NAME- DIWAKAR SINGH

STUDENT ID- 18010704

SUBMISSION DATE- 11th OCTOBER 2020

TOPIC- NATIONAL EMERGENCIES

ESSAY TITLE- THE NEED FOR AN AMENDMENT OF EMERGENCY

POWERS

WORD COUNT- 2,407

EMERGENCY

The legal sphere has different laws applicable to different circumstances that can be surmised
as – normal and emergency circumstances. There are certain times when some situations
would force the Constitution to function in a different manner that would call for different
laws to be applicable at that moment. For example, the current Covid-19 crisis is a global-
level threat and many countries across the world have declared emergency, to access the
necessary emergency provisions in order to enable governments to protect the nation. The
laws in the territory are thus inactive during an emergency period and the daily functioning of
life in the nation is suspended. It is a necessity that the emergency powers exist in the
Constitution to adapt to each and every situation that may disrupt the normalcy in people’s
lives. However, such a power has a lot of scope for misuse and the administration may abuse
such powers encroaching upon the personal liberty and freedom of citizens. In such a
situation, although the emergency provisions are meant to be a shield to protect its citizens, it
can often function as a double-edged sword that leads to the oppression of the citizens in the
nation.

The English oxford dictionary defines an emergency as a sudden or urgent event or situation
that requires imminent and immediate action to counter the problems posed by such a
situation.1 In times of emergency, there is often no time for proper reflection or consideration,
but rather an immediate need to quell the problem.2

It is thus necessary, in this context to understand the emergency law in India, the scope of its
misuse, examples of such abuse and make recommendations to change the same provisions to
enable the government to function and protect its citizens, all the while keeping checks and
balances on the scope of such power.

Definitions and Requisites of Emergency

In the context of the Indian Constitution, if the President in power is satisfied that there is a
grave and imminent threat whereby the sanctity of peace in India is threatened by war,
external aggression or an armed rebellion, the President may make a proclamation of
emergency in respect of the whole of India or a part of the territory of India that is facing
such a problem.3

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

2 Ibid
3 CONSTITUTION OF INDIA, Art. 352 (1) (India)
Such proclamation cannot be issued so easily and has to be done only after his Cabinet ha
signed off in writing that such a proclamation can be introduced.4 The President holds the
power to revoke the proclamation at any time and the grounds of such a proclamation can
vary as mentioned in Article 352.5 Within a month of its issue, such a proclamation may
cease to operate unless within the period of that one month, both the Houses of the
Parliament approve the same with a majority of 2/3rd of the members in each house. If the
Lok Sabha by any chance is dissolved within that one month, it will continue for 30 days
after the new Lok Sabha has held its first meeting, post-which it shall cease to operate unless
it has received the assent of the Lok Sabha. It shall remain in effect for 6 months
subsequently and can continue if a second resolution is passed.6 However, the same can be
revoked earlier.7 For any subsequent continuance, a special majority would require the assent
of the Parliament, every 6 months.

Such is the definition and process of passing an Emergency under the Indian law.

What is ‘Abuse of Power’?

In simple terms, an abuse of power refers to the unreasonable or unjustifiable exercise of

power in such a manner that the authority exercising such power has transgressed the scope
of his authority. Abuse of power is determined by the intent of the power used, the limitations
of using such power that has been enshrined in the law and is usually done so with mala fide
intent. It is also termed as “colourable exercise of power” or “unreasonable application of
power” and the Constitution of India has placed many safeguards to ensure the same does not
happen. Yet, there have been many instances where such powers have been abused and there
has been no justice for the same, or rather, it was too late to pass justice on the wrongdoers as
it would not repair any of the damage that had already been done. Justice P.N Bhagwati had
once stated in a case that the exercise of power by the administration must be done so in a
cautious manner and the State which is a product of the Constitution cannot shed any of its
limitations at any time while enforcing their duties.8 The principles of administrative law
make sure that the executive authority must be held to the standards set up by the law and
their subsequent actions must be judged according to those standards, invalidating said

4 CONSTITUTION OF INDIA, Art. 352 (3) (India)

5 CONSTITUTION OF INDIA, Art. 352 (9) (India)
6 CONSTITUTION OF INDIA, Art. 352 (5) (India)
7 Ibid
8 R. D. Shetty vs. International Airport Authority (1979) AIR 1979 SC 1628 (India)
actions if they are to be found in violation of the standards. The essence of our Constitution
lies in the fact that all the actions of the administration must be done so with reasonability as
the cornerstone of its application and thus necessitates that power is not to be used arbitrarily.
Discretion of the authorities must be done so with conformity to the public policy and with a
proper purpose.

What would Constitute a valid emergency?

The Constitution of India classifies emergencies into three different types of emergencies: a)
National Security emergency; b) Breakdown of Constitutional Machinery; and c) financial
emergency.

As explained above, the president has the power to issue an emergency proclamation and the
same principles that are adhered to in the Indian Constitution are the ones enshrined in
international treaties Such as the Universal Declaration of Human Rights and the ICCPR.
Before the 44th amendment in 1978, the emergency proclamation could be made on three
grounds war, external aggression or internal disturbance, the third subsequently changed
within the 44th amendment so as to limit the scope of emergency powers and it being issued
on the basis of vague and ambiguous grounds. Thus, the words internal disturbances were
changed to ‘armed rebellion’ which in turn restricted the scope of an internal emergency. It is
important to note that such a proclamation could be made before the occurrence of the actual
event, and imminent danger or even apprehension of imminent danger is enough to issue a
proclamation. The 44th amendment has also curtailed the powers of the emergency and has
enforced the principle of temporariness in the law by ensuring the time limitations of such
proclamations, one month without approval and 6 months with approval. The nature of the
proclamation can also be varied or revoked but cannot be done without the approval of the
Union cabinet in writing and such communication has been made thereof.

The Constitution imposes an obligation of good faith upon the executive and they are meant
to decide the legitimacy of such a derogation. The President and the Cabinet have the powers
to issue orders that could deprive citizens of their fundamental rights under the Constitution
in the form of ordinances. Article 19 is automatically suspended during times of a
proclamation. However, the 44th amendment recognized that the fundamental rights under
Article 20 and 21 are non-derogable rights and such rights can be enforced even in times of
emergency.
The proclamation adds to the powers of a President and is provided with additional powers
during the time period of the Constitution. The Union government has its own powers that are
extended, and it is enabled to give direction to the states as to the manner in which the power
of the executive is to be exercised.

Different forms of abuse in India

The Article 352 was a highly debated article and was discussed extensively in the Constituent
assembly before its passing as there was a fear of misuse of the power and that such misuse
could threaten the fabric of democracy. There are four main areas under which there is a
possibility of abuse of power or such an abuse has already taken place.

The first area of abuse wherein the possibility of abuse is high is the Presidential power to
issue an emergency. During the years of 1961 to 1972, it was enough to issue a proclamation
if the President was satisfied that the circumstances necessitated an emergency. The third
emergency during this period was hailed as controversial due to many different issues with
the nature of the emergency and it could no longer be accepted that any ‘internal disturbance’
would garner the need to issue a proclamation and this abuse was exactly what the framers
had feared.

It is important to understand the agencies involved in issuing a proclamation. The first one is
obviously the President. However, he cannot be the sole declarer of emergency and hence the
framers had to add in safeguards as such unbridled power in the hands of a single person was
subject to misuse or misjudgment. The framers of the Constitution debated on whether or not
to add the words ‘with the aid and advice of the Council of Ministers’ so as to not leave any
room for misinterpretation. It is to be understood that the President singly cannot do anything,
but a determined president could easily dismiss and re-appoint a new cabinet that would
assent to his demands. To prevent this abuse, the framers had to ensure that the Article 352 be
amended to add the words stated above. However, it was still liable to abuse. The judiciary
thus had stepped in, with it judgement in the Minerva Mills case9, wherein the Court
examined the validity of an emergency proclamation.10 The Court had ruled that the it is
important to examine the satisfaction of the President and where it can be proved that the
satisfaction was not present, or rather, the satisfaction was of malafide intent, perverse or
absurd, such a proclamation could be challenged in Court.11 The judgment set up a number of

9 Minerva Mills V. Union of India (1967) AIR 1967 SC. 1335 (India)
10 Ibid
11 Supra note 9
judicial safeguards and established that such an emergency is not immune from judicial
scrutiny.12 However, it was also noted that the Court cannot substitute its satisfaction for the
satisfaction of the President and has to judge only the Presidents satisfaction and reasons for
issuance of a proclamation.13 It was also declared that the Court could not interfere with the
continuance of the proclamation unless it is established that there is no justification to do the
same.14

Second way of abuse comes from the council of ministers and such power as was in the case
of the 1975 emergency, is abused for the sake of the ruling party. The forefathers thought that
collective responsibility would solve the problem by directing the requirement of the assent
of the President and subsequently the Parliament within a month of issuance. However, what
the framers did not account for was the easily available approval of the Parliament and thus if
such a situation comes to pass wherein all three approve of the proclamation, then such a
proclamation cannot be checked at all. The President may dismiss his Ministry, dissolve the
House, appoint another Ministry, get approval from the Council of States and reign supreme
with Ordinances either without election or without caring to call the House.

There is also a chance of abuse of powers by the State and a declaration of emergency under
Articles 353 and 358 widens the legislative power of the state which enables them to impose
restrictions on Article 19 of the Constitution. The judiciary does step in to help the people
against the executive, however, only to some extent. Amendments such as the 42nd
amendment gave unbridled power to the executive and it was extensively abused by passing
laws in different parts of India. For example, Kashmir has been under a state of emergency
for almost forever, and the Union is enabled to regulate the internal affairs of state of
Kashmir all the while causing a number of violations to the liberty of people in the state.
Even in the year 2019, the internet was shutdown and the agreement between India and
Kashmir was abrogated which led to multiple Human Rights violations. This kind of
emergency law making powers, in the hands of a wrong government could lead to disastrous
consequences, if they have not led to it already.

Even the power of preventive detention, where under suspicion of any threat to the security of
India, the State could hold an individual in preventive detention without any proof of him
connected to the disturbance. This power has been misused a lot during the period of

12 Ibid
13 Ibid
14 Ibid
emergencies that have passed. Both the Supreme Court and high courts have time and again
invoked rules of procedural strictness and principles of administrative law to control
executive discretion in the use of the preventive detention power and its consequential
abuse.15 Prior to the 44th amendment, even human rights were suspended in times of
emergency, but post the amendment it was ensured that the rights under Article 20 and 21
would be guaranteed. This is the last type of abuse that involves the suspension of basic
human rights.

Recommendations

It is recommended that there be a new safeguard and amendment to the Articles of

emergency powers wherein a system of administrative courts is established, similar to the
system in France. The establishment of such Courts would necessitate that power of
emergency be exercised judiciously. The Courts can have members of all three pillars of
government, i.e. an executive member, a judicial member, and a legislator to oversee the
operations of the administrative court. Each issuance of a proclamation after already
proceeding through the Constitutional process of issuing a proclamation, must submit to the
Court a set of reasons necessitating the proclamation of emergency and the reasons as to why
the President, Parliament and Union cabinet have given their assent to the same. The court
shall be presided by three members that shall be chosen by the respective pillars of the
government as a representative of each pillar. The process of ensuring that the ruling shall go
smoothly will be done by having three members that are of each house so that they can
debate the validity of the proclamation. Such a process, considering the nature of emergency
powers will be carried out in three days from the application of such a proclamation. The
rulings must be carefully decided with suitable reasons as to whether or not a proclamation is
valid.

15 A. K. Roy vs Union of India (1982) 2 SCR 272; D. D. Bhatia vs State of J & K (1956) SCR 948; Sukhpal
Singh vs State of Punjab (1990) 1 SCC 35; Gracy vs State of Kerala (1991) 2 SCC 1 (India)