powers under Section 6(2)(i) of the DMA has raised certain questions by legal experts (Daniyal,  2020 ). The notification issued by the Secretary, Ministry of Home (MoH) to all the state governments on March 24, 2020, asked all state and UT governments to send daily reports on how they are implementing the lockdown. Since then, the MoHFW has been issuing guidelines on various precautionary measures to be taken by all state/UT governments. However, there is opposition to the constitutional and legal validity of issuing lockdown orders under the DMA. The opposition to the implementation of the lockdown by the Central Government is based on two grounds. First, the imposition of the lockdown of all activities in the states and directed the district magistrates, who otherwise take orders from state governments, to implement the lockdown during the COVID‐19 outbreak is against the spirit of the Constitution as both public order, and health and sanitation come under the State List. The Central Government has formed the Inter‐Ministerial Central Teams (IMCT) under Section 10(2) of the DMA to conduct field visits in all states and UTs instead of forming an Inter‐State Council under Article 263 of the Indian Constitution (Owaisi,  2020 ). Secondly, there is a lack of fiscal and monetary help from the Central Government to the state/UT governments during this lockdown period. During this pandemic, the Central Government has taken the decision to control COVID‐19 and is largely dependent on existing legal tools like the EDA and the DMA. Safety and protection of lives is the prime goal of imposing a lockdown, and it was the only option for the country in attempting to control the virus as there is currently no vaccination. Narendra Modi, has been organizing video conferences with the chief ministers of respective state/UT governments along with other functionaries in the governments and taking their concerns and suggestions (Kumar,  2020 ). The decision to impose and then extend the lockdown three times was taken by the Central Government after consultation with the chief ministers. Regarding the fiscal and monetary help to federal units, the Central Government has initiated fiscal stimulus plans such as the Pradhan Mantri Garib Kalyan Yojana. Though the stimulus package is less than 1% of the GDP, there is space to do much more in the post‐lockdown period (Dhar,  2020 ). The Central Government has to concentrate on strengthening the constitutional and legal provisions to face a future health emergency, keeping the basic structure of the Constitution intact.

There is a pertinent need to strengthen local authorities to deal with and address a pandemic situation with respect to testing, contact tracing, isolation wards, availability of personal protective equipment (PPE), and availability of data at the village level. There is a need for further financial transfers to local bodies more than ever in this situation. Finally, there is a lack of grievance redressal mechanisms in this act. It is vital that the citizens of this nation, when facing such unprecedented and challenging times, are provided with a framework to address their grievances at different levels.

2.4. Suggestions for strengthening laws related to health emergencies

Three suggestions emerge from this analysis to strengthen India's constitutional and legal mechanisms for facing COVID‐19 and similar future scenarios after our review of various acts and constitutional provisions. Firstly, there is a serious need to review the colonial era EDA. Secondly, the passing of comprehensive public health law covering various aspects of health, which provides the right to health to all citizens is needed. Lastly, there is a need to explore various options to include health emergency provisions in the Indian Constitution.

2.4.1. Amendments to Epidemic Diseases Act, 1897

The EDA is deficient on the following grounds. (1) The act fails to define and categorize various kinds of diseases and the level of severity. (2) The act does not address the containment process and demarcation of zones based on severity levels; it simply prescribes the state's role to restrict the movement of the individual. (3) The act does not mention the role of Panchayats and other local governments. (4) The act fails to mention the regulations of drugs and vaccines during an epidemic. (5) The act emphasizes controlling the spread of disease by ship, but there is no mention of air travel. Given modern realities, in which air travel far exceeds travel by ship, there is an urgent need for the provision of stricter screening measures needing to be taken at the airport and by airlines. To strengthen the act, the following amendments are required:

• The amendments related to identifying, testing, isolating, contact tracing, controlling, coordinating, and containing any epidemic are needed to make the EDA comprehensive to tackle any future health emergency.
• Changes related to the insertion of the definition and categorization of various diseases and demarcation of areas based on severity levels are needed.
• There is a serious need to clearly state the role of the Union for enhanced coordination with various state and local governments.
• The establishment of quarantine facilities inside or near airports should be explored and included in the act.
• Identification of the quarantine locations, which are geographically and scientifically advantageous to contain the pandemic, should be explored. These should be located in remote locations where there are naturally fewer inflows and outflows of people.

2.4.2. Need for comprehensive national public health law

The second suggestion is for the promulgation of a comprehensive national public health law. Though there have been attempts to establish a public health law—the Model Health Bill in 1955, updated in 1987, the National Health Bill in 2009, and the Public Health (Prevention, Control, and Management of epidemics, bio‐terrorism, and disasters) Bill 2017, these were not passed. In each of these cases, there was opposition from states, as health comes under state oversight. As discussed, States like Tamil Nadu and Madhya Pradesh have their own public health laws. There is a need to review various laws at the sub‐national level and also in different countries to strengthen India's public health law. In Canada, the Public Health Agency of Canada Act in 2006 provides public health measures and emergency preparedness and response (Ahamed, 2015). At the federal level, the Public Health Agency of Canada (PHAC) is primarily responsible for “the promotion of health, prevention and control of chronic diseases, prevention and control of infectious diseases, and preparation and response to public health emergencies” (PHAC,  2020 ). The Public Emergency Act and the Quarantine Act also empower federal units in Canada. In Australia, the National Health Security Act, 2007, establishes “structures and processes for preventing and responding to national health emergencies” in the country (Buchanan, 2015). England passed the Public Health (Control of Disease) Act of 1984, which protects the health of the public through a system of surveillance and action (Griffith,  2020 ). Closer to India, Singapore passed the Infectious Diseases Act (IDA) in 1976 and strengthened it during the global SARS epidemic in 2003 (Neo & Darius,  2020 ). Recently, Singapore also responded quickly and passed a temporary law—the COVID‐19 (Temporary Measures) Act 2020 (CTMA). Recently, the United States of America (USA) passed the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020, to fund research and development of vaccines, as well as therapeutics and diagnostics (Oum et al.,  2020 ).

A comprehensive national public health law must take into consideration practicable provisions in various countries' legislative responses to a health emergency and try to strengthen India's public health law while keeping social, political, economic, cultural, and environmental factors in mind. The role of the Union is crucial in creating an environment for a comprehensive public health law by reviewing and addressing the concerns of the states.

The comprehensive public health law should include the following provisions to ensure health care to citizens:

• The role of the Union, state, and local governments—panchayats and municipalities should be clearly defined without creating any conflicts.
• The Right to Health should be explicitly mentioned in the Indian Constitution through this act and include provisions for strengthening the medical infrastructure.
• An institutional mechanism that is able to establish a network with governments, research institutions, and health care providers should be included.
• The act should clearly state various processes and mechanisms for tracing testing and treatment for controlling the epidemics through appropriate and timely interventions at national, state, and local levels.
• Fiscal and momentary relief for states and local bodies during medical emergencies should be included.
• Special protection should be given to health care and sanitation workers keeping in mind the social dynamics of society.

2.4.3. Heath emergency provisions in the Indian Constitution

As discussed, there are no health emergency provisions in the Indian Constitution. Recently, after the declaration of the pandemic, France enacted the Emergency Response to the COVID‐19 Epidemic Act (2020290), in a speedy procedure on March 23, 2020, to contain and control the epidemic. According to the new Act. L3131‐12 CSP, of the French Constitution, states, “the State of health emergency can be declared (…) in the event of a health disaster endangering, by its nature and gravity, the health of the population” (Platon,  2020 ). Japan also invoked a health emergency provision on April 7, 2020 by revising the New Influenza Special Measures Act. Article 352 of the Indian Constitution empowers the President to impose an emergency “whereby the security of India or any part thereof is threatened whether by war or external aggression or armed rebellion.” However, a health emergency is not grounds for imposing a national emergency and restricting the movement of people. India should explore various options for inserting a health emergency provision into the Indian Constitution. There is a need to discuss widely inside and outside of the Parliament as emergency provisions impact the fundamental rights of citizens. There is opposition from pockets of society that lockdown is unconstitutional and there has been criticism of the excessive role of the Central Government in imposing the lockdown (Owaisi,  2020 ). On the other hand, there are Public Interest Petitions (PILs) filed in the Supreme Court to impose a financial emergency under Article 360 of the Indian Constitution (Kannan,  2020 ). Clarity on the lockdown which restricts the movement of people will impact the fundamental rights enshrined under Article 19 (1)(d) to free movement throughout the territory of India and 19 (1)(e) to reside and settle in any part of the territory of India. Additional opposition to the lockdown order comes from the excessive role of the Central Government in imposing lockdown by declaring the health emergency as a subject of federal units. As COVID‐19 is highly contagious, virulent, and has no boundaries, the coordinated efforts of the union, state, and local governments are crucial in handling this pandemic. With a diverse population and opinions, imposing lockdown will certainly have implications on controlling the pandemic. What one should realize is the right to life, and personal liberty is more important than the freedom of expression during a pandemic situation.

2.5. Conclusion

The COVID‐19 pandemic has led to questions about many aspects in India—the quality of health care, the response of governments and institutions, and issues related to law and order. The constitutional and legislative framework should help in addressing these questions. The Indian Government effectively imposed the lockdown and reduced the number of cases, while at the same time certain lawmakers and legal experts questioned the constitutional legality of the lockdown and the response of the Government. Though the Central Government has implemented the EDA and the DMA, these are not sufficient to face the health emergency effectively given the dynamic nature of the disease. This paper has explored various options for bridging the gap and strengthening the constitutional and legal framework for addressing any future health emergency. These emergencies will give ample space to fill the lacuna in the legal framework, and allow our future generations to be better prepared for any type of health emergency.

Biographies

Kiran Kumar Gowd is currently working as a research scholar in the Department of Political Science, University of Hyderabad, Hyderabad, India. His interest areas are politics, public policy, and governance issues and currently working on food security and effective service delivery. He is the University Grants Commission (UGC) Senior Research Fellow, summer fellow at the Digital Identity Research Initiative (DIRI) and Department of Higher Education Fellow, Government of Andhra Pradesh.

Donthagani Veerababu is currently working as an Assistant Professor in the Department of Political Science, University of Hyderabad. He works in the Politics, Public Administration, Public Policy and Governance areas. He was the Post Doctoral Fellow (PDF) of University Grants Commission (UGC). He published articles on Telangana politics, state and central government public policies and rural development and governance issues.

Veeraiahgari Revanth Reddy is pursuing law at Symbiosis Law School, Hyderabad. He is also the founder and president of Center for Consumer Rights and Marketing. He helps in drafting legal policies for political and administrative sectors along with freelancing for legislators.

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The Emergency in India: Some Reflections on the Legibility of the Political

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In the 1980s and the 1990s, there was little incentive in India for remembering the Emergency (1975-1977), a period of authoritarian rule by Prime Minister Indira Gandhi. Despite the official culture of forgetting, several notable Indian English novelists wrote about the Emergency in their novels, offering parallel histories that counter the official narrative presented by Indira Gandhi and her government, and remembering the part of the Emergency which was suppressed and silenced. The Emergency and the Indian English Novel: Memory, Culture and Politics interrogates the construction of cultural memory of the Emergency in Indian English novels of the 1980s and the 1990s, and examines what aspects of the Emergency are remembered, how these are represented and what the impact of that remembering is. Drawing on Jenny Edkins’ discussion of “trauma as betrayal”, the book examines five major, prize-winning novels by Salman Rushdie, Shashi Tharoor, Nayantara Sahgal and Rohinton Mistry as born out of the cultural trauma of the Emergency, that is, the betrayal of the Nehruvian idea of India and democracy by Indira Gandhi. It is suggested that the writers address especially the middle class in India, exposing their complicity by silence in allowing the oppression of the poor in the authoritarian state, and hoping to raise interest in safeguarding democracy and ensuring that India does not slide into authoritarianism and such excessive measures ever again. The novels are read in parallel with other representations of the period: government white papers and Indira Gandhi’s speeches of the Emergency era, examples of the post-Emergency literature, memoirs, biographies and historiography. The book will be published in June 2019 by Routledge

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• Jul 11, 2023

Emergency Provisions In India: A Critical Analysis

Shrishti Chauhan, BA LLB, Christ (Deemed to be) University, Bangalore

The Emergency Provisions and the decree of Emergencies has frequently been exposed to investigation in the political history of India. There have been contentions both in favour and against the crisis arrangements and its execution. While some were of the assessment that it is crucial to protect the sway of India and its chosen government it has likewise been contended that the arrangements have been abused by the decision gatherings for their own self-centred intentions consequently compromising the privileges of individuals. The discussion on similar has been a ceaseless one since the time the arrangements were remembered for the Constitution. This paper is to basically break down the reason planned by the makers of the constitution while remembering something very similar for the constitution and different conditions where these arrangements were utilized disconnected to its real reason. It is additionally planned to place light on the aftermaths of declared crises on the existences of the majority of the country. India for example Bharat is a federal republic. During a crisis, it has unitary usefulness. That is the reason Dr. B. R Ambedkar announced the Indian Federal structure unique in light of the fact that all through an emergency it turns out to be completely unitary. Part XVIII of the Constitution, Article 352 to 360 incorporates the emergency provisions.

As an outcome thereof, the emergency arrangements (particularly Article 352 and 356) have been broadly corrected by the 42nd Constitutional Amendment Act, so as to present various protections against abuse of power by the executive for the sake of emergency. An aggregate of three emergencies have been declared in India till date. Article 355 forces a twofold obligation on the Centre: to safeguard each state against outside hostility and internal disturbance, and to guarantee that the public authority of each state is carried on as per the arrangements of the constitution.

• Volume V Issue III

Abbreviation : IJLLR

ISSN: 2582-8878

Website: www.ijllr.com

Accessibility: Open Access

License: Creative Commons 4.0

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A study of the emergency provisions in the indian constitution, the emergency of 1975 and the possibility of recurrence thereof

The Constitution of India is a written body that defines and confines the powers possessed by the three organs of the Government, i.e., the Legislature, the Executive and the Judiciary. It lays down a clear set of rights and duties India’s citizens and its government are to have and perform. Further, the Constitution, in order to prevent damage from an enormously volatile situation prevailing nationwide or any of its territory, includes the provision of “Emergency” under Part XVIII (Article 352 to Article 360). Under Article 352(1) of the Constitution, Emergency can be imposed on the grounds of External Aggression, Armed Rebellion and/or War. The term “Armed Rebellion” was introduced by the 44th Constitutional Amendment in the year 1978, with the earlier phrasing being Internal Disturbance, which was clearly wider and vague. Moreover, presently, Fundamental Rights, other than Article 20 and 21 can remain suspended during such a time, whereas earlier, all of them could be. This amendment was introduced to prevent the recurrence of damages caused during the National Emergency of 1975 imposed by the then Prime Minister of India Indira Gandhi, which many believe was uncalled for. The Executive became omnipotent, while Independence of Judiciary was endangered. This study therefore focuses on how the provisions of Emergency evolved post the 1975 Emergency, what transpired during that period and the possibility of its recurrence forty-three years hence. The author relied on secondary sources of information for research.

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