i
Table of Contents List of Cases .................................................................................................................................... i List of Statutes ............................................................................................................................... ii List of Abbreviation ..................................................................................................................... iii CHAPTER-I .................................................................................................................................. 1 INTRODUCTION......................................................................................................................... 1 1.1 Emergency Laws and Provisions ...... …………………………………………………...1 1.2 Emergency Laws and Provisions in India ........................................................................ 1 1.3 Purpose ............................................................................................................................. 2 1.4 Hypothesis ........................................................................................................................ 2 1.4 Research Methodology..................................................................................................... 3 1.5 Chapterisation................................................................................................................... 3 CHAPTER-II................................................................................................................................. 4 A CRITICAL ANALYSIS ON EMERGENCY PROVISIONS AND LAWS ......................... 4 2.1 Emergency Provisions ...................................................................................................... 4 A. General Emergency………………………………………………………………..…..4 A.A Duration of Emergency…………………………………………………………6 B. Declaration of Constitutional Emergency……………………………………………..6 C. Financial Emergency…………………………………………………………………..7 2.2 Changes made by 44th Amendment.................................................................................. 8 2.3 Suspension of Fundamental Rights during Emergencies ................................................. 8 2.4 Suspension of provisions of Art. 19 during Emergencies ................................................ 9 CHAPTER-III ............................................................................................................................. 11 NEED FOR EMERGENCY....................................................................................................... 11 3.1. Need For National Emergency In India ........................................................................ 11 3.2 Need For State Emergency In India .............................................................................. 12 3.3 Need For Financial Emergency In India ....................................................................... 12 3.4 Fundamental Rights Vs. Emergency ............................................................................. 12 3.5 Constitutional Emergency in the States ......................................................................... 13 3.6 Suspension of Fundamental Rights ................................................................................ 13 3.7 The Habeas Corpus Case................................................................................................ 14 3.8 SALIENT FEATURES OF 44th CONSTITUTIONAL AMENDMENT ...................... 15
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CHAPTER-IV ............................................................................................................................. 17 CONCLUSION ........................................................................................................................... 17 Bibliography ................................................................................................................................. iv
i
List of Cases
S. R.Bommai v. UOI
7
State of Rajasthan v. Union of India
7
The Habeas Corpus Case
15
\
ii
List of Statutes
Constitution of India, 1956 Maintenance of Internal Security Act, 1971
iii
List of Abbreviation
Ed.
Edited
P.
page
Pp.
pages
e.g
exempli gratia
i.e.
that is
Art.
Article
Ed.
Edition
Cl.
Clause
Amend.
Amendment
v.
verses
AIR
All India Reporter
S.C
Supreme Court
H.C
High Court
¶
Paragraph
Kant.
Karnataka
Ibid.
Ibidium
1
CHAPTER-I INTRODUCTION 1.1 Emergency Laws and Provisions: A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviors, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale for suspending rights and freedoms, even if guaranteed under the constitution. Such declarations usually come during a time of natural or manmade disaster, during periods of civil unrest, or following a declaration of war or situation of international or internal armed conflict. Justitium is its equivalent in Roman law. In some countries, the state of emergency and its effects on human rights and freedoms and governmental procedure are regulated by the constitution and/or a law that limits the powers that may be invoked. Rights and freedoms may be suspended during an emergency, for instance, freedom of movement, but not non-derogable rights.1In many countries it is illegal to modify the emergency law or the constitution during the emergency. 1.2 Emergency Laws and Provisions in India: When the Constitution of India was being drafted, we were passing through a period of stress and strain. Partition of the country, communal riots, the problem concerning the merger of the princely states including Kashmir and many more problems of such nature created an abnormal atmosphere which was full of apprehension. Therefore, the Constitution makers thought it proper to equip the Central government with the necessary authority, so that, in the hour of emergency, when the security and stability of the country or any part thereof is threatened, the Central government may act effectively to handle any such grave situation. Therefore, some emergency provisions have been made in the Indian Constitution to safeguard and protect the security, integrity and stability of the country In India, an external state of emergency was declared three times during wars:
1
In 1962 Sino-Indian War
In 1965 Indo-Pakistani War of 1965
"Non derogable Rights and States of emergency", edited by D. Prémont, C. Stenersen, I. Oseredczuk, Bruylant, Brussells, 1996, p. 644.
2
In 1971 Indo-Pakistani War of 1971 In 1975, Prime Minister Indira Gandhi declared a state of internal emergency after she
was indicted in a corruption scandal and ordered to vacate her seat in the Indian Parliament, allowing herself to rule by decree until 1977. Political opposition was heavily suppressed during the emergency. Civil liberties were suspended and a mandatory birth control program was introduced by the government. Confident about her chances of getting re-elected, Indira Gandhi relaxed the emergency and released dissidents. She then was trounced by a grand coalition in the 1977 elections. 1.3 Purpose: The topic of the research is Emergency and Laws and its critical analysis. Therefore the purpose of the project will be to analyze the different kinds of emergency, who has the power to declare emergency, on whom is this emergency imposed, and also how the declaration of emergency affects the general public rights and obligation. 1.4 Research Question and Hypotheses: The researcher with regard to the topic has framed two research questions that are as follows: a. Whether the president has an exclusive power over applying the emergency provisions in India? b. Whether the rights and duties of the general public are affected when emergency provisions are applied? In respect of the aforementioned research questions, the hypotheses with respect to the first research question is a. The president does not have an exclusive power over applying the emergency provisions in India. The hypotheses with respect to the second research question is b. The rights and duties of the general public are not affected when emergency provisions are applied.
3
1.4 Research Methodology: The method adopted for doing this research is doctrinal. The researcher mainly emphasized on the different kinds of emergency, and has given a little more emphasis to the affects of emergency and various other related things. And have taken various references related to our topic, and have given main emphasis to the substantial part of our research work, and also have referred to some of the official sites and articles; Several references have been made, which have been foot-noted for the convenience. 1.5 Chapterisation:
The scheme of chapterisation of the research is being done in this way: First chapter basically deals with the brief introduction of the topic. In Second chapter deals with the critical analysis of the emergency provisions in India. And the last chapter deals with the conclusion of the research.
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CHAPTER-II A CRITICAL ANALYSIS ON EMERGENCY PROVISIONS AND LAWS
2.1 Emergency Provisions: A notable feature of the Indian constitution is the way in which the normal peace time federalism can be adapted to an emergency situation. The framers of the constitution felt that, in an emergency, the centre should have overriding powers to control and direct all aspects of administration and legislation throughout the country. Emergency provisions are enshrined in Part XVIII of the Constitution under Articles 352 - 360. There are three types of Emergency that can be declared, they are as follows:
Emergency arising from the threat to the security of India;
Breakdown of constitutional machinery in a state;
Financial emergency
Proclamation of an emergency is a very serious matter as it disturbs the normal fabric of the constitution and adversely affects the rights of the people. Such a proclamation should, therefore be issued only in exceptional circumstances and not merely to keep an unpopular government in office as happened in June 1975 when an emergency was declared on the ground of internal disturbance without there being adequate justification for the same. As a consequence thereof, the emergency provisions (especially Arts 356 and 352) have been extensively amended by the constitution (44th amendment) act, with a view to introduce a number of safeguards against abuse of power by the executive in the name of emergency. Amendments thus have been made by the 44th amendment to the emergency provisions of the constitution to make repetition of the 1975 situation extremely difficult, is not possible.2
A. General Emergency: An emergency can be proclaimed when the security of the country is under threat or is under the danger of a threat from hostile countries during times of war or external aggression or armed rebellion. Emergency was declared under this provision (Article 352) for the first time in the wake of the war with China on October 26, 1962. It continued up to January 10, 1968. Another proclamation of emergency took place on December 3, 1971, in the wake of
2
Prof. M.P. Jain, “INDIAN CONSTITUTIONAL LAW”, 5 th ed., 2008, P. 673.
5
the India-Pakistan war. During its continuation, a third Emergency was declared was on June 25, 1975. It was revoked in 1977. Critics argue that the third emergency was intended more to retain Mrs. Indira Gandhi3 in power than there was the actual threat. It was the darkest period for Indian democracy as there were arbitrary detentions for a prolonged period of time and accusations of widespread infringement of Fundamental Rights. Article 352 provides that if the president is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened either by war or external agrees ions or armed rebellion4, he may make a proclamation of emergency in respect of the whole of India or any part of India as may be specified in the proclamation. The proclamation of emergency made under clause (1) may be varied or revoked by the president by a subsequent proclamation. [Cl. 2] A proclamation of emergency can be made even before the actual occurrence of even contemplated in Art. 352 have taken place if the president is satisfied that there is imminent danger of war or external aggressions or armed rebellion. Thus the actual occurrence of the events mentioned in Art. 352 are not essential. An eminent danger of war or external aggressions is enough for proclamation of emergency. The president shall not issue a proclamation under cl. 1 or a proclamation varying such proclamation unless the decision of the union cabinet (i.e. the council consisting of the prime minister and other minister of cabinet rank appointed under Art. 75) that such a proclamation may be issued has been communicated to him in writing. This means that the emergency can be declared only on the occurrence of the cabinet, and not merely on the advice of the prime minister as was done by the Prime Minister Smt. Indira Gandhi in June 1975. She had advised the president to proclaim emergency without consulting her cabinet. The proclamation of emergency must be laid before each house of parliament and it shall cease to be in operation at the expiration of one month (prior to 44th amend. two months) unless before the expiry of one month it has been approved by resolution of both the houses. A proclamation of emergency once approved by the parliament shall remain in force for a period of six months from the date of the passing of the resolution approving it, unless revoked earlier. The president shall revoke a proclamation of emergency if the Lok Sabha passes a resolution disapproving it. The power conferred on the president by this article shall include the power to issue proclamation on different grounds.
3 4
Maneka Gandhi v. Union of India; AIR 1978 S.C. 597, (1978). Inserted by the 44th Amendment.
6
A.A Duration of Emergency: Prior to 44th amendment a proclamation of emergency could remain in force in the first instance for two months., but once approved by the parliament it could remain enforce infinitely, i.e. as long as the executive wanted it to continue. The 44th amendment has curtailed the power of the executive to prolong the operation of emergency unnecessarily. After the 44th amendment, a proclamation of emergency may remain in force in the first instance for one month. Such a proclamation if approved by the parliament shall remain in force for the period of six month unless revoked earlier. Thus after this amendment the continuance of emergency of emergency does not depend upon the discretion of the executive. It can be done only with the approval of parliament and that too by a special majority of the house.5 B. Declaration of Constitutional Emergency: The most contentious and abused emergency provision is Article 356. If the President receives a report from the Governor of a State stating that the constitutional machinery has broken down or that the administration of the State can no longer be carried out in accordance with the provisions laid down in the Constitution of India, an emergency can be declared in that State. The President may do so even if he is otherwise satisfied of a constitutional breakdown in a state. The provision allows dismissing the State government and bringing it under President's Rule or Central Rule. Under such a condition, the Governor of the State assumes all functions and carries out the administration in the State, on behalf of the President, i.e. the Centre, with the aid of his advisors appointed by the President upon the, recommendation of the Union Council of Ministers. There were several instances when Article 356 was brought into force in various States.6 The first instance of dismissing a State government by invoking Article 356 even while it continued to enjoy the confidence of the State Legislature occurred in1959, in Kerala, when the Communist government of the day was dismissed. It generated a major controversy and it was argued that it was a wrong decision as the government commanded a majority on the State Assembly.7 On the other hand, the supporters of the decision held that public dissatisfaction manifest in the form of agitation against the government and its policies was reason enough to conclude that there, indeed, was a breakdown of law and order, and, hence, it was correct 5
Dr. J.N. Pandey, “The CONSTITUTIONAL law of INDIA, 47 ed., 2010, pp.732-735. National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the Constitution, II, ¶ 2.1 (2002), at http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm. 7 P.M.Bakshi, “The Constitution of India, 9th ed., 2009, Pp.290-297. 6
7
to impose President's Rule.8 Other instances include the dismissal of State governments in mass twice, in 1977 after the Janata Party swept the general elections and subsequently in 1979 when the Congress Party returned to power. Other contentious occasions on which invoking the provision was resorted are in 1984 in Andhra Pradesh and later in Karnataka when the S R Bommai government was dismissed, and the court later subsequently held that the decision was incorrect. Whenever the proclamation of emergency is made under Art. 356(1), the powers of the state legislature are to be exercised by the parliament. Parliament can confer on the president the power to make laws for the states. It is also to be noted that the word “satisfaction” in Art. 356 (1) does not mean the personal satisfaction of the governor but it is the satisfaction of the cabinet. The satisfaction of the president can, however be challenged on two grounds that it has been exercised mala fide, or based on wholly extraneous and irrelevant grounds because in that case it would be no satisfaction of the president.9In S. R.Bommai v. UOI10 the Karnataka HC has held that the proclamation issued under Art. 356 is not wholly outside the part of Judicial Scrutiny and the court can examine whether the reasons disclosed for issuing proclamation have rational nexus with the satisfaction reached under Art. 356. A proclamation issued under Art. 356 shall be laid before both the houses of parliament and shall remain in operation for “two months” unless before the expiry of the period it has been approved by both the houses. C. Financial Emergency: Financial emergency can be declared under Article 360 in conditions in which the financial stability or credit of the country or any part of the country is threatened. However, as provided for in the Forty Fourth Constitutional Amendment Act of 1979, such a proclamation needs to be approved by the both the Lok Sabha and the Rajya Sabha within two months from the date of its proclamation, or, if the Lok Sabha is at that time dissolved, within 30 days from the date it (the new house) is reconstituted.11 This kind of emergency has not been applied so far.12 The Constitution of India is unique in respect that it contains a complete scheme for speedy re adjustment of the peace time government machinery in movements of national peril. These provisions may appear to be particularly in a constitution which professes to be 8
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (5th ed.1990). State of Rajasthan v. Union of India, AIR 1977 SC 1361. 10 AIR 1990 Kant 5. 11 K. Jayasudha Reddy and Joy V. Joseph, “ EXECUTIVE DISCRETION AND ARTICLE 356 OF THE CONSTITUTION OF INDIA: A Comparative Critique”, pp.7-9. 12 J.N Pandey, p.760. 9
8
built upon an edifice of fundamental rights and democracy. But the provisions must be studied in the light of India‟s past history. India had her in glorious day whenever the central power grew weak. It is far well that the constitutions guards against the forces of disintegration. Events may take place threatening the very existence of the state and if there are no safeguards against such eventualities the state together with all that is desired to remain basic and immutable, will be swept away.13 2.2 Changes made by 44th Amendment: 44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not abused by the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done by 42nd amendment. The following are important points of these amendments
"Internal disturbance" was replaced by "armed rebellion" under Art 352.
The decision of proclamation of emergency must be communicated by the Cabinet in writing.
Proclamation of emergency must be by the houses within one month.
To continue emergency, it must be re approved by the houses every six month.
Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present and voting. 1/10 of the members of a house can move such a resolution.
Art 358 - Under this article art 19 will be suspended only upon war or external aggression and not upon armed rebellion. Further, every such law that transgresses art 19 must recite that it is connected to art 358. All other laws can still be challenged if they violate art 19.
Art 359, under this article, suspension of the right to move courts for violation of part III will not include Art 20 and 21.
Reversed back the term of Lok Sabha from 6 to 5 years.
2.3 Suspension of Fundamental Rights during Emergencies: The Fundamental Rights are not absolute rights. The constitution therefore provides for the curtailment or suspension of the Fundamental Rights in the following circumstances:
13
V. N. Shukla , “The Constitution of India”, p. 585 (1969ed.)
9
Article 358 provides that when the proclamation of emergency is made by the president under Article 352 the freedoms guaranteed by Article 19 are automatically suspended and would continue to be so for the period of emergency.14 The suspension of rights guaranteed by Article 19 thus removes restriction on the legislative and executive powers of the state imposed by the constitution. Any law, executive order made by the state during this period cannot be challenged on the ground that they are inconsistent with the rights guaranteed under Art. 19. Such laws shall, however cease to have effect as soon as the proclamation ceases and then Article 19 is automatically revived and begins to operate. Art. 358, however makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over. Article 359 furthers empowers the president to suspend the right to move to any court for the enforcement of rights conferred by Part-III of the Constitution (except Art. 20 and 21) during the continuance of emergency. The suspension of the right to move the courts for the enforcement of the fundamental rights can be done by an order of the president. He may mention in his order the rights whose enforcement is to be suspended. The order of the president may extent to the whole or any part of the territory of India. It is to be noted that while under Art.358 of the rights conferred by Art. 19 are automatically suspended; the suspension under Art. 359 can only be brought about by an order of the president.15 2.4 Suspension of provisions of Art. 19 during Emergencies: Although the founding fathers of the Indian Republic guaranteed to Indian citizens certain Fundamental Rights, they realized that there might be certain situation in life of the nation when it was not desirable to give absolute rights of freedom to the people, hence they allowed the state to impose reasonable restriction upon clauses 2 to 6 of Article 19 (dealing with the Right to Freedom). The Constitution allowed the state to impose more restriction under Article 358 and 359.16 The original article 358 had provided that while the emergency was in operation under Article 352 due to war, external aggression and internal disturbance, then the state become entitled to take any executive action or make any law for suspension of the Fundamental Right.17 The Constitution (44th Amendment) Act, 1978 further provided that Article 19 could be suspended only if the proclamation of emergency under Art. 352 were 14
Ibid. Dr. J.N. Pandey, “The CONSTITUTIONAL Law of INDIA”, 47 th ed., 2010, Pp.58-59. 16 Supra n.10, p.7. 17 R.C. Agarwal, “Constitutional Development and National Movement of India”, 13 th ed., 2005, p.434-437. 15
10
made due to a threat to the security of India or any part of the territory thereof by war or by external aggression. It did not apply to internal disturbance.18 Thus as soon as a Proclamation has been issued, Art 19 is suspended and the power of the legislature and the executive is made wider. The suspension of Art 19 during the pendency of emergency removes the fetters on the legislature and executive powers by 19 and if legislature makes laws or the executive commits acts which are inconsistent with the rights guaranteed by Art 19, their validity is not open to challenge either during the continuance of the emergency or thereafter. Art 358 makes it clear that things done or omitted to be done during cannot be challenged even after emergency is over.19 Under Art 359, the rights are not expressly suspended, but the citizen is deprived of his right to move any court for their enforcement. The power under Art 356 should be sparingly used and only when the President is fully satisfied that a situation has arisen where the government of the state cannot be carried on in accordance with the provisions of the Constitution. Otherwise the frequent use of this power and its exercise is likely to disturb the constitutional balance. Resort to Art.356 should be the last resort. While it is not possible to exhaustively list the various situations which could be said to constitute a breakdown of constitutional machinery, it could be illustrated as: a. A large scale breakdown of law and order, b. Gross mismanagement of affairs by a state government, c. corruption or abuse of its power, d. danger to national integration or security of the nation or abetting racial disintegration or a claim for independent sovereign status and subversion of the Constitution.20
18
R.C Agarwal, “Constitutional Development and National Movement of India”, 13th ed., 2007, p.434. Dr. D.D. Basu, “Introduction to the Constitution of India”, 20 th ed., 2009, pp.140-141. 20 RamdasTikamdas, National Security and Constitutional Rights in the Asia-Pacific Region: The Malaysian Experience, at http://rspas.anu.edu.au/pah/human_rights/papers/2002/tikamdas.rtf.. 19
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CHAPTER-III NEED FOR EMERGENCY 3.1. Need For National Emergency In India: National Emergency has been declared in our country three times so far. For the first time, emergency was declared on 26 October 1962 after China attacked our borders in the North East. This National Emergency lasted till 10 January 1968, long after the hostilities ceased. For the second time, it was declared on 3 December 1971 in the wake of the second India-Pakistan War and was lifted on 21 March 1977. While the second emergency, on the basis of external aggression, was in operation, third National Emergency (called internal emergency) was imposed on 25 June 1975.21 This emergency was declared on the ground of „internal disturbances‟. Internal disturbances justified imposition of the emergency despite the fact that the government was already armed with the powers provided during second emergency in 1971.was still in operation. And as we discussed in earlier points, that after 1978 the word “internal disturbances” was substituted by “armed rebellion”, to narrow the view of disturbances ant to remove the vagueness and ambiguity.22 The basic need for an emergency occurs whenever there is imbalance within the country, whether wholly or partly. The ultimate aim and object of every government or political entity is to secure good life and safe life to its citizen, and the time we say citizen it means the public of country at large. Whether we talk about the first emergency caused by china attack or the second or the third emergency, in all the cases the social equilibrium of the country was imbalanced and security of citizen was on the stack. Emergency though suspend the fundamental rights excluding those conferred in Art.20 and Art. 21, it does transfer the powers from the hand of state government to the hand of central government.23 Fundamental rights are given to individual, and the only reason they are suspended during an emergency is to secure the interests of the citizens of the country at large. Social interest is always upper then that of individual interest. Therefore it is necessary;
21
R.C Agarwal, “Constitutional Development and National Movement of India”, 13 th ed., 2007., p.434. Ibid. 23 P.M.Bakshi, “The Constitution of India, 9th ed., 2009, pp.290-297. 22
12
in order to secure peace and order at large, sometime rights of the general public are put at stake in order to secure peace normalcy throughout the country or the state in specific.24 3.2 Need For State Emergency In India: This type of emergency has been imposed in most of the States at one time or the other. There have been many cases of misuse of „constitutional breakdown‟. For example, in 1977 when Janta Party came into power at the Centre, the Congress Party was almost wiped out in North Indian States. On this excuse, Desai Government at the Centre dismissed nine State governments where Congress was still in power. This action of Morarji Desai‟s Janta Government was strongly criticized by the Congress and others. But, when in 1980 (after Janta Government had lost power) Congress came back to power at the Centre under Mrs. Gandhi‟s leadership and dismissed all the then Janta Party State Governments. In both cases there was no failure of Constitutional machinery, but actions were taken only on political grounds. In 1986, emergency was imposed in Jammu and Kashmir due to terrorism and insurgency. In all, there are more than hundred times that emergency has been imposed in various States for one reason or the other. However, after 1995 the use of this provision has rarely been made.25 3.3 Need For Financial Emergency In India: So far, In India financial emergency has never been proclaimed. But the need and reason for financial emergency, if ever occur, would be- the financial stability or credit of India or any of its part is in danger26 3.4 Fundamental Rights Vs. Emergency: War Emergency In 1951 that this type of emergency was imposed for the first time in the Punjab State. In 1957, the Kerala State was put under the President‟s Rule. If the president is satisfied that a grave emergency exists whereby the security of India or any part of its territory is
24
Dr. D.D. Basu, “Introduction to the Constitution of India”, 20 th ed., 2009, pp.140-141. Dr. J.N. Pandey, “The CONSTITUTIONAL Law of INDIA”, 47 th ed., 2010, Pp.58-59. 26 R.C. Agarwal, “Constitutional Development and National Movement of India”, 13 th ed., 2005, p.434-437. 25
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threatened by war, external aggression or armed rebellion, he may proclaim a state of emergency under Article 352. 3.5 Constitutional Emergency in the States: If the President is satisfied on receipt of a report from the Governor or otherwise that a situation has arisen in which the Government of a Sate cannot be carried on in accordance with eh provisions of the Constitution, he is empowered to proclaim an emergency under Articles 356. 3.6 Suspension of Fundamental Rights: During the period of emergency, the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution. The term 'State' is used here in the same sense in which it has been used in the Chapter on Fundamental Rights. It means that the power to suspend the operation of these Fundamental Rights is vested not only in Parliament but also in the Union Executive and even in subordinate authority. Further, the Constitution empowers the President to suspend the right to move any court of law for the enforcement of any of the Fundamental Rights. It means that virtually the whole Chapter on Fundamental Rights can be suspended during the operation of the emergency. However, such orders are to be placed before Parliament as soon as possible for its approval. But Article 20 and Article 21 cannot be suspended in any case. Suspension of fundamental rights during emergency is a matter of debate and conflicts of opinion.27Fundamental rights are moral rights which have been made legal by the Constitution. These constitutional rights which are „fundamental‟ in character represent rights in the „strong sense‟. They are distinct from ordinary legal and constitutional rights because they may not be restricted on ground of general utility. The very essence of these rights is that they are guaranteed even if the majority would be worse off in doing so, that fundamental rights are necessary to protect the dignity of an individual. Invasion of these rights is a very serious matter and it means treating a man as less than a man. This is grave injustice and it is worth paying the incremental cost in social policy or efficiency that is necessary to prevent it.28
27
The Secretary-General of General Assembly, “Report of the Secretary-General: In Larger Freedom: Towards Development, Security and Human Rights for All”. 28 Dr. Subhash C. Kashyap, “Constitution of India: Review and Reassessment”, 1 st ed., 2006, Pp. 43-44.
14
After so many debates and many conflicts the question arises- Whether the fundamental rights are absolute? Fundamental rights are not absolute in nature. The government may impose restrictions on three grounds. The government might show that the values protected by the original right are not really at stake in the marginal case or at stake only in some attenuated form. Alternatively if it may show that if the right is defined to include the marginal case, then some competing right, in the strong sense, would be abridged.29 This is the principle of competing rights of other members of society as individuals. Making this „rights‟ choice and protecting the more important at the cost of the less important, does not weaken the notion of rights. Hence the government may limit rights if it believes that a competing right is more important. The third possibility is if it may show that if the right were so defined then the cost to society would not be simply incremental but would be of a degree far beyond the cost paid to grant the original right, a degree great enough to justify whatever assault on dignity of the individual it may result in. But another principle is there which is used in many human rights treaties and in national constitutions as well government may not arbitrarily deprive persons of their fundamental rights. Most of debates on the issue assume a necessary „trade off‟ between rights and security, however relation is more complex. Restrictions on rights on ground of security are not justified per se. This may be because the trade off is unnecessary where the government may pass effective laws which do not violate rights or when harsh laws restricting rights will not yield results. However tensions do arise. If the security strategy genuinely implicates rights, then it may be justified and must be governed by the principle of proportionality. Proportionality analysis is an uphill task and involves balancing of the two social goods of liberty and security. It involves analyzing if there exists a rational connection between the aims of the legislation and the means employed, if there is a less restrictive means available in order to achieve the aim. Thirdly, comparing the effectiveness of the means with the infringement of rights. 3.7 The Habeas Corpus Case The most controversial use of emergency power in the history of India has been between 1975 and 1977. The experience of this state of emergency exposed the weaknesses 29
Granville Austin, “The Indian Constitution: Cornerstone of a Nation”, 1st ed., 1996, p.174.
15
and inadequacies of safeguards on use of crisis power by the government. Though restrictions were imposed on various rights in this period, the most serious infringement was of personal liberty. The President issued orders under the Constitution of India, Art. 359(1) suspending the right of any person to move any court for enforcement of fundamental rights under Arts.14, 21 and 22 and 19 for the duration of the emergency. Following this declaration hundreds of persons were arrested and detained all over the country under the swoop of the Maintenance of Internal Security Act, 1971.Various persons detained under Maintenance of Internal Security Act, 1971, s. 3(1) filed petitions in different high courts for the issue of the writ of habeas corpus. The balance between rights and security may be enhanced by making further changes than those recommended in the 1978 amendment. This includes making the information withheld by the government under Art. 22(6) justifiable. Seervai suggests this may be achieved by allowing a judge to examine the claim of the government that the information on grounds of detention has to be withheld in public interest. The Indian experience with emergency powers reveals a mixed record. These powers were used more responsibly in 1962 than in 1970. The principle of proportionality must thus be the governing principle to ensure that rights are not subverted in the name of security. 3.8 SALIENT FEATURES OF 44th CONSTITUTIONAL AMENDMENT: In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to Article 19 and Article 31 is being deleted. A Proclamation of Emergency under Article 352 has virtually the effect of amending the Constitution by converting it for the duration into that of a Unitary State and enabling the rights of the citizen to move the courts for the enforcement of fundamental rights --including the right to life and liberty to be suspended. Adequate safeguards are, therefore, necessary to ensure that this power is properly exercised and is not abused. It is, therefore, proposed that a Proclamation of Emergency can be issued only when the security of India or any part of its territory is threatened by war or external aggression or by armed rebellion. Internal
16
disturbance not amounting to armed rebellion would not be a ground for the issue of a Proclamation.30 Further, in order to ensure that a Proclamation is issued only after due consideration, it is sought to be provided that an Emergency can be proclaimed only on the basis of written advice tendered to the President by the Cabinet. In addition, as a Proclamation of Emergency virtually has the effect of amending the Constitution, it is being provided that the Proclamation would have to be approved by the two Houses of Parliament by the same majority which is necessary to amend the Constitution and such approval would have to be given within a period of one month.31 Any such Proclamation would be in force only for a period of six months and can be continued only by further resolutions passed by the same majority. The Proclamation would also cease to be in operation if a resolution disapproving the continuance of the Proclamation is passed by Lok Sabha. Ten percent or more of the Members of Lok Sabha can requisition a special meeting for considering a resolution for disapproving the Proclamation. As a further check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing, it would be provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty.
30 31
Dr. Subhash C. Kashyap, “Constitution of India: Review and Reassessment”, 1 st ed., 2006, Pp. 43-44. Supra nt.4.
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CHAPTER-IV CONCLUSION The Constitution is supreme; it is the will of the people of the country. It sets the broad functional parameters of governance. The Constitution was prepared after lengthy deliberations in the Constituent Assembly, which began on 6 December 1946 and came into force on 26 January 1950. Thus the constitution being supreme, therefore the sovereignty of India cannot be surrendered or pledged. India is a Republic and cannot be turned into a monarchy. Which means the fundamental rights given to the citizens of India cannot be surrendered, because those are the most basic and fundamental rights given to the citizens. However, there are some exceptions to these kinds of situation where the Fundamental Rights are suspended, and those are the emergency period. These Emergency Provisions are enshrined in Part XVIII of the Constitution under Articles 352 to 360. There are three types of Emergency that can be declared that are general emergency, constitutional emergency and fundamental emergency. When these emergency provisions are applied to a country, certain fundamental rights are always suspended during this period like Art.19 and various others. According to the Indian Constitution, the president has been given extraordinary powers to deal with certain abnormal situations in order to protect the security, integrity and stability of the country. Provisions have been made in the Constitution for dealing with extraordinary situations that may threaten the peace, security, stability and governance of the country or a part thereof. There are three types of extraordinary or crisis situations that are envisaged. First, when there is a war or external aggression has been committed or there is threat of the same, or if internal disturbances amounting to armed rebellion take place; second, when it becomes impossible for the government of a State to be carried on in accordance with the Constitution; and third, if the credit or financial stability of the country is threatened. In each case the President may issue a proclamation with varying consequences. Along with the modernization of the country, the jurisprudence of the constitution is getting complex and improvised in many manners. Although, the conflict between the fundamental rights being a sacrosanct right cannot be suspended even during emergency is a never ending debate. The reason behind the never ending debate is that the fundamental rights given in the constitution is of very basic character and therefore cannot be suspended even in any kind of extraneous circumstances. But many landmark cases and judicial decisions are trying to end this debate.
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The history of Indian Constitution with respect to the Fundamental Rights and their stability with emergency provisions is full of vagueness and ambiguity. Looking at the jurisprudential aspect, what we can gather is that when it comes to the interest of general public, there interest is always given preference above individual interest. Also in situations like emergencies, the president has a duty in order to protect the general interest proclaim emergency. However, this duty or liability on the president is not an absolute one; therefore his proclamation can only be affected when the council of ministers and other people affirms it. Thus leading us to the conclusion that all the fundamental rights that are normally effective seize to have effect during an emergency, but Article 20, and 21 are not suspended. In such cases of emergency, prioritization of fundamental rights is what is required to be done, which in the current situation has been done. That is by making few exceptions that are not to be suspended even during emergencies (i.e.A.20, 21). Therefore the first hypothesis of the research project stands affirmed. That is the president does not play an authoritarian role with subject to the application of provision of emergency. Before he enforces a national, state or financial emergency, he has to take prior permission of the house of parliament. Whereas the second hypothesis of the project stands negated, the reason to it is that the emergency provisions are after all applied to the general public and therefore it is there rights and duties that are suspended during that period, thus before enforcing the emergency the president and council of minister have to apply their mind. So the second hypothesis to the question stands false.
iv
Bibliography Articles Referred: Bruylant, Brussells, "Non derogable Rights and States of emergency", edited by D.Prémont, C.Stenersen, 1996. National Commission to Review the Working of the Constitution, A Consultation Paper on Article 356 of the Constitution, referred to http://lawmin.nic.in/ncrwc/finalreport/v2b2-5.htm, visited on 12th June, 2011. K. Jayasudha Reddy and Joy V. Joseph, “EXECUTIVE DISCRETION AND ARTICLE 356 OF THE CONSTITUTION OF INDIA: A Comparative Critique”. Ramdas Tikamdas, “National Security and Constitutional Rights in the Asia-Pacific Region”, http://rspas.anu.edu.au/pah/human_rights/papers/2002/tikamdas.rtf.
Books Referred: Prof. M.P. Jain, “INDIAN CONSTITUTIONAL LAW”, 5th ed., 2008, Lexis Nexis Butterworths Wadhwa Nagpur. Dr. J.N. Pandey, “The CONSTITUTIONAL law of INDIA, 47 ed., 2010, Central Law Agency. P.M.Bakshi, “The Constitution of India, 9th ed., 2009, Universal Law Publishing. R.C. Agarwal, “Constitutional Development and National Movement of India”, 13th ed., 2005, S. Chand. Dr. D.D. Basu, “Introduction to the Constitution of India”, 20th ed., 2009, Lexis Nexis Butterworths Wadhwa. Dr. Subhash C. Kashyap, “Constitution of India: Review and Reassessment”, 1st ed., 2006, Universal Law Publishing. Granville Austin, “The Indian Constitution: Cornerstone of a Nation”, 1st ed., 1996, Oxford India Paperbacks. Dr. Subhash C. Kashyap, “Constitution of India: Review and Reassessment”, 1st ed., 2006, Universal Law Publishing.
