CHAPTER I

Introduction
 "The marvel of all Human history is the patience with which men and

women submit to burdens unnecessarily laid upon them by their governments."

WILIAM H. BORAH

THE CONCEPT

Human Right is significant instrument, in the hands of humanity. This

forms the basic premise towards bright future for every one on our planet

Earth. The concept of Human Rights only gives meaning and purpose to world

understanding and Universal Brotherhood. Human right concept has

highlighted the responsibilities of States to abide by international agreements

to which they are signatories. This legal development has been to prevent any

'future dictator', just because he was democratically elected, from being able

to ride over the rights of individual or groups. The idea of an "Everlasting

World Peace" seems, till date, just a mirage because of our near failure to

provide for and honour Human Rights.

From within the walls of the fortress of Human Rights - wherein the

foundations of Truth, Fairness, Goodwill, Citizenship and Better Friendships

are laid - I perceive that humanity can expect to stir the Globe towards

expectant success. Peace can soon be attained and maintained for all forever

if and only if we tread on the path of Human Rights.

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This study shall proceed to examine the Global Standards set for all

nations of the World to follow in the field of Human Rights. The concept resumes

a unique position specially when existence and relevance of Human Rights

forms subject of critical study in time of war or public emergency threatening

the life of nations and their people.

States of Emergency have, time and again, been matter of great concern

for policy makers, the legal fraternity and protectors of Human Rights all alike.

It is difficult to find a State that has not imposed restriction on human rights in

the interests of national security. While the sovereign discretion to take that

measure is beyond doubt, it is expected that the State concerned shall follow

a due process of law in the matter, that it shall not behave in arbitrary manner,

that the restrictions shall be reasonable and that there shall be a nexus between

the restrictions and the national interests. A perusal of domestic law and practice

of many countries defies these legitimate expectations. In normalcy as well

as during emergencies Human Rights have suffered grievously at the hands

of the executive and some times of the State judiciary. There are lands whose

people have suffered for decades under defacto, permanent or institutionalized

Emergency. According to U.N. Document.1 defacto, Emergencies involve either

"the adoption of exceptional measures without a state of Emergency having

previously been proclaimed" or "maintenance of exceptional measure after a

state of Emergency has been officially lifted." Institutionalized Emergencies,

on the other hand involve "incorporation into ordinary Law of exceptional

1. E/CN4/Sub2/1993
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measures, before a state of Emergency is formally terminated and their

continuation thereafter."

THE INDIAN EXPERIENCE

India has been an interesting example of the use and abuse of

Emergency powers. On one hand India has been a stable democracy and

guarantees civil liberties, free press, free and fair elections, independent

effective and fearless judiciary, but on the other the country experienced no

less then three formally proclaimed Emergencies. One of them involved the

question of validity of the grounds of internal disturbance as invocation of

emergency, large scale curbing of fundamental rights with far reaching

structural amendments to its constitution. Two Emergencies in India overlapped

each other giving room to question its constitutional propriety. Two questions

arise into a seeking mind:- Is government not duty bound to terminate

Emergency if the conditions giving rise to it have ceased to operate and Can

two or more Emergencies co-exist at any given time.

India has enacted and applied large number of Laws that depart very

radically both from domestic and international guarantees of Human Rights. It

can well be argued that the steps gave rise to many a defacto states of

Emergency. The 1950 Indian Constitution contains many robust checks and

balances capable of preventing abuse of power including in times of crises.

Use of Emergency powers in India poses some prominent weaknesses in

control systems. A much wider problem comes to the fore too i.e. the limits of

constitutional and legal mechanisms in coping with executive arrogance.. In

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1975-77 Emergency it was noticed that even societal safeguards gave in ,

which led to failure of constitutional provisions.

The Indian example got more interesting for a couple of reasons. First,

it confirmed the global consensus that sophisticated judicial systems having a

strong tradition of independence and impartiality, even high level judges fail to

support expectations viz resisting executive claims during Emergency2 During

1975-77, several Indian High Courts showed remarkable courage to buck this

trend but, Lo! The Supreme Court in April 1976 in A D. M. Jabalpur vs. Shivkant

Shukla3 affirmed executive's omnipotence. Again, Human right took a grave

hit when Indian Supreme Court decided in many cases in favour of executive

action in the name of State security. In second place, the Indian example

questions the very effectiveness of existing international control in Emergency

situations. In 1979, India ratified the ICCPR obviously to show respect to the

provisions e. g. proper proclamation and notification of all Emergencies.also

respecting non-derogable rights even in gravest of Emergencies. But

widespread infringement of rights including fundamental and non-derogable

rights was carried out by State in the guise of 'anti terrorists Law.' The Indian

Government showing no respect to its commitment to the international

obligations casually imposed institutionalized Emergencies without even

making any formal proclamation. This calls into question also the ability of the

ICCPR to regulate State conduct in Emergency.

2 George J. Alexander, Illusory Protection of Human Rights by National Courts During Periods of Emergency '
by (1984) 5 HRIJ I.

3 1976 AIR 1207

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EMERGENCIES COVERED

This study details and then examines the Indian focus on political

Emergencies as against natural calamities or threats to the country on account

of financial stability as provided in Art 360 and State emergencies due to

failure of constitutional machinery in State under Art 356. It endeavors to

analyse the standpoint of the impact, which Indian Emergencies had on Human

Rights.

This study uses the term "Emergency" to refer to "Situations described

by one leading authority on the subject as 'crisis situations affecting the

population of the country as a whole and constituting threat to the organized

existence of the community which forms the basis of the state"4 -. The topic of

preventive detention has been touched to overview the historical background

and highlight the manner in which these powers have been used over the

years of Indian independence.

RELEVANCE OF GLOBAL STANDARDS

Identification of Global standards governing Human Rights is one

problem of vital importance in International Law. It assumes further importance

because public emergencies present challenges for States to overcome and

restore law and order in the land while at the same time respect the

Fundamental Human Rights. The derogation clause in Human Rights treaties

establishes a legal regime. This clause is the cornerstone of the whole system

4 Study of the Implications for Human Rights of Recent Developments Concerning Situations Known as Stat
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for protecting Human Rights and forms the most significant provision in all

human rights treaties. In past decades the gravest violation of Fundamental

Human Rights have occurred in the context of Emergency used as an excuse

to take derogating excessive action violating International 'Human Rights

Treaties'. Therefore these treaty standards need critical study, close

examination and cautious approach to find remedies and some Mechanism

which could prevent abuse of Human Rights.

The treatise examined along with other relevant documents in this

study are 1. European Convention of Human Rights 2. International Covenant

of Civil and Political Rights and 3. American Convention of Human Rights

specifically all containing derogation clause with specific standards for

Emergencies. These three are significant because they establish a general

and exhaustive regime for civil and political rights.

JUSTIFICATION OF THE PROBLEM

At time, nations might unexpectedly be overtaken by sudden forces

and events that have lasting effect on the very lives of the citizens or on the

security of the property-national or individual. In such circumstances individual

liberties -that are normally granted and guaranteed -need be temporarily

abrogated to cope up with the danger. The state of Emergency signifies this

suspension or departure during crises of Polity, Economy or Society. Human

Right run a huge risk of widespread violation at the hands of administration

added to, perhaps, statutory or even judicial protection. If one goes to the
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core of the problem this almost always seems grossly undeserved and

unwarranted. The individual right and liberty must prevail at times like this, of

course, subject to needful and necessary limited restrictions. In emergency

Human Right run greater risk of violation. This requires continued protective

control in abiding concern of every civilised State. Human Rights Protection

assumes critical importance when there is vast concentration of power in the

executive. The dilution of safeguards under provision of many countries enable

temporary derogation or suspension of rights during the course of Emergency.

Constitution of India also encompasses suspension of the enforcement of

fundamental right guaranteed in part III under Articles 358 and 359. The

researcher critically studies all relevant provisions of the Constitution of India.

The rationale behind the derogation system accepts suspension of

certain rights only for the sole and limited purpose of restoring normalcy. At

the same time most fundamental Human Right must be guaranteed without

major curtailment. It is imperative that this protective or rather repressive nature

of International derogation provisions must form the basis of due care by

States. That the constitutional as well as judicial efforts in India for protection

of basic civil rights of citizens during Emergency lack a certain and effective

mechanism.

This study attempts to analyse all relevant Constitutional provisions.

The work ultimately reveals major deviation of the past and present Emergency

provision of the Country in the light of global standards. All reasons of failure

of the Control Machinery to provide protection of Human Right in periods of

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Emergency whether publicly proclaimed or unproclaimed have been

systematically examined. And finally an attempt has been made to suggest

certain effective mechanism and a model law that can ensure protection of

the most precious Human Right.

In the present time the control of emergency is to be made more

meaningful. Rethinking of conceptual frame work of crises power is essential.

As the different studies reveal, not only has the phenomenon of emergency

expanded to an ever greater number of nations, but also within the effected

nations it has expanded its scope and strengthened its grip.

METHODOLOGY AND MATERIALS

This analytical study is based on evaluation of Emergency provisions

of Constitution of India on the scale of the prevailing Global standards. In

order to achieve the synthesis of this work, the researcher has made a humble

attempt at analysing various existing global documents, the different

mechanisms enshrined therein and the mode by which operation of normal

time guarantees are ensured to the citizens of the State. The analytical

methodology adopted for the purpose of this study helps improve the State

effort to ensure protection of Human Right, evaluation of some concrete

mechanism and in conclusion suggest the best model. Analysis perhaps is

the best method towards the endeavor of studying the effect of legal provisions

upon the community as well as upon individual citizens.

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The researcher utilized the academic commentary, court jurisprudence,

reexamining the conceptual framework to find out more realistic approach

and understanding of the problem that the world is facing in preserving human

dignity.

The Indian effort during the latter half of twentieth century and thereafter

is devoid of objectiveness. All work done in this area by legal luminaries was

only piecemeal. The literature framed and prescribed for the purpose is grossly

inadequate. Most political scientists involved only in exposing the executive

rather than help formulating effective norms. Legal jurists, with few exceptions,

largely failed to address the problem from the point of view of global standards

of Human Right. There already exist a lot on this subject which at present has

assumed supreme place of significance in the modern world full of conflicts

and contention. Not less than an organised, concerted and faithful all-out effort

is required and required urgently for the foolproof protection of Human Right.

Therefore, the researcher notes this immense need for analysing the Indian

scene and make concrete formulation for protection of Human Right in

Emergency in the light of the global provisions.

It must be realised that in India, the world's largest Democracy, the

most sought-after Economy and above all the seat of one of most civilised

and cultured people in the world of Human Right, have assumed a very special

and unique place. Of course, we can give the whole world the leadership and

the needful directions.

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HYPOTHESES

1. The understanding of National security has increased by the emergence

of some treaties specially providing for derogation, when nation can derogate

from international obligation.

2 Emergency conditions have become a common problem irrespective

of geographical or political conditions of a State.

3 The most effected is an individual whose liberty is curtailed during

emergency.

4 International monitoring bodies are ineffective in controlling the State

because of their non-punitive character.

5 There is big and urgent need to make reforms in standard criteria, which

may apply to all States for justifying emergency.

6 Over stress by monitoring bodies on observance of principles of

declaration of emergency according to treaty norms has diverted attention

from gross abuse of power. This has had gross effect on human rights.

7 Upcoming non formal agencies and NGOs working at international level

have contributed significantly and can do even better in keeping vigilance

over human right abuses.

8 Liberal Constitution does not necessarily stop human right violations.

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9 Excessive measures as an excuse for derogation is a normal practice

by States as impiemention of international norms are unclear,

10 Defacto, institutionalized and other ambiguous situations pose serious

problems. Emergency has become a norm of many countries Instead of an

exceptional one. Expansion of terrorism has compelled the countries to have

stringent laws of preventive nature.

11 The arbitrary use of administrative agencies with special powers during

the period of crises go unchecked.

12 National laws do not clearly provide for the conditions which may

allow them to derogate from international norms under their own system.

13 Constitutional provisions regarding emergency had been misused

and the nation suffered extensive abuse of emergency power in India.

14. Liberty has been enchroached upon by administrative agencies under

different pretext.

15 Whether it is relevant for democratic nation like India to have emergency

provisions in its constitution .

16 On one hand India is party to a number of International Documents

but on the other there exists provision for drastic reservations.

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PLAN OF STUDY

This study is divided into nine Chapters. Following is the broad

outline of the work :

The first four Chapters analyse the legal regime of the derogation

clause of the three treaties. The legal regime contains fundamental principles.

The U N system at Global level and then Regional level systems have been

dealt in separate Chapters. Implementation mechanism under the three treaties

have also been analysed in details separately along with the case laws and

the principles evolved through their jurisprudence. A separate Chapter has

been devoted to the doctrine of Margin of Appreciation as it has direct relation

with State discretion in situations of crisis. Thus after chapter-l which introduces

the subject its justification and plan, Chapter II deals with the doctrine of

Margin of Appreciation, Chapter III presents Global parameters while Chapter

IV examines Regional level system.

Further in Chapter V attempt has been made to discuss the

emergency provisions under the Indian Constitution exhaustively right from

its origin to present status. Chapter VI is devoted to evaluation of Indian

emergency provisions with global parameters. India's position under different

International documents has also been covered- As India has witnessed

massive abuse of power during three emergencies , Chapter VII examines

areas of abuse of power which are easily exercisable during emergency.

Different remedies available to the aggrieved has also been discussed.

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Chapter VIII analyses the attitude of judiciary with changing situation and

demands, its power of review and jurisdiction.

The whole work concludes with the findings of observation

made both at national and international level with remark on the need to

review the monitoring methodology under the final Chapter IX. The cause of

unrest that leads to situations like secession and terrorism and ultimately to

political emergency, have also been pointed out. Some recommendations

have also been given for the model legislation regarding emergency.

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