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D.K. SINGH
I
The Constitution contemplates three kinds of emergencies.' The most
extensive of these is a national emergency which is commenced by a procla-
mation issued by the President whereby the security of India or any part of
its territory is threatened by war or external aggression or internal distur-
banco. In the classic federations, the emergency situations, like the two
World Wars, have been adequately and effectively met by the federal
governments, with the approval of courts which gave an expansive inter-
pretation to the defence power. The makers of the Constitution drew upon
the experiences of those' federations and expressly provided for a situation
which had already come to be recognised in those countries.
In India, the emergency was proclaimed for the first time in September,
1967, when the Chinese attacked its northern borders. The proclamation
declared that a grave emergency existed whereby the security of India was
threatened by external aggression. The emergency continued until January,
1968 when it was lifted by another proclamation issued by tbe President.
Another proclamation of emergency was issued after the Pakistani aggres-
sion in December, 1971. This proclamation was withdrawn in April 1977.
Thus, during the last fifteen years emergency has been in operation for
almost twelve years. It certainly appears to be very unusual if emergency
means an extraordinary situation which necessitates taking drastic action
and disturbing the normal operation of the constitutional provisions. The
very fact that the emergency has been continued for such a long time gives
an impression that emergency provisions have not been used for the pur-
poses for which these are meant to be used. It may also be noticed that
while the emergency provisions were already in operation under the 1971
proclamation, a fresh proclamation was issued declaring emergency in June,
1975 whereby, as was explained, the security of India was threatened by the
so-called internal disturbances. Apparently, there was no need for this
declaration as all the measures which were taken by the government to
meet the 'internal disturbance' situation could have been taken under the
powers already possessed by it after tbe declaration of emergency in Decem-
ber, 1971. However, the issuance of the 1975 proclamation has anum ber
Professor, Faculty of Law, University of Delhi.
\. See articles 352 to 360, The Constitution of India; the national emergency. the
failure of cofistitutional machinery in the states and the financial emergency.
Emergency and the Constitution of India 289
of implications, firstly, presumably a distinction may have to be made
between an external emergency or an emergency arising due to war or
external aggression and an internal emergency or jin emergency arising due
to internal disturbance; secondly, the purposes for which the emergency is
proclaimed become questionable in a court of law, so that if emergency is
declared to meet the exigencies of war or external aggression it cannot be
used for meeting the exigencies of internal disturbance; thirdly, a corollary
follows from the above that the satisfaction of the President declaring an
emergency itself becomes questionable and that the satisfaction of the
President in this regard does not mean subjective satisfaction. These
implications become directly relevant to the enjoyment of fundamental
rights guaranteed under the Constitution, though the Constitution permits
during the period of emergency the suspension of some of the fundamental
J;.ights and also the suspension of the enforcement of other fundamental
rights. They also raise the problem of power and the jurisdiction of the
Supreme Court and the High Courts in this context so much so that the
Supreme Court had to determine whether the writ of habeas corpus could
be issued for the enforcement of the right to personal liberty. To overcome
these implications, the Constitution has since been amended affirming that
the President can issue different proclamations on different grounds-war,
external aggression or internal disturbance, even if a proclamation has been
issued for a specific purpose and is in operation." A proclamation of
emergency may be revoked at any time by a subsequent proclamation.
The President can issue a proclamation of emergency not only when the
actual occurrence of the events have taken place but also when there is an
imminent danger thereof. The underlying idea of this provision is if the
actual occurrence specified is to be guarded against, it is desirable that the
power should be given when the President is satisfied that there is an
imminent danger ofany of the specified events taking piace.
The decision of the President that the security of India is threatened or
there is an imminent danger of its being threatened by war or external
aggression or internal disturbance cannot be challenged in a court of law.
He is the sole judge to decide whether in view of the specified events it is
necessary to declare an emergency. It has to be so because an emergency is
declared on the basis of assessment of the state of affairs which call for
swift and drastic action, and as such it is only the executive which is quali-
fied to take an action OIl the assessment of the information available to it.
The power to make such a declaration can no doubt be exercised only
when the President is satisfied about the necessity of taking such an action,
it does not require any condition precedent for the exercise of the power.
Whenever an emergency is proclaimed, it is presumed that the President
2. The Constitution (Thirty-eighth Amendment) Act, 1975.
290 Indian Constitution: Trends and Issues
3. Ibid.
4. See Ghulom Sarwar v. Union of India, A.I.R. 1964 S.C. 381,403.
S. Articles 74 (2), 75 (3), The Constitution 0/ India.
Emergency and the Constitution 0/ India 291
6. Article 358.
7. See. e.g., Bennett Coleman & Co. v, Union of India (1973) 2 S.C.R. 757.
8. Article 359, The Constitution 0/ India.
9. Supra Dole 2.
292 Indian Constitution : Trends and Issues
A review of the past events have amply made clear that the emergency
provisions can be used in such a manner as may make a farce of the
democratic set-up by prolonging the rule of the party in power beyond the
permissible period. The misuse or abuse of the emergency provisions is
no more a theoretical proposition. It is true that the grant of power is
based on the assumption that it would not be misused or abused. It is
also true that the effective check against such misuse or abuse of power is
the sense of political responsibility, the pressure of public opinion, and the
fear of public uprising. But the conferment of enormous power coupled
with total immunity from judicial review invest it with dangerous uniqueness,
as has been the recent experience. Recently, a proposal has been made by
the Home Minister on the floor of the Parliament to repeal the power to
declare emergency altogether from the Constitution. This is one of the
several proposals which have come into circulation in order to put some
kind of limitation on the declaration of emergency and its continuance there-
after under the existing provisons. The proposal not only strikes out the
power to invoke emergency under any circumstances whatsoever but also
wishes to make sure that no government is in future in a position to repeat
what has happened during the period of internal emergency proclaimed in
June, 1975 and the subsequent nineteen months. While this affirmation of
faith in democratic institutions and the efficacy of normal law of the land
in a difficult situation is welcome, it is pertinent to remember that these
separate issues should not be treated as if they were one and the
same. It is true that tbe former regime abused the emergency provisions
in a variety of ways, but it does not follow that the makers of the
Constitution were wholly mistaken in the belief that the Indian constitutional
system might not be able to face emergency rights. However, it was not
envisaged that there might be a President who would sign an emergency
proclamation without even making sure that the cabinet had approved it or
the cabinet which would be so supine as to acquiese in the imposition of
the emergency for the sole purpose of helping the Prime Minister to defy
established conventions. The makers of the Constitution could not, there-
fore, provide for safeguards which would have made it impossible for a
Prime Minister to misuse or abuse the emergency provisions. But in the
light of recent experience it should now be possible to introduce reasonable
in-built safeguards into the existing constitutional framework by way of
amendments, such as:
(i) The proclamation of emergency may be issued by the President, not
on the aid and advice, but in consultation with the council of
ministers, so that the President is equally responsible for taking the
decision.
Reading articles 358 and 359 together one finds that with the
proclamation of emergency under article 352, fundamental rights such as the
right to acquire, hold and dispose of property or the right to practice any
profession etc. arc automatically suspended, whereas the suspension of other
rights such as the right to liberty are left to be dealt with at the discretion
of the President. This differential treatment of the rights in itself is not a
desirable proposition, besides the fact that there may be a genuine difference
of opinion as to the automatic suspension of all the rights or some of them.
If it is agreed that article 358 should be deleted, article 359 can take care of
all the rights guaranteed in article 19 in the same manner as is the case with
other rights, and the suspension of the right to move a court for the
enforcement of these rights may as well be left at the discretion of the
President, who may take such action as is necessary, in his opinion, to meet
the demands of the situation.
The phrase 'in accordance with the provisions of the Constitution' was
interpreted as referring to all provisions of the Constitution, including its
preamble wherein the people of India have resolved to constitute India into
a democratic republic, and if any action of the ministry, or party in power,
amounts to subversion of the democratic principles, a situation is thereby
created providing an occasion for invoking the President'S rule. However,
the imposition of President's rule on this occasion received the approval of
Parliament. Even otherwise, the better opinion appears to be that the
President's rule can be justified if he is satisfied that the ministry has lost
the support of the people, even if it enjoys the confidence of the legislature,
at any rate, so long as the decision is taken on reasonable and proper
grounds. A similar situation arose in Gujarat in 1974 when the President's
rule was imposed after a situation of law and order was created due to
students' agitation, resignation of a sizeable number of the members of the
State Assembly, and hunger strike by Morarji Desai.
Another unusual situation created for the imposition of the President's
rule was in the State of Haryana, where the ministry appeared to be
enjoying the confidence of the majority, though precarious, of members of
the State Assembly. On receipt of the report of the Governor, the
President'S rule was imposed. It was revealed in the Governor's report
that due to defection of the members of the state assembly on a large scale,
their loyalty being flexible, and abuse of power by ministers resulting in
political instability in the state, no alternative ministry could be. formed. It
was mentioned that even if the ruling party or the opposition could establish
its majority, still there was no peace or stability. These circumstances were
sufficient to warrant the imposition of the President's rule in the state.1f,
which permitted different ruling parties at the Centre and in states, calling for
resignation of ruling party's Members of Parliament if the states they came
from returned no Janta Party governments. However, the President's rule
was imposed in those states, the state assemblies were dissolved, and an
announcement was made seeking a fresh mandate from the people. Several
reasons were given for justifying the action of the President:
(v) When there is no harmony between the electorate and its represen-
tatives, the essential feature of the government being carried on in
accordance with the provisions of the Consitution would be found
missing. The lack of harmony has perceptibly led to the break-
down of responsibility, authority and confidence in these states.
In the last situation, the Centre did not even secure reports from the
Governors to the effect that governments in the concerned states could no
longer be carried on according to the provisions of the Constitution. The
Union Government itself willfully took the decision to impose the President's
rule in these states.