This article is written by Shreya S.K Pandey, a student of Law College Dehradun Faculty of Uttaranchal University. She has elaborately discussed the types of emergencies, its effects, grounds, duration, etc. along with the study of emergency provisions and its impact.
Table of Contents
India is a federal country of “its own kind”. It acquires unitary features during an Emergency. Due to this reason, Dr B.R Ambedkar called the Indian Federal system as unique because it becomes entirely unitary during an Emergency. During an Emergency, as Constitutional machinery fails, the system converts itself into a unitary feature. The Emergency is a period of depression where all Fundamental Rights of a person is taken away except article 20 and 21.
An emergency is a situation which arises due to the failure of the government machinery which causes or demands immediate action from the authority.
According to the Black Law’s Dictionary, “Emergency is a situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation. It is a failure of the social system to deliver reasonable conditions of life” .
Emergency meaning in Hindi
Emergency in hindi means “ आपातकालीन” or ““Aapaatkaaleen”.
Types of Emergency
Part- XVIII of Indian Constitution deals with the Emergency provisions i.e. Articles 352 to 360. There are three types of Emergencies mentioned in the Constitution. The power of imposing all three types of Emergencies is vested upon the President of India. The concept of Emergency was borrowed from the Weimar Constitution of Germany. The three types are as follows –
Grounds for the Proclamation of Emergency
Grounds for the proclamation of National Emergency are as follows:
When a country declares a formal war against India and there is a violent struggle using armed forces, the President of India may impose National emergency.
When a country attacks another country without any formal declaration of war. It is a unilateral attack by any country towards India. In such circumstances, the President of India may impose a National emergency.
Emergency due to the armed rebellion may be imposed by the President of India when a group of people rebel against the present government which will lead to the destruction of lives and property.
Grounds for the Proclamation of the State Emergency is a failure in the Constitutional machinery of the state. In this Emergency, when Governor of the state is satisfied that the State is not functioning in accordance with the Constitutional provisions then he may write his report to the President of India. And the President, if satisfied by the report, may impose the President’s rule. After that, the President will become the executive head of the state.
Grounds for the Proclamation of the Financial Emergency is that when a state arises in the Country which leads to a financial crisis in India, the President of India may impose emergency to tackle the situation. In this situation, the Central Authority may reduce the budget or cut the budget given to the State, salaries of the Government officials may be deducted.
Reason for Emergency in India
Article 352 deals with “Proclamation of Emergency” or “ National Emergency”. The President of India has the power to declare an Emergency in India or any part of India by making a Proclamation. Under this Article, if the President is satisfied that a grave emergency exists in India due to which there is a threat to the security of the nation, he may declare Emergency on the grounds of-
- External Aggression
- Armed Rebellion
The word “Armed Rebellion” was substituted for “Internal Disturbance” by the Forty-fourth Constitution Amendment Act, 1978.
National Emergency has been imposed three times in India so far. The time period in which this happened was from 1962-1977. Brief description of the emergencies are as follows –
An emergency was imposed at the time of Indo-China war by the then President of India Dr Sarvepalli Radhakrishnan on the ground of external aggression from October 26, 1962, to January 10, 1968.
External Aggression means when a country attacks another country without any formal declaration of war. It is a unilateral attack by any country towards another country. For example – If a country attacks India without any formal declaration of war, in such a scenario, the President of India may impose a National Emergency.
Again, an Emergency was imposed from December 3, 1971, to March 21, 1977, by the then President of India Mr V.V. Giri during the Indo-Pakistan war. The reason was the same as above i.e. external aggression.
The third Emergency was imposed due to a clash between Legislature and Judiciary. Mrs Indira Nehru Gandhi, the then Prime Minister of India with the permission of the then President Fakhruddin Ali Ahmed declared an emergency. It was imposed for a period of 19 months from June 25, 1975to March 21, 1977.
Article 356 deals with State Emergency or President’s Rule in the State (“Provisions in case of Failure of Constitutional Machinery in States”). The President of India has the power to proclaim State Emergency when he receives a report from the Governor of that particular State explaining that the situation in the State Government is such that they cannot carry out the Constitutional provisions.
President’s Rule has been imposed on the State of Jammu and Kashmir for six years and 264 days from January 19, 1990, to October 9, 1996. The State has always been a target for many external elements. The Indian Government imposed President’s Rule to control the situation of Jammu & Kashmir which was facing a military threat from Pakistan.
Punjab was under the President’s Rule for 4 years and 259 days from June 11, 1987, to February 25, 1992. The reason for imposing President’s rule in Punjab was the control of Khalistan Commando Forces which was a Sikh organisation which was involved in the genocidal attack on Hindus.
Till January 2016, the President’s Rule has been imposed 124 times in India. During Indira Gandhi’s regime, the President’s Rule was invoked for maximum time. The President’s Rule under her cabinet was imposed 35 times in various states.
The case S.R Bommai v. Union of India is a landmark case in respect of imposing President’s Rule in any State. The case laid down the power of the Union Government in relation to the State Emergency under Article 356 of the Indian Constitution. Judicial Review of the President’s Rule was made possible by this case. While giving the judgement, the court depended on Sarkaria’s Commission Report, 1987.
President’s Rule can be judicially reviewed and the President becomes answerable only when the Emergency is imposed in certain cases, which are:
- When there is Constitutional non-conformity by the State with the direction of Union
- When there is a political crisis in the State.
- When there is an internal subversion in the State
Article 360 deals with “Provisions as to Financial Emergency”. Financial Emergency is imposed by the President when there arises any situation which causes a financial threat to India or any part of India.
Financial Emergency has never been imposed in India. However, in 1990, the possibility of financial emergency emerged but the situation was controlled by the Indian Government as in July 1991 the Reserve Bank of India pledged 46.91 tonnes of Gold with Bank of England and Union Bank of Switzerland to raise $400 million.
- Article 352: Proclamation of Emergency.
- Article 353: Effect of Proclamation of Emergency.
- Article 354: Application of provisions relating to the distribution of revenues while a proclamation of emergency is in operation.
- Article 355: Duty of the Union to protect States against external aggression and internal disturbance.
- Article 356: Provisions in case of failure of constitutional machinery in State.
- Article 357: Exercise of legislative powers under Proclamation issued under Article 356.
- Article 358: Suspension of provisions of article19 during Emergencies.
- Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies.
- Article 360: Provisions as to Financial Emergency.
Article 352 (Part XVIII) talks about “Proclamation of Emergency”.
Clause 1 states that National Emergency may be imposed by the President if he is satisfied that there exists a grave situation due to which there is a threat to the security of India or any part of the territory because of:
- External Aggression
- Armed Rebellion
The proviso of Clause 1 states that an Emergency may be proclaimed by the President even when there is no actual occurrence of war, external aggression, and armed rebellion. In this case, the President must be satisfied that there is an imminent danger.
Clause 2 states that another Proclamation may be issued to revoke and to make any variation in the previous Proclamation.
Clause 3 states that the President of India may declare an Emergency when Union Cabinet (Council of Minister headed by the Prime Minister) advice to him in writing.
Clause 4 states that before issuing Proclamation it is required to be placed before both the Houses of Parliament and shall end its effect at the expiration of one month unless both the Houses of Parliament approve it by resolution before the expiration of the said period.
Clause 5 states that proclamation approved in the second resolution shall have an effect up to six months and on expiry of six months, it will end to operate unless it is revoked in between the period.
44th Constitutional (Amendment) Act, 1978
The imposition of Emergency stressed the legislature to think again about the Constitutional provisions that provide power to the executive to supersede the judiciary hampering the basic structure of the Indian Constitution.
Under Article 352, the amendment had substituted the ground of “Internal Disturbance” with “Armed Rebellion”. The President is allowed to impose emergency only when the Union Cabinet communicates to him in writing about their decision.
The Proclamation is required to be approved by both the houses of Parliament by resolution within a month instead of two months by a total majority of the membership of each house of Parliament and by the ratification of not less than 2/3rd members present and voting in each house instead of a simple majority.
Under Article 356, the period for extension of a Proclamation from one month has been amended to six-months. Proclamation in the first instance can only be exceeded for six months.
Case No:- Appeal (civil) 887 of 1975
Bench:- A.N. Ray J., H.R Khanna J., K.K Mathew J., M.H Beg J. and Y.V Chandrachud J.
Raj Narain was a contender from Rae Bareilly Constituency in the 5th Lok Sabha Election 1971 against Indira Nehru Gandhi. Congress won the election with a majority in 1971 and Mrs Gandhi took the oath as a new Prime Minister of India. After the result of elections, Raj Narain approached the Allahabad High Court and filed a petition against Indira Nehru Gandhi contending that she had performed her election using corrupt practices.
Allahabad High Court observed in the case Raj Narain v. State of Uttar Pradesh that Indira Gandhi was guilty, as she misuses Government machinery under section 123(7) of Representation of Peoples Act, 1951. Indira Gandhi was barred to contest elections for six years and she was forbidden to continue as a Prime Minister of India.
Further, the court observed that “Rules of evidence that prevent disclosure of certain government documents in court proceedings may be overridden if the public interest in disclosure outweighs the public interest in keeping documents secret”.
The judgement led in a declaration of National Emergency under Article 352 by the then President of India Fakhrudeen A. Ahmad. The reason given for imposing an emergency was “Internal Disturbance”.
Raj Narain’s case was on conditional stay up to their appearance in the Supreme Court on August 11, 1975. However, on August 10, 1975, Thirty-Ninth Constitutional (Amendment) Act, 1971 was done and it inserted Article 329A which bar the Supreme Court to entertain the matter. Further on one can question the election of Prime Minister, President, Vice- President and the Speaker of Lok Sabha.
Whether the 39th Constitutional (Amendment) Act, 1971 was Constitutionally valid?
Referring to the landmark judgment of Kesavananda Bharati v. State of Kerala for the first time the Supreme Court observed that Clause 4 of Article 329A is violative and unconstitutional. It violates the principle of separation of power as it provides functions of the judiciary to the legislature. The amendment violated the “Rule of Law”.
The Apex Court finds the 39th Constitutional Amendment Act, 1971 as violative of the basic structure of the India Constitution and unconstitutional and therefore declares it as void.
Effects of National Emergency
Under Article 358, National Emergency suspends the rights guaranteed under Article 19 of the Indian Constitution. Also, other Fundamental Rights get suspended under Article 359 except Article 20 and 21.
Article 20 of the Indian Constitution deals with the “Protection in respect of conviction from offences”. This Article is pillars of all the Fundamental Rights which are guaranteed by the Indian Constitution. It protects the right of an individual in case of conviction.
Article 21 of the Indian Constitution deals with “Protection of life and personal liberty” because no person shall be deprived of his life and personal liberty except procedure established by law.
Under this kind of Emergency, the State Government comes under the direct control of the Central Government. The State Government has to work as per the direction is given by the Union.
The distribution of financial resources between the Union and the State may be suspended by the President.
The Parliament acquires power over the subjects of the State List which ceases on the expiry of six months.
Part XVIII, Article 356 talks about “Provision in case of failure of constitutional machinery in states” or “President’s Rule”.
The State Emergency or President’s Rule is imposed by the President of India when the Constitutional machinery of State collapse and is unable to carry in accordance with the Indian Constitution. The President will impose an emergency when he will get a report of such a situation from the Governor of that particular state.
The Governor will report about the situation in the State that the government is unable to carry out in accordance to the provisions of the Constitution and the Emergency imposed upon such a report shall have an effect up to six months, after the expiry of which Emergency will end to have an effect on the State.
The maximum period for the State Emergency is three years after which it can be extended after a Constitutional amendment. It requires constant approval from the Parliament every six months.
Imposing of the State Emergency continuously became arbitrary in India. In the landmark judgment of State of Rajasthan & Ors v. Union of India, the Supreme Court observed that Courts have no power to review the Proclamation passed under Article 352. Imposing the State emergency continuously becomes arbitrary in India due to this reason and, hence, the Supreme Court finds it necessary to overturn the decision.
In the case, S. R. Bommai V. Union of India, the Supreme Court observed that, under Article 356, President of India has restricted power and they are subjected to judicial review. The Supreme Court has the power to declare the emergency void even if both the houses of Parliament passed the Proclamation.
Effects of State Emergency
During the State Emergency or President’s Rule, the entire State administrative machinery is transferred to the Union. President becomes executive head of the State and Governor works under his name.
Legislative Assembly of the state may be dissolved or it may be suspended. Parliament took over the charge of making laws in the 66 subjects of the List-II i.e. State List. All the ministers of State Legislative assembly were barred from performing any action as every money bill is required to be first referred to the Parliament for approval.
State’s High Court functions independently in such a situation. There is no effect of an emergency in the State Judiciary. High Court may even entertain the petition filed against the President’s Rule. In 2016, the Congress Government approached the Nainital High Court against the President’s Rule imposed under Narendra Modi’s regime.
It was imposed by the then President of India Pranab Mukherjee. The High Court of Uttarakhand gave its verdict in favour of Harish Rawat’s government and declared to restore the Congress Government in the State of Uttarakhand. Later, the judgement was upheld by the Supreme Court of India and the Congress Government continued its period of governance.
How many times State Emergency declared in India
There are different circumstances under which the President’s Rule is imposed, these are:-
- When the coalition government in the State collapses.
- Law and orders are not followed in the State.
- Failure to elect Chief Minister by the State Legislature.
- Postponement of the State Elections due to any reasons.
In India, till 2018, the President’s Rule was imposed 126 times by the President of India. Maximum times the President’s Rule was invoked during Indira Gandhi regime i.e. 35 times.
Difference between the National Emergency and President’s Rule
|National Emergency (Article 352)
|President’s Rule (Article 356)
|National Emergency is proclaimed under Article 352 on the ground of war, external aggression and armed rebellion.
|State Emergency is proclaimed under Article 356 when the State Government cannot be carried out according to the Constitutional provisions.
|State Executive and legislature perform their power as mentioned in List II of Schedule VII. Concurrent List power vests in the Central Government.
|State Executive powers get vested in the Central. Governor works in the state on the advice of the President. State Legislative Assembly is dissolved or suspended.
|The Proclamation may be continued for an indefinite time as no maximum period is prescribed but it is subject to renew every six months.
|The maximum period up to which State Emergency may continue is three years after which it will cease but it may be further continued after the Constitutional Amendment.
|Fundamental Rights are suspended during National Emergency except Article 20 & 21.
|There was no effect on the Fundamental Rights of the people of the State.
|Resolution for the continuation of the proclamation of emergency must be passed with a special majority.
|Resolution can be passed with a simple majority in the Parliament.
|The resolution for the revocation of the proclamation can be passed by Lok Sabha.
|Resolution for revocation of the proclamation can be passed by President in his discretion.
|During this emergency, the Centre’s relation undergoes a modification with all the States.
|Centre’s relation undergoes a modification only with the state under the President’s Rule.
|There is no delegation of lawmaking power of Parliament under the State list.
|President may make laws for the state after consulting with the Members of Parliament from that state.
Part XIII, Article 360 talks about “ Financial Emergency”.
Financial Emergency is proclaimed by the President of India if he is satisfied that a situation of financial instability has arisen in the nation or any part of the nation. Emergency imposed under Article 360 shall not have effect after the expiration of two months from the date it was issued unless both the Houses of Parliament approves it by passing a resolution.
The situation of 1991 led to the circumstances of the financial crisis. But it was solved after introducing New Economic Policy by Economist Dr Manmohan Singh. No financial emergency was imposed so far in India.
Effects of Financial Emergency
During the Financial Emergency, Parliament has the power to reduce the salaries and allowances of the people working under the Union or the State Government. Financial and Money Bills passed by the State Legislature of the State will be sent to the President of India for his consideration.
Parliamentary approval and duration of the Emergency
In India, there are three types of Emergencies and all the three emergencies have a different duration up to which they remain in force. Parliamentary approval also differs in each emergency as the duration for approval of a resolution of emergency is different in each kind of emergency. The Parliamentary procedure for passing the resolution of Emergency is discussed as follows:
Parliamentary approval and duration of the National Emergency
Proclamation of National Emergency operates for the maximum period of six months subject to approval in every six months. There is no period prescribed up to which period may be extended.
Under Article 352, when the President imposes an Emergency, it must be approved by both the Houses of Parliament by a resolution within a month from the date of its issue. Before the 44th Amendment Act, 1978, the period for approval was two months.
Meanwhile, Lok Sabha gets dissolved when the Proclamation was issued or Lok Sabha dissolved without approving the proclamation of Emergency, one month will be counted from the first day of sitting of the Lower House i.e. Lok Sabha after its reconstitution. It is required that in the meantime Rajya Sabha has approved the proclamation.
When both the houses of Parliament approve the proclamation, it will remain in force for six months and there is no maximum time limit for Proclamation. It is subjected to renew by both the Houses of Parliament through resolution in every six months.
If Lok Sabha gets dissolved within six months from the date of issue of the resolution without further approving the Proclamation of Emergency. In this situation, the Proclamation will survive until a month from the first day of Lok Sabha after its reconstitution. It is required that in the meantime Rajya Sabha has approved the Proclamation.
Every resolution for imposing Emergency or continuance of Emergency must be passed by either of the House of Parliament by a special majority, i.e. a majority of the total membership of that house and a majority of not less than 2/3rd members of the house present and voting.
Parliamentary approval and duration of the State Emergency
Proclamation of the State Emergency operates for the maximum period of six months or three years (subject to extension of the period).
Under Article 356, when the President imposes Emergency it must be approved by both the Houses of the Parliament by resolution within two months from the date of its issue after which it ceases to affect.
If Lok Sabha gets dissolved when a proclamation was issued, then it must be passed within 30 days from the first day of sitting of Lok Sabha after its reconstitution. In such situations, Rajya Sabha must approve the Proclamation.
The duration of six months can be extended, subject to the approval in six months. But every Proclamation passed under this Article cannot be extended for more than three years.
Parliamentary approval and duration of the Financial Emergency
Under Article 360, before the President imposes emergency it shall be approved by both Houses of Parliament. Otherwise, after the expiry of two months, from the date of issuance of the proclamation, it ceases to operate.
In case, Lok Sabha dissolves within two months, Lower House is required to approve the proclamation within thirty days from the first day of sitting after its reconstitution. Rajya Sabha must approve it in the meantime.
Why was Emergency declared in 1975
National Emergency has been imposed three times in India. But, the Emergency of 1975 emerged as the Constitutional revolution in Indian history. The emergency of 1975 emerges as the dark phase for the Indian Constitution. The situation which leads to the Proclamation of Emergency was the fifth Lok Sabha election in 1971 in which Indira Gandhi won the election with a majority. Her opponent contender from Rai Bareilly was Raj Narain who approached the Allahabad High Court by filing a petition against Indira Gandhi’s election.
Allahabad High Court’s judgement was not acceptable to the Indira Gandhi who declared the decision against her. They barred her from contesting election for the next six years and the Court also barred her to continue the post of Prime Minister. To secure her post, Indira Gandhi came up with a strategy that shook the nation and questioned the democracy of India.
The President of India Fakhruddin Ali Ahmed imposed National emergency on June 28, 1975, a day before hearing of the case of Raj Narain v. State of Uttar Pradesh in the Supreme Court as an appeal. The reason behind the Proclamation of the Emergency was “Internal Disturbance”. This Emergency was imposed when the emergency of 1971 due to the Indo-China war was already in force in India.
The situation was becoming out of control, the Prime Minister of India was barred to contest election for the next six years and her present post was declared to be occupied using ill corrupt practices. Military and Police started disobeying the orders of the Government.
Union Railway Minister L.N. Mishra was murdered at Samastipur. A tussle between the central, opposition, and the citizens created an environment of violence, threat and agitation. The Parliament approved the Proclamation of Emergency and subsequently, National Emergency was imposed in India.
1975 Emergency Reason
- Allahabad High Court gave judgement against the Prime Minister. Judgement barred her to contest election for the next six years and finds her involvement in ill corrupt practices in 5th Lok Sabha election of 1971.
- The demonstration was organised by the opposition under the supervision of Jayaprakash Narayan.
- The relationship between the Judiciary and Legislative become weak as Parliament’s amendment of the Fundamental Rights was opposed by the Supreme Court.
- An agitation that was launched in Gujarat in 1974 by the opposition party.
- Freedom of the Press was suspended and Indian Raj Censorship was imposed under which newspapers get prior approval for publication.
- Fundamental Rights of the citizens were suspended.
- Opposition leaders were arrested and strikes were banned.
- Under 42nd Constitutional (Amendment) Act, 1976, Elections of the Prime Minister, the President, and the Vice-President was kept out of the purview of justification from the court.
- Provision of Habeas Corpus was neglected nullifying the rights of citizens under Article 21.
- It led to the political crisis and Constitutional crises on the Indian polity.
- Many new political parties emerged after 1977.
- Emergency showed its impact on 1977 Lok Sabha election as Janta Party won the election.
- Fundamental Rights of the citizens were strengthened.
- The 44th Constitutional (Amendment) Act, 1978, was passed to clear the ambiguity of provisions of emergency.
To sum up, everything that has been stated, the 1975 Emergency emerges as the dark side of the Indian Judiciary. The emergency of 1975 was not less than a dark age of the Indian democracy because during this period India emerged as a weak democratic country. It affected the federal structure of democracy. It left the legislature to think about the provisions of the Constitution.
The Indian Constitution was continuously amending to favour one’s situation. Later, it becomes necessary to amend the Constitution again, but this time to maintain its supremacy.
In Kesavananda Bharati v. State of Kerala, the Supreme Court observed that “Parliament does not possess any power under Article 368 to amend the basic structure of the Constitution. Parliament has the power to amend the entire Constitution whenever it becomes necessary according to the requirement subject to, they cannot touch the Fundamental Rights which are the basic structure of the Constitution”.
List of National Emergencies
National Emergency was invoked three times from 1962 to 1977.
First National Emergency was invoked in October 1962 during Indo-China war. This Emergency remained in force till January 1968. It was imposed by the then President of India Shri. Sarvepalli Radhakrishnan. The reason for imposing this emergency was the Chinese attack in Arunachal Pradesh (North-East Frontier Agency). External Aggression was ground for invoking the Emergency.
The second Emergency was invoked in December 1971 during the Indo-Pak war. This Emergency remained in force till March 1977. This Emergency was imposed by the then President of India Mr V.V. Giri. The reason for imposing Emergency was war in Bangladesh. Ground for imposing this Emergency was External Aggression, the Indian military was clashing with the military of Pakistan to provide independence to East Pakistan.
The period of the war was 11 days and considered as the shortest war in the World. But, in the meantime, the third emergency was imposed in India. The third emergency continued the second emergency until 1977.
The third Emergency was invoked in June 1975 due to an internal disturbance in the Central Government. It remained in force till March 1977. This Emergency was imposed by the then President of India Fakhruddin Ai Ahmed. It was imposed when the second Emergency was already in existence. The real cause behind this Emergency was to secure the seat of the then Prime Minister of India Mrs Indira Nehru Gandhi who was found guilty in corrupt practices during her constituency campaign by the Allahabad High Court.
Impact of Emergency in India
Most of the time Emergency have an adverse impact on the country. Whenever an Emergency was imposed, whether it was the National Emergency or State emergency, it has questioned the democracy of India. More time it was imposed, more democracy shows its unitary structure. Impact of Emergency in India is:-
- It deprives the citizens of their Fundamental Right.
- The Freedom of Media was suspended.
- Emergency overturned the Constitution.
- Censorship orders barred newspapers to print anything without any prior consent from the government.
National Emergency of 1975 resulted in the arrest of many opposition leaders such as Morarji Desai, Jay Prakash Narayan, Atal Bihari Vajpayee and Lal Krishna Advani under Maintenance of Internal Security Act, 1971. The arrest of these leaders led to the filing of petitions in various High Courts challenging the detention. Indira Gandhi Government approached the Supreme Court because at the time of Emergency Fundamental Right under Article 21 remained suspended so this does not allow the writ of Habeas Corpus and the case came out to be known as the Habeas Corpus case.
A.D.M Jabalpur Case
After defeat in the Lok Sabha election of 1971, Raj Narain challenged the election in the Allahabad High Court on the ground that she was guilty of corruption from her constituency. In the case of Raj Narain v. State of Uttar Pradesh, Allahabad High Court found Indira Gandhi’s involvement in corrupt practices and declared her election invalid. Indira Gandhi approached the Supreme Court where Justice Krishna Iyer put a conditional stay on Allahabad judgement. On a day before hearing of the case in the Supreme Court, President Fakhruddin Ali Ahmed declared Emergency on the ground of “Internal Disturbance”.
During the Emergency, Fundamental Rights remained suspended under Article 14 and 21, as well as any proceedings related to the enforcement of these Articles also remained suspended during the period of Emergency. Anyone who was causing a threat to the politics was arrested under Preventive Detention Law. Many famous political leaders were arrested under the Maintenance of Internal Security Act, 1971 (MISA) because their activities were causing a political threat to Indira Gandhi.
These leaders approached the High Court against the arrest and the High Court made a decision in their favour. Indira Gandhi’s Government filed a petition in the Supreme Court as a Fundamental Right under Article 21 is suspended writ cannot be issued.
- Whether writ of Habeas Corpus is maintainable by the High Court questioning illegal detention when an emergency was imposed by the President?
- Whether suspension of Rights and Liberty of any person under Article 21 is valid under Rule of Law?
- Whether detenue have locus standi during the proclamation of emergency?
Supreme Court observed that under Article 359 clause (1) no person has locus standi to approach the High Court under Article 226 to enforce his fundamental right of personal liberty in case of detention by filing a writ of habeas corpus. Fundamental Rights remain suspended during the Emergency. A person cannot invoke habeas corpus by filing an application under Section 491 of the Code of Criminal Procedure, 1973. Supreme Court declared Section 16A (9) of Maintenance of Internal Security as constitutionally valid.
Emergencies in India are imposed by the President after both the House of Parliament passed the resolution of the Proclamation of Emergency. Where the State Emergency or President’s Rule is quite frequently used by the President, National Emergency had become a part of history.
The national emergency of 1975 shows the weaker or dark phase of the Judiciary. Cases like Indira Gandhi v. Raj Narain and A.D.M Jabalpur v. Shiv Kant Shukla show loophole in the judicial system. Both cases do not recognize the Fundamental Rights of citizens during emergencies. There was a need to change the mechanism and it was done in Kesavananda Bharati’s case.
- Black Law’s Dictionary, https://thelawdictionary.org/emergency
- S.R Bommai v. Union of India, AIR 1994 SC 1918
- Indira Nehru Gandhi vs. Shri Raj Narain & Anr., AIR 1975 SC 2299
- Raj Narain v. State of Uttar Pradesh, AIR 1975 SC 865
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
- State of Rajasthan & Ors v. Union of India, AIR 1977 SC 1361
- A.D.M Jabalpur v. Shiv Kant Shukla, AIR 1976 SC1207