CENTRAL UNIVERSITY OF SOUTH BIHAR

SCHOOL OF LAW AND GOVERNANCE

TOPIC : “NATIONAL EMERGENCY IN INDIA”

Supervisor : Mrs Poonam Kumari Submitted by : Anupama Vats

B.A.LLB (3rd Semester)
Section – ‘B’
Enrolment no. CUSB1813125018

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 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher Mrs. Poonam
Kumari who gave me the golden opportunity to do this wonderful project on the
topic National emergency in India, which also helped me in doing a lot of Research
and I came to know about so many new things I am really thankful to her.

I have taken lots of efforts by completing this project. However, it would not
have been possible without the kind support and help of many individuals and
organizations like Library and Computer Lab. I would like to extend my sincere
thanks to all of them.

Secondly I would also like to thank my seniors and friends who helped me a lot
in finalizing this project within the limited time frame.

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 LITERATURE REVIEW
BOOKS//STATUTES REFERENCD
 P.M Bakshi; The Constitution of India; Universal Law Publishing;
Thirteenth Edition, 2016.
 M.P. Jain; Indian constitutional Law; Lexi’s Nexis; 7th edn, 2016.
 H.M. Seervai; Constitutional Law of India; Univesal Law Publishing;
fourth edition, 2015.
WEBSITES
 http://shodhganga.inflibnet.ac.in/bitstream/10603/72400/10/10
 https://indiankanoon.org
 https://ssrn,com
RESEARCH METHODOLOGY
The project is basically based on the doctrinal method of research as no field work
is done on this topic.
Source of data: the whole project is made with the use of secondary source.
 Books
 Websites

RESEARCH HYPOTHESIS
 What extent the national emergency is effective in democratic country like
India
 Is there any of the abuse of emergency power
 Should the intervention of Judiciary be increased in matters relating to
imposition of National Emergency

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 CHAPTERISATION
 INTRODUCTION……………………………………...............................6
 PROVISIONS OF NATIONAL EMERGENCY……...........…………7-9
 ARTICLE 352
 ARTICLE 353
 ARTICLE 354
 ARTICLE 355
 OTHER PROVISIONS RELATING TO EMERGENCY……………..10
 ARTICLE 22
 ARTICLE 123 & 213
 AMENDMENTS TO THE CONSTITUTION…………................…10-14
 38th CONSTITUTIONAL AMENDMENT ACT
 42nd CONSTITUTIONAL AMENDMENT ACT
 44th CONSTITUTIONAL AMENDMENT ACT
 59th CONSTITUTIONAL AMENDMENT ACT
 CONSTITUTIONAL EFFECT TO THE AMENDMENTS………..14-16
 HISTORY OF EMERGENCY………………………………...……..16-18
 THE FIRST PROCLAIMATION OF EMERGENCY
 JUSTIFIABILITY OF 1ST PROCLAIMATION OF
EMERGENCY
 THE SECOND PROCLAIMATION OF EMERGENCY
 JUSTIFIABILITY OF 2ND PROCLAIMATION OF
EMERGENCY
 THE THIRD PROCLAIMATION OF EMERGENCY
 JUSTIFIABILITY OF 3RD PROCLAIMATION OF
EMERGENCY
 CASES RELATING TO EMERGENCY……………………………19-20
 CONCLUSION……………………………………………...................…20

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 TABLE OF CASES

 Makhan Singh v. State of Punjab………………………..………AIR 1964

 Naga People’s Movement of Human Rights v. Union of India...AIR 1998
 Bhut Math v. State of West Bengal……………………….……..AIR 1974
 Minarva Mills v. Union of India………………………….……...AIR 1980
 Sabananda Sonowal v. Union of India………….…………….....AIR 2005

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 INTRODUCTION
It is necessary rather inevitable, that the government should be equipped with essential safeguards
to protect itself during crisis situations. Therefore confirming of the Government with
extraordinary powers to meet the crisis becomes essential. The principle of necessity was well
recognized even in ancient India. The great Hindu Jurist of ancient times Manu-the law giver,
recognize "Appad Dharma" as one of the Supreme duties or Dharma of a king as
protector of his subjects against disorder and anarchy. Emergency as crisis of government is an
old concept, many incidences are found in the politico developmental history of India. The Indian
Constitution provides a detailed insight into the entire government structure, basic rights and duties
of the citizen and special provisions. There are a total of 395 Articles in the constitution of India.
Enacted on 26th of January, 1950, the Constitution contains Emergency and Special Provisions of
the Indian Constitution. Special Provisions relating to Certain Classes are included in Part XVI.
The Constitution of India covers Emergency Provisions in Part XVIII. The Constitution of India
envisages three types of emergencies: A national emergency; a state emergency (in the federal
setup, regions are called states in India, and the central government has the power to impose an
emergency if there is a breakdown of law and order in that state); and a financial emergency. The
provisions of National emergency deals under Art. 352-355 of Indian constitution. National
emergency is caused by war, external aggression or armed rebellion in the\ whole of India or a part
of its territory. Such an emergency was declared in India in 1962 (Indo- China war), 1971 (Indo-
Pakistan war), 1975 to 1977 (declared by Indira Gandhi on account of & quot; internal
disturbance") Under Article 352 of the India Constitution, the President can declare such an
emergency only on the basis of a written request by the Cabinet Ministers headed by the Prime
Minister. Such a proclamation must be approved by the Parliament within one month. Such an
emergency can be imposed for six months. It can be extended by six months by repeated
parliamentary approval, up to a maximum of three years. In such an emergency, Fundamental
Rights of Indian citizens can be suspended. The six freedoms under Right to Freedom are
automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended
(Article 21). Also, all money bills are referred to the President for its approval. The term of the
Lok Sabha can be extended by a period of up to one year, but not so as to extend the term of
Parliament beyond six months after the end of the declared emergency.

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PROVISIONS OF NATIONAL EMERGENCY

Article 352
1. If the President is satisfied that a grave emergency exists whereby the security of India or
of any part of the territory thereof is threatened, whether by war or external aggression or
[armed rebellion], he may, by Proclamation, make a declaration to that effect [in respect of
the whole of India or of such part of the territory thereof as may be specified in the
Proclamation].
2. A Proclamation issued under clause (1) may be varied or revoked by a subsequent
Proclamation.
3. The President shall not issue a Proclamation under clause (1) 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 appointed under
article 75) that such a Proclamation may be issued has been communicated to him in
writing.
4. Every Proclamation issued under this article shall be laid before each House of Parliament
and shall, except where it is a Proclamation revoking a previous Proclamation, cease to
operate at the expiration of one month unless before the expiration of that period it has
been approved by resolution of both Houses of Parliament: Provided that if any such
Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a
time when the House of the People has been dissolved, or the dissolution of the House of
the People takes place during the period of one month referred to in this clause, and if a
resolution approving the Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the House of the People
before the expiration of that period, the Proclamation shall cease to operate at the expiration
of thirty days from the date on which the House of the People first sits after its
reconstitution, unless before the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the People.
5. A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a
period of six months from the date of the passing of the second of the resolutions approving
the Proclamation under clause (4): Provided that if and so often as a resolution approving

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 the continuance in force of such a Proclamation is passed by both Houses of Parliament
the Proclamation shall, unless revoked, continue in force for a further period of six months
from the date on which it would otherwise have ceased to operate under this clause:
Provided further that if the dissolution of the House of the People takes place during any
such period of six months and a resolution approving the continuance in force of such
Proclamation has been passed by the Council of States but no resolution with respect to the
continuance in force of such Proclamation has been passed by the House of the People
during the said period, the Proclamation shall cease to operate at the expiration of thirty
days from the date on which the House of the People first sits after its reconstitution unless
before the expiration of the said period of thirty days, a resolution approving the
continuance in force of the Proclamation has been also passed by the House of the People.
6. For the purposes of clauses (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.
7. Notwithstanding anything contained in the foregoing clauses, the President shall revoke a
Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the
House of the People passes a resolution disapproving, or, as the case may be, disapproving
the continuance in force of, such Proclamation.
8. Where a notice in writing signed by not less than one-tenth of the total number of members
of the House of the People has been given, of their intention to move a resolution for
disapproving, or, as the case may be, for disapproving the continuance in force of, a
Proclamation issued under clause (1) or a Proclamation varying such Proclamation,— (a)
to the Speaker, if the House is in session; or (b) to the President, if the House is not in
session, a special sitting of the House shall be held within fourteen days from the date on
which such notice is received by the Speaker, or, as the case may be, by the President, for
the purpose of considering such resolution.]
9. The power conferred on the President by this article shall include the power to issue
different Proclamations 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 (1) and such
Proclamation is in operation.

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Article 353

Effect of Proclamation of Emergency While a Proclamation of Emergency is in operation,

then notwithstanding anything in this Constitution, the executive power of the Union shall extend
to the giving of directions to any State as to the manner in which the executive power thereof is to
be exercised; the power of Parliament to make laws with respect to any matter shall include power
to make laws conferring powers and imposing duties, or authorising the conferring of powers and
the imposition of duties, upon the Union or officers and authorities of the Union as respects that
matter, notwithstanding that t is one which is not enumerated in the Union List; Provided that
where a Proclamation of Emergency is in operation only in any part of the territory of India, the
executive power of the Union to give directions under clause (a), and the power of Parliament to
make laws under clause (b), shall also extend to any State other than a State in which or in any
part of which the Proclamation of Emergency is in operation if and in so far as the security of India
or any part of the territory thereof is threatened by activities in or in relation to the part of the
territory of India in which the Proclamation of Emergency is in operation.

Article 354

Application of provisions relating to distribution of revenues while a Proclamation of

Emergency is in operation (l) The President may, while a Proclamation of Emergency is in
operation, by order direct that all or any of the provisions of Articles 268 to 279 shall for such
period, not extending in any case beyond the expiration of the financial year in which such
Proclamation ceases to operate, as may be specific in the order, have effect subject to such
exceptions or modifications as he thinks fit Every order made under clause (l) shall, as soon as
may be after it is made, be laid before each House of Parliament.

Article 355

Duty of the Union to protect States against external aggression and internal disturbance. 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 the
provisions of this Constitution.

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Other provisions relating to emergency

Article 22:-

Power of preventive detention under the said Article was a great point of worry for the constitution
makers. This power remained subject of great criticism throughout. Part III of the constitution
along with guarantees of personal liberty, different freedoms, equality and right of judicial review,
contained the provision of preventive detention without any charge, which was available even in
peace time, though certain safeguards were also provided. Nation had gone through the experience
of harshness of such powers so there was discontent about its inclusion. Tremendous misuse of the
power was feared which proved right in the future. Its misuse, harshness and its adverse effects on
personal liberty have been discussed in other chapters of this work in details.

Article 123 and 213:-

Under these Articles executive is given power to legislate when the house is not in session. That
means Presidents and the Governor were empowered to issued ordinances if the situation in their
opinion so demands.

This power was misused many times by both central and state governments. The Supreme Court
declared that this powered is not immune from judicial review. 1 Under the power number of
ordinances, enactments, or repeal of many statutes were made. The process of passing of Bills in
parliament was not observed properly. Such ill practices by government were not even been
published or discussed because of press censorship imposed during emergency.

Amendments to the constitution

Emergency provisions have been extensively amended. In most of the cases not much meaningful
debate in the parliament could take place because of emergent nature of the situation.

38th Constitution Amendment Act of 1975- The amendment was enacted during emergency to
make certain modifications in the provisions. Art 352 was amended with a view to make the
proclamation of emergency of 1975 beyond any question. It excluded judicial review of the
satisfaction of President under Article 352(1).The amendment added clause 5 to Art. 352 which

1
DC Wadhwa vs State of Bihar, AIR 1987, S C 579

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declared that the "satisfaction" of the President mentioned in Art, 352(1) and (3) "shall be final
and conclusive" and "shall not be questioned in any court on any ground," It was further declared
that "neither the Supreme Court nor any other court shall have jurisdiction to entertain any
question, on any ground, regarding the validity of a declaration made by proclamation by the
President to the effect stated in clause (i) or (ii) the continued operation of such proclamation."
The 'satisfaction of the President in declaring the emergency was thus sought to be placed beyond
judicial scrutiny. The Presidential 'satisfaction' to issue proclamation was declared to be 'Final and
conclusive.' These provisions were made as a matter of abundant caution because the courts in
several pronouncements had already taken the position that "the necessity of immediate action and
of the President. He is the sole judge as to the existence of the circumstances necessitating the
making of an ordinance. His satisfaction is not a justifiable matter. It cannot be questioned on the
ground of error of judgment or otherwise in court," The amendment provided for another
proclamation of emergency even when there was already one proclamation was in existence. The
provision was to ensure that there might be no legal hindrance in the way of having two
proclamations of emergency on two different grounds operating at one and the same time.
Amendment added new clause (1A) in Article 359-The effect of which was that now not only the
remedy but the rights themselves are suspended.

42nd Constitution Amendment Act of 1976: It is the most controversial and debatable of
constitutional amendments ever undertaken in India. It introduces number of modifications in the
constitution. The most objectionable feature was that it was undertaken during emergency period,
when most of the opposition leaders were detained in jail under preventive detention. Some of the
changes were intended towards more powerful executive away from Judicial scrutiny. The
dominant thrust of the amendment was to reduce the role of courts. Specially High Court in the
judicial and constitutional process. M. P. Jain explains the situation in these words- "Above all,
the impertinence of fundamental rights was greatly devalued. Thus the whole complexion was
sought to change so as to reduce the element of constitutionalism therein.2 The justification given

2
Jain M P- Indian constitutional law ,43rd Edn Central Law Agency,

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was that it is to remove hurdle & obstacles to socio economic legislation. The important
modifications made under the amendment were as follows:-

1) Suspension of Article 19 under Article 358 extended to whole of India whereas the order
of President under Article 359 (1) may extend to the whole of India or any part thereof.
But this distinction will no more be there.
2) Previously it was such that even if the security of a part of India was threatened the
emergency had to be declared u/a 352 throughout the whole of India. The 42nd amendment
rightly removed this defect.
3) Another change made in Art 352 was to authorize the President to vary proclamation of
emergency. President could revoke but could not vary. The proclamation of varying an
earlier proclamation had to undergo the same process in Parliament.
4) Sub-Article 5 of Article 352 inserted by 42nd amendment made the President's satisfaction
in proclamation of emergency final and conclusive and provided that such satisfaction can
not be changed in any court on any ground and further barred the jurisdiction of any court
to consider the validity of proclamation made by the President and also the continued
operation of such proclamation.
5) In various Articles dealing with fundamental rights, certain changes were made with a
view to dilute the over- all efficacy of these rights.
6) A new provision, Art 31 D enabled Parliament to make a law to prevent or prohibit anti-
national activities or the formation of'anti- national associations' The expression 'anti-
national activity' was defined broadly, An 'anti-national association' was also defined
broadly. No such law was to be void on the ground that it was inconsistent with, or took
away or abridged any of the rights conferred by Art, 14, 19 or 31, the law under Art. 31 D
was to be made by parliament. In Art. 31 D the word used was 'law' and not 'reasonable
law'. Thus, the courts could not adjudge the reasonableness of a law passed to prevent or
prohibit anti- national activities or associations. Parliament could thus impose any
restrictions it liked on the fundamental rights guaranteed by Art. 14, 19 or 31 through a
law made under Art, 31D.

During the course of parliamentary, during discussion at the time of enactment of Art 31D, several
members expressed apprehensions at the breadth of the provision. It was suggested that internal

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disturbance might be caused by a variety of reasons but under Art. 31D any kind of internal
disturbances might be termed as 'anti-national'. Art 31D thus placed a great power in the hands of
parliament to affect the rights of the people. The 42nd amendment was regarded as an attempt to
institutionalize emergency in the country for ever. To curtail the power of the High courts and the
Supreme Court to review legislation and give redress to the individual against administrative
excesses. Art 368 was sought to be amended to make parliaments amending power beyond judicial
review.

The 44th amendment undid most of the provision of distortions introduced by the 42nd
amendment.

44th Constitution Amendment Act modified the emergency safeguards as follows:

1. The 44th amendment undid most of the aberrations and distortions introduced in to the
constitution by the 42nd amendment. This was done to achieve few objectives. To ensure
that fundamental rights were not restricted or taken away by the majority in Parliament.
2. To ensure that the power to proclaim and emergency was used properly and not misused
for personal or partisan ends.
3. To ensure that fundamental or basic freedom were not easily interfered by Parliament.

Certain important procedural safeguards were provided as under-

a) Prior to 44th amendment one of the grounds on which emergency could be declared under
clause 1 was internal disturbance. These word were vague and gave wide discretion to the
executive to declare emergency even on flimsy ground. The expression "internal
disturbance" was substituted with the expression "armed rebellion."
b) The advice to the President to proclaim emergency shall be rendered by the Cabinet in
writing. The Emergency Proclamation, which was to be approved by both houses of
parliament by resolution, passed by a simple, majority was amended to be approved by
special majority.
c) The proclamation once approved could remain in force for any length of time without fresh
parliamentary approval. Now this amendment provided for its continuance for the period,
which could be continued for a further period of 6 months if approved again.

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 d) Ten percent or more members of Loksabha can consider a bill for disapproving the
proclamation.
e) The jurisdiction of the high court to issue writs in the nature of Habeas Corpus will not be
suspended so far as Articles 20 & 21 is concerned.
f) It amended Article 22 by which the advisory board has been made truly independent. It
provided that a person cannot be detained beyond 2 months unless the detention has been
approved by the Advisory board and the power conferred on the parliament to provide for
longer period has been taken away.
g) The 44th amendment controlled the power of executive to prolong the operation of
emergency unnecessarily, proclamation may now remain in force. In the first instance for
one month, if approved, shall remain in force for 6 months unless revoked earlier.
h) Clause 5 to Article 352, which made President's satisfaction 'final', was withdrawn.

The position has thus been restored to what it was before the 38th Amendment, thus, it will be for
the Supreme court to decide whether it will treat the 'satisfaction' of the President to issue a
proclamation of emergency, or to vary it or to continue it as 'final' and 'non-justifiable ' or as subject
to judicial review on some grounds Article 19 included the most important right of speech and
expression and automatic suspension of total extinguishment of this freedom which is already
circumscribed by a number of limitations in the public interest, resulted in blanket ban on the
reporting. These changes have not yet been notified and so have not been effective so far.

59th Amendment:-

It has amended Article 358 and has inserted the words 'or by armed rebellion or that the integrity
of India is threanted by internal disturbance in the whole or any part of the territory of Punjab'.
After the words 'or by external aggression'. This means that in case of Punjab the rights guaranteed
by Article 19 will be suspended also when emergency is declared on the grounds of 'Internal
disturbance' or 'Armed rebellion'.

CONSTITUTIONAL EFFECTS TO THE AMENDMENTS

The major shortcoming and loopholes in the emergency provisions as originally enacted and
where they still lack after different amendments. An important question still crops up as to what
could be the reason that inspite of all safeguards provided nationally and internationally the abuse

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of this very important power of the executive prevails presently. Detailed study and analysis of the
powers under different articles shall enable us to investigate certain important issues in question-

1. Identifying the accountable persons

2. Ensuring sufficiency of checks that are enshrined in the constitution

3. Specifying measures necessary to check further misuse

The excesses of the Emergency have focused attention on the following defects of Art. 352 as
originally enacted: (a) although in form the proclamation is issued on the satisfaction of the
President in reality it is issued on the satisfaction of the union government. The article did not
exclude the possibility of a Prime Minister advising the issue of a Proclamation on his or her own
initiative without the authority of the Cabinet - as Mrs. Gandhi did, professing that a rule of
business enabled her to act as she did. Once the proclamation of emergency had been approved by
both Houses within the stipulated period, no provision was made for bringing the continuance of
the proclamation before the House for approval every 6 months as had been provided for in Art.
356 (Proclamation on the failure or constitutional machinery in a state). Nor was any machinery
provided, enabling members of Parliament to move that the proclamation be disapproved or
revoked. The 44th Amendment has removed these defects. These are substantial safeguards against
the recurrence of the abuse of the power conferred by Art. 352. Sub-Article (5) of Art 352 inserted
by the 42nd Amendment made the President's satisfaction in proclaiming an emergency final and
conclusive and provided that such satisfaction shall not be questioned in any Court on any ground;
and further barred the jurisdiction of any Court considering the validity of a proclamation made
by the President and also the continued operation of such proclamation. Sub -Art (5) was clearly
meant to exclude judicial scrutiny of a proclamation or its continuance. 44th Amendment removed
many controversial provision and negativised most of the distortions introduced into the
constitution by previous amendments. It restricted the scope of vague ground of such as 'internal
disturbance'. It also provided many procedural safeguards to ensure further misuse of power by
providing for the special majority for proclamation. Since proclamation of emergency virtually
results in amending the constitution it is desirable that the same majority as required approve
proclamation at the time of amendment. Periodical review of proclamation was also provided. An
innovative procedure of notice in writing to be approved by 1/10th of members was provided for
withdrawal of emergency. The issue of the satisfaction of executive to be final and non justiciable

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was restored to the same as it used to be before 38th amendment. Thus it will be for the Supreme
Court to decide whether it will treat the satisfaction of the President to issue of proclamation of
emergency to be valid or vary or continue it. 44th amendment continued the provision u/a 352 (9)
the power of President to issue proclamation even if there is another proclamation already in
existence. In spite of these safeguards it becomes essential that limitation over power of judicial
review be completely barred, as possibility of the Parliament becoming plaint in the hands of
Government cannot be completely ruled out.

HISTORY OF EMERGENCIES

The First proclamation of Emergency- On 26th October 1962, after China attack on India, the
President issued a proclamation under Article 352 declaring that a grave situation existed whereby
security of India was threatened by external aggression. The President also made an order under
Article 359 (1) suspending the right to move any court for the enforcement of the fundamental
rights relating to personal liberty, and right to move any court for protection against arbitrary arrest
embodied in Article 21 & 22 respectively. Within 1 month of these rules coming into force, more
than 200 members of the Indian Communist Party in various Indian States, including leaders of
the opposition in West Bengal, Kerala and Andhra Pradesh, were arrested on the grounds that their
activities were against the national interest. In April 1965 an outbreak of armed conflict between
India and Pakistan across the borders in April 1965 followed by a war in September that year.
However, even after the normalization, the Emergency continued in force and criticism of abuse
of power began to be voiced even by the Courts. On 18th March 1967, the Home minister
announced that the Government of India had decided to revoke the state of emergency with the
effect from 1st July. A Proclamation revoking the Proclamation of Emergency was issued.

Justifiability of the first proclamation of emergency- The first proclamation was

uncontroversial and every body accepted its need. There was justification to the use of emergency
power but the rules made can be said to be not in proportion to the seriousness of situation. There
was already Prevention Detective Act sufficient to control the situation. There was no justification
to barring the court and also prolongation of emergency power was unjustified.
There are three main issues that required attention. First, from, the point of view of the international
human rights standards, use of the power of preventive detention without justification has no
relevance. Secondly, principles of proportionality, non - discrimination and also non- derogability

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of human rights clearly offend suspension of basic rights of freedom. Thirdly, there is universally
recognized principle that emergency should not exceed the period strictly required. It should be
restored to the condition to normalcy, as soon as the situation normalises.

The second Proclamation of Emergency- On 3rd December 1971, following the outbreak of
hostilities between India and Pakistan, an emergency was declared for the second time. As before,
even after the hostilities between India and Pakistan ceased, the Emergency continued. It was even
reinforced by a proclamation of the President in November 1974 suspending the right to seek the
assistance of the courts for enforcement of fundamental rights u/A 14, 21 and 22 with respect to
orders made under sec. 3(1) (c) of MISA. Even before the declaration of revocation to the second
emergency in July 1975, a new Emergency was declared. Based on wrongly assumed threat of
‘Internal disturbance'.

Justifiability of second proclamation of emergency- The government continued its practice of

prolongation of emergency power, even after cessation of war. Again there was no justification to
the sudden reinforcement of suspension of rights u/a 14, 20, 21 along with Article 19, which was
already under the effects of proclamation. 'India failed all the tests. It also was against the
International provision. Jurist and prominent citizens belonging to no particular political creed
prejudiced the President and Prime Minister to remove the emergency".3

The Third Proclamation of Emergency - Late in the night of 25th June 1975, the President of
India signed the following proclamation- "I, President of India, by this Proclamation declare that
a grave emergency exists whereby the security of India is threatened by internal disturbances."
This time an "Internal emergency, in earlier June, the High Court of Allahabad had allowed an
Election Petition file against Mrs. Indira Gandhi and found her to be guilty of "corrupt practices".
The High Court held that she was consequentially disqualified from holding any public office for
six years. She appealed to the Supreme Court of India. The Supreme Court was in summer
vacation. Justice Krishna Iyer refused to grant her an absolute stay of the High Court judgment.
Only a conditional stay was granted. Opposition's Calls for her resignation as Prime Minister,
followed widespread agitation throughout the country. The President had been prevailed upon to
sign a proclamation of Emergency under Article 352 .On the night of 25 June 1975, without even

3
Aminesty International Annual Report 1974-75, Amnesty International London 1975

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a prior meeting of the Council of Ministers. On 27 June 1975, the President signed another
Presidential order suspending Articles 14, 21 while both the External Emergencies of 1971, and
1974 prevailed the new Internal Emergency proclaimed on 25 June 1975. This 'Internal
Emergency' of 25* June 1975, was the most repressive of all other states of Emergencies. Political
opponents were taken into custody and held without trial. Twenty-seven Organizations (political
and social) were banned. Their office bearers were arrested and detained. The elimination of access
to the courts, and in sensitive implementation of forceful and insensitive Government programs
like clearance of slums and family planning were implemented rather ruthlessly. A rigid and
unprecedented press censorship was imposed. There was a complete ban on reporting of speech in
the parliament (other than Government Statements) and reports of all cases in Courts, names of
detainees, place of detention and all things likely to bring Government hatred or contempt were
barred. The President's satisfaction to declare an Emergency (External or Internal) was declared to
be not only final and conclusive, but also non- justifiable. Fundamental rights under the
constitution, rights guaranteeing equality before the law (Art 14) protection of life civil liberty (Art
21) Fundamental freedoms (Art 19) protection against arrest (Art 22) were suspended. A President
Ordinance amending MISA withdrew the statutory requirement of the detainee's right to be
informed of the grounds of detention. It was sufficient for the authorities to declare that the arrest
was made to "safeguards the security of India". The right of appeal to the government in case of
an illegal detention was abolished. On 18 June 1977 Prime Minister announced her desire to hold
the election. This was followed by the release of opposition leaders in order to participate in
election. Press censorship was suspended. A coalition of five opposition parties won an absolute
majority in lower house of the Loksabha. When the election result were confirmed Mrs. Gandhi
revoked the proclamation before the new incumbent took the office. The formal termination of
emergency automatically received some of the most objectionable aspects of legal situations.
Numerous commissions were created to investigate complaints arising out of the emergency. The
most important was the enquiry conducted by Justice Shah.

Justification for the proclamation of third emergency- The constitution provides for parliament
to control the executives ‘process. But the President has an unlimited power to dissolve the
parliament. Once the President uses that power, there remains no independent authority to control
the government misusing emergency power and to safeguard the citizens rights. President's
emergency proclamation stands for two months in spite of its disapproval by house of parliament.

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It is only the President that can revoke a proclamation. The 1975 emergency prevailed despite the
fact that its proclamation was never put on the table of parliament, which is mandatory under the
constitution.

CASE LAWS
Makhan Singh v. State of Punjab4

In this case it was decided that a law which is intended to define Art. 19 must contain recital to the
effect that such law is in relation to the proclamation of emergency and the executive action taken
only under such a law and not otherwise is protected from attack under art. 19 of constitution of
India.

Naga People’s Movement of Human Rights v. Union of India5

The Supreme Court has explained in this case, the expression “internal disturbances” has a wider
connotation than “armed rebellion” in the sense that “armed rebellion” is likely to pose a threat to
the security of the country, or a part thereof, while “internal disturbances”, though serious in
nature, would not pose a threat to the security of the country, or a part thereof.

Bhut Math v. State of West Bengal6

The Supreme Court refusing to hold the continuance of the emergency under Art. 352 ' void' stated
that the question is “a political, not justiciable issue and the appeal should be to the polls and not
to the courts.”

Minarva Mills v. Union of India7

In this case however BHAGWATI, J., did express the view that whether the president in
proclamation the emergency under Art. 352 had applied his mind, or whether he acted outside his
power, or acted mala fide in proclamation the, emergency could not be excluded from the scope
of judicial review. BHAGWATI, J., also observed that the 38th amendment which barred the
satisfaction of President from being called into question in a court could be declared

4
AIR 1964 SC 381.
5
AIR 1998 SC 431.
6
AIR 1974 SC 806.
7
AIR 1980 SC 1789: AIR 1980 SC 1840.

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unconstitutional as being violative of the basic structure of the Constitution. Judicial review has
now come to be regarded as a basic feature of the Constitution.

Sabananda Sonowal v. Union of India8

The Supreme Court held that since the State of Assam is facing “ external aggression and internal
disturbances” on account of large-scale illegal migration of Bangladesh nationals, it was the duty
of the Union of India to take all measures for protection of the state of Assam from such external
aggression and internal disturbances as enjoined in Art. 355 of the Constitution. Therefore, the
court struck down the illegal Migrants (Determination by Tribunals) Act, 1983 as being ultra vires
the Constitution as it “clearly negated the constitutional mandate contained in Article 355.

CONCLUSION

Proclamation of emergency provisions are made in such a way that it is difficult to impose and
easier to revoke. The amendments made in a relevant way shows that how far it has tried to avoid
the situation of emergency due to its wide effect in political-economic world. Invoking article 352
of the Indian Constitution, Indira granted herself extraordinary powers and launched a massive
crackdown on civil liberties and political opposition. The third emergency exposed the weaknesses
of the safeguards against the abuse of emergency power. It has also reminded that even judiciary
can not be relied against executive oppression after Supreme Courts disappointing judgment in
Habeas Corpus case. The experience of hampering of personal liberty has shaken the Indian
Judiciary and the political world alike. Greater need has been felt to check the exercise of executive
power by stricter administrative and constitutional reforms. The intervention of Judiciary should
be increased in matters relating to imposition of National Emergency. Since, this provision curtails
most of the powers of State Legislative Assemblies. Thus, the intervention of Court will encourage
and promote the check and balance of power. Actions taken by the Centre should be controlled in
manifold to prevent the arbitrary decision in the case of formation of any Government by majority.
The motive behind emergency operation should be in good faith and to avoid any kind of threat to
the sovereignty of the India.

8
(2005) 5 SCC 65: AIR 2005 SC 2920.

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