KES’ Shri Jayantilal H.

Patel Law College, Mumbai

EMERGENCY PROVISIONS UNDER INDIAN CONSTITUTION

CONSTITUTIONAL LAW II

A project submitted in partial fulfillment of the requirement for

The Fourth Semester of L.L.B Course

By

AVANTIKA ANANDKUMAR GAUD

Second Year LL. B

Division A

Roll No – 37

Under The Supervision Of

Asst. Prof. Shivani Negi

Asst. Prof. Ambari Pathwardhan

26th March, 2024

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 TABLE OF CONTENT

Sr No. PARTICULARS Page

No.

1. Introduction 3

2. Emergency Provisions In The Indian Constitution 4

3. Power Of Court Under Indian Constitution During Emergency 7

4. Conclusion 12

5. Reference 13

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INTRODUCTION

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EMERGENCY PROVISIONS IN THE INDIAN CONSTITUTION

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5
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 POWER OF COURT UNDER INDIAN CONSTITUTION DURING
EMERGENCY

In India courts enjoy a good deal of power to control and review administrative actions. They
have played a very creative role. So far, the government and parliament in our country, to
develop viable system of drawing balance between personal right and freedom on the one hand
and administrative needs on the others, had made no conscious efforts. In England and USA such
attempts have been made from time to time but in India attempts in these directions are by and
large lacking so far, and therefore a huge burden has been cast upon the judiciary to give shape
to the functioning and behavior of administrative agency.

THE RESPONSE OF INDIAN COURTS TO EMERGENCIES

For almost two continuous periods of six years each between 1962 & 1977 the country had to
live through and experience three separate and distinct emergencies, two of them because of
'external aggression' and the last an Internal emergency on the basis of 'internal disturbance'. The
Indian Courts have had a strong tradition of assessment in depth of the exercise of emergency
powers by the executive. The judiciary was called upon in various cases to examine the validity
of orders issued by the President under different provisions relating to emergency. A systematic
study of the history of three emergencies and response regarding changing attitude of judiciary
will help understanding the jurisprudence developed under Indian legal system.

The First Emergency.

On 26th October 1962 an emergency was declared under Article 352 in view of sudden conflict
with China. By presidential order, the enforcement in any court, the fundamental rights
guaranteed under Articles 14, 19, 21 & 22 was suspended. Though hostilities of war with China
ended, the emergency continued. Fundamental rights remained suspended. By frequent misuse of
Defence of India Act, which conferred arbitrary and sweeping powers to the executives,
widespread abuse of executive power continued without recourse to legal redress. In 1966 great
number of jurists and prominent citizens urged the President and the Prime Minister to revoke
the emergency. The appeal emphasized that the issue was not one of policy but related to the
basic foundation of democratic government. Then fortunately for Indian democracy an event of

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considerable importance occurred. Mr. Justice Subbarao, CJI, made it his mission to take up all
pending human right cases and persuaded his colleagues to expand the frontiers of judicial
powers." He showed what a judge could do during an emergency". He commented upon the
possibility of judicial review of conditions alleged to justify the continuance of emergency, even
where lawfully imposed. Some important issues which court examined during emergency can be
understood in following cases:-

A K Gopalan vs. Union of India

5 the court made it clear that judges could not pronounce on the adequacy of the grounds and
decide whether the detention was justified. All that court could do was to ascertain whether the
grounds were vague or irrelevant, if they were order of detention.

Mohan Chowdhury v Chief Commissioner of Tripura

Supreme Court of free India for the first time considered the Presidential order. The Supreme
Court of India itself said there could be no right to legal redress. It ruled that in view of the
Presidential order expressly suspending Article 21 and 22 the citizen 'lost his locus standi to
move this court during the period of emergency'. Though the jurisdiction and power under
Article 32 to grant relief was untouched in the proclamation order.

Makhansingh v. State of Punjab

The petitioner in that case, Makhan Sing managed to secure his liberty a few days later by
successfully appealing in the Supreme Court against an order passed against him in Punjab. He
had been rearrested and detained on criminal charges, as the earlier order of detention under the
Defence of India Act had not been revoked. The order of detention was set aside and Makhan
Singh was ordered to be set free.

The Second Emergency

Nearly after four years in 1971 following the outbreak of hostilities between India and Pakistan
an external emergency under Article 352 was declared. All the rights to freedoms guaranteed by
Article 19 stood automatically suspended. Parliament passed the Maintenance of Internal
Security Act and Defence of India Act.

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Hostilities between India and Pakistan ceased by the end of 1971 but the emergency continued. It
was even reinforced by further proclamation issued by the President in November 1974
suspending the right to seek the assistance of any court for enforcement of fundamental rights
under Article 14, 21 &22.

The continuance of the proclamation of emergency issued in 1971 was directly challenged. The
contention was that there was no threat of external aggression justifying its continuance. Chief
Justice A.N. Ray heard the case. Before the judgment could be delivered new political events
supervened prompting fresh proclamation of emergency in June 1975.

Haradhan Saha v state of west Bengal

The Supreme Court refused to accept that the MISA was violative of Arts 14, 21 and 22. The
Court rejected all the arguments of violation of articles, holding among other things that it would
be farfetched to invoke Article 19 in cases where a person has been lawfully deprived of his
liberty. The court found that imposition of restriction, which the preventive detention sanctioned,
by MISA were reasonable.

Mostly the attitude of court was same during the second emergency. The court was more inclined
to uphold the constitutional validity of emergency provisions and presidential order as executive
authority, rather than preserving the liberty of its citizens. Though court criticized the use of
draconian powers under the Defence of India Act and Rules. The invocation of MISA and
suspending of rights under Article 14, 21 and 22 remained the main concern of judiciary. The
Court also tried to establish the principle natural justice. The Court expressed its deep concern
for the unjustified prolongation of emergency from 1971 to again in 1974 and finally in 1975.
Eventually the 1971 emergency was allowed to continue till 1977.

The Third Emergency

The President had been prevailed upon to sign a proclamation of emergency under Article 352
without even a prior meeting of Council of Ministers. This internal emergency was the most
repressive of all other emergencies.

 All political opponents were taken into custody under MISA.

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  A rigid press censorship was imposed, o President's satisfaction about the need to declare
emergency was declared final and conclusive and also non-justiciable
 Detainee's right to be informed of the grounds of arrest was deleted by amending MISA
233
 Right of appeal in case of illegal detention was abolished.
 The constitutional safeguards of scrutiny of every detention order by an Advisory Board
were rendered useless
 Grounds of arrest were forbidden to be disclosed even to the courts. A provision was
made that expiry of detention was barred to the making of further detention order against
the same man.
 Harassment and intimidation of judges was ordered in large numbers.

The 42nd amendment was the most significant factor to the abuse of the emergency power. With
such repressive laws so oppressively implemented, the people looked up to the courts. But the
courts were powerless to prevent any possibility of abuse. The emergency also proved the
repeated attempts by legislature to curb the powers of the judiciary. The efforts by High Courts
to preserve the Rule of Law were undermined by the habeas corpus case judgement.

Commendable attitude of High Courts

when writs of Habeas corpus were sought from the High Courts, the detaining authorities raised
preliminary objections that the petitioners had no locus standi because they were seeking to
enforce their fundamental right under Article 21, namely that they should not be deprive of their
personal liberty except by procedure established by law. High Courts of ten different States 15
rejected this contention and held, following earlier precedents, that though the petitioners could
not move the 15. High Court of Allahabad, Andhra Pradesh, Bombay, Delhi, Karnataka, Madras,
Madhyapradesh, Punjab, Haryana & Rajsthan. 234 court to enforce their fundamental right under
Article 21, they were entitleo to show that the order of detention was not under or in compliance
with the law or was mala fide. These judgments were great steps forward towards protection of
personal liberty. But the judgments of High Courts were reversed by the Supreme Court.

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ADM Jabalpur v. Shivkant Shukala

The central question in the case, which was known as Habeas Corpus case, was that Whether, in
view of the Presidential order suspending fundamental rights, it was permissible for High Courts
to entertain an application for judicial review from any person detained under MISA seeking to
enforce his rights to personal liberty or his continued detention was not in conformity with the
provisions of MISA. The orders of the High Courts were reversed. By a majority of four to one
the Supreme Court held that the citizen had no remedy against arbitrary detention as habeas
corpus petitions are not maintainable as long as detention under the Presidential order,
suspending the enforcement of fundamental rights remained in the force. Lawyers and laymen
were shocked how could the court overrule so many eminent judges of High Courts? If there was
any doubt, surely it should be resolved in favour of the liberty of the citizen. Supreme Court's
ruling was that no one who opposed a dictatorial executive was safe anymore. They could be
detained without trial and could be tortured or even killed in the absence of a legal remedy. This
judgment was widely criticized.

The best indictment of the majority judgment was contained in the dissenting judgment of justice
khanna who, quoting Friedman, noted that: "In a purely formal sense even the organized mass
murders of the Nazi Ragime (would) qualify as law What is in stake is the rule law— The
question is not whether there can be curtailment of personal liberty when there is threat to the
security of the state. I have no doubt that there can be such curtailment, even on an extensive
scale, in the face of such threat. The question is whether the law speaking through the authority
of the Courts shall be absolutely silenced and rendered mute because of such threat."

H.M. Seervai, an eminent authority on constitutional law, was scathing in his comments on the
habeas corpus judgment:

“Judgments were delivered in the darkest hour of India's history after independence. And they
made the darkness complete —Ordinary men and women could understand saying 'evil be thou
my good' but they were bewildered and perplexed to be told by four learned judges of the
Supreme Courts that, in substance, the founding fathers had written in to the Emergency
Provisions of four Constitution, 'Lawlessness be thou our law.'

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CONCLUSION

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REFERENCE

 https://shodhganga.inflibnet.ac.in/handle/10603/72400

 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3540247#:~:text=The
%20Indian%20Emergency%20of%2025th,by%20decree%2C%20suspending
%20elections%20and

 Emergency Provision In The Indian Constitution: A Study Of The “Internal

Disturbance” Of 1975- Akshay Shandilya

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