NATIONAL EMERGENCY AND FUNDAMENTAL RIGHTS -BY: MOHIT SHARMA1
IntroductionFederal government according to Bryce, is a weak government because it involves a division of power. Every modern federation, however, has sought to avoid this weakness by providing for the assumption of larger powers by the federal government whenever unified action is necessary by reason of emergent circumstances, internal or external. But while in countries like United States this expansion of federal power takes place through the wisdom of judicial interpretation, in India, the Constitution itself provides for conferring extraordinary powers upon the union in case of different kinds of emergencies. As has been stated earlier, the emergency provisions of our constitution enable the federal government to acquire the strength of a unitary system whenever the exigencies of the situation so demand. The constitution provides for three different kinds of abnormal situations which call for a departure from the normal governmental machinery set up by the constitution:i. ii. iii.
An emergency due to war, external aggression or armed rebellion [Art. 352]. It is also known as „national emergency‟. Failure of constitutional machinery in states [Art. 356]. Financial emergency [Art. 360].
Here, in this research paper I will be discussing about the National Emergency and the restriction posed on fundamental rights by the government during the National Emergency, by comparing the provisions of emergency in different countries including that of United States of America and Germany (Weimar government and Nazi government).
Fundamental Rights and Emergency (a short introduction)Fundamental rights are enshrined in part III of the constitution. They are part of those rights which are necessary for the survival of human being with dignity. These rights have been incorporated in the „fundamental law of the land‟, i.e. the constitution of India and one can approach courts in case of violation of these rights. These rights reflect a desire of the founding fathers of Indian constitution to build a new social order. For example, there are rights declaring practice of untouchability an offence or conferring certain culture and educational rights on minorities, both linguistic as well as religious. Moreover, the given rights are not absolute but subject to some reasonable restrictions. For example, the right to freedom of speech and expression can be restricted on the grounds of morality, public order or decency and national security. The fundamental rights can be suspended during national emergency (art.352), only exception being right to life. These rights can be classified under six heads depending upon their scope and nature. Right to equality (art 14-18), Right to freedom (art 19-22), Right against 1
SEM II SEC-B ROLL NO-118 NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, Ranchi
exploitation (art 23-24), Right to freedom of religion (art 25-28), cultural and educational rights ( art 2930), Right to constitutional remedies (art 32) in 1978, right to property mentioned in art 31 was repealed by the 44th amendment act as it was found contrary to other fundamental rights particularly the right to equality. It, however, has been reallocated to art 300a of part xii as a legal right now.
History of Emergency ProvisionEmergency powers, even if parceled out incrementally, have corrosive consequences. Indeed, incremental measures attract less attention and render the extra ordinary normal in the public eye. Hence they may be more dangerous than sweeping seizers of emergency powers. The US experience with emergency powers in the second half 20th century highlights this risk, and casts into relief legislature‟ responsibility for the development of emergency powers. Like the USA‟s founding document, India‟s constitution, drafted between December 1946 and December 1949, was established in the rosy glow of independence from colonial domination. Emergency protocols were debated until August 1949, and were so contentious that at one point they had to be withdrawn for further attention from the drafting committee. The eventual provisions on emergencies, comprising nine articles in part XVII of the constitution, were partly inspired by the US habeas corpus suspension clause, and permitted a president, „for the purpose of removing any difficulties‟, to make „such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary‟. Internal disturbances, external aggression and threats to the fiscal credit or stability of the nation could justify such action. Measures had to be set before Parliament, and would expire automatically after two months unless they received a parliamentary seal of approval. For the duration of an emergency, in addition, judicial enforcement of any right specifically named by presidential order could be prohibited. Such an order could apply to all or part of the country, and could last for all or part of an emergency.
Emergency provision under the Weimar constitution (Germany)Article 48 of the constitution of the Weimar Republic of Germany (1919–1933) allowed the President, under certain circumstances, to take emergency measures without the prior consent of the Reichstag (German parliament). This power was understood to include the promulgation of "emergency decrees (Notverordnungen)". The text of the Article did not precisely define the kind of emergency that would justify its usage, and did not expressly give the President the power to enact, issue or otherwise promulgate legislation. However, such an inherent Presidential legislative power is fairly to be implied, since the Article expressly gives the Reichstag the power to cancel the emergency decree by a simple
majority vote, and this parliamentary power implies that the issuance of the decree could, by its express terms or its operation, impinge on the Reichstag's constitutional function.2 Article 48 did require the President to inform the Reichstag immediately of the issuance of the emergency decree, and it permitted the Reichstag to nullify the emergency decree by simple majority action, but the upper house of the Reichsrat was not involved in this process at all.3 If the Reichstag objected to the emergency decree, it could retaliate by nullifying the decree by majority action, but the President could in effect counter-retaliate under Article 25 and dissolve the Reichstag, and call for new elections within 60 days.
History – Following the Treaty of Versailles, there was a period of hyperinflation in the Weimar Republic between 1921 and 1923, the Occupation of the Ruhr between 1923 and 1925. Friedrich Ebert, a Social Democrat and the Republic's first President, used Article 48 on 136 occasions, including the deposition of legitimately elected governments in Saxony and Thuringia when those appeared disorderly.4On 29 August 1921 an emergency proclamation was issued limiting the wearing of imperial military uniforms to current military members. 5 Ebert had granted Cuno considerable latitude under Article 48 to deal with the inflation and matters related to the mark. The Emminger Reform of 4 January 1924 abolished the jury system as triers of fact within the judiciary of Germany and replaced it with a mixed system of judges and lay judges which still exists today.6 Article 48 was used by President Paul von Hindenburg in 1930 to deal with the economic crisis of the time. During spring and summer 1930, Chancellor Heinrich Brüning7 found his government unable to obtain a parliamentary majority for its financial reform bill, which was voted down by the Reichstag.8 The government, however, did not seriously try to negotiate with the Parliament to find a modus vivendi. Instead, Brüning asked Hindenburg to invoke Article 48 in order to promulgate the bill as an emergency decree and thereby give Brüning's government
2
Mommsen, Hans (1998). The Rise and Fall of Weimar Democracy. UNC Press. pp. 57– 58. ISBN 0807847216. ("Mommsen")(confirming that only a simple majority of Reichstag was necessary to overturn an emergency decree) 3 Evans, Richard J. (2004). The Coming of the Third Reich. Penguin. pp. 80–84. ISBN 1594200041 4 Evans, Richard J. (2004). The Coming of the Third Reich. Penguin. pp. 80–84. ISBN 1594200041 5 "100,000 Berliners Rally for Republic". New York Times. August 31, 1921. pp. 1, 6 Graham, Malbone Watson; Binkley, Robert Cedric (1924). New Governments of Central Europe. p. 499 6 Kahn-Freund, Otto (January 1974). "On Uses and Misuses of Comparative Law". Modern Law Review 37 (1): footnote 73, p. 18. JSTOR 1094713 7 He was appointed Chancellor on 30 March 1930 after considerable political intrigue 8 On 16 July the Chancellor presented his wide ranging financial bill to the Reichstag; it sought, among other things, the reform of government finances through both higher taxes and decreases in government spending (an obviously deflationary policy). The government bill was rejected by the Reichstag, by a vote of 256 to 193
the authority to act without the consent of the Reichstag.9 When von Hindenburg gave his authority and issued the decree, the Reichstag repudiated the decree by a slight majority10 on July 18, 1930. Under Article 48, this vote by a majority of the Reichstag invalidated the presidential decree. Faced with a breakdown of parliamentary rule at a time when the economic situation demanded action, Brüning asked von Hindenburg to dissolve parliament and call for new elections. The Reichstag was accordingly dissolved on 18 July and new elections were scheduled for 14 September 1930.11 The election produced increased representation in the Reichstag for both the Communists and, most dramatically, for the Nazis, at the expense of the moderate middle-class parties.12 Forming a parliamentary majority became even more difficult for Brüning. In fact, just to conduct the normal business of government, he was forced to repeatedly invoke Article 48 several times between 1930 and 1932. Subsequent governments under chancellors Franz von Papen and Kurt von Schleicher during the tumultuous year 1932 obtained President von Hindenburg's decree of legislation under Article 48 when they too found it impossible to obtain a parliamentary majority as the extremist parties on the Left and Right gained power. The invocation of Article 48 by successive governments helped seal the fate of the Weimar Republic. While Brüning's first invocation of a Notverordnung may have been well-intentioned, the power to rule by decree became increasingly used not in response to a specific emergency but as a substitute for parliamentary leadership. The excessive use of the decree power and the fact that successive chancellors were no longer responsible to the Reichstag likely played a significant part in the loss of public confidence in constitutional democracy, in turn leading to the rise of the extremist parties.
Nazi government9
This was, in fact, the first time that a bill which had been legislatively rejected was later promulgated by way of executive decree, and the constitutionality of such "second bite at the apple" tactics has been questioned. Kershaw, pp. 320-325. 10 The Social Democrats cooperated with the Nazis to reject the decree, as did Alfred Hugenberg's Nationalists and the Communists. See Maehl, The German Socialist Party, p. 168. The decree was voted down, by a vote of 236 to 221 11 Under the constitution, new elections had to be held within 60 days of the dissolution. Historians have not been kind to Bruning. According to Maehl, the Chancellor "foolishly" (Maehl, p 168) dissolved the Reichstag as a result of the financial imbroglio, p. 168. The decision to dissolve parliament was, in Kershaw's phrase, one of "breathtaking irresponsibility." Bruning had stunningly misjudged the discontent and anger within the country. It is difficult to avoid the conclusions that (a) the democratic processes -- namely, parliamentary negotiation to achieve a working majority, either on a single piece of legislation or on a legislative program-- were just too difficult for this cast of characters and (b) the parties were too parochial and self-interested to cooperate in the greater interests of the whole. pp. 324-25. Kershaw, Vol 1: Hubris. 73-75, 167 Collier. Collier maintains that this single act -- the dissolution in the face of a legitimate exercise by the Parliamentary body of its constitutional authority --was one of them most crucial steps in the Nazi rise to power, as it demonstrated the contempt with which the President and his advisers held the concept of democracy and the function of the Reichstag. "It ...marks the shift from parliamentary ... to presidential government....[which] gave the Nazis a 'legal' route to success that Hitler so needed." p. 167, Collier and Pedley. 12 The Nazis increased their seats from a pitiful 12 to a respectable 107, out of a total of 577, becoming the second largest party in the Reichstag as a result; only the Social Democrats were larger at 143 seats
On January 30, 1933, Adolf Hitler was named Chancellor of Germany. Lacking a majority in the Reichstag, Hitler formed a coalition with the Nationalists. Not long afterwards, he called elections for March 5. Six days before the election, on February 27, the Reichstag Fire damaged the house of Parliament in Berlin. Claiming that the fire was the first step in a Communist revolution, the Nazis used the fire as a pretext to get President von Hindenburg to sign the Reichstag Fire Decree, officially the Verordnung des Reichspräsidenten zum Schutz von Volk und Staat (Presidential Decree for the Protection of People and State). Under the decree, issued by von Hindenburg on the basis of Article 48, the government was given authority to curtail constitutional rights including habeas corpus, free expression of opinion, freedom of the press, rights of assembly, and the privacy of postal, telegraphic and telephonic communications. Constitutional restrictions on searches and confiscation of property were likewise suspended. The Reichstag Fire Decree was one of the first steps the Nazis took toward the establishment of a single-party dictatorship in Germany. With several key government posts in the hands of Nazis and with the constitutional protections on civil liberties abolished by the decree, the Nazis were able to use police power to suppress, intimidate, and arrest their opposition, in particular the Communists. Hitler's subversion of the Constitution under Article 48 thus had the mark of legality. The March 7 elections gave the Nazi-mvp coalition a narrow majority in the Reichstag. Nonetheless, the Nazis were able to maneuver on March 23, 1933 the passage of the Enabling Act by the required two-thirds parliamentary majority, effectively abrogating the authority of the Reichstag and placing its authority in the hands of the Cabinet (in effect, the Chancellor). Over the years, thousands of Hitler's decrees, such as those that abolished all other political parties apart from the Nazis and enlarged Hitler's powers, were based explicitly on the Reichstag Fire Decree, and thus on Article 48. The misuse of Article 48 was long gone in the minds of the framers of the Basic Law for the Federal Republic of Germany. They decided to significantly curb the powers of the president, to a point merely ceremonial. Also, to prevent a government from being forced to rely on decrees to carry on normal business, they stipulated that a chancellor can only be removed from office if there is already a positive majority for a prospective successor.
Article 48 of the Weimar Constitution (Germany)Wenn ein Land die ihm nach der Reichsverfassung oder den Reichsgesetzen obliegenden Pflichten nicht erfüllt, kann der Reichspräsident es dazu mit Hilfe der bewaffneten Macht anhalten. 13
13
In the event of a State not fulfilling the duties 14 imposed upon it by the Reich Constitution or by the laws of the Reich, the President of the Reich may make use of the armed forces to compel it to
The German term Land translates into English most appropriately as "state", as Weimar Germany, like Germany under the monarchy until 1918 and the modern Federal Republic, was a federation consisting of several Länder with some degree of autonomy. 14 Reich translates literally as "empire" or "realm". The term persisted even after the end of the monarchy in 1918. The German state's official name was therefore Deutsches Reich through the Weimar Republic and to the end of World War II.
do so. Der Reichspräsident kann, wenn im Deutschen Reiche die öffentliche Sicherheit und Ordnung erheblich gestört oder gefährdet wird, die zur Wiederherstellung der öffentlichen Sicherheit und Ordnung nötigen Maßnahmen treffen, erforderlichenfalls mit Hilfe der bewaffneten Macht einschreiten. Zu diesem Zwecke darf er vorübergehend die in den Artikeln 114, 115, 117, 118, 123, 124 und 153 festgesetzten Grundrechte ganz oder zum Teil außer Kraft setzen.
If public security and order are seriously disturbed or endangered within the Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153.
Von allen gemäß Abs. 1 oder Abs. 2 dieses Artikels getroffenen Maßnahmen hat der Reichspräsident unverzüglich dem Reichstag Kenntnis zu geben. Die Maßnahmen sind auf Verlangen des Reichstags außer Kraft zu setzen.
The President of the Reich must inform the Reichstag without delay of all measures taken in accordance with Paragraphs 1 or 2 of this Article. These measures are to be revoked on the demand of the Reichstag.
Bei Gefahr im Verzuge kann die Landesregierung für ihr Gebiet einstweilige Maßnahmen der in Abs. 2 bezeichneten Art treffen. Die Maßnahmen sind auf Verlangen des Reichspräsidenten oder des Reichstags außer Kraft zu setzen.
If danger is imminent, a State government may, for its own territory, take temporary measures as provided in Paragraph 2. These measures are to be revoked on the demand of the President of the Reich or of the Reichstag.
Das Nähere bestimmt ein Reichsgesetz.
Emergency provisions under the Indian constitutionPart XVIII of the constitution permits the state to suspend various civil liberties and the application of certain federal principles during presidential proclaimed states of emergency. The constitution for three categories of emergencies: a threat by, war of external aggression or by internal disturbances; a, failure of constitutional machinery in the country or in a state; and a threat to the financial security or credit of the nation or a part of it. Under the first two categories, the Fundamental Rights, with the exception of protection of protection of life and liberty, may be suspended, and federal principles may be rendered inoperative.
National Emergency (article 352,353,354,355,358 and 359)National emergency is caused by war, external aggression or armed rebellion in the whole of India or a part of its territory. Such an emergency was declared in India in 1962(Indo-China war), 1965(Indo-pak war), 1971 and 1975(declared by Indira Gandhi to maintain law and order in the country). The President can declare such an emergency only on the basis of written request by the Council of Ministers headed by the Prime Minister. Such a proclamation must be approved by the parliament within
one month. Such an emergency can be imposed for six months. It can be extended by six months by repeated parliamentary approval. In such an emergency, fundamental rights of the Indian citizens can be suspended. The six freedom under right to freedom are automatically suspended. However, the right to life and personal liberty cannot be suspended. It modifies the formal system of government to the unitary one. The parliament can make laws on 66 subjects of state list (which contain subjects on which state government can make laws). Also all money bills are referred to the parliament for its approval. The term of Lok Sabha can be extended by the period of one year but not more than six months from the date when emergency has ceased to exist. Effect of national emergency on the fundamental rightsThese are some cases where the fundamental rights infringes during the national emergencyMakhan Singh Vs State Of Punjab15: Emergency was declared on an earlier occasion during the Indo-China war. At that time the right to move any court for the enforcement of articles 14,21 and 22 was suspended under Article 359 only for the persons detained under the Defence of India Rules(DIR), the preventive detention law at that time. It was partial suspension. Supreme Court interpreted it to mean that rights were suspended only for legally detained persons. So if a person was illegally detained under DIR, he could maintain the Habeas Corpus petition. It was for the first time during emergency imposed on 26th June 1975, that articles 14,19,21 and 22 were suspended in the entirety, without any reference to any law. This time when detenues filed Habeas Corpus petitions, a question was raised that Article 21 being sole respository of liberty has been suspended in its totally, no writ of Habeas Corpus is maintainable. The government also sought to distinguish the earlier case of Makhan Singh on the different phraseology of the notification suspending the notification suspending the rights. Almost all the High Courts decided this question against the government. And on this issue the matter was taken in appeal to the Supreme Court. The Supreme Court held that it was impossible to accept that only right that can be suspended by an order made under article 359(1) was right guaranteed under article 32(1) to move to the Supreme Court for the enforcement of fundamental rights and a citizen would be free to seek relief from high court under art.226, article 32(3) which enable parliament to empower any other court to exercise all or any of the power exercisable by the Supreme Court.
The Supreme Court pointing out that a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus if his detention had been malafide. In another case Maharashtra state v. Prabhakar16 the Supreme court held that if a person was deprived his personal liberty not under the Defence of India act, or any rule made there under but the contravention thereof, his right to move the said court in that regard would not be suspended. Similarly in Ram Manohor Lohia v. State of Bihar17 the Supreme court held that the order of 15
1964 AIR 381 (1969) 71 BOMLR 500 17 AIR 1966 SC 740 16
the president did not form a bar to all applications for release from the detention under the act or rule. Where a person was detained in violation of the mandatory provision of the Defence of India act his right to move the court was not suspended. In Mohd. Yaqub v. State of Jammu and Kashmir18 the Supreme Court held that an order by the president under article 359(1) was not law within the meaning of article 13(2) and therefore its validity cannot be challenged with reference to the provision of part III. Thus if the order suspends the enforcement of article 14, if cannot be challenged on the ground that it is discriminatory under article 14. The validity of the order cannot be tested under the very fundamental rights, i.e. article 14, which it is suspended. Here the Supreme court overruled its own decision in Ghulam Sarwar v. Union of India19 , wherein it had held that the presidential order issued under article 359 (1) could not be challenged as being discriminatory. In the case of ADM Jabalpur Vs Shiv Kant Shukla 20Article 21 of the Constitution guarantees right to the life and liberty. Right to move to the court to enforce Article 21 was suspended under Article 359 of the Constitution during internal emergency (1975-77).. In this case the Presidential Order referred to was the one issued during Emergency declaring that the right of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of the above mentioned rights shall remain suspended for the period during which the Proclamation of Emergency are in force.
Judicial reviewMarking the black day of Indian legal history, the Supreme Court rejected the arguments of the Respondents and held that Article 21 of the Constitution was the sole repository of right to life and liberty and therefore, the suspension of it implied that all the remedies protecting this right under any other law shall also be suspended. The Court while construing Article 21 as the sole repository of life and personal liberty denied all available remedies to the detenus on any ground that any challenge to the detention order for the enforcement of the right to personal liberty under Article 21 could not be so done on account of the presidential order suspending it being in force. The majority further held that even the order of detention could not be challenged even on any other ground, even if the detention order was passed malafide, rendering the detenu without any remedy even against an illegal detention. Therefore, the Court declared, “in view of the Presidential Order dated June 27th , 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is
18
AIR 1956 SC 197 1967 AIR 1335 20 (1976) 2 SCC 521 19
based on extraneous considerations”, closing its doors to any sort of relief whatsoever to any person suffering from illegal detention. But now, after 44th constitutional amendment Article 21 of the Constitution; right to life and liberty, now cannot be suspended. Not even during emergency, 44th Constitutional Amendment Act, passed unanimously, ensured it. It is instructive to look back on the Habeas Corpus case during internal emergency (1975-77), the reason for 44th Constitutional Amendment Act and Leversidge Vs Anderson21 which played such an important role before the Supreme Court.
The 44th Amendment act, 1978It has made two important change in article 358: I.
II.
Article 19 will suspend only when a proclamation of emergency is declared on the ground of war or external aggression and not when the emergency declared on the ground of armed rebellion. It has inserted a new clause (2) in article 358 which says that nothing in clause (1) shall apply to- (a) any law which does not contain a recital to the effect that such a law is in relation to the proclamation of emergency, or (b) to any executive action taken otherwise than under a law containing such a rectal. This clause make it clear that art. 358 will only protect emergency laws from being challenged in court of law and not other laws which are not related to the emergency. Prior to this, the validity of even other laws, which were not related to emergency, could not be challenged under article 358.
The 59th amendment has amended art. 358 and has inserted the word “ or by armed rebellion, or that the integrity of India is threatened by internal disturbance in the whole or any part of the territory of Punjab” after the words” or by external aggression”. This means that, in case of Punjab, the right guaranteed by the art. 19 will be suspended also when emergency is declared on the ground of armed rebellion or internal disturbance” The proclamation of emergency, however, does not invalidated a law which was valid before the proclamation of emergency. In M. M. Pathak v. Union of India22 the supreme court had an occasion to consider the effect of the expression “the thing done or omitted to be done” in article 358 after proclamation of emergency ceases. In that case a settlement was arrived at between the LIC of India and its 21 22
(1942) AC 206 AIR 1978 SC
employee in 1977 under which the LIC had agreed to pay in cash bonus to its employee. In 1977, however by the LIC (modification of settlement) act, 1976 passed by the parliament during emergency the settlement was made ineffective and therefore the employee could not demand their bonus while the emergency was in force. The employee of the LIC challenged the constitutional validity of the above act. The supreme court held that the effect of proclamation of emergency on fundamental right guaranteed by article 14 and 19 are not suspended during emergency but their operation will suspended. This means that only validity of an attack based on article 14 and 19 is suspended during emergency. But once this embargo lifted article 14 and 19 of the constitution, whose use was suspended, would strike down any legislation which would have been invalid. In other words, that the declaration of validity is stayed during emergency. The expression “the things done or omitted to be done” occurring in article 358 does not mean right conferred is washed off completely. The expression interpreted very narrowly. Therefore, as soon as the emergency over, the settlement would revive and what could not be demanded during the period of the emergency would became payable even for the period of emergency for which payment was suspended. In other words the enactment will have even after the emergency had ceased. The valid claims can not be washed off by the emergency per se. they can only be suspended by a law passed during the operation of article 358 and article 359 (1). Suspension of fundamental rights, however even during a period of national emergency is an utterly undemocratic practice whatever may be the case in its favour. Its immediate result is that a sanctuary of human rights which has been a prohibited area for the executive is thrown open for its unrestricted action. In the process, individual liberty is bound to suffer. For, where the executive is at liberty to act with impunity, abuse of power becomes to suffer, for, where the executive is at liberty to act with impunity, abuse of power becomes its natural concomitant. Hence, there is great need for parliament to be extra vigilant and create, if necessary, a suitable machinery which could review every case of curtailment of the individual freedom. If emergency is used as a cover for political gain or vindictiveness by the parity in power, it will amount to a fraud on the constitution. In contrast of the demands of national emergency declared under article 352, fundamental rights were never suspended during any of the emergencies proclaimed in the states. That remains a good precedent. Even during a national emergency, suspension of fundamental rights should be restricted to the absolute minimum. There have been no instances so far of the union executive ignoring parliament in ht name of emergency except perhaps during the comparatively short period of internal emergency. The apprehension that the president may act emergency provisions have been on the whole justified when viewed from the experience of the past. as a dictator is not one of the acute discomforts of our political thinking.
Conclusion: National Emergency has been declared in our country three times so far.
For the first time,emergency was declared on 26 October 1962 after China attacked our borders in the North East. This National Emergency lasted till 10 January 1968, long after the hostilities ceased. For the second time, it was declared on 3 December 1971 in the wake of the second IndiaPakistan War and was lifted on 21 March 1977. While the second emergency, on the basis of external aggression, was in operation, third National Emergency (called internal emergency) was imposed on 25 June 1975. This emergency was declared on the ground of „internal disturbances‟. Internal disturbances justified impositin of the emergency despite the fact that the government was already armed with the powers provided during the second National Emergency of 1971 which was still in operation.
AND
AS
WE
DISCUSSED
IN
EARLIER
POINTS,THAT
AFTER
1978
THE
WORD”INTERNAL DISTURBANCES” WAS SUBSTITUTED BY “ARMED REBELLION”. TO NARROW THE VIEW OF DISTURBANCES ANT TO REMOVE THE VAGUENESS AND AMBIGUITY. The basic need for an emergency occurs whenever there is imbalance within the country, whether wholly or partly. The ultimate aim and object of every government or political entity is to secure good life and safe life to its citizen, and the time we say citizen it means the public of country at large. Whether we talk about the first emergency caused by china attack or the second or the third emergency, in all the cases the social equilibrium of the country was imbalanced and security of citizen was on the stack. Emergency though suspend the fundamental rights excluding those conferred in art.20 and art. 21, it does transfer the powers from the hand of state government to the hand of central government. But this all phenomenon took place just to secure its citizen. This is what the concept and policy of “welfare state”-“greatest happiness to greatest number”
Fundamental rights are given to individual, and the only reason they are suspended during an emergency is to secure the people of country at large. Social interest is always upper then that of individual interest.
