CONSTITUTION ASSIGNMENT

OBJECTIVE: Critical Analysis of

emergency provisions under
constitution of India.

SHELJA SAINI
UID: 21BCL1040
 ACKNOWLEDGMENT
Firstly, I would like to thanks my professor Mr. Sumit Sharma , who
guided me this project. Their valuable feedback and suggestions helped
me to improve my work and take it to the next level. Their expertise and
support were instrumental in the successful completion of this project.

Furthermore, I would like to thank all the individuals who provided me

with the necessary resources and information to carry out this prosect.
Whether it was through interviews, surveys. or online research, your
contribution was crucial to our success.
INTRODUCTION

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.

“In a variety of occasions, the courts have discussed the effect of the
declaration of an emergency on compulsory incarceration, the effect of the
revocation of Article 19 of the Emergency Proclamation and on the effect,
according to Article 359, of the President’s order. These decisions are debated
as and where necessary.” Dr. B.R. Ambedkar advocated the idea of India as a
federal republic, stating that even though citizen’s are split into separate
nations, they are representatives of India, which really is a federation of the
countries.

The concession of emergency powers was debated but Dr. Ambedkar said
those papers would never work and remained dead letters. However, it was
seen that Article 356 is furthermore violated, abused but scarcely used.

“Emergency, according to the Black Law Dictionary, demands urgent

intervention and imminent warning because such a circumstance poses a
danger to people and liberty within the region. The socioeconomic structure
struggles to achieve fair working standards. The definition of emergency has
become a political phenomenon. The key idea of creating clear legislative
arrangements for crises was to safeguard against the accidental advent of
autocracy in conjunction with domestic chaos, foreign assault, or war.

There is indeed a different aspect for all the emergency clauses contained in
the Constitution Of India. Consequently, Part XVIII is an aspect of our
Constitutional creativity. Often a country is surpassed by incidents and powers
that place its stability and the wellbeing of its people critically at risk. It is
unpredictable. Such conditions could entail the temporary suspension of the
individual freedoms of people to resolve the threats facing the world.
 EMERGENCY DEFINITION
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”

TYPES OF EMERGENCY IN THE INDIAN

CONSTITUTION
The State may override the different individual freedoms in the presidential
state of emergency and enforce those federal standards in Section XVIII of the
Constitution.

Article 352 to Article 360 of the Indian Constitution allows for emergency
arrangements.

 National emergency (Article 352)

 State emergency (Article 356)
 Financial emergency (Article 360)
Grounds for the Proclamation of Emergency

NATIONAL EMERGENCY (Article 352)

Grounds for the proclamation of National Emergency are as follows:
War
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.
External Aggression
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.
Armed Rebellion
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.

STATE EMERGENCY (Article 356)

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.

FINANCIAL EMERGENCY (Article 360)

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.

Reasons for emergency in India

National Emergency: 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-

 War
 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.

State Emergency: 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:

1. When there is Constitutional non-conformity by the State with the

direction of Union
2. When there is a political crisis in the State.
3. When there is an internal subversion in the State.

Financial Emergency: 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 millions.

EMERGENCY PROVISIONS
1. Article 352: Proclamation of Emergency.
2. Article 353: Effect of Proclamation of Emergency.
3. Article 354: Application of provisions relating to the distribution of
revenues while a proclamation of emergency is in operation.
4. Article 355: Duty of the Union to protect States against external
aggression and internal disturbance.
5. Article 356: Provisions in case of failure of constitutional machinery in
State.
6. Article 357: Exercise of legislative powers under Proclamation issued
under Article 356.
7. Article 358: Suspension of provisions of article19 during Emergencies.
8. Article 359: Suspension of the enforcement of the rights conferred by
Part III during emergencies.
9. Article 360: Provisions as to Financial Emergency.
 ARTICLE: 352
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:

 War
 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 STUDY

Indira Nehru Gandhi vs. Shri Raj Narain & Anr

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.

Facts:

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 and 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.

Issues:

Whether the 39th Constitutional (Amendment) Act, 1971 was Constitutionally

valid?

Judgement:

Referring to the landmark judgment of Kesavananda Bharati v. State of Kerala

for the first time the Supreme Court observed that Clause 4 often 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.

ARTICLE 356:
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.
Article 360:
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

Background
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

1. 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.
2. The demonstration was organised by the opposition under the
supervision of Jayaprakash Narayan.
3. The relationship between the Judiciary and Legislative become weak as
Parliament’s amendment of the Fundamental Rights was opposed by the
Supreme Court.
4. An agitation that was launched in Gujarat in 1974 by the opposition
party.

Consequences

1. Freedom of the Press was suspended and Indian Raj Censorship was
imposed under which newspapers get prior approval for publication.
2. Fundamental Rights of the citizens were suspended.
3. Opposition leaders were arrested and strikes were banned.
4. 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.
5. Provision of Habeas Corpus was neglected nullifying the rights of citizens
under Article 21.

Effects

1. It led to the political crisis and Constitutional crises on the Indian polity.
2. Many new political parties emerged after 1977.
3. Emergency showed its impact on 1977 Lok Sabha election as Janta Party
won the election.
 4. Fundamental Rights of the citizens were strengthened.
5. 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:-

1. It deprives the citizens of their Fundamental Right.

2. The Freedom of Media was suspended.
3. Emergency overturned the Constitution.
4. 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[11]

Background
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.

Issues

1. Whether writ of Habeas Corpus is maintainable by the High Court

questioning illegal detention when an emergency was imposed by the
President?
2. Whether suspension of Rights and Liberty of any person under Article 21
is valid under Rule of Law?
3. Whether detenue have locus standi during the proclamation of
emergency?

Judgement

Supreme Court observed that under Article 359 clause 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 of
Maintenance of Internal Security as constitutionally valid.
 Conclusion
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 recognise the
Fundamental Rights of citizens during emergencies. There was a need to
change the mechanism and it was done in Kesavananda Bharati’s case.