CHAPTER VI

Evaluation of the emergency

provisions of the Indian Constitution
in the context of global standards

6.1 Introduction

6.2 Definition and requisites of Emergency under

International Documents

6.3 Definition and requisites of emergency under Indian

constitution-comparative

6.4 J u s t i f i a b i l i t y of declaration of emergency -

Comparative

6.5 Judicial control of emergency powers- Comparative

6.6 Expanding range of non - derogable rights.

6.7 Comparison with other countries

6.8 Relevance of traditional ideal emergency norms and

present practices.

6.9 Conclusion
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6.1 INTRODUCTION

The term emergency connotes a sudden, urgent, usually unforeseen

event or situation, which requires an immediate action, often, without having

time for prior reflection and consideration.1

Emergency recognizes the right of every sovereign State to take all

reasonable steps needed to protect and preserve the integrity of State. There

is hardly any modern constitution which does not recognize the right of the

executive to suspend the normal rule of government including the rights and

freedoms of citizens, during periods of crisis.

The powers so conferred give vast scope. The administration gets

ability to encroach upon the fundamental rights and civil liberties of an

individual. It permits the government regulations in to all aspects of human

activities. The possibility of their abuse emphasizes the need for clearly

defining the situation in which they may be invoked.

There is immense need for consensus as to when a public emergency

will occur. When exactly State is allowed under international norms to derogate

from its obligations to respect and ensure human right.

1. Oxford English Dictionary. 5th Edition, 1993 p 806

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Different terms have been used under different systems in the world

to express the crises situation which justify resort to extraordinary measures

i.e. state of emergency, state of civil emergency, state of siege, stat of war,

state of internal disturbance, state of exception, state of alarm, state of

urgency, state of national defence, state of national necessity, state of special

powers state of suspension of guarantees, general or partial mobilization,

military regime and martial law.2 Terms that signify emergency varies from

constitution to constitution reflecting their own historical experiences. In

municipal laws great variety of grounds for declaring a state of emergency

can be found. But one thing is certain that these above terms have been

described as constituting 'exceptional circumstances" which temporarily

disturbs the social order of the nation. Circumstances of a generally political

character involve extreme and imminent danger threatening the organized

existence of nation, which may be defined as follows-

'A crisis situation affecting the population as a whole and constituting

a threat to the organized existence of the community which forms basis of

the State'.3

There can be found difference in concepts at municipal level and that

envisaged in three treaties, as the State sometime mentions less grave

situation which may not be considered as grave as constituting grave threat

to the State.
2, Gross O- Human Rights- An Agenda For The 21st Century, Chapt. 5

3 Questiaux N: Study of the Implication of human rights of recent developments concerning situation
known as state of siege or emergency, Geneva, UN Doc E/CN4/ Sub 2/1982/15 '27 July 1982.
 133

The Paris minimum standards of Human Rights In its comprehensive

study of the regulation and limits of governmental exercise of emergency

powers include the defacto state of emergency, the permanent state of

emergency, institutionalization of the emergency regime and complex states

of emergency, following the pattern outlined in the Questiaux Report.

The Report on the norms in a state of emergency represent eight

years of study by the International law Association from 1976-84, during

which the Association worked to develop minimum standards for a rule of

law in states of emergency.4

The implementation bodies in turn have their own interpretation of the

term of emergency. How far the Indian concept of emergency corresponds

to the international provisions, in order to determine this fact the precise

definition of emergency that has been so far accepted internationally has to

be construed first. Also by knowing where do the Indian concept of emergency

stands in the light of global concepts of emergencies will help to understand

how far the precautions and the protections under international documents

apply in Indian circumstances.

4. The work was primarily conceived and undertaken for the ILA by Subrata Roy Chowdhury,
a noted Indian human rights lawyer.
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6.2 DEFINITION AND REQUISITES OF EMERGENCY UNDER

DIFFERENT INTERNATIONAL DOCUMENTS

Definition

International documents like ICCPR, ECHR, ACHR are the three

treaties which basically contain the 'derogation' clause. But even these three

international treaties do not define emergency similarly, in spirit and principle

the three treaties provide similar concept but as far as wordings are concerned

they differ from each other.

The first document European convention on human rights introduced

the concept of derogation.5 State parties could legally suspend their obligation

to respect and enforce the rights contained in the convention during times of

'war or other public emergency threatening the life of the nation.' The

American Convention opted for 'war, public danger or other emergency that

threatens the independence or security of a state party'6 and the ICCPR for

'Public emergency which threatens the life of the nation'. 7

The phraseology concerning the kind of emergency situation justifying

derogation by government creates conflicting situation. We find that later

instrument lays down slightly more flexible standard than the other two. The

terminology of ICCPR is not sufficiently restrictive. The American convention

gives more importance to the State. The ambiguity in language gives chance

T. Article 15(1)

6. Article 271

7. Article 4(1)
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to be exploited by an autocratic regime to declare emergency even in

circumstances where the only threat is to its own life for example can be

seen as happened in India in 1975 where security of the people got the back

seat.

Absence of precise definition of emergency to be accepted universally

poses great challenge before the international control mechanism.

Declaration of emergency presupposes widespread abuse of human rights.

This creates serious problem for the international community. Gross violations

of human rights during crises cannot be avoided successfully unless the

basic prerequisites for availing the right of derogation are clear and

unambiguous. Which conditions to be judged as justified for declaration of

emergency? When in the absence of non-observance of prerequisites of

valid emergency State can be categorized, as defector? These are big

definitional problems. What circumstances suffice to show that State has

comeback to normalcy? This is another important question as temporariness

is one of the criteria's of emergencies.

Another big problem is that every State defines emergency according

to its own tradition which creates large scale confusion all over. According

to ILA report- as the International Law Association observed it is

neither desirable nor possible to stipulate in abstracto what particular type or

types of events will automatically constitute a public emergency within the

meaning of the term, each case has to be judged on its own merits taking
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into account the overriding concern for the continuance of a democratic

society.8

Requisites of valid emergency

An emergency can be declared provided the requisite conditions for

its promulgations exist. The existence of a particular situation is a fundamental

condition precedent. In the absence of which there can be no declaration of

emergency. The principles of derogation under the three main treaties has

already been discussed in previous chapters, here an attempt to make

comparative analysis of all the three treats together has been done as they

together constitute the derogation regime. The International jurisprudence

has evolved certain criteria as essential to avail derogation from International

laws. On the basis of international jurisprudence certain situation can be

summarized as follows: The limitation implied under the treaties can be divided

into two main categories.

Procedural Limitation

Substantive limitation

Procedural Limitation: - There are two main procedural controls on the use

of emergency powers.

1) The most important procedural control is a requirement that every

state of emergency must be formally declared by the government introducing

it. It is a valuable control on derogation because it demands that emergency

8. ILA Paris Report 59 (1984) coated in Oraa.J Human Rights in States of Emergency in
International Law, 1992 New York.
 137

powers be applied in good faith in conformity with domestic legal requirements.

It was designed to prevent unwarranted arbitrary derogations and to

preserve existing domestic constitutional and legal limits imposed upon the

powers of government during an emergency, and also because of the

imposition of a duty of public proclamation by International Covenant, requiring

a derogating government to admit its exercise of extraordinary powers. At

the outset it deters attempts to justify repressive action by a retroactive claim

of derogation. While Covenant requires the State to make an official

proclamation of emergency, the European Commission and American

Commission do not do that. Under International law undeclared emergency

is considered inconsistent with other obligations..

2) The notification procedures of both treaties impose quite significant

procedural obligations on the State parties to supply the relevant information

to Secretary General with full details of the derogation. Basically notification

clauses differ in three respects: first under the international covenant notice

is to be given to the other States parties, while Article 15 (3) of the European

Conventions does not mention the other parties. Second the covenant

explicitly requires that notice be given immediately while the European

Convention is silent as to timing. Third the Convention also demands an

explanation of the measures which it has taken.

3) Notice to international organs of provisions from which there has been

derogations and of derogation measures, which have been taken, is quite

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significant. The experts on Human Rights of the Council of Europe

characterize the European Convention's focus on measures taken as a more

extensive obligation. In contrast Article 4(3) demands the identification of

those provisions of the international covenant affected by the derogation.

Substantive Limitation:-

1. Substantive criteria assume central importance in the derogation

articles: that there be a public emergency which threatens the life of the

State and that emergency measures are strictly required by the exigencies

of the situation. The derogation articles indicate that a public emergency,

which threatens the life of nation, must be a significant disruption certainly

more than the low-level civil disturbance common in contemporary

democracies. The life of the nation clause signifies that the entire State,

rather than a discreet segment of the population must be menaced and that

some fundamental element of statehood such as the functioning of the

judiciary or legislature or the flow of crucial supplies must be seriously

endangered. The phrase encompasses natural disasters as well as political

convulsions. The articles restrict derogation to situations where danger is

actual or imminent, not merely potential latent or speculative situations.

The measures be taken only to the extent strictly required by the

exigencies of the situation contains three significant words of limitation 'extent'

'strictly' and exigencies'. By focusing upon the extent of the measures the

articles underline the principle of proportionality. The derogation must be

proportional to the danger, the special measures must terminate and if the
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emergency develops in stages of varying intensity, the measures during each

phase should likewise vary.

The term strictly strengthens this element of proportionality and

indicates an implicit obligation to act in good faith. A government is not to

make opportunistic use of an emergency. The phrase demands caution and

a duty to take care in assessing the necessity, rather than the government's

subjective evaluation should determine legitimacy of derogation.

The word exigencies stress absolute necessity. A derogating

government must adopt possibly less restrictive alternatives before

suspending fundamental rights. If equivalent results could be achieved without

a violation of basic rights then the measures cannot be said to have been

strictly required by the exigencies of the situation.

2. Another substantive limitation on the right of derogation that the

measures taken must not be inconsistent with the State's other obligations

under International law, such as commitments under the United Nations

Charter and the Laws of War. For example, if the State failed to make an

official emergency proclamation this could be seen as a violation of Article

15 of the European conventions though the obligations would actually arise

out of the State's undertakings under Article 4 of the international covenant.

3. Emergency must be provisional- It is essential to ensure the temporary

nature of emergency. The international commission of jurists recommended

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a fixed period of time, which seems impracticable as it is difficult to predict

how long an emergency can last.

Different views have been expressed on this subject. The approach

should be to have constant parliamentary supervision over continuance of

emergency and most necessarily judicial review of state of exception.

4. The declaration of the emergency must be a last resort -the exceptional

character of derogation requires that those measures only be taken when

the normal measures to deal with the threat becomes impossible.

5 The State must not discriminate in any way.

6 There is prohibition of restriction over certain 'core' rights such as

liberty, which cannot be derogated.

6.3 DEFINITION AND REQUISITES OF EMERGENCY IN INDIAN

CONSTITUTION- COMPARATIVE

Definition

Under the Indian Constitution, 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,9 he may, by proclamation, make a declaration to that effect, in

9. Before 44th Amendment Act, 1978, the ground was 'Internal Disturbances'.
 141

respect of the whole of India or of such part of territory, must be specified in

the proclamation.10

The President shall not issue this proclamation of emergency unless

the decision of the cabinet, that such a proclamation may be issued, has

been communicated to him in writing.11 The proclamation may be revoked or

varied by the President at anytime. Different proclamation on different grounds

may be issued.12 It shall, however, cease to operate on the expiry of one

month unless within that period both Houses of Parliament by a majority of

total membership and a majority of approve it not less than 2/3rd of the

members present and voting in each house.13 If within this period of one

month, it is approved by Rajya Sabha but the Lok Sabha is dissolved , it will

continue up to 30 days from the first day of meeting of Lok Sabha, after

election. If within this period, it is not approved by Lok Sabha it shall cease

to operate after the 30th day. Once it is approved by both Houses of Parliament

it shall remain in force for a future period of 6 months from passing of the

second resolution, unless revoked earlier.14 For further continuance, the

special majority would require the approval of the Parliament every six months.

10. Art 352(1) . The Proclamation may also be issued before the start of war etc. Provided there is
imminent danger thereof.

11. Clause (3) of Art 352 added by the Constitution ( 44th Amendment) Act. 1978.

12. Clause (9) ofArt 352 added by 42nd Amendment Act 1976and renumbered by 44th Amendment

Act 1978.

13. Before 44th Amendment Act,1978 approval was required with in 2 months by simple majority.

14. Art. 352 (5)

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If simple majority disapproving the proclamation or its continuation passes

the Lok Sabha a resolution, the President shall revoke it.15

Requisites of valid emergency.

Indian constitution was adopted at the same time when the world has

for the first time officially recognized the human rights. It was the time when

Universal Declaration of Human Right was adopted striving to respect human

rights of an individual. India became party to this valuable document and

rightly the high values of this universal document found place in Indian

constitution. India could not and did not remain behind It will be worthwhile

to compare Indian emergency provisions with treaty laws especially ICCPR

which came into existence in 1966 and to which India subscribed fully in

1978. On the basis of constitutional provision and subsequent amendments

certain important criteria can be identified as prerequisite for emergency in

India.

1) The constitution envisages three types of emergencies: (i) Emergency

arising from a threat to the security of India; (ii) Break down of constitutional

machinery in a State: (iii) financial emergency.

Apart from national emergency constitution provide for localised

emergency also on the basis of State level breakdown of constitutional

15. Art.352(7), where a notice is given , in writing signed by at least 1/10 members of Lok Sabha
of their intention to move a resolution for disapproving the continuation of the proclamation of
emergency, to the speaker, if house is in session, or to the President, a special sitting of
theLok Sabha must be held within 14 days from the date of receipt of the notice to consider the
resolution
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machinery. Treaty provisions do not clearly provide for local emergency.

The guidelines provided by European lawless case suggest that at least in

theory localised emergencies are not provided in treaty laws.

2) Article 352 (1) of the Indian Constitution empowers the President to

declare a state of emergency by issuing a proclamation. 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 internal disturbance, he may by proclamation make a

declaration to that effect. This principle is similar to that in the treaties. In the

line of international procedural norms India also provides that President shall

declare emergency and make proclamation

3) Before 1978 an emergency could be declared because of war, external

aggression or internal disturbance. The expression' internal disturbance was

too vague and broad. The 44th amendment substituted the words 'armed

rebellion' for 'internal disturbance' with view to excludE the possibility of an

emergency being proclaimed on the vague and ambiguous grounds. This

change, restricted the scope of what may be called as internal emergency in

line with international requirement of imminent danger..

A) Another notable point is that proclamation under the constitution can

be made even before the actual occurrence of event, imminent danger is

enough. Which does not correspond well to international norms.

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5) The most important principle of temporariness of emergency has been

included under Indian constitution also. 44th amendment has curtailed the

power of the executive to prolong the operation of emergency unnecessarily.

Now a proclamation of emergency may remain in force in the first instance

for one month, shall remain if approved by parliament for the period of six

months unless revoked earlier.

6) A Proclamation issued under Art. 352 (1) may be varied or revoked by

a subsequent proclamation. The 44th Amendment has introduced a clause

to the effect that President shall not issue a proclamation of emergency or a

proclamation varying the same unless the decision has been taken by the

Union Cabinet and has been communicated to him in writing.

7) International law poses a duty on State to take care in assessing the

necessity and not the subjective evaluation should determine the legitimacy

of derogation. It has been the practice to leave the determination of whether

or not the security of India is under threat to the subjective satisfaction of the

President acting on the advice of the Cabinet. Indian Constitution puts implicit

obligation of good faith on executive.

8) The President and the cabinet under faith are authorized to order

deprivation of fundamental rights under part III of the constitution in the form

of ordinances. The President may issue order-suspending rights under article

20, 21 and 22 also.

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Following the tradition of treaty laws under the 44th Amendment the Indian

constitution recognized Art. 20 & 21 as non-Derogable.

9) As a result of the declaration of emergency, the President becomes

more powerful and assumes a number of additional powers and functions to

those already provided under the Constitution during normal times. The power

of the Union Government extends to the giving of direction to the States as

to the manner in which the executive power of the State is to be exercised.

10) According to treaty laws the derogation should be proportional to the

danger, while under Indian constitution there is provision of automatic

suspension of article 19.

11) The ordinances making power continued in the same manner as British

tradition of conferring legislative power on the executive. It provids that both

the President and the state government could issue ordinances having the

force of law when parliament or state legislature are not in session, if they

were satisfied that circumstances exist which require immediate action. Any

such ordinance would have to be laid before the respective legislative body

and would cease to have effect after six weeks from the date of reassembly

of such body unless approved earlier. This provisions was accused as

subverting the democratic process by 'unjustified and cavalier resort to the

ordinance making power'16

16. D.C Wadhwa, 'Re-promulgation of ordinances: A fraud on the constitution'- Orient longment,
N D 1985
 146

There is need to reexamine the emergency provisions in the light

of international norms. The emergency provision of the constitution do

not corresponds to the International laws in real term .

6.4 JUSTIFIABILITY OF DECLARATION OF EMERGENCY

Court must decide the question whether a functionary under the

situation has acted within the limits of its powers or exceeded it. It is for the

judiciary to determine and enforce constitutional limitations. The question of

justifiability of declaration of emergency has usually a political colour and

flavor. Apart from the much abused doctrine of political question neither reason

nor principle warrants exclusion of judicial review of the question whether

emergency has been bonafide proclaimed in compliance with the legal pre-

requisites. There is no reason for adopting a judicial hand off attitude.

6.4.1 Position under European Commission of Human Rights

The European Commission has developed a vigorous review over

State action. It has articulated certain principles regarding derogation rights

of State. Its remarkable manifestation can be found in its landmark decisions.

The human rights jurisprudence developed by the European

Commission and the European Court of Human rights has established that

existence of a public emergency threatening the life of the nation is a justifiable

issue.

In the lawless case the European Court of Human Rights confirming

the findings of the commission held that the Irish Government from a
 147

combination of several factors reasonably deduced the existence of a pu,.,v,

emergency.

More remarkable was its decision in Ireland v. United Kingdom the

European Court has held that the existence of such an emergency is perfectly

clear from the facts determined that the Greek military had failed to prove

the existence of a public emergency threatening the life of the nation. The

Commission was not affected by national legislations and instead, proceeded

on the statutory principle.

The situation was expressed in these words :

"Initially justifiable measures of deprivation may be retained long after

the alleged crisis is over; excessive measures may cause more destruction

than conservation of values; arbitrary measures may bear no rational relation

whatever to the actual dangers involved in the alleged crisis. Preoccupied

with the task of maintaining their ascendancy in a highly insecure world,

elites may go beyond the exploitation of crises to the fabrication of crises for

exploitation."17

The decisions of the European Commission and the European Court

have established that the question whether there is public emergency

threatening the life of the nation and what measures are necessary to

overcome the emergency will initially be decided by the concerned State. As

17, Mc Dougal, Lasswell and Chen.human Rights and World Public Order (1980) p 129.
 148

they have direct and continuous contact with the pressing demands. The

international bodies shall decide on the objectivity of emergency. The States

thus enjoy a wide margin of appreciation in the matter of declaration of

emergency. But the jurisprudence developed have made it clear that they do

not enjoy an unlimited power. "The domestic margin of appreciation is thus

accompanied by a European supervision.

6.4.2. Position under Inter American Commission of Human Rights

The American Court and Commission have not produced any

significant decisions regarding judicial review during period of emergency

but the Inter- American Commission has asserted its authority to consider

the validity of declaration of emergency by analyzing whether the

circumstances warranted such a declaration. It has reviewed factual and

legal aspect of emergency..

Report on Chile contains an assertion of the power of review of the

existence of a state of emergency. The Commission said: measures involving

suspension of the guarantees of basic rights may in no case last longer than

the actual real and probable situations that determine their adoption. Hence

for example, a state of war, which is in fact non-existent, or, which in fact has

ceased to exist, cannot be invoked to justify under international law, the

suspension of such guarantee.18

18 OAS doc.OEA/Ser LA/, 2 34, doc.21, corr. 1 (1974 ).

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19
In its Report on Bolivia in 1981 the Commission stated that in the

Commission opinion the Bolivian authorities exceeded the limits of state action

by disregarding the restrictions on the use of such measures stipulated in

the American Convention both with respect to the gravity of the situation and

the period of time.

In its 1983 Report on Nicaragua,20 the commission pointed out that in

interpreting the first part of Article 27 (ACHR) the emergency should be of a

serious nature created by an exceptional situation that truly represents a

threat to the organized life of the State."

6.4.3 Position under Human Right Committee of ICCPR

The Committee generates covenant jurisprudence. It adopted the

method of questioning of individual States, in the forms of general comments

by the human rights committee in respect of State reports and also

committee's report on individual communications. The decisions of HRC

asserts principles of judicial review of emergency powers, similar to those

articulated by international control bodies under the ECHR and ACHR in the
21
Landinelli de Silva case it held that no proper factual or legal details

regarding the emergency had been supplied by Uruguay in its notification of

derogation U/A 4 (3) of the covenant. It also criticized emergency in Uruguay

19. Inter-American Commission on Human Rights, Report on the Situation of human Rights in the
Republic of Bolivia OEA/ Ser L/V/11 53, doc 6, 1 July, 1981.

20. Inter-American Commission on Human Rights, Report on the Situation of Human Rights of a
Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.LA/ 11.62,doc.10 rev.3,29
November 1983.

21. (1981 )2HRIJ 130

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and to be unreasonable and as being violative of the proportionality

requirement by Article 4 of the Covenant. In the Martejo decision (1982 ).22

HRC found shocking facts and held Columbia guilty of derogating, from the

non- derogable right to life, liberty and protection against torture.

6.4.4 Position of India

In India the question of justifiability of proclamation of emergency has

been agitated before the Supreme Court in a number of cases. The issue

has been further complicated by intervening amendments of the constitution.

It remains yet to be finally settled. Can the courts enquire into the justification

or non-justification of the proclamation of emergency? This question has

arisen before the Supreme Court in some cases. The attitude of the Court

and its power has been discussed in detail in the next chapter.

Ghulam Sarwar, Waman Rao, Bhutnath , ADM Jabalpur all these

cases have posed a big question to this vital issue of judicial review of

executive action. It created chaos among the political and legal society of

the nation. After ADM Jabalpur when the nation suffered and liberty of its

citizens got the back seat, came the decision of Minerva Mills. Justice

Bhagwati commented after pointing out that declaration of emergency would

be a political judgment based on assessment of diverse and varied factors,

fast changing situations, potential consequences and a host of other

imponderables", but one thing is certain that if the satisfaction is mala fide or

22. (1982)3 Human Right International Journal 166.

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is based on wholly extraneous and irrelevant grounds the Court would have

jurisdiction to examine it because in that case there would be no satisfaction

of the President.

The principle of justiciability of declaration of emergency has been

accepted in India though in actual practice it may be very difficult .The

Proclamation is thus no longer immune from judicial review. The Supreme

Court or the High Court can strike down the proclamation if it is found to be

mala-fide or based on wholly irrelevant or extraneous grounds. The deletion

of clause (5) ( which was introduced by 38th amendment Act) by the 44th

amendment Act removes the cloud on review ability of action . When called

on, the Union Government has to produce the materials on the basis of

which action was taken. The court will not go into the correctness of the

material or its adequacy. Its enquiry is limited to whether the material was

relevant to the action.

6.5 JUDICIAL CONTROL OVER EMERGENCY POWER

Another difficult issue is that of judicial control of the declaration of

emergency. On this point one should distinguish between two different aspects

judicial control by domestic courts, and judicial or quasi-judicial. Control by

international bodies.

6.5.1 Judicial control by domestic courts

There is no agreement about the suitability of judicial control of declaration

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of emergency and the justifiability of judicial control of the declaration of

emergency. The justiciability presents special concern due to its political

nature. Because of its political nature, there should be no control at all by the

judiciary. Another proposal suggests that the question of judicial control should

be resolved according to the legal traditions of each country and therefore

international law should remain silent on this point of the issue. Due to the

lack of precise standards in human rights treaties, it was discussed at length

in United Kingdom seminar. Even if the majority was against judicial control

of the declaration, the question was controversial and different opinions were

held. However there was general agreement that all acts of application of

emergency measures should fall under the jurisdiction of the courts. The

courts should have full powers to quash, as null and void, all acts or measures

which did not conform to the relevant lawful regulations. In that function, the

courts should be guided by the principle of reasonableness, determining

whether a given measure or act was reasonably required or at least reasonably

justified in the specific circumstances of each case. All ordinary remedies as

well as special ones as habeas corpus, and so on should remain operative in

order to check the unlawful restriction of rights.

The ILA added to these functions of the municipal courts the duty to

ensure that there is no encroachment upon the non-derogable rights and

that derogating measures from other rights are in compliance with the rule of

proportionality

The courts in general accept extra ordinary, far-reaching expansion

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of governmental powers with a corresponding contraction of individual rights.

In some cases, international bodies have pointed out that substantial

limitations imposed on the judiciary in reviewing the factual basis of the

establishment of the states of emergency and the excessive self-restraint on

the part of the judiciary, have contributed to gross violation of human rights.

National courts have affirmed the exclusive competence of the government

in appreciating the existence of a public emergency and the measures

necessary to deal with it. The Chilian case is outstanding in this respect.

6.5.2 International control

The first defence of some States is their claim that international bodies

lack the competence necessary to analyze emergencies since the matter

belongs to the domestic jurisdiction of States. The European Commission

feels that to allow governments to resort so easily to the use of exceptional

measures would greatly undermine the convention guarantees. In assessing

these situations the European organs have established a consistent

jurisprudence on Article 15.

The American control bodies like Commission and Court have dealt

with aspects of derogation during states of emergency in the numerous

country reports. The Commission has reviewed the factual and legal aspects

of emergency and has come to definite conclusions in those respects. This

jurisprudence underlines the essential unity in the context of radically different

socio cultural-legal systems, as far as review of State action in periods of

emergency is concerned. This fundamental unity emphasized the use, by

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American control bodies, of concepts similar to the margin of appreciation

doctrine and by putting the burden of proof to justify derogation upon the

State concerned.

The control mechanism under the ICCPR works mainly through the

Human Rights Committee . The Committee monitors application through

reporting procedure, inter-state communication system and individual

communication system.

The whole control mechanism identifies three elements, which can

be identified as follows: - First it is upon to States to declare the emergency

and to take the measures that it considers necessary to overcome the danger.

Secondly this right of the State is not unlimited as the State is not the final

judge in the matter. If the declaration of emergency and the derogating

measures are challenged by other State parties or by individuals, the

European organs will examine whether all the conditions laid sown in Article

15 have been met. Thirdly the theoretical and practical difficulties that

municipal courts face when controlling the declaration of emergency. The

derogating measures have increased the importance of international control.

6.6 THE EXPANDING RANGE OF NOJH- SUSPENDABLE RIGHTS

Some rights are so basic that to suspend them destroys the basis of a

civilized state and the rule of law. These rights are so fundamental that without

them human life is either not possible or civilized life becomes meaningless.

Therefore such rights as right to life, freedom of fair trial or freedom from
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torture must never be suspended whatever may be the type of emergency.

These rights represent the core of human dignity. The concept of human

values has many dimensions. This is evident from the expanding range of

non suspendable rights Experience gathered from declarations and working

of emergencies reveal that life, liberty and freedom of expression are the

direct targets during emergency regime. Opponents or dissidents are detained

without trial mostly followed by their disappearances. Censorship is

introduced, news information by the media is severely curtailed and there is

monopoly of the press, radio and television by the ruling regime. Various

other rights are encroached.

Therefore a vital safeguard for protection of human rights during an

emergency would be a provision in the national constitution of every State

expressly recognizing that there are certain rights, which are non-suspend

able or non-derogable, and that there can be no derogation from the States

obligation to respect and ensure them in any eventuality. It has been

recognized internationally that the other criterion is that certain rights have

no real nexus with the purpose of the emergency in the sense that their

suspension does not conduce to advancement of the objectives of the

emergency and therefore their suspension is unnecessary.

6.6.1 Non Derogable Rights at Universal and Regional Level

There are certain rights, which have been recognized as non-derogable

in character at both universal and regional levels. These non-derogable rights,

which do not permit any kind of derogation, are fundamental rights. The
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validity of these rights cannot be questioned even if the Sate accepted

derogation clause.

At universal level Civil and Political Covenant contains seven non-

derogable rights under Articles 4(2), which does not admit any derogation

with regard to the right to life, the right not to be subjected to torture or to

cruel inhuman or degrading treatment or punishment, the right not to be held

in slavery or servitude to fulfill a contractual obligation, right against expost

facto law; the right to recognition everywhere as a person before the law and

the right to freedom of thought conscience and religion.

The European convention lists only four non derogable rights- the

right to life, freedom from torture and the prohibitions of slavery, the prohibition

against imprisonment for breach of contractual obligation, the right to be

recognized as a person before the law and freedom of thought conscience

and religion.

The Siracusa Principle asserted that the four common non derogable

right had become non derogable as a matter of customary law.23

By contrast under the American conventions no derogation is permitted

from eleven specific rights including the right to nationality and the right to

participate in government The judicial guarantees essential for the protection

23. The Siracusa Principle, Review - International Commission of Jurists-1988, Vol 36-37
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of these rights are also non-derogable under Article 27 (2). Inspite of this

longer list of non derogable rights of the American Convention it has been

observed that this however permits derogation in emergencies from such

rights which are much less serious than those envisaged by the other

instruments.

However the African Charter on Human and People's Rights contains

no derogation clause. Instead of opting for a non derogable provision the

African Charter preferred to qualify certain rights as absolute rights thus;

their absolute character under the Charter amounts to the non-derogable

character of other human rights treaties.

6.6.2 Paris Minimum standards (known as Chaudhary Report)

The Paris standards mark a significant progress in the field of non-

derogable rights. The protection extended to the minorities is a welcome

advance. The report lists 16 non derogable rights.

The formulation of minimum standards has been criticized on the

grounds that it virtually invites suspension of other rights and since all human

rights are minimum nothing should be done to encourage their suspension.

If all human rights are made non-suspend able then there would be no sense

in having emergency. Genuine emergencies do occur. Besides the moral

sanction behind the list of rights which are universally regarded as inalienable
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will be much weekend if the list includes all fundamental rights without any

distinction.

There is strong appeal that following two rights should also be

categorized as non derogable as their importance during emergency is

unquestionable.

Freedom of press - It is felt that the freedom of press should also be

non-suspendable and its independence like that of judiciary and the legal

profession should be preserved during the state of exception. There is merit

in this view.

Judicial remedies- The rights without remedies are worthless. But the

immense value of the great writ of HABEAS CORPUS cannot be

overestimated in matters relating to detention without trial of persons in prison

and their treatment especially during emergency, which is usually

accompanied by arbitrary detention. It is of paramount importance that the

right to judicial remedies and especially the writ on Habeas corpus must not

only be guaranteed by the constitution of the State but should also be made

expressly non suspendable during emergencies.

6.6.3 Non-Derogable Rights Under the Indian Constitution.

Fundamental rights are set forth in Part III of the Indian Constitution.

Articles 12 to 35 of the Constitution deals with the fundamental rights. These

rights are not absolute but qualified in the sense that in defining their ambit,
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ample power is expressly conceded to the State to control them by law.

However, all these rights are justifiable and the Supreme Court and the State

High Courts are equipped to grant protection of these rights in its writ

jurisdiction.

Under the Indian Constitution the power of suspension of fundamental

rights was very wide before 1978. Article 359(1) empowered the President

to pass an order. But the situation has changed after the 44th Constitutional

Amendment, which says- "when the Proclamation of Emergency is in

operation, the President may by order declare that the right to move any

Court for enforcement of the rights conferred by Part III except Article 20

and 21 shall remain suspended for the period during which proclamation is

in force.

The Constitutional rights under Article 20 prohibit ex post facto

operation of criminal law and confer immunity against double jeopardy and

protection against self-incrimination. Article 21 provides that, "No person

shall be deprived of his life and personal liberty except according to procedure

established by law". The rights embedded in Articles 20 and 21 are thus

non-derogable rights. Even during a state of emergency, these rights cannot

be derogated from. In the case of any violation the victim has a rights to

approach the Court for redress.

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present Covenant; to adopt such legislative or other measures as may be

necessary to give effect to the rights recognized in the present Covenant.

Under Indian Constitution following articles are relevant:

Article 51- this article specifically mentions separately international

law and treaty obligations. No explanation is found in the constituent assembly

debates either as to intent or the meaning and scope of these words.

Before the adoption of the Constitution of India the British practice

that customary rules of international law are part of the law of the land, applied

in India also. This position continues even after coming into force of the

Constitution of India.

As regards the treaty of obligation arising out of international treaties,

also India follows more or less the British dualist view and specific adoption

theory. That means international law can become part of municipal law only

if it has been specifically adopted or incorporated.

Article 253- As regards international treaties the most relevant

provisions is Article 253 of the constitution.

In Re Berubah case25 the Supreme Court observed - How treaties,

when made can be implemented, would be governed by the provisions in the

25 AIR 1960 SC 845

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constitution of the country and subject to the limitations imposed by it.

In ADM Jabalpur vs. Shukla,26 one of the questions for consideration

of the Supreme Court was whether U.D.H.R. and the two covenants on human

rights were part of Indian municipal law. Justice H.R. Khanna held that in

case of conflict it is the later that will prevail. In his view the constitutional

provisions should be construed in such a way as to avoid conflict.

But the position will be different when there is no conflict. As pointed

out by Supreme Court in Vishakha vs. State ofRajasthan27-\u the absence

of domestic law, the contents of international conventions and norms are

significant for the purpose of interpretation. Any international conventions

must be read to enlargen the meaning and object of constitutional guaranty.

6.7.2 ICCPR and The Indian Constitution

Many of the civil and political rights contained the ICCPR are also

enumerated in part III of our constitution as fundamental rights. They were

adopted but with a number of major reservations. That means all the rights

were made subjects to the terms of the reservations in the Indian constitution.

Government of India has so far presented three periodic reports to

United Nations in compliance of its obligation under the covenant, 1983,

1989 and 1995 respectively. The Human Right Committee has examined

26. AIR 1976 SC 1207

27. AIR 1982 SC 3014

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the report submitting serious issues of concern.

Committee has shown its disapproval to reservation made under Article

22 of Indian constitution, which provided for preventive detention without the

legal safeguards embodied in Article 9 of covenant. The reservation made

by the Indian government are not accepted to the committee and has heavily

commented on it to the extent as to characterize it as 'incompatible with

objects and purpose of the treaty.28

Committee has expressed deep concern over enacting of different

laws, which in its opinion infringes different rights guaranties by the ICCPR.

Special security Acts like National Security Act, Armed Forces Act, Terrorist

and Disruptive Activities Act, contained provisions that effectively derogated

from the rights contained in Articles 69 and 14 of the covenant.

The committee has also commented that this special security

legislation derogated even from the non derogable rights, contained in the

covenant. Committee has shown serious concern by holding that- 'the existing

practice may lead to defacto declaration of emergency made in certain parts

of the country which were not in line with the covenant'.29

Enumerated fundamental rights- Under Part III of the constitution Article

28. U.N. Doc. CCPR/C/SR 1604 dated 7 November 1977.

29. U.N. Doc. CCPR / C / SR 494 Para 7

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21,22,23,19,14, 20,25,16,15,29 & 30. are the rights, which have adopted

ICCPR.

Unremunerated but recognized human rights- Fundamental rights

though not enumerated in Part III of the constitution, are yet fundamental

rights because they have been recognized as such by the courts.

The expanding range of Article 21 containing the Right to life and

liberty of person has attracted the greatest attention of Supreme Court and

number of fundamental rights, though unenumarated in part three have been

recognized by enlarging the meaning and scope of the Right of life and

personal liberty. These rights are as follows - Right to travel abroad, Right to

privacy, Right to speedy trail, Right of the accused, Right to provide legal

assistance, Right not to be subjected to torture or cruel inhuman or degrading

treatment or punishment, Right not to be imprisoned for inability to fulfill

contractual obligation, Right to compensation for unlawful arrest and detention.

Unremunerated but not yet recognized human rights- This category

consists of those human rights which are enumerated in the ICCPR but are

neither enumerated in the Indian constitution nor have yet been recognized

by the courts. These human rights are - Right not to be subjected to medical

and scientific experimentation, Special protection treatment of the juvenile,

Right to marry and to found a family, Right of self-determination (India has

made reservation about this right), Prohibition of slavery and slave trade and

Prohibition of propaganda of war.

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However, parliament has been conferred the exclusive power to make

any lawfor the whole or any part of the territory of India for implementing any

treaty, agreement of convention with other country or countries or any decision

made at any international conference.

Entries 13 and 14 of List I of the Seventh Schedule of the Constitution read

asunder:-

Entry 13. Participation in international conferences, associations and other

bodies and implementing of decisions made thereat.

Entry 14. Entering into treaties and agreements with foreign countries and

implementing of treaties, agreements and convention with foreign countries.

In the earliest of cases Maganbhai vs. Union of India30. The Supreme

Court accepted the law laid down in attorney General for Canda vs. Attorney

General for Ontario that though treaties created by the executive action bind

the contracting parties, the executive authority in the State cannot acquire

new rights against the citizens and new offences cannot be created by the

mere fact of treaties and conventions entered into with other powers. Laws

will have to be made by the competent legislature for these two purposes.

The Supreme Court in the early 80' took the view that the international

conventions perse orpropno vigore has no force or authority. In Jolly George

Varghese v Bank of Cochin 31 krishana Iyer, J.held that until the municipal

30. AIR 1969 SC 783

31. AIR 1980 SC 470

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law is changed to accommodate the Covenant what binds the court is the

former, not the latter. He further added that the arrest and detention of an

honest judgment -debtor in civil prison, who has no means to pay the debt in

absence of malafide and dishonesty, violates Article 11 of ICCPR and Art. 21

of constitution.

32

A. H. Robertson rightly points out that international conventional law

must go throughout the process of transformation into the municipal law

before the international treaty can become an internal law.

'The positive commitment of the State parties ignites legislative action

at home but does not automatically make the Covenant an enforceable part

of the corpus juries of India.'

However, by a plethora of precedents the Supreme Court has read

the rights under the international covenants into the municipal laws and made

them enforceable to the extent that they are not inconsistent with any provision

of the Constitution or the laws in force in India. The Supreme Court has

recognized such rights and imposed corresponding obligations on the State.

Under Article 141 & Article 144 of the Constitutions, law declared by the

Supreme Court shall bind all the courts and authorities in India.

32. Robertson A. H. In 'Human Rights in National and International Law'

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Deviations

India's declaration (reservation) while acceding to the two

international covenants.

1 Regarding right of self-determination- India declared that right of self-

determination appearing in these articles apply to the people under foreign

domination and that words do not apply to sovereign, independent states or

to section of people or nation, which is the essence of national integrity.

2 Regarding right of compensation to the victim of unlawful arrest or

detention- India declared that the govt, of republic of India takes the position

that the provisions of article shall be so applied as to be in consonance with

the provisions of clauses 3 to 7 of Article 22 of Constitution of India.

3 Law relating to foreigners- The declaration India made was that it

shall reserve its right to apply its law relating to foreigners.

4 Right to form and join trade unions of choice and Right to liberty of

movement and freedom to choose his residence - India has made a

declaration that the provisions shall be so applied as to be in conformity with

Article 19 of Constitution of India.

5 Equal opportunity for promotion in employment- India has made the

reservation that the provisions of Article 7 of ICESCR shall be so applied as

to be in conformity with the provisions of the Constitution of India.

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6. 8 EMERGENCY POWERS-COMPARISON WITH OTHER

COUNTRIES

Emergency laws are common to the countries. A comparative analysis

of emergency legislations in other countries like UK and America with India

can help to analyse the prevailing practices in the world.

6.8.1 Position in the United Kingdom

The two World Wars have shown that in times of war it is essential for

the safety to arm the Government, which would be unthoughtful of in times

of peace. The courts too have tolerated this in the interests of public safety.

In England the executive has no emergency powers except under

parliamentary authority. There is no prerogative of the crown to make a

proclamation of emergency. The principles of parliamentary sovereignty and

rule of law are left unimpaired even in times of war. The parliament itself

endows the executive with authority to arrest without trial suspected persons

by passing such Acts as the Defence of the Realm Act, 1914, the Emergency

Powers Defence Act 1939 and sanction extra-ordinary interference with the

citizen's most cherished rights of person and property which in view of

parliament may be necessary and proper in grave national danger.

In England a distinction is made between an emergency due to war

and an emergency in times of peace due to internal disorder.

The Emergency Powers Act 1920 authorized the Crown by a

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proclamation to declare a state of emergency and to issue regulations by

order-in council so long as such declaration remains in force. The declaration

can be made by the executive only when the essentials of life are threatened.

As the declaration and the regulations are to be made by the executive under

statutory authority these must be in conformity with the conditions laid down

in the statute. The proclamation shall remain in force for not more than a

month but there may be fresh proclamation before the expiry of one month.

The regulations issued under the English declaration of emergency

can only secure and regulate the supply of essentials of life and to empower

the police for preserving peace. The executive has no power under the statute

to issue regulations such as to impose military service or industrial

conscription, to alter the existing procedure in criminal cases, to punish by

fine or imprisonment without trial and, to suspend the writ of habeas corpus.

In times of war, the Executive enjoys wider powers to make regulations

for public safety or defence of the realm including power to detain without

trial. It should however be noted that the right to access to the courts has

never been barred either during World War I or II.

During the First World War, large powers were conferred on the

government under various laws like the Defence of the Realm Act, 1914,

Military Lands Act and the Defence of the Realm (consolidation) Act, 1914.

But the administration of these emergency laws and regulations gave a rude

shock to the citizens who experienced their impact. The court, however,
 171

tried to safeguard the liberties as much as possible, keeping in view, of course,

the war-time needs of the nation.

33
In King v. Holliday the House of Lords upheld the validity of the

Defence of the Realm Regulation Act 1914; on the ground that it was a war

time measure passed at a time of national danger and its operation was

restricted to the duration of war only.

On the outbreak of Second World War 1939, a large volume of

emergency legislations was enacted by the parliament affecting all aspects

of life of the community including economic conditions in the society. In

34
Liversidge v. Anderson Regulation of the Defence Regulation Act 1939

was examined. His Lordship, Lord Atkin said, "amid the clash of arms the

laws are not silent. They may be changed but they speak the same language

in war as in peace".

Thus during emergency parliament can restrict the liberties of the

citizens. The courts however can interfere if the executives commit excesses.

Lord Wright observed "All the courts today and not least this House

are as jealous as they have ever been in upholding the liberty of the subject.

But. if extraordinary powers are given they are given because the emergency

33. 1917 A C . 260.

34 1942 A C . 206.
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is extraordinary and are limited to the period of emergency. It was further

held that the worlds used clearly indicated that it was a matter for executive

discretion and not subject to the discussion , criticism and control of a judge

in a court of law. Lord Atkin In his strong dissent observed, I view with

apprehension the attitude of judges who on a mere question of construction

when face to face with claims involving the liberty of the subject show

themselves more executive minded than the executive.

Thus during emergency Parliament can restrict the liberties of the

citizens the courts however can interfere if excesses are committed by the

executive.

Two considerations weigh strongly in favour of the study of emergency

experience of England. In spite of Monarchy, England is democratic, both

India and England are wedded to democracy and Rule of Law; emergency

poses an identical problem in regard to the state control on individual liberty

in a national crisis. Second, and the more pressing consideration emanates

from the fact that Indian laws with exceptions like Personal Law, are modeled

on the English pattern. Even the Constitution of India is based on the

Government of India Act, 1935 which was passed by British Parliament. And

what is more, the emergency laws in force today are more or less modified

versions of corresponding Acts passed during British Rule in India.

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6.8.2 Position in the United States

In USA the emergency does not increase the powers of the legislature

neither the rights of executive nor the rights of people are affected. The only

constitutional provision dealing with the effect of emergency on the rights of

the people is Article 1(9) (2) which provides:-

"The privilege of the writ of Habeas Corpus shall not be suspended

unless when in cases of rebellion or invasion the public safety may require

it".

The courts may declare any law or executive action unconstitutional

even during war. However the courts uphold laws essential for the safety of

the nation. Thus, nothing of actual invasion or rebellion may justify the

suspension of the writ. The power to suspend the writ belongs to the congress

and not to the President. It is for the Courts to decide whether conditions

have arisen which would justify the suspension of the writ.

In the U.S.A. in times of grave emergency, the States acquire an ample

"police power". Executive or legislative is not the final authority to determine

as to what constitutes the proper exercise of police power.

The courts to aid the effective prosecution of war have liberally

interpreted the War power of the Congress.

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Since 1950, the President has also been empowered with emergency powers

by federal legislation. For example the Internal Security Act, 1950 authorises

the President to proclaim an internal security emergency in case of invasion

or war of insurrection in aid of a foreign country.

In Hirabayashi vs. US 35the court upheld regulations, which required

during the war between the United States and Japan, that all persons of

Japanese ancestry residing in a particular area should be in their places of

residence between specified hours with a view to preventing sabotage and

espionage.

Justice Murphy in his opinion observed - "We give great defense to

the judgment of the congress and of the military authorities as to what is

necessary in the effective prosecution of the war, but we can never forget

that there are constitutional boundaries which is our duty to uphold".

Thus during emergency govt, exercise more powers but has to remain

within the constitutional limitations.

6.9 RELEVANCE OF TRADITIONAL IDEAL EMERGENCY NORMS

AND THE PRESENT PRACTICES

It is true that the drafters of international human rights instruments

had tried to adopt foolproof mechanism to restrict the misuse of emergency

35. 320 U.S. 81.

 175

provision by the state. A careful study of various emergencies proclaimed

by state from time to time all together gives a different picture. In several

cases states have violated these safeguards with imparity.35

Oren Gross emphatically remarks- at the failure of international human

right law to oversee adequately and monitor the excessive recourse to crisis...

"This may lead in turn, to attempts at solving questions at hand by applying

wrong medicine as a result of a faulty diagnosis of the malice"37 In 1983 the

International Commission of Jurists undertook a comprehensive analysis of

states of emergency through out the world 38 The study examine in depth

the practice of 14 state which had experienced emergencies during 1960s

and 1970s India was also included in the list. Two questionnaires were also

circulated to 158 countries out of which only 74 replies were received. Out of

14 countries 9 countries fell into categories of permanent types, only two

states Canada and India fit the examples of emergency model that is the

working assumption of the major studies on emergency norms. ICJ showed

this alarming condition of permanent emergency. This shows need of deep

concern about international monitoring agency's practice of sticking to ideal

emergency as the means to examine and control of crisis power by states.

According to them the traditional discourse on emergency powers through

the mechanism present under the derogation system of three treaties it not

36. On the basis of reports submitted by Special Repporteur between January 1985 and may
1995 it was reported that 90 state have experience defacto state of emergency during this
period

37. Quoted in, Human Rights- an agenda 21st centaury Chapter 5 p. 81

38. ICJ state of emergency; their impact on human rights 1983, Geneva ICJ
 176

viable and relevant in present situation. The actual picture is entirely different.

The instances of emergency are not that ideal emergency envisaged in

derogation system of the three treaties, but defacto or institutionalized

emergencies are prevailing throughout the world. The examples of state

practices demonstrate that emergency has become the norm. Northern

Ireland is the leading example. The conceptual model is very obviously not

relevant to the realities of emergencies today. That is the biggest reason

why the traditional norms to judge the emergency situation have become

ineffective in dealing with the present emergency situation.

The states adopting to defacto conditions prove their reluctance to

abide by the treaty norms. They do not like the idea to be judged by an

agency which may not justified their attitude which is better known to them

only than any other foreign agency. Therefore instead of going in to the

formal declaration of emergency according to treaty norms and being subject

of vigilance by the international monitoring bodies, states prefering to go by

the less clearly defined emergencies called defacto or institutionalized.

India is no exception. The political situation after 1977 compelled

Indian government to opt for certain restrictive methods to control the situation
39
not amounting to emergency Many instances similar to that of defacto

emergency situations can be found under Indian political history.

39. The Political Situation and passing of different laws in India has been discussed in detail
under chapter IV
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Also Instances of prolongation of emergency had been a common feature of

the emergencies that even India had witnessed. Government has enacted

number of laws and Innumerable ordinances without formally invoking the

emergency according to article 352 of the constitution.

Such instances prove that the conceptual model is significantly out of

touch with the practical realities of emergency experience.

6.10 CONCLUSION

An overall assessment of the legitimacy of an emergency practice in

India with the International existing norms lead to certain conclusions.

The Concept presents serious definitional problem that substantially

undermines the value of strict observance of International norms by states.

In spite of considerable steps, International control mechanism has not got

full success to combat violations of human right in crisis world over. At

national level too though Indian courts have developed many important

principles significantly to keep control and check the situation, it still is not

very favorable. Common man is still fighting to preserve his dignity and liberty.

There is need for full proof mechanism at International level taking

into consideration the prevailing practices by the countries. The Principles

are required to be developed that can keep continuous check on the State

practices.
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Indian system provides for conditions, procedures, even far well

developed control mechanism to check the use of crucial power of emergency,

but both at government level as well as at administrative level there is need

for substantive reforms in conformity with international laws.

It is a formidable challenge before the international policy makers to

workout international obligations, which can be suitable and acceptable in

most part of the world. Sufficient progress has been made in this field. But

still lot more has to be done. Efforts made at International level have created

great awareness of human rights issues among the countrymen. There should

be more concentration on strengthening the domestic mechanism of control

over human right violations.

India has shown its determination to be more careful regarding

protection of its citizen's liberty, after 1975 experience, by acceding to ICCPR.

Though in recent years because of many harsh enactments to deal with

many political problems India has diverted from its commitments of ICCPR.

The Human Right Committee has criticized the divergence of India from the

Article 4 of ICCPR. India has to act more honestly towards its obligation

under ICCPR.

-ooOoo-