CHAPTER V I I I

The State of Emergency and

Role of Indian Courts
8.1 Introduction

8.2 Jurisdiction and Powers of the Courts

8.3 The response of Indian courts to

Emergencies

8.4 The attitudinal Changes of courts after

1977

8.5 Conclusion
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8.1 INTRODUCTION

According to Oatman and Balchy:- "One of the weightiest problems of

the modern State is that of granting to its executive, authorizing sufficiently

broad powers for the proper administration of all the functions bestowed

upon such authority and yet of controlling the exercise of these power so that

they may not be employed in an arbitrary, irresponsible or inefficient manner."1.

The traditional thinking was that parliament did control the execution,

judicial control based upon legislative intent and application of the ordinary

law remained within this designated area, but this model undermines the

notion of accountability of control itself. Under the constitution, which

recognizes the rights of individuals deserving fundamental guarantee, the

role of the judiciary bears somewhat different meaning and significance. Right-

based conception imposes certain standard of legality. It is designed to

prevent the abuse of power both by public bodies and also by quasi and

judicial bodies that possess certain amount of power.

Political Emergency is a situation when it becomes necessary to

empower the executive to use its own discretion and take all measures to

control the situation and bring back normalcy of the nation. While taking

such intensive measures what gets affected grievously is the basic rights of

an individual during peacetime. The situation also empowers executive with

1. Balchy and oatman The government and Administration in Germany, 1928-p-97

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legislative powers. Such intense situation if not reviewed by an agency like

the court of law, may increase the possibility of misuse of discretionary powers.

Resultantly it may adversely affect the liberty of common man. This situation

is sensitive to investigation by courts of law.

What powers courts must possess? How justified is the intervention

of courts into the executive actions taken during emergency? These are

serious questions to be dealt with.

8.2 THE JURISDICTION AND THE POWERS OF THE COURTS:

Generally emergency actions depend on the executive. It has all the

power to decide as to how the situation can be controlled. But international

as well as national jurisprudence have, to some extent succeeded in

establishing that the courts cannot be barred from reviewing the executive

actions. Through analysis of the principles that govern the powers of the

courts, effort has been made to establish that barring the power of the court

can in any given situation be not justified. The court must have access to

review all executive and legislative actions taken during emergency. The

courts are not just to reverse or approve any and every decision of

administrative body on any public complaint. Judicial review of an

administrative action can be made only in the circumstances recognized by

law. The courts should, whenever possible, be interpreting legislation and

the exercise of administrative discretion in conformity with the fundamental

rights. This can only be achieved through the creation of strong judicial
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presumption that legislation is not intended to interfere with these rights.

Combined with this, there has to be more intensive scrutiny demanding greater

justification of discretionary decisions. The courts should articulate number

of procedural and substantive principles, which include ideals such as legality,

procedural propriety, participation, openness, rationality, relevance, and

propriety of purpose, reasonableness, legitimate expectations, legal certainty

and proportionality. The holders of power must be held accountable for each

and every intrusion.

"Government should be of laws rather than of men". In practical

experience this is necessary to keep the administration in check. Individual

liberty is not to be threatened. Administrative power must be restrained from

turning in to unrestricted absolutism. Courts must attempt to keep balance

between justice to an individual and enabling the administration to carry on

efficient government. Since the legislature cannot have intention that the

executive be the final judge to any extent, the courts have to come into the

picture and keep administration within the confines of law

The extent of the power the court has been very well summarized in

following judgment;

"... .the Court is not an appellate forum where the correctness of the

order of the Government could be canvassed and, indeed, it has no jurisdiction

to substitute its own view... for entirety of the power, jurisdiction and

discretion... is vested by law in the Government. The only question which

could be considered by the Court is whether the authority vested with the
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power has paid due attention to or taken into account circumstances, events

or matters wholly extraneous to the purpose for which the power was vested,

or whether proceedings have been initiated mala fide for satisfying a private

or personal grudge of the authority"2

This power of review of administrative action involves two elements;

objective and subjective. The objective elements exist before the actual

exercise of power and are a condition precedent to the exercise of the later

that is subjective element. The objective element relates to jurisdictional fact,

which is subject to judicial review but not the subjective element. From this it

follows that courts do not probe in to the merits of an administrative decisions.

The courts merely quash the action taken by administrative authority. But

this does not mean that administrative action is beyond judicial control. The

courts have rejected the concept of absolute and unfettered discretion. It is

an eternal principle of administrative law that there is nothing like unfettered

discretion - immune from judicial review

J. Krishna Iyer has emphasized that "absolute power is anathema

under our constitutional order- naked and arbitrary exercises of power is bad

in law. If absolute is given in the hands of administration it would be negation

of rule of law."

M. P. Jain also has observed that:

"It is an accepted axiom that the real kernel of democracy lies in the

2. Pratap Singh v. Punjab, AIR 1964 S,C. 72, 83.

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court enjoying the ultimate authority to restrict the exercise of absolute arbitrary

power.3

In India the attitude of court regarding political question is confusing.

It has been said that 'mere fact that question involves political nature does

not ban the court from exercising its power of review. In fact it is matter of

choice for the court and it decides whether it wants to review the matter or up

to what extent.'

The most relevant political action during emergency is the power of

President to promulgate Ordinances Under Article 352, where it speaks of

President ' satisfaction.' To exercise their power courts seek different specified

and separate grounds such as mala fide, irrelevant consideration, improper

purpose,colourable exercise of power reasonableness etc. Even when the

exercise of power is bad because of non-observance of procedural

requirement, the court interferes only if it considers this absolutely mandatory.

Administrative discretion u/a 14 and 19 has become a great source of power

in the hands of the courts to quash administrative action on the ground of

administrative discretion.

It is very important that the ordinary courts retain their jurisdiction in

respect of cases of abuse of power. Also over trials and proceedings against

civilians during emergency, Judiciary as an institution is seriously impaired

3 Jain.M.P., S.N. 'Principles of administrative law ' p.425.

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by loss of jurisdiction during emergency. It is important that the safeguards

enacted to ensure judicial independence should not be diluted or abolished.

"A subservient judiciary cannot be relied upon to accomplish the difficult task

of protecting human rights and the rule of law during emergency". The use of

emergency measures to curtail the powers of the court should be expressly

prohibited

4
The ICJ review on this matter is very important. In 1983,the

International Commission of Jurists (ICJ) undertook a comprehensive analysis

of state of emergency throughout the world. While emphasizing that "the

greatest possible degree of judicial control should be striven for" it eventually

concluded that the "issue of judicial review must be decided in the light of the

legal traditions of each country. There is no reason why courts in principle

cannot examine the question whether the essential legal prerequisites for

the declaration of emergency have been complied with or are nonexistent.

The judiciary is the custodian of constitution. The court must decide the

question whether an organ under the constitution has acted within the limits

of its power or exceeded it. No organ should be given such power to declare

that he is the sole judge. It is for the judiciary to determine and enforce the

constitutional limitations. As the question of emergency involves political role

the adoption of 'no judicial interference' itself reflects malafide intentions.

Neither reason nor principle warrants exclusion of judicial review. The question

ever standing is whether emergency has been proclaimed in compliance

4. JCJ, States of Emergency, Their impact on Human Rights, 1983,Geneva,

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with the legal prerequisites for its promulgation or there had been fraudulent

exercise of power."

Three different views were expressed at the Mexico Seminar of UN

(1961)

1) The Court should have the power to annul the declaration were it is

considered 'undesirable' in the sense that it was not justified by the De facto

situations.

2) The power of the court should be limited to cases where requisite

formalities have not been complied.

3) The declaration of the state of emergency - being a political decision

- should be entirely withdrawn from the control of courts.

5
According to Seervai Judicial control extends to judicial review of

Acts and Orders passed during emergency. Judicial control must extend to -

1) Whether an emergency legislation is in conformity with the constitution

of the State.

2) Whether particular exercise of emergency powers is in conformity

with emergency legislation.

3) Whether measures adopted are in compliance with rule of

proportionality, i.e. whether they are strictly required by the exigencies

of the situation.

4) There is no infringement of any non-suspendable rights.

5. Seervai H.M., constitutional Law of India, Vol I))

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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.

As one examines the history of emergency in India, one cannot ignore

that the whole episode reflects the administrative arbitrariness. Thus it is

necessary to examine how far courts can, or had examined such arbitrary

use of administrative power. Because emergency in India totally depends

gx\ the 'satisfaction' of an administration, the relevant question for Courts is

-to examine in details-how far 'State' can be held responsible for arbitrary

and unreasonable 'satisfaction'. To examine these vital questions we need

to study in detail the powers of the courts, which is the most important agency

to check the arbitrariness through judicial decisions.

During the period when a proclamation of emergency issued under

Art. 352 are in operation, Art. 359 empowers the President to pass an order

to suspend the right to move any court for the enforcement of such of the

fundamental rights guaranteed by the Constitution as may be specified in

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that order, except the rights contained in Art. 20 and 21. The right to move

the court is of the greatest value as it makes the other rights workable, real

and concrete. The order of the President suspending these basic rights may

remain during the period of emergency or for such shorter period as may be

specified in that order. The proclamation of emergency is required to be

approved by the parliament within one month in first instance and then every

six months by special majority. The order of the President affecting the

fundamental rights of the people and the power of judicial review cannot

otherwise be affected even by an amendment of the Constitution, one of the

basic features of the Constitution which is subject to neither judicial nor

parliamentary control. Undoubtedly, the executive requires extraordinary

powers during emergency but it must be responsible and answerable to the

legislature and the people. We need to examine the extent of the powers

and the control upon it by the judiciary. The actual practice in the field shall

guide the investigation.

8.3 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

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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 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.

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Some important issues which court examined during emergency can

be understood in following cases:-

5
A K Gopalan vs. Union Of India 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 Tripura6

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 7

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.

5. AIR 1950 SC J 174.

6. AIR 1964, S. C. 173,

7. AIR 1964 S. C, 381

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Same view as in Mohan Choudhury's case was reaffirmed, this time

by majority of 6 : 1 . A challenge to the constitutional validity of the impugned

Act was held impermissible in view of the suspension of right to move court.

It was held that the detained had no locus standi tor a writ of habeas corpus

on that ground.

It also held that even where an application for habeas corpus was

made under s 491 (1) (b), its effect will also be to enforce the fundamental

rights guaranteed by the constitution. The Court observed that the power

conferred by Article 359 was wide enough and flexible to allow the President

to issue an order of limited scope. The Court made it clear that where the

legislature had laid down the policy of a statute clearly, leaving it to the authority

to execute, such delegation was constitutional and it would be difficult to

hold that the legislature had acted mala fide.

Gajendragadkar, J. delivering the majority judgment observed. "The

sweep of Art. 359(1) and the Presidential orders issued under it are wide

enough to include all claims made by citizens in any court of competent

jurisdiction. No citizen can move any court for the enforcement of the

fundamental rights when the enforcement is suspended by the Presidential

order under Art. 359" His Lordship held that once it is shown that the

proceedings under Sec. 491 Cr. PC. cannot make a substantial progress

unless the validity of the impugned law is examined on the ground of

contravention of the specified fundamental rights, it must follow the bar created

by the Presidential order operated against them as much as it operated against

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proceedings under Art. 226 or Art. 32.

However certain exceptional situations were pointed out by the

Hon'able Judge, where a person who is detained during emergency may

challenge his detention. Detention may be challenged on the ground of

violation of a right than the rights specified in the order under Art. 359, Thus,

the court on the one hand put a complete ban on the right to move any court

where directly or indirectly the question of enforcement of the specified

fundamental rights arise, but on the other hand laid down exceptions to this

rule and conceded the right to challenge the illegal detentions by a person.

Justice. A. N. Roy observed that the effect of the Presidential order

under Art. 359(1) is to bar the locus standi of any person to move the court

on the ground of violation of specified fundamental rights. The bar applies

both in the executive and legislative fields. The Presidential order does not

affect the jurisdiction of the Supreme Court or the High Court but affects the

locus standi of the detenue to move the court. Art. 359(!).is not directed

against any court but is directed against an individual and deprives him of his

locus standi. Declared under the constitutional provisions, the courts will have

nothing before them to enforce. His Lordship further observed that 'if the

locus standi of the person to move the courts is gone and the competence of

the court to enquire in to the grievance is also impaired, it is no use appealing

to the concept of the Rule of Law. It is just inapplicable to the situation,

which is governed by the emergency provisions of the Constitution. These

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provisions contain the Rule of Law for such situations. Chandrachud, J.

observed, "the Presidential order operated as a blanket ban on any and

every judicial inquisition into the validity of the detention order".

Thus court demonstrated that a petition for habeas corpus was

maintainable even in the face of a Presidential Order, and that it was still

possible for relief to be granted to petitioners on grounds of ultra virus,

independently of any reliance on fundamental rights.

Moh. Yaqub v. State of J. and K.8

The question arising in the sphere of Art. 359 — whether the

fundamental rights, the enforcement of which has been suspended, have

anything to do with the security of India, threatened by war or external

aggression etc., can be examined by the Court, was considered. The

Supreme Court held that "wherever such suspension is made it is in the

interest of the security of India and no further proof is necessary." The Court,

in this case, thus, virtually adopted the principle of 'hands off'. A number of

provisions in Part III of the Constitution have no nexus with the security of

India and their suspension may not be justified at all.

G, Sahanand v the state of Kerala9

As the emergency of 1962 lingered on, the Court showed its concern

about the abuse of emergency power. A constitutional bench of Supreme

8. AIR 1968 S,C. 765

9. AIR 1966 SC 1925

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Court presided over by Chief Justice Gajendra Gadkari who handed down

its decision. The Judgment expressed concern and anguish at the

continuance of emergency proclaimed way back.

G. Sadanand was preventively detained by the State of Kerala (in

October 1965). Under Rule 30 of the Defence of India Rules 1962, pending

the trial of a Criminal case against him. He was detained the day after the

District Magistrate trying the criminal case had already released him on bail.

The petition on his behalf in the Supreme Court succeeded. Sadanand was

ordered on 11 February 1966, to be released on the ground that the wide

statutory powers conferred on the appropriate authorities had been abused

and the order was vitiated by mala fides.

Ghulam Sarwar v Union of India 10

C. J. Subba Rao said that the question whether there is 'grave

emergency' or imminent danger' is to be left to the satisfaction of the executive

for it is obviously in the best position to judge the situation, His Lordship did

not express any opinion on the question whether the Executive is actuated

by mala fide and it is a misuse of powers, as no material was placed before

the court. He further held that the Presidential order passed under Article

359 cannot be tested under the very fundamental right, the enforcement of

which it suspends. Ifthe enforcement of the fundamental rights under Article

14 was suspended by the President's order under Article 359 it cannot be

10, AIR 1968 S. C. 765

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tested under the same Article namely Article 14. The Court further held that

though an order under Article 359 may be assumed to be law in its widest

sense, it cannot be law within the meaning of Article 13(2) for it were so,

Article 359 would be nugatory.

The judiciary highly criticized the preventive detention powers under

the Defence of India Act and rules. The power to deny detainees the ground

of their detention, lack of Independence .supervision of detention and

complete absence of time limit of detention were considered.

The Court also pronounced on the very important issue of the excessive

use of power under Presidential order. The Court though emphasized the

importance of Presidential order in sustaining the right to move the court, it

tried to establish the spirit of the constitution by preserving rule of law. The

mala fide intentions of the power holders were attempted to be restricted by

judiciary.

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 Bengal11

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 far fetched 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.

11. AIR 1974 SC. 2154

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Ram Bahadur Rai v State of Bihar n

A student was detained under MISA while attending a meeting in which

a decision was made to start a 'Gujarat type' agitation. The Supreme Court

said that the student was entitled to be released, as he was not a part of

agitation. More importantly, the court ruled that where the order of detention

was based on distinct and separate grounds and if any of the grounds was

vague, or irrelevant the entire order would fail. One or more of several grounds

of detention has been held to be bad in law.

Khudiram Das v State of Westbengal

The Court rejected another challenge to the MISA, this time based on

the argument that the subjective satisfaction of the detaining authority should

be amenable to judicial review. The Court did, however recognize that it was

within its power to examine the existence, as opposed to the sufficiency of

such satisfaction, and that, where for example the detaining authority had

not applied his mind at all, the order of detention could be struck down.

Pravin Dholakia v Union of India u

Through the petition for the habeas corpus filed in the Supreme Court,

the validity of the prolonged continuance of the 1971 emergency was

challenged. The petitioner argued that continuation of emergency was

unconstitutional. Before the case could be heard, the court went in to vacation.

12. AIR 1975 SC 223

13. AIR 1975 SC 550

14. No details of this case have been reported

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By the time the court reconvened, a new state of emergency had been

declared which pre-empted judgment in this case.

Mostly the attitude of court was same during the second emergency.

The court was more inclined to upheld 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.

o All political opponents were taken into custody under MISA.

o 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,

o Detainee's right to be informed of the grounds of arrest was deleted

by amending MISA
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o Right of appeal incase of illegal detention was abolished.

o The constitutional safeguards of scrutiny of every detention order by

an Advisory Board were rendered useless,

o 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.

o 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.
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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.

ADM Jabalpur v. Shivkant Shukala 16

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
16. AIR 1976 S. C. 1207
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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.'17

17. Seervai H M, 'Emergency Future Safeguards, Habeas Corpus Case'

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Justice Mukhi, who had a cardiac condition, asked for a postponement

of his transfer to Calcutta, but his request was refused. The judge soon died

of shock. Two judges of the Gujarat High Court, Chief Justice B.J. Divan and

S.H. Sheth, were transferred to the Andhra Pradesh High Court. One of

them, Justice Sheth challenged the transfer, and a Full Bench of the Gujarat

High Court rejected his challenge. The government took the matter to the

Supreme Court by way of an appeal. General elections were called, in which

Mrs. Gandhi and her ruling Congress party were resoundingly defeated, and

the emergency was brought to an end.

Khanna, J. in his dissenting judgment empatheticaily stated that Article

21 is not the sole repository of the right to life and personal liberty, and even

in the absence of Article 21, the State has no power to deprive a person of

his life of personal liberty without the authority of law.

Cautioning against the acceptance of the contentions of the

government as accepted by the majority, Khanna, J. observed: "Startling

consequences would follow from the acceptance of the contention that

consequent upon the issue of the Presidential order in question no one can

seek relief from courts during the period of emergency against deprivation of

life and personal liberty."

Bhanudas v Union of India, '8

Justice Jaswant Singh followed the majority view of A.D.M. Jabalpur

case and observed:

18. AIR 1977 SC. 102.

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"Presidential orders impose a blanket ban on any and every judicial

enquiry or investigation into the validity of an order depriving a person of his

personal liberty, no matter whether it stems from the initial order directing his

detention or from an order laying down the conditions of his detention, It has

to be borne in mind that the rule of law during the emergency is no other than

what is contained in chapter XVIII (dealing with emergency powers) of the

Constitution which is the positive and transcendental law."

The Supreme Court held that during the period or suspension of Article

21 and 22, detainees most of them were political detainees - could not

complain of prison conditions or prison rules regulating conditions of detention

even if they were unreasonable or harsher than those prescribed for persons

convicted of crimes. The basis of these two unfortunate judgments was- in

the words of the then chief justice Ray that:

"Liberty itself is the gift of the law and may by the law be forfeited or

abridged.The ministers of government, members of parliament, even the

President of India, all these functionaries failed the democratic fabric of India.

But such situations stimulated in people the realization that they could not

save freedom by mere relying on the constitution and existing constitutional

functionaries. There has to be a public feeling and upsurge for their cherished

rights not merely because they were in the constitution but they were believed

by right thinking people to be basic to civilized existence."

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Judiciary took several lessons and through its judgments in latter period

tried emphatically to protect the cherished rights of its citizens in a way that it

can not be encroached upon so easily by power holders.

8.4 THE ATTITUDINAL CHANGES OF COURTS- BEFORE AND

AFTER 1977:

India had been experiencing emergency and fetters of emergency

laws long from the days of British rule. During British rule before

independence, several emergency laws passed under Indian Council Act.

1861. They remained in existence for more than half a century, harsh laws

under Rowlett Act, Government of India Act 1919, Government of India Act.

1935, mainly were challenged 19

But judiciary showed its reluctance to interfere with the 'Government

satisfaction on the need of emergency'. Protections of civil liberty in contrast

to the Governmental decisions were not considered necessary and important.

A report was published pressing the attitude of courts during 1940s.20

A compilation of the judgments of the Federal Court, the subordinate courts

on Emergency laws delivered during 1942-43 shows that the Indian judiciary,

including its English members, acquitted itself most creditably during a period

of great stress.

19. Re Jewa Nathoo and Others AIR 1917, Shivanandan Prasad Singh v. Emperor
AIR1918, Jyoti Prasad v. Emperor AIR 1920, Channappa v Emperor AIR 1931

20. The Hindustan Times, New Delhi, 1943.

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Sec 102 of Defence of India rules 1931 was challenged21 The Federal

Court of India pronounced the long awaited trend setting judgment.

The court expressed its opinion- "Courts of law ought to abstain from

harsh and ungenerous criticism of acts done in good faith by those who bear

the burden and responsibility of government, especially in times of danger

and crisis, but we are not on that account relieved form the duty of seeing

that the executive government does not seek to exercise powers in excess

of those which the Legislature has thought fit to confer upon it, however

drastic and far-reaching those powers may be and however great the

emergency which they have designed to meet."

After independence during three emergencies many laws were enacted

under different acts. Conferring extra ordinary power on executives to meet

the crisis situations, the laws passed from time to time were challenged in

the courts. Legislation made to meet the emergency situations during such

periods always attempted to curb the power of judiciary as well as of citizens

to move the court for protection of their life and liberty.

The attitude of the court in such circumstances remained quite

challenging. Judiciary presents an interesting jurisprudence which shows

little hesitation in going against the governmental orders. In no judgment

21. Keshav Talpade v Emperor AIR 1943 FC.1.

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judiciary has specifically addressed the issue of whether or not the government

was right in enacting those laws.

Preventive detention laws continued to be used with its very adverse

effects on the life and liberty of countrymen.

The Court basically dealt with the problems of detention orders, barring

and court jurisdiction to deal with unjustified laws passed during emergency

period. Barring access to courts for redressal by general public, suspension

of Articles 14, 19, 21, and 22, undue prolongation of emergency were the

main issues. Other Preventive detention Act mainly the provisions of MISA

were challenged for its constitutional validity. It was argued before Supreme

Court that these Act violated Articles 14, 19, 21 and 22.

The Court showed its helplessness in reviewing the detention laws -

"The Court cannot review of the grounds and substitute its own opinion for

that of the authority The only requirement that could be read in to the statute

was that the detaining authority must exercise due care and caution and act

fairly in exercising that power. Though court showed its concern that Where

the liberty of the subject is involved, it is duty of the Court to satisfy itself that

all the safeguards provided by the law have been scrupulously observed and

the subject is not deprived of his personal liberty otherwise than in accordance

with law. It is, therefore, not only the right of the court, but also its duty as

well to examine what are the basic facts and material which actually be
 241

weighed by the detaining authority. The judicial scrutiny cannot be foreclosed

by a mere statement of the detaining authority that it has taken into account

only certain basic materials and though other basic facts and material were

before it, it has allowed them to influence its satisfaction.22

During Third emergency the powers of Supreme Courts and High

Courts were severely curtailed by number of changes made in their respected

jurisdiction. Under the most controversial 42nd amendment the powers of

the High courts to determine the constitutionality of laws was severely

restricted. The constitutional validity of central laws in future to be determined

only by the Supreme Court and not by High Court. A minimum of 7 judges

must sit and a two-thirds majority is required to hold a law invalid (Sees. 23

and 25). Only a two-thirds majority can strike down state laws.

Amendments of the Constitution are to be made questionable in the

courts only on procedural grounds, and not on the grounds that they are

inconsistent with the spirit or basic structure of the Constitution (s.55). (many

jurists have protested against this provision)The courts are no longer to be

allowed to see the internal rules framed under Article 77(3) of the Constitution

for the convenient transaction of government business (Sees. 14 and 28).

The qualifications for a High Court Judge (formerly 10 years practice

as a High Court advocate or in judicial office) are now extended to anyone

22. Khudiram Das Vs. State of West Benagal AIR 1975 S C. 550
 242

who is, in the opinion of the President (i.e. of the Cabinet), "a distinguished

jurist" (s. 36).

Provision was made in section 46 for laws setting up administrative

tribunals to determine a wide range of disputes, complaints or offences relating

to taxes, foreign exchange, imports and exports, industrial and labour disputes,

land reforms by state acquisition, parliamentary or state elections, supplies

of food and other goods declared essential, as well as disputes and complaints

with respect to civil service recruitment and conditions of service. The

jurisdictions of the ordinary courts on these matters were ousted (save for

the review power of the supreme procedure of the Tribunals).

In such circumstances despite adverse conditions the High courts of

different states took all the efforts to established and preserve Rule of Law.

But all their effort failed because of the infamous judgment of habeas corpus

case. The court said- 'in effect, if not in intent, that as to life and personal

liberty of laws in India were abrogated during the emergency'

Attitude of judiciary after 1977:-

The Third emergency was lifted in 1977. The judiciary faced severe

criticism both at. National and international level and 'it had tried hard to

reestablish its sanctity and faith of common people after habeas corpus case.'

By the judgment in A K Gopalan vs.State of Madras23 Supreme Court had

23. AIR1950SC27
 243

shut the doors to 'due process of law', it also held that Article 22 is a ':

contain code'. A full bench of 11 judges in Bank Nationalization Cast

disapproved the view of Gopalan. Smaller benches in dealing with challenge

to MISA Act 1971 25 accepted the position- that a law of preventive detention

had to be tested in regard to its reasonableness with reference to Article 19.

Few years later, in Maneka Gandhi26 a constitution Bench of the court held

that the words "except by procedure established by law" In Article 21 did not

open the door to any procedure established however arbitrary or fanciful, for

depriving persons of their life or liberty. The law had to satisfy the requirement

of reasonableness.

Since then the detentions made under preventive detention laws are

being construed very strictly against the detaining authority. Also the matter

relating to the validity of the orders issued by the President under Art. 359

and the laws passed and executive action taken thereunder.

The judicial attitude varied with the time. Broadly speaking, before

the internal emergency of 1975, the trend was to restrict the scope of Art.

359, during the internal emergency the darkness in the field of the right to life

24. AIR 1970 SC 564.

25. H. Sahai Vs.. State of Bengal, AIR 1974, SC. 2154 Khudi Ram Das v. State of West Bengal,
AIR 1975, SC.

26. AIR 1978 SC 597.

27. Pritam Nath Hoon v. Union of India, A.I.R. 1981, S.C 1992, Saleh Mohommed v. Union of India,
A.I.R. 1981, S.C. 111; Mrs. Hamida Qureishi Vs M.S. Kasbekar, A.I.R. 1981, S.C 489; Girdip
Singh v. Union of India. A.I.R. 1981, S.C 362; Shalini Soni Vs. Union of India. A.I.R. 1981, S.C
431; Tushar Thakkarv. Union of India, A.I.R. 1981, S.C 436, Mangalbhai Motiram Patel v. State
of Maharashtra, A.I R. 1981, S.C. 510.
 244

and personal liberty was made absolutely dark and Art. 359 were given the

sweeping role, but after the internal emergency the court stood up to protect

the dignity of citizens and realized its power.

The question whether and to what extent the court can review the

justification or validity of the proclamation of emergency was examined by

the Supreme court in Minerva Mills v. Union of India 2B. Justice Bhagwati

examined this issue thoroughly and held that there is no bar to judicial review

of the validity of a proclamation of emergency issued by the President of

India. His Lordship observed:

"Merely because a question has a political complexion, that by itself,

is no ground why the court shrink from performing its duty under the

Constitution, if it raises an issue of constitutional determination. It would not

therefore be right for the court to decline to examine whether in given case

there is any constitutional violation involved the President issuing a

proclamation of emergency".

The function of the court is only to see whether limits imposed by the

Constitution on the powers of the President have been observed or there is

transgression of such limits. It cannot, however, substitute its own satisfaction

for that of the President. His Lordship further observed and added;

"that the court cannot go into the question of correctness or adequacy of the

28. AIR 1978 SC 1296.

 245

facts and circumstances on which the satisfaction of the Central Government

is based. The satisfaction of the President is a condition precedent to the

exercise of power under Art. 352 (1), and if it cannot be shown that there is

no satisfaction of the President at all, the exercise of power would be

constitutionally invalid. Where, therefore, the satisfaction is absurd or perverse

or mala fide or based on a wholly extraneous and irrelevant ground, it would

be no satisfaction at all and it would be liable to be challenged before a

court."

But the plight of citizens regarding preventive detention powers

continued to be exercised under different Acts passed to meet the problem

in different parts of the country. During 80s till now India is facing secessionist

problems including acts of violence and terrorist activities in different parts of

country.

29
A K Roy vs. Union of India - The most important case in which

Supreme Court laid down certain safeguards essential to prevent the arbitrary

use of the power of detention granted by the Act.

Courts provided some guidelines regarding the procedure to be

adopted by Advisory Boards. Another important questions whether the

satisfaction of President is subject to review was dealt with though no definite

29. A. K. Roy v Union of India AIR 1982 SC. 710.

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answer was given through its Judgment C.J. Chandrachud Indicated that

President's 'satisfaction' is not immune from challenge.

The judges agreed that the executive was duty bound to bring the

amendment in to force and decried 'long and unexplained failure of the

government to do so'. Under Article 22 clauses (4) and (7) many safeguards

were given for people subject to preventive detention. The issues whether it

was permissible for the Supreme Court to issue mandamus compelling the

authority to bring into force these safeguards under the 44th amendment.

Regarding Terrorist and Disruptive Act 1985 and 1987 its validity

was challenged on various grounds. Largely the Court rejected most of the

challenges, stating that -treating the suspected terrorist in stricter ways is

within competence of parliament.

In Kartar Singh v State of Punjab 30 Court give its judgment on the

point of fairness of trial under TADA. Though court agreed to the sprit and

provisions of the Act. It triad to underline the importance of constitutional

guaranties of human rights. It recognized the speedy trial as important

fundamental rights and declared police brutality as violation article 21,20

and 32 of the constitution.

Through many other cases31 the Court established some qualification

30- (1994) 3 SCC 569 Act 621 -22

31 Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 JT SC. 25, Sanjay Dutt v.Union of
India (1994) 5 JR SC. 514.
 247

to the provision so that the detentions are made on most original grounds

and that the harshness of TADA were reduced.

An old Armed Forces Act. 1958 was successfully challenged by

Peoples union of human rights.30 Court provided sufficient guidelines for the

future safeguards regarding use of the Act, having regards to its impact on

human rights.

Analysis:

Though court has dealt with the emergency laws passed under different

Ordinances of the government, in detail, it ignored certain important issue

certain pronouncement are still awaited.

o Without official proclamation how far issuing such ordinances are

justified.

o No pronouncement explaining were Indian emergency provisions does

not correspond with international laws considering them to be

necessary for guidance and important checked in future.

o' Stricter observance definition of emergency has not been pronounced

as necessary prerequisite for declaration of emergency.

o Protection of human right is more important than dealing with the

question of legality of emergency power.

o Establishing unchallenged power of court of judicial review.

o Establishing national legal system of international standers in matters

as independence of judiciary, non-derogable rights,

o Stricter observance of International human rights norms.

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8.5 CONCLUSION

The independence of judiciary is often undermined during emergency

through various ways, for instance, removal of competent judges, replaced

by unqualified persons and the establishment of special courts. The tendency

to make judiciary a rubber stamp of government is not very uncommon

practice in a state of emergency.

Once the state authority proclaims emergency it automatically starts

exercising unlimited powers. The danger of this unchecked power is that the

state may resort to arbitrary methods to silent people opposing the

government. The suspension of the writ of habeas cropus, arbitrary arrest,

trial conducted not by competent courts (often manned by incompetent

persons) is common practice during time of emergency.

The only possible way to restrain the State from committing human

rights violations during the time of emergency is to make judiciary independent.

It is clearly stated in ICCPR, that every State has an obligation under Article

2(1) not only to respect human rights but also to ensure the protection of

these rights for the citizen. Thus, it is an obligation of a State to allow the

functioning of a competent and impartial court established by law not set up

arbitrarily. The independent Court should consist of professionally qualified

persons. "In true sense an impartial court is one which is demonstrably fair

to both parties to a case or free from any influence from the government.'The

domestic court is the appropriate body to judge the validity of emergency.

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The independence of judiciary is of utmost importance during

the period of emergency. A suspension of fundamental rights during this

period must pass through a strict scrutiny. For example- The U.S. Supreme

Court in Ex. Parte Milligan held that military Courts lacked jurisdiction to try

the defendant, who was a civilian of a State and upheld the authority of the

government during the civil war in which the ordinary Courts were open and

functioning without obstruction.

Keeping in mind all this, it is imperative to maintain the independence

of judiciary. Concrete efforts should be made in this direction by international

human rights instruments to make the rights unencroachable in time of

emergency. International human rights instruments must make 'the right to

an independent judiciary' a non derogable right. Independence of judiciary

would help substantially in preventing the abusive exercise of emergency

powers by the executive.

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