REPORT AND PRESENTATION

“EMERGENCY PROVISIONS IN THE INDIAN

CONSTITUTION: A STUDY OF THE
‘INTERNAL DISTURBANCE’ OF 1975”

Project submitted to Siksha ‘O’ Anusandhan National Institute of Law in partial

fulfilment for the requirement of BBA. LLB (H) degree, IXth semester

Under the guidance and supervision of:

Mrs. ANWESHA TRIPATHY

Submitted by:

AYUSHI PRIYA

Regd. no.-1941801064

Batch- BBA L.L.B (H) Vth year.

Siksha ‘o’ Anusandhan National Institute of Law

(Faculty of legal studies)

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 PREFACE AND ACKNOWLEDGEMENT

I take this opportunity to express my gratitude to the people who have been instrumental in the
successful completion of this project. I owe a great many thanks to many people who have
helped and have supported me throughout the making of this project. I would like to show my
greatest appreciation to Mrs. Anwesha Tripathy.

My deepest gratitude to Prof (Dr.) S.A.K. AZAD, Dean, SNIL, for having such a work in the
academic field for us and enabling us to work for it with great interest.

It gives us an immense pleasure to write a preface on my assigned case titled “EMERGENCY

PROVISIONS IN THE INDIAN CONSTITUTION: A STUDY OF THE ‘INTERNAL
DISTURBANCE’ OF 1975” I have mentioned various aspects regarding my topic. I have also
given related cases and conclusions. I have tried my best to explain the subject matter in a best
possible way and had tried to omit the errors, if found any, I request the student reading this
research work, and the teacher who are honouring me by using the same, to let me know those
errors and omissions, so that I can rectify the omissions in my next research work.

I would also like to thank my friends without whom this work would have been a distant reality.
I will be failing in my duties if I do not extend my heartfelt thanks to my family and well-
wishers.

AYUSHI PRIYA
Reg. No. 1941801064
5 years Integrated BBA LLB (9TH Semester)

SOA National Institute of Law (SNIL)

SOA University, Odisha, India

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 DECLARATION

I certify and hereby declare that the Project Work on the topic “EMERGENCY
PROVISIONS IN THE INDIAN CONSTITUTION: A STUDY OF THE ‘INTERNAL
DISTURBANCE’ OF 1975” for 8TH SEMESTER, has been prepared by me under the
guidance of Mrs. Anwesha Tripathy and I declare that the same has not been submitted for
evaluation elsewhere.

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 GUIDE CERTIFICATE

This is to certify that Miss AYUSHI PRIYA, BBA.L.LB (H) course has successfully
completed her subject analysis on the topic “EMERGENCY PROVISIONS IN THE
INDIAN CONSTITUTION: A STUDY OF THE ‘INTERNAL DISTURBANCE’ OF
1975” as provided by the institution for the session 2023-24.

TEACHER-IN-CHARGE

MRS. ANWESHA TRIPATHY

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 CONTENTS

NUMBER CHAPTER DESCRIPTION PAGE NO.

01 CHAPTER I INTRODUCTION 06 - 17

02 CHAPTER II LEGISLATIVE PROVISIONS 18-27

03 CHAPTER III JUDICIAL ANALYSIS 28-45

04 CHAPTER IV APPRAISAL & SUGGESTIONS 46-49

05 ANNEXURE 50-51

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 CHAPTER I: INTRODUCTION
The Indian Constitution, a living document, is equipped with a set of emergency provisions
designed to safeguard the nation’s integrity and its citizens during times of crisis. The concept of
emergency provisions is a fundamental aspect of the Indian Constitution, designed to safeguard
the nation and its citizens during times of crisis. These provisions are a testament to the foresight
of the framers of the Constitution, who understood the need for extraordinary powers in
extraordinary circumstances. This blog aims to provide an exhaustive understanding of these
provisions, their implications, and their historical applications.

The Indian Constitution has several emergency provisions to deal with different kinds of crises
that may threaten the country's security, stability, or governance. There are three types of
emergencies mentioned in the Indian Constitution:

National Emergency (Article 352):This is declared when there is a threat to the security of
India by war, external aggression, or armed rebellion. It empowers the President to suspend
fundamental rights guaranteed by Part III of the Constitution. However, the right to life and
personal liberty (Article 21) cannot be suspended. A national emergency must be approved by
the Parliament within one month and can be extended indefinitely in six-month intervals.

State Emergency (President's Rule) (Article 356): This emergency is proclaimed by the
President if a state government is unable to function according to the constitutional provisions. It
could be due to reasons such as the breakdown of constitutional machinery, failure to comply
with directions from the Centre, or elections being postponed or disrupted. The President
assumes the state's governance directly, and the State Legislative Assembly is either dissolved or
kept in suspended animation. This proclamation must be approved by both houses of Parliament
within a specified period.

Financial Emergency (Article 360): This emergency can be declared when the financial
stability or credit of India or any part of its territory is threatened. It gives the President the
power to issue directions to states to follow certain financial principles and can also reduce the
salaries of all government officials, including judges of the Supreme Court and High Courts.

These emergency provisions are an integral part of the Indian Constitution, aiming to ensure the
country's integrity, security, and stability during times of crisis. However, their implementation
is subject to specific conditions and safeguards to prevent their misuse.

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Historical Context of Emergency Provisions
The conditions, which were at that time of framing the Constitution, played an important role for
that the provisions of emergency were included. The framers of the Constitution compelled to
think about such provisions after facing many incidents after and before of independence period.

The disruptive forces of casteism, regionalism, communalism, and languish created cacophony
and disturbed the peace and harmony of the country. The communal riots were happening
between Hindus and Muslims which were disintegrating dangers for the establishment and
maintenance of democracy in India. Kashmir problem came up with the lapse of the Crown at
the time of making of our Constitution. Danger from Pakistan was coming up. There was the
recalcitrant attitude of some of the Native States (Junagarh and Hyderabad) towards joining the
Indian Union. It was a biggest challenge for the government of India at that time because the
government could not permit such separatist conduct Military action in Junagarh and Hyderabad
was necessary as a matter of geographical compulsion. This all motivated to need of Art. 352.

The early years of independence witnessed a spurt in the communist activities among the
workers and peasants in Telengana. The revolution of the communists was a probable danger to
the harmony and democratic order of the country. This led to the inclusion of stringent
emergency provisions in the Constitution. Government of a province. Thus, the Constitution-
makers were worried of the regular and successful functioning of the State governments. So they
included Art. 356 to take care of the breakdown of Constitutional machinery in a State.

There was also marked decline in the economic condition of the country due to the
circumstances created by fall in foreign exchange reserves and partition. Dr. Ambedkar wanted
to avoid all legal difficulties and thus came Art. 360 of the Constitution.

The way natural Federalism will respond to an emergency situation is a noteworthy aspect of the
Constitution Of India. Consequently, declaring an emergency is a very critical topic that has a
negative impact on people’s freedom. It must however only be released under extraordinary
conditions. A President can proclaim an emergency in compliance with Article 352(1), if he is
comfortable that there is a security concern to or part of India. The problem under consideration
will be whether the President’s happiness is justifiable or not.

“In a variety of occasions, the courts have discussed the effect of the declaration of an
emergency on compulsory incarceration, the effect of the revocation of Article 19 of the
Emergency Proclamation and on the effect, according to Article 359, of the President’s order.
These decisions are debated as and where necessary.” Dr. B.R. Ambedkar advocated the idea of
India as a federal republic, stating that even though citizen’s are split into separate nations, they
are representatives of India, which really is a federation of the countries.

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The concession of emergency powers was debated but Dr. Ambedkar said those papers would
never work and remained dead letters. However, it was seen that Article 356 is furthermore
violated, abused but scarcely used.

Types of emergency in the Indian Constitution

The State may override the different individual freedoms in the presidential state of emergency
and enforce those federal standards in Section XVIII of the Constitution.

Article 352 to Article 360 of the Indian Constitution allows for emergency arrangements.

 National emergency (Article 352)

 State emergency (Article 356)
 Financial emergency (Article 360)
 National emergency

Article 352 of the Constitution stipulates national emergency. National emergency. The national
emergency coincides with statutory requirements to be enforced when an unusual situation
affects or threatens part of the nation’s harmony, defence, prosperity, and administration.

In compliance with Article 352 of the Constitution, emergency implementation when conditions
preceding were also present-

1. Attack,
2. External intrusion or
3. Internal rebellion.

Article 352 states that if, because of outside aggression or armed revolt, the President is
‘comfortable’ that a dangerous situation occurs which endangers the protection of India or
indeed any portion of it, he will make a declaration in that respect with or for almost all of India.
Such a declaration, though, may only be made through authorized advice of the cabinet of the
Nation in clause 3. Such a declaration must be put before the legislative house and accepted from
each chamber, or it will lapse after a month from the declaration. It must be remembered that it
has been accounted for in the clarification of Article 352 that neither the foreign invasion nor
violent revolution has really taken place in the event of an emergency declaration. It may be
declared even though foreign violence or military revolt is likely.

National emergencies in India

During the War with China, the first emergency was proclaimed and lasted for six years between
October 1962 and January 1968. The battle against China concluded on 21 October 1962, but
another war against Pakistan only began after the emergency. In the end, the Tashkent deal was
reached after international pressure and in January the then government dropped the emergency.

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The second emergency declaration was due to the war between India and Pakistan. Three acts
were performed during that time. Maintenance of SA, Coffee POS Act, and In order to avoid
arrest it was decided to retain the Govt Protection of the Rule. However, these three actions were
extensively grossly overused, and numerous convictions, jail shootings, and gatherings were
observed this time. The war with Pakistan came to an end, but the emergency persisted, and
before the second emergency was revoked 3rd emergency was declared.

The third emergency has been proclaimed due to internal unrest and this is India’s most
contentious emergency. The polls at which the court considered Smt. Indira Gandhi was barred
from public service for six years to be engaged in unethical practices it was held in the Allahabad
High Court. She had brought the judgment to the Supreme court, but the court had been on
holiday at that moment. On 25 June 1975, the Historical day, Smt. Indira Gandhi wrote to then-
Honourable President Fakhruddin Ali Ahmed a message to declare an emergency, despite the
approval of the members of the cabinet. The much more stringent and compressed emergency
was this emergency. On 23 March 1977, it was withdrawn.

In the case of Minerva Mills vs the Indian Union1, the legitimacy of the president’s motivation
and determination through Article 351 is not impeded by judicial review. However, the
jurisdiction of the Court is confined to investigating is not whether the restrictions of the
Constitution were met. It will decide whether or not the President’s happiness is true. It is not at
all happiness, where fulfillment is founded on mistrust, irony, or irrelevance.

The Procedure of Proclaiming Emergency

The President of the country can make a statement, but there is just something that is already
provided for. Only if the Cabinet requests in writing that the President order quite an emergency.
The Houses of Parliament must, by an overwhelming vote, approve quite an emergency
declaration, and perhaps even the 2/3rd majority of the members present and voting inside one
month, or the declaration shall stop functioning.

“If Lok Sabha is abolished or would not be at an Emergency management meeting, it shall be
accepted in the month and subsequently in the month after the beginning of this next meeting by
Rajya Sabha. The emergency continues to exist six years after the date of declaration until
ratification by Parliament.” Which ought to be continued after six months, the Legislature must
enact another provisional decision. This proved to be an emergency forever.

The Procedure of Revoking Emergency

The President of India may revoke the emergency by another declaration if the condition
improves. The 44th constitutional amendment requires ten percent or more Lok Sabha leaders to

1
Minerva Mills Ltd. and Ors. v. Union Of India and Ors. AIR 1980 SC 1789

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share an application for and in the meeting of the Lok Sabha; they may disagree with the
emergency, or cancel it by a mere majority. In such an incident, it is unserviceable automatically.

State emergency
The Union Government’s responsibility is to ensure that perhaps the administration of a State
takes action in accordance with the Constitution’s requirements. Article 356 states that, whether,
on the reception of a briefing from the Governor of the State, and otherwise, the President is
pleased that a state government is unable to carry on in a smooth manner, a state emergency
declaration may be issued by that Leader. In this case, the President’s declaration of emergency
is labelled ‘announcement because of the breakdown (or collapse) of legislative mechanisms.’

An emergency of this kind may have the following effects:

 the President, with the exception of the High Court, may assume all or any of the
responsibilities of state governments;
 announce that state legislative powers should be exercised by, or under, Parliament’s
responsibility;
 make the declaration subject matter necessary or suitable for its execution.

Nevertheless, the President is not allowed to presume or terminate any statutory obligation
relating to the High Court. The President of India has instituted a 126-fold rule in India until
2018. The presidential rule has been used for a record of 35 occasions under Indira Gandhi’s
rule.

The Procedure of Proclaiming State Emergency

Such an announcement, like the National Emergency, should have been sent for ratification
before all the Houses of Parliament. Permission must be issued in this situation within two
months; therefore the declaration shall cease operating. If the Lok Sabha is disbanded after some
of these two months and has been authorized by the Rajya Sabha then the resolution shall cease
to function on the 30th day after its restoration on the date of the first session of the Lok Sabha
because if the Lok Sabha has been approved well before expiry.

An announcement so authorized immediately stops to act at the end of a six-month cycle

following the date of the announcement, until withdrawn. Without revocation, its life can be
prolonged by six months, most times but not after three years. Afterward, the Reign of the
President has to be finished and the State has to restore regular legislative machinery. A new
clause was added in the 44th Amendment, which restricted Parliament’s jurisdiction to the
degree of an announcement made after 1 year under Article 356.

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The Procedure of Revoking State Emergency
Any such declaration can by a subsequent proclamation be repealed or varied. In each of the
following forms, a proclamation made in compliance with Article 356(1) expires:

 Unless accepted before both Houses of Parliament within two months of its creation
[Article 356(3)].
 In case of failure to gain the consent of either House within two months after sending the
declaration to the Houses of Parliament [Article 356(3)].

If no other proposal is adopted by the House of Parliament, following the adoption of a first
proposal [Article 356(4)], following six months from the date of the declaration. Subject to the
overall maximum limit of three years from the date of the declaration following six months from
the date of the passing of the last resolutions authorizing the Chamber of Parliament. The
following conditions contained in article 356(5) must be fulfilled to extend the proclamation
after one year:

 Global Disaster in place already; or whether

 The Electoral Commission classifies that it cannot hold elections to the Legislative
Council.
 The date on which the proclamation of revocation is issued by the President [Article
356(2)].

Emergency Provisions: Effects and Impact

Dicey says federalism is weak as it requires power-sharing between the centre. This is a
dysfunctional democratic government. Even so, all existing federations managed to escape this
deficiency by ensuring the federal government assumes extraordinary leverage where there is a
need, because of emerging new internal or external conditions, for concerted intervention. [The
Constitution Of India] gives exceptional powers to the union for specific forms of emergency.
The constitutional main sources of energy authorize the federal government, as necessary, to
achieve the power of a unitary structure.

The Indian Constitution provides for three distinct types of irregular conditions that require that
the constitution created a divergence from the usual legislative machinery:

 A war-related emergency, an outside invasion or armed revolt [Article 352]. It is also

recognized as a national pressing matter.
 Failure of states with legislative machinery [Article 356]. Established as the Presidential
Guideline, too.
 Financial Emergency [Article 360].

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Perspective of Judicial Review
In accordance with Article 356, a declaration is subject to a past competition on the basis that
power is a power that is oppressive in accordance with Article 356(1). The Judiciary is eligible
for examination in the operation of judicial review strength if the criteria are met. But the
argument really centres around court’s degree and depth.”

 “From the judgments on account of State of Rajasthan v. Association of India 2 and the
Bommai3 case, unmistakably there can’t be a uniform principle relevant to all cases, it
will undoubtedly change contingent on the topic, nature of the right, and different
components. Nonetheless, where it is conceivable the presence of fulfillment can
generally be tested on the ground that it is mala fides or dependent on entirely unessential
and immaterial grounds.”
 “The pertinence of judicial review in issues including Article 356 is additionally
underscored in the Supreme Court judgment in re State of Madhya Pradesh v. Bharat
Singh4, where the Supreme Court held that it was not blocked from striking down a law
passed preceding a Proclamation of Emergency, as ultra vires to the Constitution, in light
of the fact that the Proclamation was in power around then.”
 “Judicial review of the Proclamation under Article 356(1) was first tried in State of
Rajasthan v. Association of India, in which a bench of seven judges of the Supreme Court
by a consistent judgment dismissed the applicant request and maintained the centre’s
decision of dissolving three assemblies under Article 356 as intrinsically legitimate.”
 “The Supreme Court, on account of Minerva Mills and Others v. Association of India and
Others, harped broadly on its capacity to analyse the legitimacy of a Proclamation of
Emergency given by the President.” In dealing with this matter, the Judicial Branch
should not neglect, among other things, that it should fulfill its existing obligation
because it requires reflecting on political matters.

At the same time, it should restrict itself to reviewing whether the preconditions set out in
Article 352 were found in the declaration of the Proclamation, and not whether the existing
situations and requirements of statutory enforcement in the case of an emergency were sufficient.
It must also be assumed that the Presidential Declaration, while limited, is subject to judicial
review pursuant to Article 356.

“The latest case which chose the degree of judicial review of the Proclamation by the President
forcing President’s Rule in the states and united the lawful situation on the abstract fulfillment of
the President is S.R. Bommai v Union of India was a landmark throughout the entire existence of
the Indian Constitution. It was for this situation that the Supreme Court intensely set apart the

2
State of Rajasthan v. UOI AIR 1977 SC 1361
3
S.R. Bommai v. Union of India 1994 AIR 1918
4
re State of Madhya Pradesh v. Bharat Singh 1967 AIR 1170

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worldview and constraints inside which Article 356 was to work. In the expressions of Soli
Sorabjee, prominent legal jurist and former Solicitor-General of India, After the Supreme Court’s
judgment in the S. R. Bommai case, it is all around settled that Article 356 is an outrageous force
and is to be utilized if all else fails in situations where it is shown that there is a stalemate and the
sacred hardware in a State has imploded.”

Financial Emergency
The financial emergency provided for in Article 360, is the third kind of emergency. It stipulates
that even if the President is convinced that India or any of its economic stability or credibility is
at risk, he may declare a financial emergency. The executive and legislative competencies would
take center stage in such a circumstance. It must also be accepted by Parliament, as some of the
other 2 emergencies. Both Members of Parliament must approve it within two months. As long
as the process requires, the financial catastrophe can exist and might even be lifted with a
corresponding declaration.

This Article has never been used.

A declaration is given pursuant to Art. 360 -

 a corresponding proclamation may be withheld or varied

 every House of Parliament shall be placed before it
 ceases to exist at the completion of two months, except as authorized in resolutions of the
two Houses of Parliament even before the expiration of that time.

Effect of the Proclamation of Emergency

Effects of National Emergency
The establishment of national emergencies has an effect both on people’s interests and on the
sovereignty of states:

1. The key consequence is that the constitution’s style of federalism becomes unitary. The
Centre’s powers are increasing and the Parliament assumes authority, except in the fields
alluded to in the State List, to make legislation for the whole country or part thereof.
2. The Government of India is willing to provide orders to the countries about how to
exercise their executive authority.
3. The Lok Sabha will prolong the tenure by one year at a time during an emergency era.
But the same could be expanded beyond 6 months after the expiration of the
proclamation. It is possible to prolong the term of state legislatures in the same way.
4. The President is allowed during an emergency to change the laws on the allocation
between the Union and the States of wealth.

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Under Article 19, human rights shall immediately be revoked and this restriction shall extend
until the conclusion of the emergency. But according to the 44th amendment only in case of a
declaration on the grounds of war or external invasion, liberties specified under Article 19 can be
restricted. Everything becomes clear from the debate above that emergencies not only suspend
the sovereignty of the States but also make the federal system of India unitary. It remains
important because of its comprehensive powers to deal with these irregular circumstances for the
Union Government.

Effect of state emergency

The emergency declaration triggered by the dissolution of a state’s legislative machinery has the
beneficial specifications:

 The President may take over all or any of the positions of the State Government or can
appoint the Governor or any other administrative authority for all or any of these roles.
 The President is allowed to dissolve or terminate the State Legislative Assembly. On
behalf of the Government Legislature, he will authorize Parliament to enact laws.
 To give effect to the intent of the declaration, the President may make any more adverse
or subsequent clause appropriate.

Effects of Financial Emergency

A financial emergency declaration could have the following implications:

 The government of the Union may provide guidance in economic affairs to all the other
States.
 The President can recommend that the States minimize the wages and benefits of any or
all levels of the government officials.
 After the State Legislature has approved them, the President can order States to allocate
all the money bills for Parliamentarians attention.
 The President may provide instruction to the national government personnel, including
supreme court judges and the high courts, to reduce their pay and compensation.

Fundamental rights vs. emergency

War emergency

When the President is convinced that a real emergency occurs whereby war, external invasion, or
armoured insurrection threatens India’s or indeed any part of its territories, he may declare a state
of exception within Article 352.

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Constitutional emergency in the states

If the President is pleased by the receiving of a letter from the Governor and that therefore the
Government of a State is not permitted to show an emergency in compliance with the
constitutional provisions.

Suspension of fundamental rights

“During the period of emergency, as declared under either of the two categories discussed above,
the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the
Constitution. The term ‘State’ is used here in the same sense in which it has been used in the
Chapter on Fundamental Rights. It means that the power to suspend the operation of these
Fundamental Rights is vested not only in Parliament but also in the Union Executive and even in
subordinate authority. Further, the Constitution empowers the President to suspend the right to
move any court of law for the enforcement of any of the Fundamental Rights. It means that
virtually the whole Chapter on Fundamental Rights can be suspended during the operation of the
emergency.”

Such a directive must, nevertheless, be sent to Parliament for its acceptance as quickly as
possible. The restriction of human rights in the case of an emergency can indeed be prohibited in
any situation, though, in the event of Articles 20 and 21. It would have been an error to handle
human rights as if a balance had to be established regarding human rights and other protection
and sustainability priorities. According to Kofi Anna human rights initiatives, both for our
spiritual status and for the realistic use of our action – moral rights, which are made legitimate by
the Constitution, are basic rights. These basic human protections are rights in the best way. Their
civil and constitutional privileges are different since they cannot be constrained by common
usefulness.

The basic nature of these privileges is that they’ve been promised to protect the integrity of a
person even though the majority is doing worse. Invasion of these rights means that a man is not
regarded as a man. This is an incredibly serious issue. This is a serious inequality and the
increased government reform expense or the effectiveness required to avoid it is worth the
money.

Changes Made By 44th Amendment

Origin and background
“An emergency proclamation seems to be a very serious issue since it infuriates the normal
structure of the Constitution and negatively impacts individual freedom. Consequently, such a
declaration should only be issued in exceptional conditions and not simply to keep an
unsympathetic governing party from its office. In June 1975, an emergency in connection with
internal disturbance was proclaimed without sufficient justification.” This was done by the

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Commission. The 1975 declaration was based on internal disturbances, which were the most
problematic because there was a widespread violation of basic rights for the people.

Many people are placed without justification in pre-trial detention. The 44th amending act on the
emergency constitutional provisions, therefore, made it even more difficult, if not extremely
difficult, to re-examine the circumstance 1975 in light of those amendments.

The Forty-Fourth Amendment

The 44th amendment considerably changed the Constitution’s emergency provisions so that the
executive did not harm it as Mrs. Indira Gandhi did in 1975. It also re-established some changes
made by the 42nd amendment. In this amendment, there are key elements:

 The “armed rebellion” as defined in Art 352, replaced the internal disturbance.
 The Cabinet shall inform the Cabinet in written work of the decision to declare an
emergency.
 Houses shall be issued an emergency declaration within such a month.
 The residences should be re-approved every six months to proceed with the urgent
situation.

The urgency can be annulled by a simple majority of the houses present and voting in this regard
by adopting settlement. Such a resolution may be moved by one-10 house members. Article 358
provides that only war and external violence and not armed insurrection shall be put in abeyance
by Article 19. In addition, any statute that contradicts Article 19 needs to repeat the relation with
Article 358. If they break Article 19, some other laws can also be questioned.

Article 359, stipulates that the freedom to transfer courts shall not be revoked unless they have
violated Section III, but Articles 20 and 21 will not be included. Brought back from 6 to 5 years
the term Lok Sabha.

Proclamation under Article 352

Article 352(1) stipulates that if a President is pleased with danger to the protection of Srilanka or
any part respectively, he or she will perform an emergency decree. Here, however, it has
sometimes been asked whether another President’s happiness is fair or not.

In this respect, the Supreme Court has held that it was a political issue and not a legal concern in
the case of Bhut Nather v. State of West Bengal5. The 38th amendment to the Constitution
attached to Article 352, in order to make the position more clear, to Article 352, clause 5, which
states that the President’s ‘fulfillment’’ as alluded to in Article 352(1) and (3) means ‘final and
definitive’ and that “no court of law can question.” However, the 44th amendment to Article

5
Bhut Nath Mete v. State of West Bengal, (1974) 1 SCC 645

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352(5), later added by the 38th constitutional amendment, repealed the misuse of those
competencies during the 1975 emergency later after Democratic governance.

It is then the Supreme Court that needs to determine, as a final, non-justiciable, or for such
purposes as a matter of judicial review, whether to treat the President’s ‘fulfillment’ by issuing or
amending an immediate declaration.It should also be pointed out here that throughout the case of
Minerva Mills6, Judge Bhagwati claimed that it can not be ruled out in the scope of judicial
review if his precedence proclamation an emergency in compliance with Article 352 extended
his judgment or behaving outside his jurisdiction or acting arbitrarily in declaring an emergency.

Proclamation under Article 356

The susceptibility to judicial scrutiny of the declaration in compliance with Article 356 is beyond
doubt because powers are conditional upon Article 356(1). The Person is empowered to
investigate whether the provision has been met in its exercise of the right of judicial review. In
fact, the debate is over the nature and degree of judicial review.

It is evident from the choices made in the case of Rajasthan state v. Union of India 7 and the case
of Bommai that a uniform law cannot apply in all the cases and is bound to differ based on the
issue, the essence of the right as well as other variables.

However, the nature of pleasure will still be doubted if it is conceivable on the premises that it is
‘mala fides’ or found on the completely alien and meaningless ground. “In the Supreme Court
decision in the State of Madhya Pradesh v. Bharat Singh 8, the importance of judicial review in
the matter protected by Article 356 is also stressed because, at this time, only the declaration was
in effect, it was not prohibited from enacting a law that had been enacted before an Emergency
Proclamation, as extremely contrary to the constitution.”

A judgment of seven judges of the Constitutional Bench of the Supreme Court dismissed the
petition by a majority verdict and stated that the center’s move to settle the three sittings under
Article 356 was constitutionally legitimate, according to Article 356(1) first tackled in Rajasthan
state v. Union of India. The Supreme Court rejected this petition by a unanimous decision.

The High Tribunal dwells thoroughly on its authority to recognize the legitimacy of the
President’s Emergency Declaration in the Minerva Mills and other cases c. Union of India and
others. In this case, the Court noted among others that, only because it deals with political
questions, it really does not fail to exercise its constitutional obligation. At the very same level, it
should limit itself to investigating the details and conditions of presidential satisfactory
involvement in the case of an emergency or whether the legislative provisions of Article 352
were respected in a decree declaration.

6
Minerva Mills Ltd. and Ors. v. Union Of India and Ors AIR 1980 SC 1789
7
State of Rajasthan v. Union of India AIR 1977 SC 1361
8
Bharat Singh Vs. State of M.P. (Cr.A. No. 317/2011)

17
Thereby we can infer confidently that the Presidential Proclamation is subject to judicial review,
albeit limited, in compliance with Article 356. A key feature of the background of the Indian
Constitution was perhaps the most recent case which determined the degree to which the
President placed the ‘Presidential law’ on the Declaration and strengthened the legal situation
surrounding the President’s subjective satisfaction.

The Supreme Court here boldly defined the framework and limits in which Article 356 was to
operate. It is very evident, following the verdict in the SR-Bommai case of the Supreme Court,
that Article 356 has an absurdity in control, and should be enforced as the final solution when it
is obvious that a state’s unsolvable problem and democratic structure has failed” said Soli
Sorabjee, eminent jurist and former Attorney General of India.

18
 CHAPTER II: LEGISLATIVE PROVISIONS

The Indian Constitution provides a detailed insight into the entire government structure, basic
rights and duties of the citizen and special provisions. There are a total of 395 Articles in the
constitution of India. Enacted on 26th of January, 1950, the Constitution contains Emergency
and Special Provisions of the Indian Constitution. Special Provisions relating to Certain Classes
are included in Part XVI. The Constitution of India also covers Emergency Provisions in Part
XVIII.

NATIONAL EMERGENCY

National emergency is caused by war, external aggression or armed rebellion in the whole
of India or a part of its territory. Such an emergency was declared in India in 1962 (Indo-China
war), 1971 (Indo-Pakistan war)9, 1975 to 1977 (declared by Indira Gandhi on account of
"internal disturbance") Under Article 352 of the India Constitution, the President can declare
such an emergency only on the basis of a written request by the Cabinet Ministers headed by the
Prime Minister. Such a proclamation must be approved by the Parliament within one month.
Such an emergency can be imposed for six months. It can be extended by six months by repeated
parliamentary approval, up to a maximum of three years. In such an emergency, Fundamental
Rights of Indian citizens can be suspended. The six freedoms under Right to Freedom are
automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended
(Article 21). The President can make laws on the 66 subjects of the State List (which contains
subjects on which the state governments can make laws). Also, all money bills are referred to the
President for its approval. The term of the Lok Sabha can be extended by a period of up to one
year, but not so as to extend the term of Parliament beyond six months after the end of the
declared emergency.

STATE EMERGENCY

State emergency, also known as President's rule, is declared due to breakdown of constitutional
machinery in a state.10 If the President is satisfied, on the basis of the report of the Governor of
the concerned state or from other sources that the governance in a state cannot be carried out
according to the provisions in the Constitution, he/she can declare a state of emergency in the
state. Such an emergency must be approved by the Parliament within a period of 2 months.

9
Omar, Imtiaz (2002). Emergency Powers and the Courts in India and Pakistan, Martinus Nijhoff Publishers. P. 129
10
Pratiyogita Darpan (March 2007). P. 60

19
Under Article 356 of the Indian Constitution, it can be imposed from six months to a maximum
period of three years with repeated parliamentary approval every six months. If the emergency
needs to be extended for more than three years, this can be achieved by a constitutional
amendment, as has happened in Punjab and Jammu and Kashmir.
During such an emergency, the President can take over the entire work of the executive, and the
Governor administers the state in the name of the President. The Legislative Assembly can be
dissolved or may remain in suspended animation. The Parliament makes laws on the 66 subjects
of the state list. All money bills have to be referred to the Parliament for approval.

A State Emergency can be imposed via the following:

● By Article 356 – If that state failed to run constitutionally i.e. constitutional machinery
has failed11
● By Article 365 – If that state is not working according to the given direction of the Union
Government.

FINANCIAL EMERGENCY

If the President is satisfied that there is an economic situation in which the financial stability or
credit of India is threatened, he/she can then proclaim a financial emergency, as per the
Constitutional Article 360. Such an emergency must be approved by the Parliament within two
months. It has never been declared.

The President can reduce the salaries of all government officials, including judges of
the Supreme Court and High Courts, in case of a financial emergency. All money bills passed by
the State legislatures are submitted to the President for approval. They can direct the state to
observe certain principles (economy measures) relating to financial matters.

THE SEPARATION OF POWERS DURING PERIODS OF EMERGENCY

It is one thing to discuss the usage of the doctrine of separation of powers in normal governance
and entirely another to examine it under the unique circumstances of a national emergency. In
such a period, the likelihood of any organ trying to exceed its power increases greatly as many of
the checks and balances become suspended. However, it is commonly agreed that even during
emergency, the doctrine must continue to be in force.

This scenario was the matter of debate in the case of Rameshwar Prasad v. State of Bihar 12 where
the Court was required to determine whether the imposition of Art. 356 in the State

11
Hardgrave, Robert L; Kochanek, Stanley A. (2008). India: Government and Politics in a Developing Nation
CENGAGE LEARNING. p. 159

20
without proper consultation with State authorities or considering the Governor’s report, amounts
to an excessive use of legislative power. Finding that the Central Legislature had sought to step
into the shoes of the State Legislature and thereby usurp the power completely to itself, in the
given case, the Court held there to be a clear violation of the doctrine of separation of powers.

THE PROCLAMATION OF 1975

The Indian Emergency of 26 June 1975 – 21 March 1977 was a 21-month period, when
President Fakhruddin Ali Ahmed, upon request by Prime Minister Indira Gandhi, declared a state
of emergency under Article 352 of the Constitution of India, effectively bestowing on her the
power to rule by decree, suspending elections and civil liberties. It is one of the most
controversial times in the history of independent India 13. Alok Narayan, a well-known scholar of
law, called it one of India's "blackest hours".

ALLAHABAD CONVICTION

Raj Narain, a socialist who was defeated by Indira Gandhi (two to one) in the Rae Bareilly
parliamentary constituency of Uttar Pradesh, submitted to the Allahabad High Court charges of
corruption in the election process against Mrs. Gandhi. In 1974, Jayaprakash Narayan, ex-
congressman, ex-socialist began to organize a campaign in Bihar to oust Indira Gandhi and her
congress party from office on charges of corruption. On June 12th, 1975, Justice Jagmohanlal
Sinha of the Allahabad High Court, found the Prime Minister guilty on the charge of misuse of
government machinery for her election campaign. 14

The court declared her election "null and void" and unseated her from the Lok Sabha. The court
also banned her from contesting in any election for an additional six years. Some serious charges
such as bribing voters and election malpractices were dropped and she was held guilty on
comparatively less important charges such as building of a dais by state police and provision of
electricity by the state electricity departmentand height of the dais from which she addressed the
campaign rally. Some of these charges were in reality an essential part for the Prime Minister's
Security protocol. In addition, she was held responsible for misusing the government machinery
as a government employee. Because the court unseated her on comparatively lesser charges,
while being acquitted on more serious charges, The Times of India described it as "firing the
Prime Minister for a traffic ticket."15 Strikes by labour and trade unions, student unions and

12
Rameshwar Prasad v. State of Bihar AIR 1958 Pat 210
13
N.D. Palmer, India in 1975: Democracy in Eclipse, ASIAN SURVEY, vol 16 no 5.
14
Smt. Indira Nehru Gandhi v. Shri Raj Narain And Anr. AIR 1975 SC 2299
15
GRANVILLE AUSTIN (1999), WORKING A DEMOCRATIC CONSTITUTION: THE INDIAN EXPERIENCE, p. 295

21
government unions swept across the country. 16 Protests led by Raj Narayan and Moraji Desai
flooded the streets of Delhi close to the Parliament building and the Prime Minister's residence.

DECLARATION OF EMERGENCY

Justice Sinha stayed the operation of his judgment for 20 days allowing the Congress party to
elect a successor to the Prime Minister. Unable to find a competent successor, Mrs. Gandhi, on
June 23rd 1975 appealed for “complete and absolute” stay which would have permitted her to be
a voting Member of Parliament, as well as Prime Minister. On June 24th 1975 Justice Iyer
granted Indira Gandhi “conditional stay”. This decision gave rise to outcries of opposition from
the opposition that she should resign. Mrs. Gandhi did not resign. On the evening of June 25th
1975, JP Narayan called for a civil disobedience campaign to force the resignation of the Prime
Minister. In response, the authority of the maintenance of Internal Security Act was used in the
early hours of June 26th to arrest more than a hundred people who opposed Mrs. Gandhi and her
party. People arrested included JP Narayan, Raj Narain, Jyortimoy Basu (Communist Party-
Marxist), Samar Guha (President of the Jana Sangha).

President Fakhruddin Ali Ahmed a 'rubber-stamp' appointee who she had got elected earlier on,
declared a State of Emergency upon her advice, as the Prime Minister, on 26 June 1975. In her
own words, Ms. Gandhi brought democracy "to a grinding halt". The authority for calling the
emergency was under Article 352 of the Indian Constitution. Such an emergency can be called
by the President whenever he is satisfied that the security of India, or any part of it, has been
threatened by war, external aggression, or internal disturbance. Furthermore, under Article 352,
the Courts may not inquire into the validity of the grounds upon which emergency was called.
The powers given to the Central Government under this form of emergency virtually have no
limits. As the constitution requires, Ms. Gandhi advised and President Ahmed approved the
continuation of Emergency over every six-month period until her decision to hold elections in
1977.

ONSLAUGHT THROUGHOUT 1975-1977

One of the shadiest periods in the modern history of India can indeed be recalled as starting on
June 26, 1975 when the then President of India, Mr. Fakhruddin Ali Ahmed upon serious
pressure from the Prime Minister Mrs. Indira Gandhi declared a state of ‘emergency’ in the
country under article 352 of the constitution of India which empowers the President to declare
Emergency if he is satisfied that the security of India or any part of it is threatened by war,
external aggression or internal disturbance. The largest and proudest democracy in the world had
just been reduced to a tin-pot dictatorship. From the early 1970s onwards, wide-spread
16
D.N. Dhanagare(1979), Sixth Lok Sabha Election in Uttar Pradesh – 1977: The End of the Congress Hegemony,
POLITICAL SCIENCE REVIEW, pp 28-51

22
discontent shook India: large sections of the population came out in demonstrations against
rising prices, fall in the supply of essential commodities, unemployment, and more importantly,
corruption in government administration.

These protests reached a crescendo in two states – Gujarat and Bihar – in 1974, with students
leading the agitations and giving them an organized shape. The Gujarat state government ruled
by Indira Gandhi’s Congress Party was forced to resign that year and even faced a no-confidence
motion in the parliament. Mrs. Indira realized that she was losing her grip, and was threatened by
a political crisis. The threat became imminent when on June 12, 1975, the Allahabad high court
(from where Indira Gandhi won in the parliamentary election in 1971) acting on an election
petition filed by Raj Narain declared her election invalid on two corruption charges in the
conduct of her poll campaign at that time. She was accused of violating the Indian law by first,
using an officer of her government to make campaign arrangements, and secondly, by using
other state officers to put up speaker’s stands in her constituency and supply electricity to her
amplifying equipment. The high court judgment debarred her from holding the office of prime
minister, but granted a stay of the order for 20 days – to allow her party to choose another leader
(since the Congress party still enjoyed a majority in the Indian parliament) and that is when the
notorious happened.

GRADUAL CONTROL OF THE EXECUTIVE OVER THE JUDICIARY

The proclamation of Emergency on June 26, 1975 was an attempt to destroy Indian democracy.
While a large section of the Indian judiciary decided to resist the onslaught on democratic
institutions like the press and judiciary, a section of the Supreme Court surrendered. The
unanimous verdict of nine High Courts relating to Habeas Corpus-that Article 21 is not the sole
repository of life and liberty and that a detainee has a right of Habeas Corpus during the
Emergency-was reversed by a 4:1 verdict of the Supreme Court. The High Courts displayed
courage whether it was on the matter of a detainee's right of medical treatment or his interviews
with his relatives, or the right of a lawyers' association to organise a meeting, or to stay a High
Court Judge's arbitrary transfer. The Supreme Court, however, showed subservience 17

When Justice Jagmohan Lal Sinha ruled that Mrs Gandhi had been guilty of the ‘corrupt
practice’ of using government services in her campaign. Obtaining a conditional stay of the
ruling, which would have voided her election and barred her from standing for office for six
years, Mrs Gandhi bypassed her own cabinet and secured a declaration of emergency from the
president, Fakhruddin Ali Ahmed. Before dawn the following day, 676 members of the
opposition had been detained. Legislative resistance to Mrs Gandhi’s emergency never
recovered. During the course of the emergency, approximately 111,000 people were detained.

17
Judiciary Under Executive Assault, PUCL BULLETIN, July 1981

23
Although the Bangalore High Court voided detentions as invalid in July 1975, in April 1976, a
bench of the Supreme Court reversed that judgement, concluding that no court had jurisdiction to
review the factual or legal sufficiency of detention orders. Alongside press censorship and
rumours of torture, the threat of detention cast a pall over the legislative process. Mrs Gandhi’s
government was able comprehensively to block legal assaults on the state of emergency by
pushing a series of amendments to the constitution through the subservient Parliament. These
amendments also protected Mrs Gandhi’s fragile electoral mandate. Hence, the Parliament
proved incapable of playing its constitutional role under chapter XVIII of the 1950 constitution
of scrutinizing justifications for emergency powers. An overview of Mrs Gandhi’s key
constitutional amendments reveals the extent of legislature’s collapse. First, the 38th amendment
barred judicial review of emergency proclamations. Second, courts lost jurisdiction to hear
election petitions, hence insulating Mrs Gandhi’s fragile perch in Rae Bareli. Third, the 41st
amendment brought in absolute immunity from criminal liability for the president, the prime
minister and provincial governors. In the light of the extensive detentions, house demolitions,
forced sterilizations and torture, it is hardly surprising that the executive sought formal
insulationagainst post hoc judgement. The final amendment passed during the emergency, the
42nd amendment, comprised 20 tightly packed pages that centralised political power and made
judicial challenge impossible18.

COMPLETE SUBSERVIENCE OF THE HIGHEST JUDICIARY TO THE

EXECUTIVE

During the monarchical system the judiciary was subservient to the monarch. Since the
constitutions of all countries are nothing but a gradual evolution of the monarchial system the
judiciary in its present form also got shadowed by the executive after the dominion withered
away. The selection of executives in a democracy originates with corruption. The next and most
important pillar i.e. judiciary is likely to malfunction because it is put together by dishonest
executives to achieve their objectives. “The proclamation of Emergency on June 26, 1975 was an
attempt to destroy Indian democracy. While a large section of the Indian judiciary decided to
resist the onslaught on democratic institutions like the press and judiciary, a section of the
Supreme Court surrendered. The unanimous verdict of nine High Courts relating to Habeas
Corpus-that Article 21 is not the sole repository of life and liberty and that a detainee has a right
of Habeas Corpus during the Emergency-was reversed by a 4:1 verdict 19 of the Supreme Court.
The High Courts displayed courage whether it was on the matter of a detainee's right of medical
treatment or his interviews with his relatives, or the right of a lawyers' association to organize a
meeting, or to stay a High Court Judge's arbitrary transfer. The Supreme Court, however, showed
subservience.”20 The power to appoint judges to High Courts and the Supreme Court of India

18
Aziz Z. Huq, BRENNAN CENTRE FOR JUSTICE, NEW YORK UNIVERSITY, USA.
19
Additional District Magistrate, Jabalpur v. Shivkant Shukla 1976 AIR 1207
20
Judiciary Under Executive Assault, PUCL BULLETIN, July 1981

24
rested truly with the higher executives who were respected by the legal world for they were the
‘constitution makers’. The executive took tremendous advantage of this procedure and promoted
various judges to the Chief Justice position instead of other senior judges who were more
competent and fitting for the rank. A clear example of this was observed when Justice Beg was
appointed the Chief Justice of India instead of Justice H.R. Khanna after the latter’s famous
dissenter in the 4:1 judgment though the former was junior to him. There were times when it
became evident and even quite visible that the executive was manipulating the decisions of the
Supreme Court. There was tremendous pressure on the latter and the notable aspect of these
episodes was that the Court did nothing against the executive government as it did not have the
adequate machinery to implement the orders against the government which controls the police.

Justice Khanna, Justice Beg, Justice Chandrachud and Justice Bhagwati displayed courage in the
court and were punished for their independent views in the habeas corpus case. Fourteen judges
of high courts who were a party to various judgments against the government were transferred
from one high court to another without their consent. A list of 52 inconvenient judges was
prepared. In addition to that proposals were mooted for the establishment of a superior council
over the judges by the executive 21. It was impossible to expect any justice far less welfare to
common man as long as judiciary was subservient to the legislature and the executive. The post-
Emergency Supreme Court suffered from a guilt complex about its Emergency role.
Amendments were made in the undemocratic laws that were passed during the Dark Age to fit
the contemporary circumstances and attempts were taken to rectify everything.

EXECUTIVE PLAYING LEGISLATURE FOR TWO YEARS

For purposes of repressions, all the sate machinery was not mobilized notably the army was not
mustered. Article 358 of the Constitution suspended with the implementation of emergency, the
fundamental rights of citizens, notably the “right to freedom of speech and expression”, “right to
assemble peacefully without arms”, “right to form associations or unions” guaranteed by Article
19. The 42nd Constitutional amendment prohibited all ‘anti national activities’ or ‘anti national
associations’ defined these in such a way so as to include any ‘anti governmental activity’. When
a Proclamation of Emergency is in operation, the President is empowered under article 359 of the
Constitution to make an order suspending the right to move any court for the enforcement of any
civil liberties as such.

The government kept reinforcing the already powerful judicial arsenal it had at its disposal in the
matter of preventive detention.22 Its main batteries were the Defense of India Act and the
Maintenance of Internal Security Act (MISA), 1971, a preventive detention law which had been
enacted by the Parliament as a permanent statute earlier in the same year. The latter was a

21
R.N. Mukherjee(1984), Democracy – A Failure, Shefocracy – The Solution to Human Welfare, pp. 102
22
Max Jean Zins (1988), Strains on Indian Democracy, pp. 33

25
controversial law passed by the Indian parliament in 1971 giving the administration of Prime
Minister Indira Gandhi and Indian law enforcement agencies super powers - indefinite
"preventive" detention of individuals, search and seizure of property without warrants, and
wiretapping - in the quelling of civil and political disorder in India, as well as countering foreign-
inspired sabotage, terrorism, subterfuge and threats to national security. During the emergency
external aggression did not act as the only reason for this Act to be applicable but also internal
disturbance. It was in complete disregard of the legal and constitutional safeguards of civil rights.
If the authorities were ‘satisfied’ that it was necessary to resort to it in order to ‘effectively deal
with emergency’ then the arrested person could be detained for 12 months. MISA was even
amended by four presidential orders during the emergency period furthering the reinforcement of
the so-called ‘judicial arsenal’.

● The Central or State governments were equally empowered to to make a declaration in

respect of any person detained under the Act “that it is necessary to detain such person
for effectively dealing with emergency”.
● The arresting authority was not obliged to furnish the grounds for his detention to the
prisoner (Law of 15 August 1975).
● Communication of the grounds for detention was totally banned. No news or information
linked to this type of arrest could be made public or revealed (25th January 1976).
● Duration of preventive detention had now been extended to 24 months (25th August
1976)

Any person arrested under MISA (under article 16(A) or not was moreover deprived of the moral
judicial guarantees and notably of the right to appeal against the decision. The nature of
preventive detainments had become arbitrary. People were being arrested for common
lawcrimes. The administrative authorities could arrest whomsoever they want for 2 years. The
massive seizures that were carried out by the barbaric government in the wake of declaration of
internal “emergency” on June 25th, 1975 provided the High Courts of India with writ petitions
from people who had been detained under MISA. Several High courts decided, on the principles
of Makhan Singh23, that they had jurisdiction under Article 226 to issue the writ of habeas corpus
where detention orders were ultra vires or mala fide.

During the Emergency in 1976, the Supreme Court (SC) delivered a shocking judgement in the
habeas corpus case known as ADM Jabalpur, which stunned the whole country. The then
Attorney General of India Niren De focused on the aspect of 'liberty' as found in Art.21 of the
Constitution. “His central contention was that since the right to move any Court had been
suspended, the detenue had no locus standi and their writ petitions would necessarily have to be
dismissed.” Justice Khanna is remembered to have asked him one uncomfortable question the
next day. “Life is also mentioned in Article 21 and would Government argument extend to it

23
Makhan Singh Tarsika v. State of Punjab (1964) AIR 381

26
also?" Niren De promptly answered, “Even if life was taken away illegally, courts are helpless”.
In this judgment, the SC declared that during the Emergency nobody had any right to life or
liberty. In January 2011, a bench of Justice Aftab Alam and Justice Ashok Kumar Ganguly in a
judgment pointed out that in the 4:1 ruling that it was Justice Khanna who rightly gave a
dissenting judgment by holding that under clause (8) Article 226 under which the high courts can
issue writs of Habeas Corpus is an integral part of the Constitution.

Shah Commission was appointed by the government of India to scrutinize and inquire into all the
excesses committed in the Indian Emergency (1975-77). The commission deposed hundreds of
individuals and after two years produced a 500 page report on the persons responsible for
atrocities committed during emergency. It blamed Indira Gandhi, her younger son Sanjay
Gandhi, Pranab Mukherjee, Bansi Lal, Kamal Nath and other civil servants who helped Sanjay
Gandhi for the same and coldly scathed their personalities. After the Congress got back in power
in 1980 it voluntarily took the extraordinary step of destroying every copy of the report that was
published. However, recently it has surfaced and created stirs in the political world.

The commission’s report boldly declared the MISA detentions as “a lesson to the people's
representatives in the legislatures as to how a statute, initially well conceived, may be misused
for purposes totally alien to its objects and the intention of its farmers.” The commission says:
“There was no threat to the well-being of the nation from sources external or internal.”

PRESS CENSORSHIP

The 1975 emergency was a watershed in the country and it touched the press as well. The
fundamental rights were suspended and press censorship was imposed.24 The promulgation of
Emergency and Press Censorship constituted the murkiest chapter in press history of free India.
The period had its immediate and long term repercussions for the press. It was the censorship of
1975, which showed how the press at large became a tool in government hands. Immediately
after this emergency declaration, the government tightened its controls on the Indian mass media,
especially on the newspapers which had reputations of being free and lively. News was moulded
purely to serve the party in power and its leader and the ministry of information and broadcasting
became a virtual caricature of the Hitlerian German Information Minister Dr. Goebbels set up.
The newspapers were not allowed to publish anything about the state of India under emergency,
the rights being violated, the people being harassed or any other such issue even remotely related
to the actions of the government in power as it was mounted as sedition against the Congress
government. So the newspapers in a first, protested against this censorship by leaving blank
spaces in arbitrary pages. The guidelines issued by the Chief Censor exceeded the scope of the
Rule 48 of the Defence and Internal Security of India Rules insofar as they prevented editors

24
Kuldip Nayar, sixty years of press freedom, a watershed

27
leaving editorial columns blank or filling them with quotations from great works of literature or
from national leaders like Mahatma Gandhi, or Rabindranath Tagore.

Not merely publication of court judgments was censored, but directions were also given as to
how judgments should be published. In practice, censorship was utilised for suppressing news
unfavourable to the government, to play up news favourable to the government and to suppress
news unfavourable to the supporters of the ruling party.

CRITICISM

No one with any claim to rationality would dispute that the Emergency in the mid-seventies
of the last century was a sordid chapter in modern Indian history. With a single stroke of the
President's pen on the night of June 25, 1975, the world's largest democracy was reduced to a tin-
pot dictatorship, one of the many then infesting the Third World. Invoking article 352 of the
Indian Constitution, Indira granted herself extraordinary powers and launched a massive
crackdown on civil liberties and political opposition. The Government cited threats to national
security, as a recent war with Pakistan had just been concluded. It claimed that the strikes and
protests had paralyzed the government and hurt the economy of the country greatly. In face of
massive political opposition, desertion and disorder across the country and the party, Indira stuck
to the advice of a few close party loyalists and her younger son Sanjay Gandhi, who had become
a close political advisor.

Indira Gandhi attempted to re-write the nation’s laws with the help of the Parliament, where the
Congress controlled over a two-thirds majority. She felt her powers were not amassing quickly
enough, so she utilized the President to issue “extraordinary laws” that bypassed parliament
altogether, allowing her to rule by decree. She constructed a 20-point economic program to
increase agricultural and industrial production, improve public services and fight poverty and
illiteracy. Also, she had little trouble in making amendments to the constitution that exonerated
her from any culpability in her election fraud case, declaring President’s Rule in Gujarat and
Tamil Nadu where anti-Indira parties ruled (state legislatures were thereby dissolved and
suspended indefinitely), and jailing thousands of opponents. There is no doubt that Indira Gandhi
did use the Emergency to inflict lasting damage on the institutions that provide the underpinning
to democracy by suborning or subverting them. Ironically, these were founded and nurtured by
her even more illustrious father. But the question is whether she alone has to be blamed for this
depressing development.

28
 CHAPTER III: JUDICIAL ANALYSIS
Several landmark cases have shaped the interpretation and application of emergency provisions.
The most notable among them is the ADM Jabalpur vs Shivakant Shukla case, where the
Supreme Court controversially upheld the suspension of all legal remedies during the Emergency
of 1975.

● Makhan Singh Vs. State of Punjab25: This case dealt with the suspension of Article 19
during a National Emergency. The court held that the detention of the petitioner was legal
and valid as it was done under a law which was protected by Article 359(1).

● A.D.M. Jabalpur Vs. Shivkant Shukla 26: This case is one of the most controversial
decisions in the history of the Indian judiciary. The Supreme Court held that during the
period of Emergency, a person’s right to not be unlawfully detained (Article 21) can be
suspended.

● S.R. Bommai Vs Union of India27: This case is a landmark in the history of the Indian
Constitution. The Supreme Court laid down the paradigm and limitations within which
Article 356 was to operate. It held that the power under Article 356 is a conditioned
power and it can be used only when the conditions specified in the Article are existent.

These cases highlight the tension between the need for strong central authority during
emergencies and the protection of individual rights. They also underscore the importance of
judicial review in ensuring that the emergency provisions of the Constitution are not misused.

Makhan Singh v. State of Punjab

During the operation of the Emergency from 1962-1969, the Supreme Court confined its role
only to an examination of the propriety of instances of preventive detention in terms of the
applicable legislation. The Court did not endeavour to rule on the scope and operation of the
Constitutionally guaranteed Fundamental Rights during an Emergency. Nor did it assert its
powers of judicial review in terms of the Constitutionally entrenched provisions on the Supreme
Court. Thus in all these cases, the Court upheld decisions of preventive detentions, and therefore
the case of Makhan Singh is an example of such an instance.

● Citation: 1952 AIR 27 1952 SCR 368

● Petitioner: Makhan Singh

25
Makhan Singh v. State of Punjab 1952 AIR 27 1952 SCR 368
26
Additional District Magistrate, Jabalpur v. Shivkant Shukla 1976 AIR 1207
27
S.R. Bommai V. Union of India 1994 AIR 1918

29
 ● Respondent: State Of Punjab(And Connected Appeals)
● Bench: Mr. Justice P.B. Gajendragadkar, Mr. Justice A. K. Sarkar, Mr. Justice K. Subba
Rao, Mr. Justice K. N. Wanchoo, Mr. Justice M. Hidayatullah, Mr. Justice K. C. Das
Gupta, and Mr. Justice C. Shah
● Relevant Acts Constitution of India, 1950, Articles 32, 226, 352, 358 and 359, Detention
under Defence of India Act and Defence of India Rules, Application for release under
Section 491, Code of Criminal Procedure (Act V of 1898)

Facts of the case

● Following the Chinese aggression on 8 September 1962, the President had declared a
national emergency in India under Article 352 of the Constitution on 26 October 1962.
● The Defence of India Ordinance 1962 (Number 4 of 1962) was also promulgated on this
day.
● An ordinance was promulgated on 3 November 1962 that suspended the rights of citizens
of India to move any Court for the enforcement of the rights under Article 21 and 22 of
the Constitution for the time during which proclamation of emergency issued on 26
October 1962 would be in force; under Article 359(1).
● The amendment of the Presidential order passed on 11 November, also extended this
suspension of the right to move the Court to Article 14 of the Constitution,
● The appellants were detained under Rule 30(1)(b).
● In total, there are 26 criminal appeals, nine against the decision of the Punjab High Court,
and 17 against the decision of the Bombay High Court.
● All the appellants were detenues who had been detained by the Punjab and the
Maharashtra State Governments under Rule 30(1)(b) of the Defence of India Rules
(hereinafter called the Rules) made by the Central Government in exercise of the powers
conferred on it by the Defence of India Ordinance.
● They had applied to the Punjab High Court and the Bombay High Court under Section
491 (1)(b) of the Code of Criminal Procedure(Cr.p.c.) and alleged that they had been
illegally detained.
● Their contention was that s. 3(2)(15)(i) and s. 40 of the Defence of India Act,of 1962
(No. 51 of 1962) and Rule 30(1)(b) under which they have been detained were
Constitutionally invalid, because they contravened their fundamental rights under
Articles 14, 21 and 22(4), (5) & (7) of the Constitution, and so, they claimed that an order
should be passed in their favour directing the respective State Governments to set them at
liberty.
● These petitions had been dismissed on the ground that the Presidential Order which has
been issued under Art. 359 of the Constitution creates a bar which precludes them from
moving the Court under s. 491(1)(b) Cr. P. C.

30
 ● The High Court of Allahabad in a similar case had favoured the detenues, and it was the
difference of opinion in the Bombay High Court and Punjab High Court that lead to the
formation of the Special Bench for the appeal.

Relevant Laws:

Article 358

Suspension of provisions of Article 19 during emergencies. While a Proclamation of Emergency

under Article 352 is in operation, nothing in article 19 shall restrict the powers of the State
defined in Part III to frame any law or to draw any executive action which State would but for
the provisions contained in that Part be competent to frame or to draw, but any law so made
shall, to the extent of the incompetency, cease to possess effect as soon as Proclamation ceases,
to operate, except as respects things done or omitted to be done before the law so ceases to have
an effect.

Article 359

1. Where a Proclamation of Emergency is in operation, the President may by order declare

that the right to move any Court for the enforcement of such of the rights conferred by
Part III as is also mentioned in the order and every proceeding pending in any court for
the enforcement of the rights so mentioned shall remain suspended for the time during
which the Proclamation is in effect or for such shorter period as could also be laid out in
the order.
2. Any order made as aforesaid may extend to the whole or any part of the territory of India.

Section 491(l)(b) of the Code of Criminal Procedure

Any High Court may, whenever it deems fit, direct that a person illegally detained in public or
private custody within such limits be set at liberty.

Issues
● What was the true scope and effect of a Presidential Order issued under Article 359(l)?
● What is the nature of the proceedings which are barred by the Presidential Order issued
under Article 359(1)?

31
 ● Did the bar created by the Presidential Order operate in respect of applications for habeas
corpus made by detainees, not under Article 226 of the Constitution, but section 491 of
the Criminal Procedure Code?

Since the object of Art. 359(1) is to suspend the rights of the citizens to move to any court, the
consequence of the Presidential Order may be that any proceeding which may be pending at the
date of the Order remains suspended during the time that the order is in operation and may be
revived when the said Order ceases to be operative, and fresh proceedings cannot be taken by a
citizen after the Order has been issued, because the Order takes away right to move any court and
during the operation of the Order, the said right cannot be exercised by instituting a fresh
proceeding contrary to the Order. If a fresh proceeding falling within the mischief of Art. 359(1)
and the Presidential Order issued under it is instituted after the Order has been issued, it will
have to be dismissed as being incompetent.The right to move any court for the enforcement of
such of the rights conferred by Part III as may be mentioned in the Order should be construed to
mean the right to move the Supreme Court which has been guaranteed by Art. 32(1).

The right of which a citizen can be deprived of under Art. 359(1) is the right to move the
Supreme Court, and so, his case is that even in regard to fundamental rights specified in the
Presidential Order, a citizen is entitled to ask for relief from the High Court under Art. 226
because of the right to move the High Court flowing from Art. 226 does not fall within the
mischief of Art. 359(1).In this connection, it was attempted to be argued that the power of the
High Court to issue writs or orders specified in Art. 226(1) is a discretionary power and as such,
no citizen can claim to have a right to move the High Court in that behalf, and so, it was
suggested that the proceedings contemplated by Art. 226(1) are outside the purview of Art.
359(1).

The next question to consider is the nature of the proceedings which are barred by the
Presidential Order issued under Art. 359(1). They are proceedings taken by citizens for the
enforcement of such rights conferred by Part III as may be mentioned in the order. If a citizen
moves any court to obtain a relied on the ground that his fundamental rights specified in the
Order have been contravened, that proceeding is barred.

In determining the question on whether a specific proceeding falls within the mischief of the
Presidential Order or not, what should be examined isn’t so much the form which the proceeding
has taken or the words in which the relief is claimed, as the substance of the matter and consider
whether before granting the relief claimed by the citizen, it might be necessary for the Court to
enquire into the question whether any of his specified fundamental rights are contravened. If any
relief cannot be granted to the citizen without determining the question of the alleged

32
infringement of the said specified fundamental rights, that’s a proceeding which falls under Art.
359(1) and would, therefore, be hit by the Presidential Order issued under the said Article.

That takes us to the question as to whether proceedings taken by a citizen under s. 491(1)(b) are
affected by Art. 359(1) and the Presidential Order issued under it. Section 491(1)(b), inter alia,
provides that any High Court may, whenever it thinks fit, direct that a person illegally or
improperly detained in public custody be set at liberty. It has been strenuously urged before us
that the proceedings for obtaining directions of the nature of habeas corpus are taken under s.
491(1) (b) are outside Art. 359(1), and so, the Presidential Order cannot create a bar against a
citizen asking the High Court to issue a writ in the nature of habeas corpus under the said
provision.

There is no doubt that the right to ask for a writ in the nature of habeas corpus which could once
have been treated as a matter of Common Law has become a statutory right after 1923, and we
have already seen it after s. 491 was introduced in the Cr.P.C.. It was not open to any citizen in
India to claim the writ of habeas corpus on grounds recognised by Common Law apart from the
provisions of s. 491(1)(b) itself. It has, however, been suggested by the learned Attorney-General
that just as the common law right to obtain a writ of habeas corpus became a statutory right in
1923, a part of the said statutory right has now become a part of the fundamental rights
guaranteed by the Constitution, and so, after the Constitution came into force, whenever, a
detenu claims to be released from illegal or improper detention, his claim can, in some cases, be
sustained on the ground that illegal or improper detention affects his fundamental rights
guaranteed by Arts. 19, or 21 or 23 as the case may be. It is no doubt urged that under s.
491(1)(b) a stranger can apply for the release of a detenu improperly or illegally detained, or the
Court itself can act suo motu.

The Court thus considered whether Article 359 of the Constitution was to be so construed on to
empower the President to suspend “all actions which an individual may take under a statute or
common law, if he seeks thereby to protect his liberty against unlawful encroachment by the
state or its officers” Was the effect of the Presidential Order confined to the Constitutional
remedies guaranteed by Articles 32 and 226, or would the Order also bar remedies which are
conferred by ordinary statutes, such as by section 49l of the Code of Criminal Procedure?

The Supreme Court conceded that the right to claim relief under the Code was a right which was
distinct and separate from that conferred by Articles 32 and 226 of the Constitution. It was
stressed that what was to be examined was not the technical procedural form in which the action
was initiated or not whether it was by a writ petition under Article 32 or Article 226 of the
Constitution, or by proceedings sanctioned by ordinary statue, but rather that it was the

33
“substance of the matter” which was decisive. Therefore, proceedings taken under Section 491 of
the Criminal Procedure Code would be on the same footing as writ petitions under the
Constitution and would, with respect to pleas based on rights conferred by the Articles specified
in that Presidential Order, be equally liable to attract the procedural bar.” The true test to
determine whether a particular proceeding is barred is to examine the substance and not the form.
In the words of Justice Gajendragadkar:

“In determining the question on to whether a specific proceeding falls within the mischief of the
Presidential Order or not, what should be examined isn’t so much the form which the proceeding
has taken or the words in which the relief is claimed, as the substance of the matter…before
granting the relief claimed by the citizen, it would be necessary for the Court to enquire into the
question whether any of his specified fundamental rights are contravened. If any relief can’t be
granted to the citizen without determining the question of the alleged infringement of the
fundamental rights, that’s a proceeding which falls under Art. 359(1) and would, therefore, be hit
by the Presidential Order issued under the said Article. The sweep of Art. 359(1) and the
Presidential Order issued under it is thus wide enough to include all claims made by citizens in
any court of competent jurisdiction when it is shown that the said claims cannot be effectively
adjudicated upon without examining the question as to whether the citizen is in substance,
seeking to enforce any of the said specified fundamental rights.”

Justice Subba Rao dissented and argued that section 491 of the Code; though remedial in form,
postulates the existence of the substantive right. He identified that substantive right as a common
law principle that no person can be deprived of his or her liberty except in the manner prescribed
by law. Justice Subba Rao supported his conclusion as to the availability of a remedy under
section 491 by classifying the High Court’s power under the Code as purely discretionary, and
hence distinct from the ‘right’ to move a court as guaranteed by Articles 32 and 226. Since he
conceded to the Legislature the power to take away this substantive right, Justice Subba Rao did
not derive the procedural right in question from an implied Constitutional rule of law or principle
of legality.

In the absence of a principle of legality which transcends the specific Fundamental Rights
conferred by Part III of the Constitution, the opinion expressed by Justice Subba Rao is
unconvincing. Whether the jurisdiction of the Court is invoked by a Constitutional provision,
such as Article 32 or Article 226, or invoked by reliance upon an ordinary statute, does not, in
itself affect the content of the substantive right sought to be asserted. The question of an alternate
jurisdictional basis is irrelevant if the position regarding the legal procedure to enforce it is
unclear. Concerning the general scope and legal consequence of a Presidential Order under
Article 359(l), the Supreme Court, in Makhan Singh, observed that its legal effect was to
constitute “a sort of moratorium or blanket ban” against the initiation, or continuation, of any

34
legal action which ‘in substance sought to enforce a Fundamental Right specified in the
Presidential Order. On this interpretation of Article 359, the Supreme Court unanimously”
concluded that a Presidential Order could never operate as a bar to proceedings in which
executive action is attacked on grounds which are not relatable to the specified Fundamental
Rights. Speaking on behalf of six of the seven judges of the Bench, Justice Gajendragadltar
identified several pleas that weren’t barred by the Presidential Order. These concerned the
enforceability of rights aside from those laid out in the Presidential Order infringement by the
detaining authority of mandatory provisions of the detention legislation; mala fides.

Judgement

The detenu Makhan Singh Tarsikka whose habeas corpus petition has been dismissed by the
Punjab High Court has brought this appeal before us by special leave. It appears that on October
22, 1962, F. I. R. was filed at the Police Station, Jandiale, alleging that offences under Ss. 307,
324, 364 and 367 I. P. C. had been committed by certain persons including the appellant. In
pursuance of the investigation which commenced on receipt of the said F.I.R., the appellant was
arrested on October 25, 1962. On October 26, 1962, Emergency was declared by the President.
On November 1, 1962, the appellant was transferred to judicial custody of the Sub-Divisional
Magistrate, Amritsar. Whilst the appellant was in jail custody, he was allowed to interview his
friends and about nine persons interviewed him between 3rd November to 19th Nov. 1962. On
November 20, 1962, an order of detention was passed against the appellant under Rule 30(1) (b)
of the Defence of India Rules, 1962 (hereinafter called the ‘Rules’ ) This order was served on the
appellant on November 21, 1962, and it appears he was removed to the jail at Hissar. On January
30, 1963, he was brought back to Amritsar, and on February 9, 1963, he filed the present writ
petition.

In his petition which was filed by the appellant, the main allegation which he made was
challenging the validity of his detention was that the grounds set up in the order of detention
were “very vague, concocted and totally false”. The detention order had stated that the appellant
was detained because he was found to be “indulging in activities prejudicial to the Defence of
India and Civil Defence by making propagandas against joining the armed and civil defence
forces and by urging peopled not to contribute to the National Defence Fund”. The order added
that having reference to his activities, it had been thought necessary to detain him to stop him
from carrying on the said prejudicial activities. On March 4, 1963, the appellant made an
additional affidavit in which he urged that the fact that the deponent was in confinement before
the declaration of emergency on October 26, 1962, and the Chinese invasion, clearly showed that
the allegations against the deponent were false and concocted. By this supplementary affidavit,
the appellant furnished a further ground in support of his original plea that the grounds on which
his detention had been ordered were false and concocted.

35
 ADM JABALPUR V. SHIVKANT SHUKLA

Citation: AIR 1976 SC 1207

Court: Supreme Court of India
Judges: Ray, A.N. (CJI), Khanna, Hans Raj, Beg, M. Hameedullah, Chandrachud, Y.V.,
Bhagwati, P.N.
Date of judgment: 28 April, 1976
Dissenting judge: Hans Raj Khanna

Background of ADM Jabalpur v Shivkant Shukla

In ADM Jabalpur vs Shivkant Shukla, When Smt. Indira Gandhi won the elections to the Lok
Sabha, the said election result was challenged before the Allahabad High Court. Justice Sinha of
the Allahabad High Court passed a judgment holding Smt. Indira Gandhi was convicted for
indulging in malpractices regarding matters of the election held and declared the election and her
winning it void. This, in turn, meant that Smt. Indira Gandhi was not only able to be a part of the
Lok Sabha but also that she would not be able to participate in any election or hold her office of
power for the next 6 years.

In the ADM Jabalpur case, Smt. Indira Gandhi appealed to the Supreme Court challenging this
judgment of the Allahabad High Court but was only granted a conditional stay in her appeal.
Therefore, to regain control and power, and to stop the effect of the judgment passed by the
Supreme Court, on 26th June, 1975, she imposed an emergency.

Facts of ADM Jabalpur vs Shivkant Shukla

● The very next day the day on which the emergency was imposed, Article 359(1) was also
involved it and the citizen’s right to approach the Supreme Court under Article 32 of the
Constitution to enforce their fundamental rights were taken away, including enforcement
of Articles 14 (right to equality), Article 21 (right to life and personal liberty) and Article
22 (protection against preventive detention).
● Once these fundamental rights were not available to citizens, the people who were
considered political opponents or critics of Smt. Indira Gandhi was arrested in the name
of preventive detention including eminent political leaders like A.B. Vajpayee, Jay
Prakash Narayan and even Morarji Desai under the Maintenance of Internal Security Act
(MISA).

36
 ● These leaders approached their respective High Courts and some even got favourable
orders. But the State found the need to stop giving effect to these judgments that were in
favour of the detainees and thus, all these High Court favourable orders were collectively
challenged in the Supreme Court by the State under ADM Jabalpur vs Shivkant Shukla.

Issues Raised in ADM Jabalpur v Shivkant Shukla

● Maintainability of any writ petition under Article 226 for the issuance of a writ of Habeas
Corpus, to ensure personal liberty, on the ground that the order of detention is not valid
according to the provisions of the Maintenance of Internal Security Act, 1971 (also
known as MISA) read with the orders issued by the President under Article 359(1).
● If yes, then what is the extent of judicial scrutiny with respect to the aforesaid mentioned
Presidential orders?

Arguments of the State

● In ADM Jabalpur v Shivkant Shukla, The State argued that in a situation of an

emergency, it is the State’s interest that takes supremacy over all else and that is the
reason why during this time the State Executive is given powers by the Constitution to
take over the implementation of laws, that the emergency powers were drafted by the
Constituent Assembly with the view to put utmost supremacy to the State’s Military and
Economic Security over all else.
● The State further argued that it is the Constitution itself, under Article 359(1), which has
curtailed the fundamental right of individuals to approach the Court for enforcement of
fundamental rights during an emergency and thus it is not the scenario of the absence of
law and order or justice, but it is the supreme body of law which has itself curtailed it.

Arguments of the Respondents

● The respondents in ADM Jabalpur v Shivkant Shukla contended that although Article
359(1) of the Constitution curtails approaching the Apex Court for the enforcement of
fundamental rights but it does not curtail the enforcement of common law, natural law or
statutory rights of personal liberty in High Court under Article 226.
● The respondents in the ADM Jabalpur case also argued that the powers of the executive
do not increase during an emergency as the extent of its powers is already clearly, and
explicitly laid down in the Constitution.
● The most important argument of the respondents, according to me, is that although
Article 21 gives the right to life it is not the only Article that gives it and that the

37
 executive taking over the powers of the legislature is against the basic structure of the
constitution and if such a thing is allowed then the motive of the framers of the
Constitution would be defeated.

Judgement in ADM Jabalpur vs Shivkant Shukla

● It was 5 judges on the Constitutional Bench who heard this case. The majority view was
passed by 4 of the judges while the powerful dissenting view was passed by Justice
Khanna.
● The majority was of the view that when there is a presidential order of emergency, no
person has locus standi to move any writ petition under Article 226 before the High Court
for Hebeas Corpus or any other writ, order or direction to challenge the legality of the
order of detention on the ground that such detention order is not in tune with the
provisions of the Act or was passed with mala fide intentions.
● The Court also upheld the validity of Section 16A(9) of MISA.
● Justice Khanna dissentingly stated that invoking Article 359(1) does not deprive an
individual of the right to approach the Court for enforcing statutory rights.
● He held that the respondent’s view was correct and that Article 21 is undoubtedly not the
sole repository of the Right to Life and personal liberty. He mentioned that during an
emergency, although Article 21 loses procedural power but the substantive power does
not go away and that there is no way a State can deprive a person of his life and liberty
except with authority by law.

38
 S.R. BOMMAI V. UNION OF INDIA AIR 1993 3 SCC (1)

BACKGROUND OF THE CASE

The Janata Party in 1998 had attained majority in the state of Karnataka. It was to form a
government under the leadership of S.R. Bommai. The Janata party, however merged with the
Lokh Dal to expand its seat control and became the Janata Dal. The new ministry saw the
inclusion of thirteen members. One of the new additions to the party, Mr. K.R. Molakery
defected and presented a letter of no support to the then governor Pendekanti Venkatasubbaiah.
Mr. Molakery claimed the support of 19 MLAs and challenged S.R. Bommai’s majority in the
state. He presented a letter with the signature of nineteen MLA’s who allegedly had withdrawn
themselves from the Janata Dal. He then asked the governor to hold a motion for no confidence
and institute president’s rule under Article 356(1) of the Constitution. The claim was based on
the precedence of withdrawal of support from the nineteen MLAs which meant that Bommai no
longer commanded the majority vote in the state. The Governor made a representation regarding
this matter to the president, recommending the invocation of the said rule. Nevertheless, seven of
the nineteen MLAs claimed that their signatures of defection were taken by deceit and
misrepresentation. The chief minister along with his law ministers went to the governor to
inform him of their decision to call an assembly the very same day to prove confidence of the
legislative in his ministers. The state’s law minister also sent a telegram to the president covering
of the same effect. Nonetheless, the governor made another report to the president asking him
once again to dissolve the elected government and invoke president’s rule as the Janata Dal had
lost confidence. The president very next day using the provisions under Article 356(3) invoked
presidents’ rule in the state.
Similarly, in Meghalaya on 11th October 1991 the president issued a directive under section 356
of the constitution dissolving the legislative assembly in the state. The president’s report
included that on account of the Governor’s report and other information he has receivedthe
currently elected don’t hold the majority in the house and in response president’s rule was
imposed on the state.
In Nagaland, Madhya Pradesh, Rajasthan and Himachal Pradesh no confidence motions were
passed and the President held that the governments of the respective states do not hold legislative
majorities and their powers of governance for indeterminate periods shall stand revoked.

A writ petition was filed on 26th April 1989, challenging the validity of the Karnataka
proclamation, nonetheless a special 3 judge bench dismissed the petition. The Supreme Court
that the claims for all states had similar questions of law and decided to hear all petitions
together. The all-inclusive S.R.Bommai case and its arguments were first heard in October of
1993 and the proceedings continued till December of the same year.

39
ARTICLE 356 OF THE CONSTITUTION

Article 356 deals with the inconvenience of President's Rule over a State of India. At the point
when a state is under President's Rule, the chosen state government (driven by the Chief Minister
and the Council of Ministers) is excused and Council of clergymen is suspended as thelaw-
making body, and organization is led simply by the Governor of the state. The Governor is a
representative of the President and in this way, successfully, a functionary of the Union
Government (the focal or centre). Along these lines inconvenience of President's Rule refutes the
bureaucratic character of the Indian political framework, where organization for the most part is
shared between the Union and State governments. It additionally militates against the vote-based
principle of elected power, since a chosen government is suspended. These reasons have utilized
Article 356 disputable. All things considered, it was utilized over and over by local governments
to suspend state administrations (of inverse ideological groups) in view of authentic reasons or
exaggerated excuses.

Bhimrao Ambedkar, director of the Drafting Committee of the Constitution of India, alluded to
Article 356 as a dead letter of the Constitution. In the constituent assemblydiscussion, it was
recommended that Article 356 is subject to be mishandled for political increases. Ambedkar
answered, "I share the feelings that such articles will never be called into activity and they would
stay a dead letter. In the event that at all they are brought into activity, I trust the President, who
is blessed with these forces, will play it safe before really suspending the organization of the
territories. I trust the primary thing he will do is issue a simple admonition to a region that has
blundered, that things were not occurring in the manner by which they were planned to occur in
the Constitution. On the off chance that that cautioning fizzles, the second thing for him to do
will be to arrange a political decision permitting the individuals of the territory to settle matters
without anyone else. It is just when these two cures bomb that he would depend on this article. In
any case, this was never the situation and the judgment in Bommai case, Article 356 has been
over and again mishandled to excuse the State Governments constrained by an ideological group
restricted to administering party at focus. Arrangement for suspension of chose governments has
been utilized on in excess of 90 events and in the majority of the cases, it seemed, by all
accounts, to be of farfetched established legitimacy, as referenced by B. P. Jeevan Reddy during
one of his meetings in 1998.

FACTS OF THE CASE

S.R. Bommai was the chief minister of Karnataka from August of 1988 to April of 1989. He led
a Janata dal coalition and had a joint a majority in the state. His government was dissolved and

40
its legislatives dismissed on 21st April 1989 and president’s rule under article 356 of the
constitution was imposed in the state. The imposition of president’s rule in state’s ruled by
opposition parties was a common occurrence. The representation was made in front of the state’s
governor that Bommai had lost majority in the state. The Governor accepted the report of
nineteen defections. The then chief minister went to the Karnataka high court for redressal but
his writ was dismissed. Bommai then moved the Supreme court, and five years were spent before
the courts pronounced a judgement. Other than this, the Supreme Court was called upon by the
Central Government to choose the legitimacy of five different declarations in the matters of
Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan.

ARGUMENTS IN THE CASE

PETITIONER
1) The major contention of the petitioner was that Bommai was not once given the chance to
prove majority. The major threshold being that the chief minister was ready to prepone a
scheduled session and show a motion of strength against the claims of no confidence.
Bommai and his Law ministers had taken their opinions to the governor, who completely
discarded their representations and on the same day recommended the preponderance of
president’s rule. The Karnataka High court as well had inequitably rejected the
petitioners claims through a special three judge bench. Th major representation was to
establish a medium alleviating space for Bommai to show that he has majority seats in
the state.
2) The second claim from the petitioners’ side was that the president’s rule was imposed
with malefice intentions. The motive behind dissolving the state’s legislative assembly
and imposing singular rule was political. It was an act aimed at consolidating power with
the centre, completely disregarding the tenets of democracy. Mere grounds of communal
disturbance, looting and arson are not strong enough grounds to impose article 356. Such
an application of the constitution’s provisions, blatantly disregards the motive of its
drafters. The true reason behind imposing such an extreme rule was to put the state’s
representatives in a socially inequitable and unenforceable position.
3) Moreover, the third contention was about the material information the president received
apart from the governor’s report. No details about what exactly was shared with the
president were ever made clear. It is the Union government’s duty to disclose to the court
and the state’s legislative members the facts upon which the president’s rule was
imposed. Article 74(2) makes it mandatory for the Central government to share the
necessary details and such a blatant oversight cannot be ignored. No representations
concerning the materials on record with presidents are expressive of the dubious
intentions of the Union government.

41
 4) Whether a president can dissolve the legislature without having obtained the approval of
both the Houses of the Legislature. It was contended that Secularism being a basic feature
of the Constitution, a State government can be dismissed if it is guilty of a non-secular
act?

RESPONDENT

1) There is contrast in the nature and extent of the intensity of legal audit in the authoritative
law and the applicable law. While in the field of regulatory law, the Court's capacity
stretches out to lawful control of open experts in exercise of their legal force and in this
manner not exclusively to forestalling overabundance and maltreatment of intensity yet in
addition to sporadic exercise of intensity, the extent of legal audit in the protected law
stretches out just to forestalling activities which are illegal or ultra vires with the
Constitution. The territories where the legal force, along these lines, can work are
restricted and relate to the space where the activities of the Executive or the enactment
established encroach the plan of the division of intensity between the Executive, the
Legislature and the legal executive or the dispersion of forces between the States and the
Centre. The ramifications of this dispute, among others, is that regardless of whether the
Constitution gives pre-conditions to exercise of intensity by the protected specialists, the
Courts can't analyse whether the pre-conditions have been fulfilled. Also, if the forces are
depended to a sacred expert for accomplishing a specific reason and if the concerned
authority under the pretence of achieving the said reason, utilizes the forces to achieve a,
impermissible article, such utilization of intensity can't be addressed.

2) The second argument by the petitioners was that president’s rule under article 356 of the
constitution can only be administered once the advice of the council of ministers is taken
into consideration. Article 74(1) subscribes such powers to the council of ministers while
74(2) restricts the sharing of the council’s information with the general public. The two
sides essentially debated on the idea and application of article 74(2) and whether it
espoused the public dispersion of information or restricted it.

PERTINENT ISSUES

● Whether the imposition of President’s rule in the six states was constitutionally valid?
Were there any political and malaise intentions behind the actions of the council of
ministers and I daresay, the President? If possible, what measures can be taken to undo
any and all infringements of constitutional rights?
● Whether the powers of the president under article 356(1) stand unfettered?

42
 ● Are any proclamations under article 356 subject to judicial reviews? If yes till what
extent and what idea of scope will the powers of the court stand in an action to review the
Presidents statements?
● What does the president’s proclamation stating that a situation has arisen where the
state’s legislative functions cannot be in cooperation with constitutions provisions hold?

PRECEDENTIAL ANALYSIS OF PRESIDENT’S PRONOUNCEMENTS

The imposition of president’s rule was heavily debated in multiple high courts and different
states had differing pronouncements, even though the subject matter was essentially the same.
The basic factor of deliberation was whether there is no scope or limit to the application of
article 356 and if the president’s pronouncements can be made subject to judicial review.
In Aboo v. Union of India28 Kerala high court came to the conclusion that the governor had
made his representation after adequately surveying the state’s situation and establishing that the
local legislative members did not have enough support to establish a government. The court also
concluded that it beyond the ambit of their powers as well as the scope of their jurisdiction to
maintain whether a proclamation under article 356 is valid or not. The court held that a
proclamation made by the president cannot be reviewed or challenged in the particular outlay of
the judiciary.
By a Presidential announcement dated 21-11-1967 President's standard was forced in Haryana
and the Haryana Legislative Assembly was broken down. The High Court excused the writ
appeal testing the announcement for three reasons. Initially, the Court can't go into the
legitimacy of the decree in light of the fact that the President isn't agreeable to the ward of the
Court considering sub-workmanship. (1) of Article 361. Besides, revaluation of the declaration
being explicitly vested by the Constitution in Parliament rejected the Court's purview. Thirdly,
the Court had no purview to require divulgence of material framing premise of the fulfilment of
the President. The Court anyway considered the benefits of the Presidential announcement and
held that there was adequate and adequate material in the report of the Governor that the
organization of the State had been incapacitated and there was no genuine set up.

In Hanumantha Rao v. State of A.P.29, the Andhra Pradesh High reached heights of judicial
ignorance. The court in agreement with the Kerala high court maintained that the president’s
decision standalone cannot be checked, and it is beyond the courts powers to review his
decisions. The courts of India must keep a judicial off hands identity when it comes to dealing
with the pregenital exercise of emergency powers. No quantified identities of bad faith can be

28
K.K. Aboo v. Union of India (1965) Ker 229
29
Hanumantha Rao v. State of A.P (1992) SC 358

43
associated with the presidents any manner of form. Similarly, the legality of the President’s
proclamation on dissolving Odhissa’s state legislature was tested in Bijayananda v. President of
India30. The Odhissa high court again maintained that the Presidents decisions cannot be
questioned by the judiciary and is beyond the workings of the court’s powers. The high court
held that a Presidential proclamation cannot be subject judicature and provided a variety of
reasons for the same: The term wide reasons gives a subjective ambit for the President to decide
whether there is a need for legislative dissolution, the provisions of article 74(1) and 361(1)
outrightly deny the courts from getting involved in such situations in any capacity, there already
exist a provision in the parliament to question whether the presidential rule should continue upon
the termination of a two month period; moreover, the emergency provisions under article 352,
356 and 360 render the President’s decision non justiciable and beyond the judiciary’s dealings.

The judgements of Justice Bhagwati and A.C. Gupta established the prevailing understanding of
the Presidents before the S.R. Bommai judgement:
"The satisfaction of the President is a subjective one and cannot be tested by reference to any
objective tests. There may be a wide range of situations which may arise and their political
implications and consequences may have to be evaluated in order to decide whether the situation
is such that the government of the State cannot be carried on in accordance with the provisions of
the Constitution. It is not a decision which can be based on what the Supreme Court of the
United States has described as 'judicially discoverable and manageable standards'. It would
largely be a political judgment based on assessment of diverse and varied factors"

JUDGEMENT OVERVIEW

The Supreme Court’s judgement in the S.R. Bommai case completely changed how the powers
of the President were seen up till then and whether any arbitrary moves can be challenged by the
courts of the country. The apex court’s substantial judgement has made the case one of the most
quoted in the country. The judgement established that the president’s powers under article 356
were not absolute. In order for a proclamation of a state’s assembly to be dissolved and
presidential rule to be established. The verdict stated that the order to dissolve the legislative
assembly must be passed be passed by both the Rajya Sabha as well as the Lokh Sabha. Until
and unless the order is passed by both the houses, the President can only suspend the
constitutional provision of the state’s and its legislatives in question. The major words of the
court were such that the dissolution of a states assembly is not a matter of course action and it
should be followed only when the situation so makes it necessary. If both the houses of the
Parliament don’t pass the order then state’s legislative assembly gets revived and the assembly
kept in suspended animations gets reactivated. The court established that the powers of the

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Bijayananda v. President of India (1972) Ori 52

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President cannot be used in an inequitable manner and to establish the country’s democratic roots
the implication of Presidential rule must be approved by the elected representatives. Moreover,
the court’s judgement precedented that the President’s orders and proclamation are infact subject
to judicial review.

The case put an end to the practice of inequitable and arbitrary dismissal of state governments by
a bitter centre, it also established that the floor of the assembly is the only function or tenet of the
Indian democracy allotted the power to check the strength of a government. The factor of no
confidence must not be left open with the state’s governor, who can form a subjective opinion on
any given analysis. If such a precedence is not established and the President is allowed to
arbitrarily practice his powers, without them being made the subject of judicial reviews, it will
create barriers for the chief minister to exercise his constitutional powers.
The Supreme court laid down certain rules of procedure to be followed while situating Presidents
rule in any state. The overview of the said regulation is as such:

a) The council ministers and the majority that they hold must be tested only on the floor of
the parliament, no subjective analyses of the same shall be allowed to situate president’s
rule.
b) The Centre or the Union government must give a sufficient number of warnings to the
state and allow at the minimum a week’s time for the state to respond to the allegation
substantiating president’s rule.
c) The Courts scope of powers was situated as such that the advice of the council of
ministers cannot be questioned. Nonetheless, what falls within the precepts of the
judiciary is whether the representations made to the president where substantial enough to
establish President’s rule in a state.
d) The court must consider three major factors while analysing the subject matter of any
representations made to the president:
i) What substance does the material placed before
the president carry?
ii) Whether the representation is truly relevant to
the regions state of affairs?
iii) Whether there were malefice intentions or the
arbitrary use of power?
e) The court has the power to provide remedies if the constituents of Article 356 have been
improperly used and don’t subscribe to the democratic tenets of the constitution.
f) The president must not take any irreversible actions until the order has been passed
through the both the houses.
g) The most prominent established by the court defined the scope of Article 356. President’s
rule can only be imposed when there has been a complete breakdown of the constitutional
settlements of a state and not the just the administrative machinery.
h) The imposition of president’s rule within a territory was held improper when:

45
1) A state’s ministry loses power and the Governor
recommends the imposition of President’s rule without
factoring the possibility of a new government being formed.
2) If the governor makes a subjective assessment of the
strength of a ministry and recommends impostion of
governments rule without allowing for the said ministry to
prove its majority.
3) If the recommendations of the governor or the actions of the
president, a completely apolitical position, have intentions
to support a particular political formation.
4) Administrative breakdown and allegations of corruption or
other maladministration-based principles are used to situate
such a rule.
5) The state government is not given a minimum time to make
their representations and no factors of the state’s
administration are allowed the democratic right of fair
representation.

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 CHAPTER IV: APPRAISAL AND SUGGESTIONS
India has made efforts to bolster emergency provisions, but continuous improvements are
essential. Enhancing disaster management systems, improving infrastructure resilience,
facilitating better communication during crises, and ensuring timely aid distribution are crucial.
Utilizing technology for early warning systems, conducting regular drills, and strengthening
community preparedness can significantly improve emergency responses. Additionally, investing
in training programs for disaster response teams and increasing public awareness about safety
measures can further enhance India's emergency provisions.

Raising awareness about emergency provisions is crucial for preparedness. Public education
campaigns through various media platforms can disseminate information about emergency
protocols, evacuation procedures, contact details for emergency services, and steps to take during
different types of disasters. Conducting workshops, drills, and training sessions in schools,
workplaces, and communities can also significantly increase awareness and preparedness levels.
Additionally, leveraging social media and mobile apps to share safety tips and emergency
guidelines can reach a broader audience effectively.

India faces various challenges concerning emergency provisions, including:

1. Infrastructure shortcomings: Inadequate infrastructure in some regions hampers swift

emergency responses, hindering rescue operations and aid distribution during disasters.
2. Resource allocation: Unequal distribution of resources and funding among different states
impacts the effectiveness of emergency services, affecting timely responses in certain
areas.
3. Communication gaps: Inconsistent communication networks and limited access to
technology in remote or rural areas impede the dissemination of timely warnings and
information during emergencies.
4. Lack of preparedness: Insufficient awareness, training, and preparedness among the
general population, especially in disaster-prone regions, often lead to inadequate
responses and heightened vulnerabilities.

Addressing these challenges requires consistent efforts in infrastructure development, resource

allocation, technology integration, training programs, and community engagement to ensure
more effective emergency provisions across the country.

Criticism of the Emergency Provisions in Indian Constitution

● The federal character of the Constitution is destroyed in case of an emergency.

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 ● The powers of the state are entirely concentrated in the hands of the union executive, and
the president may become a dictator.
● The financial autonomy of the state gets nullified.
● Fundamental rights are suspended and may become meaningless, which destroys the
democratic foundation of the constitution.

Causes and Necessity: The Need for Emergency Provisions

Emergencies are declared in response to extraordinary situations that threaten the nation’s
security or stability. They allow for swift and decisive action, bypassing the usual checks and
balances. However, they should be the last resort, given their potential for misuse.

Recent Debates and Proposed Reforms

In recent years, the emergency provisions of the Indian Constitution have been the subject of
intense debate. Critics argue that these powers have been misused in the past, citing the
Emergency of 1975-77 as a prime example. This period witnessed a significant curtailment of
civil liberties, raising concerns about the potential for abuse. Legal experts and scholars have
proposed various reforms, such as judicial oversight of emergency declarations and stricter
criteria for their invocation. These suggestions aim to ensure that emergency powers are used
judiciously and only in genuine crises, safeguarding democratic norms and individual freedoms

Conclusion: A Balanced View on Emergency Provisions

While the emergency provisions are necessary for dealing with crises, they carry the risk of
being misused, as seen during the Emergency of 1975. Therefore, it is crucial to maintain a
delicate balance. The judiciary’s role becomes paramount in ensuring that these powers are not
misused and that the Constitution’s spirit is upheld even during challenging times.

In conclusion, the emergency provisions in the Indian Constitution are a double-edged sword.
They are necessary for the nation’s security and stability, but they also have the potential to
undermine democratic principles if not used judiciously. Therefore, it is essential to have robust
checks and balances in place to prevent their misuse.

India had a firm nationalist base with the strong leadership of Pt. Jawaharlal Nehru as the first
Prime Minister. But during that time, the members of legislative assembly were elitist. The
democracy was functioning smoothly but in their favour because the masses were illiterate.
Congress at that time was working for indigenous bourgeoisie. Thus congress became a party of
social status quo. 1967 was the turning point when the state parties suddenly came into power.
This was a signal of democratization of Indian politics. Due to balance of payment problem,

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international financial institutions devalued rupee and India started drifting into economic crises.
Mrs. Indira Gandhi swept the polls in 1971 elections with the ‘eradicate poverty’ slogans. In
1975 with the misuse of article 356 of Indian constitution, Mrs. Gandhi declared an emergency
in India. Economic crises, formation of Bangladesh and Authoritarian rule at the center
weakened Indian democracy.

The decision-making roles and powers of the cabinet members and ministers were consequently
dissolved and were taken over by Mrs. Gandhi. It witnessed the temporary demise of democracy
in our country because in the words of the Supreme Court, “civil liberties were withdrawn to a
great extent; important fundamental rights of the people were suspended; strict censorship on the
press was placed; and judicial powers were crippled to a large extent.”

Fortunately after the 1977 elections, the Emergency was revoked. Nonetheless, citizens are
entitled to know about the events preceding the Emergency, the true and predominant
considerations which led to its imposition, reasons for the ready and willing manner in which the
then President Fakhruddin Ahmed gave his assent and a host of other related issues. The object
of having this information is not for raking up the sordid past and for condemnation of the
persons responsible but to analyse the mechanisms and structures which enabled the swift
imposition of emergency and to eliminate or modify them to prevent any future recurrence. Thus
in conclusion it is clear that the 1975 national emergency was a pre planned drama of the Indira
Gandhi govt. in order to secure certain political objectives.

June of each year brings back the horrific memory of indeed one of the darkest episodes of the
Indian democracy- the Emergency of 1975. In the historical analysis of events that led to the
imposition of the Emergency in 1975 under Article 352 (1), and all that ensued thereafter, views
expressed by a number of authors show-India today concedes that such a situation must not
recur. The Constitution was made a plaything at the hand of the then government. The
amendments to the Constitution, and most importantly the 42nd amendment which came to be
known as the Mini Constitution, for it altered the very fundamentals of the Indian Constitution,
did tremendous damage to the law of the land. But naturally, the same was not well received by
the electorate and Ms Gandhi was voted out of power in the General Elections subsequent to the
revocation of the Emergency. The next government therefore had the onus of ensuring that no
such happening recurs in India ever, and the 44th amendment was introduced thus. The 44th
amendment corrected the wrongs committed by the previous amendments, and rejuvenated the
spirit of the Constitution. Since then, imposition of Emergency has been made a stricter
endeavour, besides, it is simultaneously ensured that people’s rights are not breached
uncontrollably even if the Emergency is in operation.

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 ANNEXURE - I

BIBLIOGRAPHY

LIST OF CASES

● Smt. Indira Nehru Gandhi v. Shri Raj Narain And Anr. AIR 1975 SC 2299.
● Additional District Magistrate, Jabalpur v. Shivkant Shukla 1976 AIR 1207.
● Rameshwar Prasad v. State of Bihar AIR 1958 Pat 210
● State of Rajasthan v. UOI AIR 1977 SC 1361
● Minerva Mills Ltd. And Others v. UOI AIR 1980 SC 1789
● Re State of Madhya Pradesh v. Bharat Singh 1967 AIR 1170
● Makhan Singh Tarsika v. State of Punjab AIR 1964 SC 381
● K.K. Aboo v. UOI (1965) Ker 229
● Hanumantha Rao v. State of Andhra Pradesh (1992) SC 358
● Bijayananda v. President of India(1972) Ori 52

LIST OF WEBSITES

 https://unacademy.com/content/bpsc/study-material/polity/emergency-provisions-
definition-types-causes-effects/
 https://blog.ipleaders.in/emergency-provisions-india-critical-analysis-2/
 https://www.jstor.org/stable/41854792
 https://www.deccanherald.com/opinion/should-emergency-powers-exist-at-all-
1153970.html
 https://portal.theedulaw.com/SingleNotes?title=national-emergency-provisions-in-indian-
constitution

LIST OF BOOKS

● Omar, Imtiaz (2002), Emergency Powers and the Courts in India and Pakistan. Martinus
Nijhoff Publishers.
● Hardgrave, Robert L.; Kochanek, Stanley A. (2008), India: Government and Politics in a
Developing Nation. Cengage Learning.
● Austin, Granville (1999), Working a democratic constitution: the Indian experience.
Oxford University Press.
● R. .N. Mukherjee(1984), Democracy - A Failure, Shefocracy - The Solution to Human
Welfare.
● Max Jean Zins(1988), Strains on Indian Democracy.
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 ● Imtiaz Omar(2002), Emergency Powers and the Courts in India and Pakistan.

RESEARCH PAPERS AND MAGAZINES

● India in 1975: Democracy in Eclipse, ND Palmer - Asian Survey, vol 16 no 5.

● Judiciary under Executive Assault, PUCL Bulletin, July 1981.
● Pratiyogita Darpan (March 2007).
● Jos. Peter D 'Souza(2001), When the Supreme Court Struck Down the Habeas Corpus,
PUCL Bulletin.
● Kuldip Nayar, Sixty Years of Press Freedom: Emergency, A Watershed.

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