Emergency provisions PDF

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EMERGENCY PROVISIONS SYNOPSIS Rationale behind emergency provisions - why emergency provisions? Origin? Emergency- state of affairs unexpectedly arising and urgently demanding immediate action. (oxford dictionary)  Examples of various constitutions of the world- Article 4 of US constitution “war p...

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EMERGENCY PROVISIONS SYNOPSIS 

Rationale behind emergency provisions- why emergency provisions? Origin? Emergency- state of affairs unexpectedly arising and urgently demanding immediate action. (oxford dictionary)

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Examples of various constitutions of the world- Article 4 of US constitution “war power”, “peace, order, good governance (POGG) power under section 91 of British North America Act, 1867, section 51 of Commonwealth of Australian Constitution Act, 1900similarly construed- equated with emergency powers.

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UK – emergency powers flows out of the prerogative of the Crown. War Measures Act (Canada), 1914 enacted during 1st WW. Invoked in both the WWs- suspends substantial oamount of civil liberties.

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War measures act repealed by replaced by Emergencies Act, 1988.- Provided 4 types of emergencies-

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1. Public Welfare Emergency (disaster, disease, accident)

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2. Public Order Emergency (Quebec crisis of 1970 in Canada)

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3. International Emergency (international sanctions, embargo etc.)

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4. War Emergency

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Normal pattern in emergencies- executive power to be expanded and exercised in its discretion with a view to cope up the abnormal situation

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India- Government of India Act, 1935-

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The 1935 Act defined two types of emergencies: those emerging from a failure of constitutional machinery (s 45); and those arising due to 'war or internal disturbance' (s 102).

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In the case of failure of constitutional machinery, the Governor General had vast discretionary powers to proclaim emergency at the Federal level. In contrast, the Federal Legislature was toothless and had no role to play in circumscribing the authority of the Governor General.

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Section 45-stated the same- provided vide discretionary powers to Governor General- to the extent- Churchill described it- as – “sweeping character of the Governor General’s powers as likely to arouse Mussolini’s envy.”

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Similar emergency powers vested in Governors in their respective provinces, empowering them to proclaim emergency at the provincial level (s 93).

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(PROVISIONS IN CASE OF FAILURE OF CONSTITUTIONAL MACHINERY. 45.-(1) If at any time the Governor-General(A NOMINIEE OF BRITISH GOVERNMETN) is satisfied that a situation has arisen in which the government of the Federation (LOCAL INDIAN LEGISLATRE- AS – AGAINST- BRITISH PARLIAMENT) cannot be carried on in accordance with the provisions of this Act, he may by Proclamation- (a) declare that his functions shall to such extent as may be specified in the Proclamation be exercised by him in his discretion; (b) assume to himself all or any of the powers vested in or exercisable by any Federal body or authority.)( Emergency provisions in the 1935 Act were introduced not to preserve the constitutional order, but to provide an opportunity to the colonial rulers to declare a state of siege or to take extra-constitutional steps)

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In the second type of emergency, Section 102-emerging from war or internal disturbance, the power of proclamation of emergency once again vested in the Governor General without any checks and balances to ensure its use only in extreme circumstances. (The 1935 Act was devoid of enforceable Fundamental Rights, which meant that to begin with, their derogation or suspension through emergency powers was not an issue.)

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CONSTITUENT ASSEMBLY-Browed from German Constitution-Following the Government of India Act, 1935- founding fathers decided discretionary powers to be given to the president or governor in case of emergency to be exercised only on the advice of Council of Ministers.

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(Discuss on the discretionary powers of the governor general led to a debate on situation in which the constitutional governance of a state is broke down – resulting in A 356empowering the president to supersede the normal structures in state even when there was no proclamation of emergency.) (hopes were expressed by Founding fathers that this provision would ‘never be called in operation and would remain a dead letter’)

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The very last moment provisions were added to cope up with the financial emergency.

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Final Outcome of Emergency Provisions- Part 28- 3 types of emergencies-

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1. National Emergency ( A- 352, 353, 354, 358, 359)

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2. Emergency in states due to failure of constitutional machinery (A- 356, 357)

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Financial Emergency (A- 360)

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National Emergency- invoked 3 times- twice in conditions of war and external aggression, in 1962 ( Chinese aggressions) and in 1971 (Indo-Pak Conflict)

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3rd time- on grounds of ‘internal disturbance’-by Indira govt. in 1975-later the expression was deleted in 44th constitutional amendment). (Enacted by Janata Party which had won the 1977 general elections campaigning on a promise to "restore the Constitution to the condition it was in before the Emergency".)

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Article 356- invoked several times- contrary to the expectation of founding fathers

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A-360- never invoked

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Significance of emergency provisions in two ways- i. the modification of federal structure, ii. Inherent conflict b/w FRs and power of state in emergent conditions.

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Article 352- NATIONAL EMERGENCY-

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Original article- provided presidential proclamation in circumstances of grave emergency threating the security of India or any part of its territory due to i. war, ii. External aggression, iii. Internal disturbance or imminent danger of this.

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Changed article- amended 4 times-

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i. 38th constitutional amendment - August 1975 (president satisfaction- final and conclusive- no judicial review)

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(Amendment of article 352.-In article 352 of the Constitution, after clause (3), the following clauses shall be inserted, and shall be deemed always to have been inserted, namely:-"(4) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance, whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation.(5) Notwithstanding anything in this Constitution,-(a) the satisfaction of the President mentioned in clause (1) and clause (3) shall be final and conclusive and shall not be questioned in any court on any ground; (b) subject to the provisions of clause (2), neither the Supreme Court nor any other court shall have jurisdiction to entertain any question, on any ground, regarding the validity of-(i) a declaration made by Proclamation by the President to the effect stated in clause (1); or(ii) the continued operation of such Proclamation.".)

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ii. 39th constitutional amendment – August 1975 ( no judicial review of election disputes of president, VP, PM, Speaker)

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(The President, the Vice-President, the Prime Minister and the Speaker are holders of high offices. The President is not answerable to a court of law for anything done, while in office, in the exercise of his powers. A fortiori matters relating to his election should not be brought before a court of law but should be entrusted to a forum other than a court. The same reasoning applies equally to the incumbents of the offices of Vice-President, Prime Minister and Speaker.)

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iii. 42nd constitutional amendment (by Indira govt. June 1975)-major changesClause 5 added-president satisfaction final and conclusive-no judicial review-(clause 5 later deleted by 44th amendment)

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(103. Decision on questions as to disqualification.-(1) If any question arises-(a) as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, or (b) as to whether a person, found guilty of a corrupt practice at an election to a House of Parliament under any law made by Parliament, shall be disqualified for being chosen as, and for being, a member of either House of Parliament, or of a House of the Legislature of a State, or as to the period for which he shall be so disqualified, or as to the removal of, or the reduction of the period of, such disqualification, the question shall be referred for the decision of the President and his decision shall be final.)

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-unitary-power of parliament to legislate on state subjects under list 2-fundamental rights suspended-no judicial review-of the grounds of arrest or detention of peopleadded 31D-anti-national activities (latter deleted by 43rd constitutional amendment, 1977)

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Also Added (“in respect of whole of India or of such part of territory as may be specified by the proclamation”).

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42nd constitutional amendment -Also added- clause 2- “a proclamation issued under clause 1 may be varied or revoked by a subsequent Proclamation”. 42nd constitutional Amendment-Added clause 4 later renumbered as clause 9 by 44th Constitutional amendment- which gives power to the president to issue different proclamations on different grounds- permitted the overlapping of diff proclamations issued on diff grounds (1971- emergency was already operative due to external aggression – Indo-Pak war)

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Iv. 44h constitutional amendment (initiation of Janata Govt (led by Jayaprakash Narayan) after 1977 elections) - deleted the word ‘internal disturbance’ replaced it by ‘armed rebellion’. Also (“added “explanation- proclamation of emergency may be made before the actual occurrence of war or of any such aggression or rebellion, if the president satisfied that there is imminent danger thereof”.)

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44th constitutional amendment also added- clause 3- which says president shall not issue such proclamation in absence of specific recommendation to the effect by union govt. in writing.

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44th constitutional amendment- added clause 6- changed simple majority to special majority-

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Clause 7- Revocation of emergency made easy- by president or by house of people disapproving the resolution or continuance of the same- clause- 8-revocation notice signed by 1/10 of members of lok sabha – within 14 days it shall be revoked.

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353- Effect of emergency- i. executive power of the Union shall extend to giving any directions to any state- ii. Article 353 r/w Article 250-Power of the parliament to make laws shall extend to state list-

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354- distribution of revenues- all or any of the provisions of Article 268 to Article 279 (financial relations b/w center and state) shall have effect-subject to proclamation

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355- Duty of union to protect states against external aggression or internal disturbancethe words “internal disturbance” remained as it is under Article 355- But to contain internal disturbance it can only resort to its non-emergency powers.

National Emergency and Federalism- India becomes a Unitary State/criticism on federal character of the India-K. C. Whare. National Emergency and Fundamental Rights Article- 358- Article 19 remains suspended during emergency on the grounds of eternal aggression or war but not on the grounds of armed rebellion. (44th Amendment) (Applicable For entire duration of emergency) Article- 359- power of the president to suspend right to seek legal redress for enforcement of rights under part-III except A -20 and A-21 (44 th Amendment) (Applicable to all 3 types of emergencies can be for shorter period as may be specified in the order)

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Case 1- Makhan Singh v. State of Punjab, 1964

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Issue- Presidential Order under Article 359-(suspension of enforcement of fundamental rights during emergency) provided that right of any person to move to any court for enforcement of rights conferred by A-14,21,22 would remain suspended, if such person has been deprived of any right under defense of India Act, 1962.

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2 judgments given- one is- by- J. Gajendragadkar, J. Sarkar, J. Wanchoo, J. Hidayatullah, J, Das- held that the remedies, A- 32/226 stood suspended during the subsistence of the Presidential Order. – M.C. Setalvad- argument- that during the operation of the presidential order, the executive may abuse its powers and citizens would have no remedy- J Gajendragadkar- replied- “it may be permissible to observe that in a democratic state, the effective safeguard against abuse of executive powers whether in peace or in emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public opinion.”

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2nd one was by- J. Shah and J. Subba rao (delivered a partially concurring and partially dissenting opinion). (Per Subba Rao, J. It was clear that s. 3(2) (15) (i) of

the Defense

of India Act, 1962, and r. 30(1) (b) made under the Act contravened the relevant provisions of Art. 22 of the Constitution and were, therefore, void.) 

Case-2 ADM, Jabalpur v. Shivkant Shukla, 1976- MISA Act, 1971- Majority decision- J. Ray, J. Beg, J. Chandrachud, J. Bhagavati

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Justice Khanna-minority-

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Facts- A large no of persons arrested and detained primarily on the basis of their political association after 1975 emergency- under MISA Act, 1971, writ petitions in various HCHCs of Allahabad, Bombay, Delhi, Karnataka, MP, Punjab, Rajasthan- held in favor of detenus- took the view that HCs have the power to judicial review-u/a 226-to examine the detention orders- to find out whether they have been passed in accordance to MISA Actor were malafide-or were issued accordance with the relevant material-i.e. to procedure established by law.

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SC-in appeal- 2 issues- 1. Where detentions under MISA Act, were in accordance with the law-i.e. MISA Act is maintainable? Judicial review?

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2. If such petitions are maintainable, what is the scope of judicial scrutiny?

Majority-held- refused to read due processJ Khanna- Minority- held- even in the absence of A-21-the State has no power to deprive a person of his life or liberty without the authority of law-basic postulate of rule of law(“In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala-fides factual or legal or is based on extraneous consideration.” Section 16A(9) of the Maintenance of Internal Security Act is constitutionally valid; the bench headed by the then Chief Justice of India, Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati, delivered the Majority Ruling, whereas the fifth Judge, Justice H R Khanna, however wrote a dissenting judgment.) (The main issue was whether, in execution of the Presidential Orders when a person was detained, if the High Court can entertain a writ of Habeas Corpus filed by a person challenging the ground for his detention? In this case the four judges Chief Justice A.N. Ray, along with Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati has arrived at the same conclusion, which is that the writ of habeas corpus is not maintainable in case of proclamation of emergency under article 359(1)which states-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 fundamental rights conferred by Part III (after 44th constitutional amendment-except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. The four judges said that the court has no authority or powers to challenge if the detention made under sec 16A(9)b (which states no person against whom an order of detention is made or purported to be made under Section 3 shall be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material) as under the act it clearly states that the grounds of the detention need not be disclosed hence the court cannot question the state or the executive body

to validate the detention. Hence the party does not have locus standi to movie to any court for maintain suit on fundamental rights. Justice Y. V. Chandrachud also said that the executive body must perform in accordance with the law passed by the parliament as it is the basic principle that all action of the executive must have law supporting its action. He further says that the precedential order issued under article 359(1) does not give clarity regarding disobeying the parliamentary law. Therefore, the state need not furnish the reason for dentation. Justice Khanna had dissenting opinion on the point that during proclamation of emergency or presidential order under article 359(1) even if the person cannot go to the court of law for the enforcement of fundamental right under the constitutional remedy that does not restrain him from exercising his legal remedy through statute. Also, he denied that article 21 is not the sole repository of right to life and personal liberty even in absence of article 21 in the constitution the state cannot deprive a person from his right to life and personal liberty as this formulates the basic postulate of a civilized society. During the proclamation of emergency article 21 only loses the procedural power but the substantive power of this article is very fundamental and the State does not have the power to deprive any person life and liberty without the authority of law.)

Article 356- failure of constitutional machinery in a state. 

Invoked more than 100 times

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Contrary to Ambedkar- hoped that provisions will never be called in operation and remain as dead letter

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Origin from govt of india act 1937- sec 45 and 93- failure of constitutional machinery at federal and province-

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Gives power to governor general at federal and governor at province to exercise their power in discretion-s 93- governor himself to issue proclamation and to assume necessary powers-in case of failure of constitutional machinery in a state-

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356- Flows from responsibility mentioned in a-355- to protect every state against external aggression and internal disturbance – and to ensure govt of every state is carried on in accordance with the provisions of the constitution.

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Similar provision- under US constitution- A-4 obligation of the US to protect each state from foreign invasion-and (on application by the legislature or executive of a state) against domestic violence.

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Similar- sec- 1.19 of Australian constitution

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A-355- Duty of the Union to ensure that every state govt is carried in accordance with the provisions of the constitution

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356-elaborate –on the remedial measures to be adopted on ...