The effect of proclamation of an emergency on the people of India

INTRODUCTION

The meaning of the term emergency was vague and not properly defined until the judgment passed by the bench in the case of “Rameshwar Prasad v Union of India”1 It was only in 2006 when the bench gave a definite meaning to the emergency and defined it as “Emergency” under this Part means a situation which is not normal a situation which calls for urgent remedial action”

A simple solution to this predicament is if some special powers were to be conferred on the existing government or if there is a provision in the constitution for a new government to be set up that would deal with situation of emergency. At this stage, most law makers and governments believe that certain rights that are provided to the people of nation should be limited. This is to further aid the government.

Perhaps, keeping this in mind, the makers of the Indian Constitution have enshrined certain emergency provisions in the constitution. These provisions are laid down in Part XVIII of the Indian Constitution. In Vithalrao Udharao Uttarwar v State of Maharastra2, the bench held that “PART XVIII of the Constitution has always been the part of our Fundamental Law. That enacted the scheme of emergency provisions and permitted the President of the country to proclaim state of emergency upon satisfaction of the matters stated in, Article 352 (1)

NEXUS OF FUNDAMENTAL RIGHTS WITH THE PROCLAMATION OF AN EMERGENCY

On 26th October 1962, the President of India invoked the power given to him under Article 352 and proclaimed a situation of emergency in India. This emergency was called because of the act of Chinese aggression on Indian Territory. What followed this was mayhem and a gross unconstitutional act of invading people’s liberty.

Under Article 358 of the Part XVIII of the Indian Constitution it is stated that, when a situation of emergency is declared on the grounds that there is a threat because of war or any act of external or internal aggression to the nation or any part of the nation, no provision conferred under Article 19 under Part III of the Constitution would restrict the government to make any such law that would be restricted under Article 19 of the Indian Constitution. However, the constitution also provides that such law which violates or is contrary to the core values vested in Article 19 shall no longer be held constitutional after the situation of emergency is called off.

It was held in Shyam Behari v Union of India3 that “Article 358 suspends the restrictions on the powers of the State to make any law in contravention of the provisions of Art. 19 only during the pendency of the emergency. It does not lay down that the validity of any law, which has already been made, cannot be challenged on the ground of violation of the provisions of Art. 19. The same view was also supported in ADM v Shivakanth Shukla4.

Article 358 takes away from Article 19 the power to safeguard the interests of the nation as it squashes any inconvenience created by Article 19 in a situation of an emergency. However, it is also important to understand the scope of Article 58. Not only can Article 358 take away the powers of Article 19 to safeguard the interests of people, the scope of it could have been widened in such a manner that it would have taken away the powers from any other relevant statutes that protect and promote the fundamental rights of the people.

Article 359 has also been included in the Part XVIII of the Constitution to take away the Fundamental Rights in the Part III of the Indian Constitution. The scope and ambit of Article 359 is much wider than Article 358. Even though it directly does not threaten any fundamental right, it confers powers upon the president to do the same.

2.2 IS IT NECESSARY TO DISCHARGE FUNDAMENTAL RIGHTS DURING EMERGENCY

“The Presidential Order cannot widen the authority of the legislatures or the executive; it merely suspends the right to move any Court to obtain a relief on the ground that the rights conferred by part III have been contravened if the said rights are specified in the Order.” This was held in Makhan Singh v State Of Punjab5

There is no necessity to confer such provisions that take away the Fundamental Rights that are conferred upon the individuals by the Constitution. There are certain provisions that enshrined in the constitution that provide the lawmakers enough power to protect and protect their power to make rules and regulations. Article 21 has been known to have a wider ambit than the literal meaning of the word “life”. Thus, it is of utmost importance that the fundamental rights are not seized from the people in order for them to enjoy the protection of the fundamental rights as well as enjoy the rights provided under Article 21.

HOW THE EMERGENCY OF 1977 VIOLATED THE RIGHTS OF THE PEOPLE

On June 25th, 1976 there was an emergency proclaimed in India. This situation of emergency was carried on till March 21st, 1977. It was a harrowing and nightmarish experience for each and every inhabitant of the country.

The emergency situation silenced the press by imposing censorship on the press and the accreditation of almost 50 postmen were cancelled thereby depriving them of their daily bread. Each and every facility of the journalists were cancelled and their foreign visits were restricted6. The bureaucracy was shaken. Almost 30,000 public servants and public sector employees have been forced to retire7. It also put shackles on the Judiciary by maintaining dossiers on all the judges. High Court judges were mistreated and were transferred to places far from their origin.8

After this gross injustice to the people, HV Kamanth proposed a bill to amend the provisions regarding emergency situations and decided to move it into the House of Parliament in July, 1977. However, it was decided that this bill could not be passed because there is a need to implement certain other provisions to ensure that the Prime Minister does not become tyrannical. It was proposed by Mr AN Roy, Chief Justice suggested that a group should be formed consisting of the Chief Justice, Prime Minister, President and the Leader of Opposition to decide upon the proclamation of a situation emergency.

After the 1977 Emergency, the 44th Amendment was made. After the 44th Amendment, Art. 19 is not suspended if the proclamation is invoked on the ground of armed rebellion, and it stands suspended only where the emergency is declared on the ground that security of India or any part of India is threatened by war or external aggression.

1 Rameshwar Prasad v Union of India, 2006 2 (SCC) 1
2 Vithalrao Udharao Uttarwar v State of Maharastra, AIR 1977 Bom 99
3 Shyam Behari v Union of India, AIR 1963 Ass 94.
4 ADM v Shivakanth Shukla, AIR 1976 SC 1207
5 Makhan Singh v State Of Punjab, AIR 1964 SC 381
6 Data taken from White Paper on Misuse of Mass Media during the Internal Emergency (Government of India)
7 Data taken from the Tribune, Chandigarh, Sep 1 1978
8 Data taken from Tribune, Jun 16 1977