CHAPTER VI - Information and Library Network...
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CHAPTER VI
Evaluation of the emergency provisions of the Indian Constitution
in the context of global standards
6.1 Introduction
6.2 Definit ion and requisites of Emergency under
International Documents
6.3 Definition and requisites of emergency under Indian
constitution-comparative
6.4 Just i f iab i l i ty of declarat ion of emergency -
Comparative
6.5 Judicial control of emergency powers- Comparative
6.6 Expanding range of non - derogable rights.
6.7 Comparison with other countries
6.8 Relevance of traditional ideal emergency norms and
present practices.
6.9 Conclusion
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6.1 INTRODUCTION
The term emergency connotes a sudden, urgent, usually unforeseen
event or situation, which requires an immediate action, often, without having
time for prior reflection and consideration.1
Emergency recognizes the right of every sovereign State to take all
reasonable steps needed to protect and preserve the integrity of State. There
is hardly any modern constitution which does not recognize the right of the
executive to suspend the normal rule of government including the rights and
freedoms of citizens, during periods of crisis.
The powers so conferred give vast scope. The administration gets
ability to encroach upon the fundamental rights and civil liberties of an
individual. It permits the government regulations in to all aspects of human
activities. The possibility of their abuse emphasizes the need for clearly
defining the situation in which they may be invoked.
There is immense need for consensus as to when a public emergency
will occur. When exactly State is allowed under international norms to derogate
from its obligations to respect and ensure human right.
1. Oxford English Dictionary. 5th Edition, 1993 p 806
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Different terms have been used under different systems in the world
to express the crises situation which justify resort to extraordinary measures
i.e. state of emergency, state of civil emergency, state of siege, stat of war,
state of internal disturbance, state of exception, state of alarm, state of
urgency, state of national defence, state of national necessity, state of special
powers state of suspension of guarantees, general or partial mobilization,
military regime and martial law.2 Terms that signify emergency varies from
constitution to constitution reflecting their own historical experiences. In
municipal laws great variety of grounds for declaring a state of emergency
can be found. But one thing is certain that these above terms have been
described as constituting 'exceptional circumstances" which temporarily
disturbs the social order of the nation. Circumstances of a generally political
character involve extreme and imminent danger threatening the organized
existence of nation, which may be defined as follows-
'A crisis situation affecting the population as a whole and constituting
a threat to the organized existence of the community which forms basis of
the State'.3
There can be found difference in concepts at municipal level and that
envisaged in three treaties, as the State sometime mentions less grave
situation which may not be considered as grave as constituting grave threat
to the State.
2, Gross O- Human Rights- An Agenda For The 21st Century, Chapt. 5
3 Questiaux N: Study of the Implication of human rights of recent developments concerning situation known as state of siege or emergency, Geneva, UN Doc E/CN4/ Sub 2/1982/15 '27 July 1982.
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The Paris minimum standards of Human Rights In its comprehensive
study of the regulation and limits of governmental exercise of emergency
powers include the defacto state of emergency, the permanent state of
emergency, institutionalization of the emergency regime and complex states
of emergency, following the pattern outlined in the Questiaux Report.
The Report on the norms in a state of emergency represent eight
years of study by the International law Association from 1976-84, during
which the Association worked to develop minimum standards for a rule of
law in states of emergency.4
The implementation bodies in turn have their own interpretation of the
term of emergency. How far the Indian concept of emergency corresponds
to the international provisions, in order to determine this fact the precise
definition of emergency that has been so far accepted internationally has to
be construed first. Also by knowing where do the Indian concept of emergency
stands in the light of global concepts of emergencies will help to understand
how far the precautions and the protections under international documents
apply in Indian circumstances.
4. The work was primarily conceived and undertaken for the ILA by Subrata Roy Chowdhury, a noted Indian human rights lawyer.
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6.2 DEFINITION AND REQUISITES OF EMERGENCY UNDER
DIFFERENT INTERNATIONAL DOCUMENTS
Definition
International documents like ICCPR, ECHR, ACHR are the three
treaties which basically contain the 'derogation' clause. But even these three
international treaties do not define emergency similarly, in spirit and principle
the three treaties provide similar concept but as far as wordings are concerned
they differ from each other.
The first document European convention on human rights introduced
the concept of derogation.5 State parties could legally suspend their obligation
to respect and enforce the rights contained in the convention during times of
'war or other public emergency threatening the life of the nation.' The
American Convention opted for 'war, public danger or other emergency that
threatens the independence or security of a state party'6 and the ICCPR for
'Public emergency which threatens the life of the nation'.7
The phraseology concerning the kind of emergency situation justifying
derogation by government creates conflicting situation. We find that later
instrument lays down slightly more flexible standard than the other two. The
terminology of ICCPR is not sufficiently restrictive. The American convention
gives more importance to the State. The ambiguity in language gives chance
T. Article 15(1)
6. Article 271
7. Article 4(1)
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to be exploited by an autocratic regime to declare emergency even in
circumstances where the only threat is to its own life for example can be
seen as happened in India in 1975 where security of the people got the back
seat.
Absence of precise definition of emergency to be accepted universally
poses great challenge before the international control mechanism.
Declaration of emergency presupposes widespread abuse of human rights.
This creates serious problem for the international community. Gross violations
of human rights during crises cannot be avoided successfully unless the
basic prerequisites for availing the right of derogation are clear and
unambiguous. Which conditions to be judged as justified for declaration of
emergency? When in the absence of non-observance of prerequisites of
valid emergency State can be categorized, as defector? These are big
definitional problems. What circumstances suffice to show that State has
comeback to normalcy? This is another important question as temporariness
is one of the criteria's of emergencies.
Another big problem is that every State defines emergency according
to its own tradition which creates large scale confusion all over. According
to ILA report- as the International Law Association observed it is
neither desirable nor possible to stipulate in abstracto what particular type or
types of events will automatically constitute a public emergency within the
meaning of the term, each case has to be judged on its own merits taking
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into account the overriding concern for the continuance of a democratic
society.8
Requisites of valid emergency
An emergency can be declared provided the requisite conditions for
its promulgations exist. The existence of a particular situation is a fundamental
condition precedent. In the absence of which there can be no declaration of
emergency. The principles of derogation under the three main treaties has
already been discussed in previous chapters, here an attempt to make
comparative analysis of all the three treats together has been done as they
together constitute the derogation regime. The International jurisprudence
has evolved certain criteria as essential to avail derogation from International
laws. On the basis of international jurisprudence certain situation can be
summarized as follows: The limitation implied under the treaties can be divided
into two main categories.
Procedural Limitation
Substantive limitation
Procedural Limitation: - There are two main procedural controls on the use
of emergency powers.
1) The most important procedural control is a requirement that every
state of emergency must be formally declared by the government introducing
it. It is a valuable control on derogation because it demands that emergency
8. ILA Paris Report 59 (1984) coated in Oraa.J Human Rights in States of Emergency in International Law, 1992 New York.
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powers be applied in good faith in conformity with domestic legal requirements.
It was designed to prevent unwarranted arbitrary derogations and to
preserve existing domestic constitutional and legal limits imposed upon the
powers of government during an emergency, and also because of the
imposition of a duty of public proclamation by International Covenant, requiring
a derogating government to admit its exercise of extraordinary powers. At
the outset it deters attempts to justify repressive action by a retroactive claim
of derogation. While Covenant requires the State to make an official
proclamation of emergency, the European Commission and American
Commission do not do that. Under International law undeclared emergency
is considered inconsistent with other obligations..
2) The notification procedures of both treaties impose quite significant
procedural obligations on the State parties to supply the relevant information
to Secretary General with full details of the derogation. Basically notification
clauses differ in three respects: first under the international covenant notice
is to be given to the other States parties, while Article 15 (3) of the European
Conventions does not mention the other parties. Second the covenant
explicitly requires that notice be given immediately while the European
Convention is silent as to timing. Third the Convention also demands an
explanation of the measures which it has taken.
3) Notice to international organs of provisions from which there has been
derogations and of derogation measures, which have been taken, is quite
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significant. The experts on Human Rights of the Council of Europe
characterize the European Convention's focus on measures taken as a more
extensive obligation. In contrast Article 4(3) demands the identification of
those provisions of the international covenant affected by the derogation.
Substantive Limitation:-
1. Substantive criteria assume central importance in the derogation
articles: that there be a public emergency which threatens the life of the
State and that emergency measures are strictly required by the exigencies
of the situation. The derogation articles indicate that a public emergency,
which threatens the life of nation, must be a significant disruption certainly
more than the low-level civil disturbance common in contemporary
democracies. The life of the nation clause signifies that the entire State,
rather than a discreet segment of the population must be menaced and that
some fundamental element of statehood such as the functioning of the
judiciary or legislature or the flow of crucial supplies must be seriously
endangered. The phrase encompasses natural disasters as well as political
convulsions. The articles restrict derogation to situations where danger is
actual or imminent, not merely potential latent or speculative situations.
The measures be taken only to the extent strictly required by the
exigencies of the situation contains three significant words of limitation 'extent'
'strictly' and exigencies'. By focusing upon the extent of the measures the
articles underline the principle of proportionality. The derogation must be
proportional to the danger, the special measures must terminate and if the
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emergency develops in stages of varying intensity, the measures during each
phase should likewise vary.
The term strictly strengthens this element of proportionality and
indicates an implicit obligation to act in good faith. A government is not to
make opportunistic use of an emergency. The phrase demands caution and
a duty to take care in assessing the necessity, rather than the government's
subjective evaluation should determine legitimacy of derogation.
The word exigencies stress absolute necessity. A derogating
government must adopt possibly less restrictive alternatives before
suspending fundamental rights. If equivalent results could be achieved without
a violation of basic rights then the measures cannot be said to have been
strictly required by the exigencies of the situation.
2. Another substantive limitation on the right of derogation that the
measures taken must not be inconsistent with the State's other obligations
under International law, such as commitments under the United Nations
Charter and the Laws of War. For example, if the State failed to make an
official emergency proclamation this could be seen as a violation of Article
15 of the European conventions though the obligations would actually arise
out of the State's undertakings under Article 4 of the international covenant.
3. Emergency must be provisional- It is essential to ensure the temporary
nature of emergency. The international commission of jurists recommended
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a fixed period of time, which seems impracticable as it is difficult to predict
how long an emergency can last.
Different views have been expressed on this subject. The approach
should be to have constant parliamentary supervision over continuance of
emergency and most necessarily judicial review of state of exception.
4. The declaration of the emergency must be a last resort -the exceptional
character of derogation requires that those measures only be taken when
the normal measures to deal with the threat becomes impossible.
5 The State must not discriminate in any way.
6 There is prohibition of restriction over certain 'core' rights such as
liberty, which cannot be derogated.
6.3 DEFINITION AND REQUISITES OF EMERGENCY IN INDIAN
CONSTITUTION- COMPARATIVE
Definition
Under the Indian Constitution, if the President is satisfied that a grave
emergency exists whereby the security of India or of any part of the territory
thereof, is threatened, whether by war or external aggression or 'armed
rebellion,9 he may, by proclamation, make a declaration to that effect, in
9. Before 44th Amendment Act, 1978, the ground was 'Internal Disturbances'.
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respect of the whole of India or of such part of territory, must be specified in
the proclamation.10
The President shall not issue this proclamation of emergency unless
the decision of the cabinet, that such a proclamation may be issued, has
been communicated to him in writing.11 The proclamation may be revoked or
varied by the President at anytime. Different proclamation on different grounds
may be issued.12 It shall, however, cease to operate on the expiry of one
month unless within that period both Houses of Parliament by a majority of
total membership and a majority of approve it not less than 2/3rd of the
members present and voting in each house.13 If within this period of one
month, it is approved by Rajya Sabha but the Lok Sabha is dissolved , it will
continue up to 30 days from the first day of meeting of Lok Sabha, after
election. If within this period, it is not approved by Lok Sabha it shall cease
to operate after the 30th day. Once it is approved by both Houses of Parliament
it shall remain in force for a future period of 6 months from passing of the
second resolution, unless revoked earlier.14 For further continuance, the
special majority would require the approval of the Parliament every six months.
10. Art 352(1) . The Proclamation may also be issued before the start of war etc. Provided there is imminent danger thereof.
11. Clause (3) of Art 352 added by the Constitution ( 44th Amendment) Act. 1978.
12. Clause (9) ofArt 352 added by 42nd Amendment Act 1976and renumbered by 44th Amendment
Act 1978.
13. Before 44th Amendment Act,1978 approval was required with in 2 months by simple majority.
14. Art. 352 (5)
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If simple majority disapproving the proclamation or its continuation passes
the Lok Sabha a resolution, the President shall revoke it.15
Requisites of valid emergency.
Indian constitution was adopted at the same time when the world has
for the first time officially recognized the human rights. It was the time when
Universal Declaration of Human Right was adopted striving to respect human
rights of an individual. India became party to this valuable document and
rightly the high values of this universal document found place in Indian
constitution. India could not and did not remain behind It will be worthwhile
to compare Indian emergency provisions with treaty laws especially ICCPR
which came into existence in 1966 and to which India subscribed fully in
1978. On the basis of constitutional provision and subsequent amendments
certain important criteria can be identified as prerequisite for emergency in
India.
1) The constitution envisages three types of emergencies: (i) Emergency
arising from a threat to the security of India; (ii) Break down of constitutional
machinery in a State: (iii) financial emergency.
Apart from national emergency constitution provide for localised
emergency also on the basis of State level breakdown of constitutional
15. Art.352(7), where a notice is given , in writing signed by at least 1/10 members of Lok Sabha of their intention to move a resolution for disapproving the continuation of the proclamation of emergency, to the speaker, if house is in session, or to the President, a special sitting of theLok Sabha must be held within 14 days from the date of receipt of the notice to consider the resolution
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machinery. Treaty provisions do not clearly provide for local emergency.
The guidelines provided by European lawless case suggest that at least in
theory localised emergencies are not provided in treaty laws.
2) Article 352 (1) of the Indian Constitution empowers the President to
declare a state of emergency by issuing a proclamation. If the President is
satisfied that a grave emergency exists whereby the security of India or of
any part of the territory thereof is threatened, whether by war or external
aggression or internal disturbance, he may by proclamation make a
declaration to that effect. This principle is similar to that in the treaties. In the
line of international procedural norms India also provides that President shall
declare emergency and make proclamation
3) Before 1978 an emergency could be declared because of war, external
aggression or internal disturbance. The expression' internal disturbance was
too vague and broad. The 44th amendment substituted the words 'armed
rebellion' for 'internal disturbance' with view to excludE the possibility of an
emergency being proclaimed on the vague and ambiguous grounds. This
change, restricted the scope of what may be called as internal emergency in
line with international requirement of imminent danger..
A) Another notable point is that proclamation under the constitution can
be made even before the actual occurrence of event, imminent danger is
enough. Which does not correspond well to international norms.
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5) The most important principle of temporariness of emergency has been
included under Indian constitution also. 44th amendment has curtailed the
power of the executive to prolong the operation of emergency unnecessarily.
Now a proclamation of emergency may remain in force in the first instance
for one month, shall remain if approved by parliament for the period of six
months unless revoked earlier.
6) A Proclamation issued under Art. 352 (1) may be varied or revoked by
a subsequent proclamation. The 44th Amendment has introduced a clause
to the effect that President shall not issue a proclamation of emergency or a
proclamation varying the same unless the decision has been taken by the
Union Cabinet and has been communicated to him in writing.
7) International law poses a duty on State to take care in assessing the
necessity and not the subjective evaluation should determine the legitimacy
of derogation. It has been the practice to leave the determination of whether
or not the security of India is under threat to the subjective satisfaction of the
President acting on the advice of the Cabinet. Indian Constitution puts implicit
obligation of good faith on executive.
8) The President and the cabinet under faith are authorized to order
deprivation of fundamental rights under part III of the constitution in the form
of ordinances. The President may issue order-suspending rights under article
20, 21 and 22 also.
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Following the tradition of treaty laws under the 44th Amendment the Indian
constitution recognized Art. 20 & 21 as non-Derogable.
9) As a result of the declaration of emergency, the President becomes
more powerful and assumes a number of additional powers and functions to
those already provided under the Constitution during normal times. The power
of the Union Government extends to the giving of direction to the States as
to the manner in which the executive power of the State is to be exercised.
10) According to treaty laws the derogation should be proportional to the
danger, while under Indian constitution there is provision of automatic
suspension of article 19.
11) The ordinances making power continued in the same manner as British
tradition of conferring legislative power on the executive. It provids that both
the President and the state government could issue ordinances having the
force of law when parliament or state legislature are not in session, if they
were satisfied that circumstances exist which require immediate action. Any
such ordinance would have to be laid before the respective legislative body
and would cease to have effect after six weeks from the date of reassembly
of such body unless approved earlier. This provisions was accused as
subverting the democratic process by 'unjustified and cavalier resort to the
ordinance making power'16
16. D.C Wadhwa, 'Re-promulgation of ordinances: A fraud on the constitution'- Orient longment, N D 1985
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There is need to reexamine the emergency provisions in the light
of international norms. The emergency provision of the constitution do
not corresponds to the International laws in real term .
6.4 JUSTIFIABILITY OF DECLARATION OF EMERGENCY
Court must decide the question whether a functionary under the
situation has acted within the limits of its powers or exceeded it. It is for the
judiciary to determine and enforce constitutional limitations. The question of
justifiability of declaration of emergency has usually a political colour and
flavor. Apart from the much abused doctrine of political question neither reason
nor principle warrants exclusion of judicial review of the question whether
emergency has been bonafide proclaimed in compliance with the legal pre
requisites. There is no reason for adopting a judicial hand off attitude.
6.4.1 Position under European Commission of Human Rights
The European Commission has developed a vigorous review over
State action. It has articulated certain principles regarding derogation rights
of State. Its remarkable manifestation can be found in its landmark decisions.
The human rights jurisprudence developed by the European
Commission and the European Court of Human rights has established that
existence of a public emergency threatening the life of the nation is a justifiable
issue.
In the lawless case the European Court of Human Rights confirming
the findings of the commission held that the Irish Government from a
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combination of several factors reasonably deduced the existence of a pu,.,v,
emergency.
More remarkable was its decision in Ireland v. United Kingdom the
European Court has held that the existence of such an emergency is perfectly
clear from the facts determined that the Greek military had failed to prove
the existence of a public emergency threatening the life of the nation. The
Commission was not affected by national legislations and instead, proceeded
on the statutory principle.
The situation was expressed in these words :
"Initially justifiable measures of deprivation may be retained long after
the alleged crisis is over; excessive measures may cause more destruction
than conservation of values; arbitrary measures may bear no rational relation
whatever to the actual dangers involved in the alleged crisis. Preoccupied
with the task of maintaining their ascendancy in a highly insecure world,
elites may go beyond the exploitation of crises to the fabrication of crises for
exploitation."17
The decisions of the European Commission and the European Court
have established that the question whether there is public emergency
threatening the life of the nation and what measures are necessary to
overcome the emergency will initially be decided by the concerned State. As
17, Mc Dougal, Lasswell and Chen.human Rights and World Public Order (1980) p 129.
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they have direct and continuous contact with the pressing demands. The
international bodies shall decide on the objectivity of emergency. The States
thus enjoy a wide margin of appreciation in the matter of declaration of
emergency. But the jurisprudence developed have made it clear that they do
not enjoy an unlimited power. "The domestic margin of appreciation is thus
accompanied by a European supervision.
6.4.2. Position under Inter American Commission of Human Rights
The American Court and Commission have not produced any
significant decisions regarding judicial review during period of emergency
but the Inter- American Commission has asserted its authority to consider
the validity of declaration of emergency by analyzing whether the
circumstances warranted such a declaration. It has reviewed factual and
legal aspect of emergency..
Report on Chile contains an assertion of the power of review of the
existence of a state of emergency. The Commission said: measures involving
suspension of the guarantees of basic rights may in no case last longer than
the actual real and probable situations that determine their adoption. Hence
for example, a state of war, which is in fact non-existent, or, which in fact has
ceased to exist, cannot be invoked to justify under international law, the
suspension of such guarantee.18
18 OAS doc.OEA/Ser LA/, 2 34, doc.21, corr. 1 (1974 ).
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In its Report on Bolivia in 1981 19 the Commission stated that in the
Commission opinion the Bolivian authorities exceeded the limits of state action
by disregarding the restrictions on the use of such measures stipulated in
the American Convention both with respect to the gravity of the situation and
the period of time.
In its 1983 Report on Nicaragua,20 the commission pointed out that in
interpreting the first part of Article 27 (ACHR) the emergency should be of a
serious nature created by an exceptional situation that truly represents a
threat to the organized life of the State."
6.4.3 Position under Human Right Committee of ICCPR
The Committee generates covenant jurisprudence. It adopted the
method of questioning of individual States, in the forms of general comments
by the human rights committee in respect of State reports and also
committee's report on individual communications. The decisions of HRC
asserts principles of judicial review of emergency powers, similar to those
articulated by international control bodies under the ECHR and ACHR in the
Landinelli de Silva case 21 it held that no proper factual or legal details
regarding the emergency had been supplied by Uruguay in its notification of
derogation U/A 4 (3) of the covenant. It also criticized emergency in Uruguay
19. Inter-American Commission on Human Rights, Report on the Situation of human Rights in the Republic of Bolivia OEA/ Ser L/V/11 53, doc 6, 1 July, 1981.
20. Inter-American Commission on Human Rights, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.LA/ 11.62,doc.10 rev.3,29 November 1983.
21. (1981 )2HRIJ 130
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and to be unreasonable and as being violative of the proportionality
requirement by Article 4 of the Covenant. In the Martejo decision (1982 ).22
HRC found shocking facts and held Columbia guilty of derogating, from the
non- derogable right to life, liberty and protection against torture.
6.4.4 Position of India
In India the question of justifiability of proclamation of emergency has
been agitated before the Supreme Court in a number of cases. The issue
has been further complicated by intervening amendments of the constitution.
It remains yet to be finally settled. Can the courts enquire into the justification
or non-justification of the proclamation of emergency? This question has
arisen before the Supreme Court in some cases. The attitude of the Court
and its power has been discussed in detail in the next chapter.
Ghulam Sarwar, Waman Rao, Bhutnath , ADM Jabalpur all these
cases have posed a big question to this vital issue of judicial review of
executive action. It created chaos among the political and legal society of
the nation. After ADM Jabalpur when the nation suffered and liberty of its
citizens got the back seat, came the decision of Minerva Mills. Justice
Bhagwati commented after pointing out that declaration of emergency would
be a political judgment based on assessment of diverse and varied factors,
fast changing situations, potential consequences and a host of other
imponderables", but one thing is certain that if the satisfaction is mala fide or
22. (1982)3 Human Right International Journal 166.
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is based on wholly extraneous and irrelevant grounds the Court would have
jurisdiction to examine it because in that case there would be no satisfaction
of the President.
The principle of justiciability of declaration of emergency has been
accepted in India though in actual practice it may be very difficult .The
Proclamation is thus no longer immune from judicial review. The Supreme
Court or the High Court can strike down the proclamation if it is found to be
mala-fide or based on wholly irrelevant or extraneous grounds. The deletion
of clause (5) ( which was introduced by 38th amendment Act) by the 44th
amendment Act removes the cloud on review ability of action . When called
on, the Union Government has to produce the materials on the basis of
which action was taken. The court will not go into the correctness of the
material or its adequacy. Its enquiry is limited to whether the material was
relevant to the action.
6.5 JUDICIAL CONTROL OVER EMERGENCY POWER
Another difficult issue is that of judicial control of the declaration of
emergency. On this point one should distinguish between two different aspects
judicial control by domestic courts, and judicial or quasi-judicial. Control by
international bodies.
6.5.1 Judicial control by domestic courts
There is no agreement about the suitability of judicial control of declaration
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of emergency and the justifiability of judicial control of the declaration of
emergency. The justiciability presents special concern due to its political
nature. Because of its political nature, there should be no control at all by the
judiciary. Another proposal suggests that the question of judicial control should
be resolved according to the legal traditions of each country and therefore
international law should remain silent on this point of the issue. Due to the
lack of precise standards in human rights treaties, it was discussed at length
in United Kingdom seminar. Even if the majority was against judicial control
of the declaration, the question was controversial and different opinions were
held. However there was general agreement that all acts of application of
emergency measures should fall under the jurisdiction of the courts. The
courts should have full powers to quash, as null and void, all acts or measures
which did not conform to the relevant lawful regulations. In that function, the
courts should be guided by the principle of reasonableness, determining
whether a given measure or act was reasonably required or at least reasonably
justified in the specific circumstances of each case. All ordinary remedies as
well as special ones as habeas corpus, and so on should remain operative in
order to check the unlawful restriction of rights.
The ILA added to these functions of the municipal courts the duty to
ensure that there is no encroachment upon the non-derogable rights and
that derogating measures from other rights are in compliance with the rule of
proportionality
The courts in general accept extra ordinary, far-reaching expansion
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of governmental powers with a corresponding contraction of individual rights.
In some cases, international bodies have pointed out that substantial
limitations imposed on the judiciary in reviewing the factual basis of the
establishment of the states of emergency and the excessive self-restraint on
the part of the judiciary, have contributed to gross violation of human rights.
National courts have affirmed the exclusive competence of the government
in appreciating the existence of a public emergency and the measures
necessary to deal with it. The Chilian case is outstanding in this respect.
6.5.2 International control
The first defence of some States is their claim that international bodies
lack the competence necessary to analyze emergencies since the matter
belongs to the domestic jurisdiction of States. The European Commission
feels that to allow governments to resort so easily to the use of exceptional
measures would greatly undermine the convention guarantees. In assessing
these situations the European organs have established a consistent
jurisprudence on Article 15.
The American control bodies like Commission and Court have dealt
with aspects of derogation during states of emergency in the numerous
country reports. The Commission has reviewed the factual and legal aspects
of emergency and has come to definite conclusions in those respects. This
jurisprudence underlines the essential unity in the context of radically different
socio cultural-legal systems, as far as review of State action in periods of
emergency is concerned. This fundamental unity emphasized the use, by
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American control bodies, of concepts similar to the margin of appreciation
doctrine and by putting the burden of proof to justify derogation upon the
State concerned.
The control mechanism under the ICCPR works mainly through the
Human Rights Committee . The Committee monitors application through
reporting procedure, inter-state communication system and individual
communication system.
The whole control mechanism identifies three elements, which can
be identified as follows: - First it is upon to States to declare the emergency
and to take the measures that it considers necessary to overcome the danger.
Secondly this right of the State is not unlimited as the State is not the final
judge in the matter. If the declaration of emergency and the derogating
measures are challenged by other State parties or by individuals, the
European organs will examine whether all the conditions laid sown in Article
15 have been met. Thirdly the theoretical and practical difficulties that
municipal courts face when controlling the declaration of emergency. The
derogating measures have increased the importance of international control.
6.6 THE EXPANDING RANGE OF NOJH- SUSPENDABLE RIGHTS
Some rights are so basic that to suspend them destroys the basis of a
civilized state and the rule of law. These rights are so fundamental that without
them human life is either not possible or civilized life becomes meaningless.
Therefore such rights as right to life, freedom of fair trial or freedom from
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torture must never be suspended whatever may be the type of emergency.
These rights represent the core of human dignity. The concept of human
values has many dimensions. This is evident from the expanding range of
non suspendable rights Experience gathered from declarations and working
of emergencies reveal that life, liberty and freedom of expression are the
direct targets during emergency regime. Opponents or dissidents are detained
without trial mostly followed by their disappearances. Censorship is
introduced, news information by the media is severely curtailed and there is
monopoly of the press, radio and television by the ruling regime. Various
other rights are encroached.
Therefore a vital safeguard for protection of human rights during an
emergency would be a provision in the national constitution of every State
expressly recognizing that there are certain rights, which are non-suspend
able or non-derogable, and that there can be no derogation from the States
obligation to respect and ensure them in any eventuality. It has been
recognized internationally that the other criterion is that certain rights have
no real nexus with the purpose of the emergency in the sense that their
suspension does not conduce to advancement of the objectives of the
emergency and therefore their suspension is unnecessary.
6.6.1 Non Derogable Rights at Universal and Regional Level
There are certain rights, which have been recognized as non-derogable
in character at both universal and regional levels. These non-derogable rights,
which do not permit any kind of derogation, are fundamental rights. The
156
validity of these rights cannot be questioned even if the Sate accepted
derogation clause.
At universal level Civil and Political Covenant contains seven non-
derogable rights under Articles 4(2), which does not admit any derogation
with regard to the right to life, the right not to be subjected to torture or to
cruel inhuman or degrading treatment or punishment, the right not to be held
in slavery or servitude to fulfill a contractual obligation, right against expost
facto law; the right to recognition everywhere as a person before the law and
the right to freedom of thought conscience and religion.
The European convention lists only four non derogable rights- the
right to life, freedom from torture and the prohibitions of slavery, the prohibition
against imprisonment for breach of contractual obligation, the right to be
recognized as a person before the law and freedom of thought conscience
and religion.
The Siracusa Principle asserted that the four common non derogable
right had become non derogable as a matter of customary law.23
By contrast under the American conventions no derogation is permitted
from eleven specific rights including the right to nationality and the right to
participate in government The judicial guarantees essential for the protection
23. The Siracusa Principle, Review - International Commission of Jurists-1988, Vol 36-37
157
of these rights are also non-derogable under Article 27 (2). Inspite of this
longer list of non derogable rights of the American Convention it has been
observed that this however permits derogation in emergencies from such
rights which are much less serious than those envisaged by the other
instruments.
However the African Charter on Human and People's Rights contains
no derogation clause. Instead of opting for a non derogable provision the
African Charter preferred to qualify certain rights as absolute rights thus;
their absolute character under the Charter amounts to the non-derogable
character of other human rights treaties.
6.6.2 Paris Minimum standards (known as Chaudhary Report)
The Paris standards mark a significant progress in the field of non-
derogable rights. The protection extended to the minorities is a welcome
advance. The report lists 16 non derogable rights.
The formulation of minimum standards has been criticized on the
grounds that it virtually invites suspension of other rights and since all human
rights are minimum nothing should be done to encourage their suspension.
If all human rights are made non-suspend able then there would be no sense
in having emergency. Genuine emergencies do occur. Besides the moral
sanction behind the list of rights which are universally regarded as inalienable
158
will be much weekend if the list includes all fundamental rights without any
distinction.
There is strong appeal that following two rights should also be
categorized as non derogable as their importance during emergency is
unquestionable.
Freedom of press - It is felt that the freedom of press should also be
non-suspendable and its independence like that of judiciary and the legal
profession should be preserved during the state of exception. There is merit
in this view.
Judicial remedies- The rights without remedies are worthless. But the
immense value of the great writ of HABEAS CORPUS cannot be
overestimated in matters relating to detention without trial of persons in prison
and their treatment especially during emergency, which is usually
accompanied by arbitrary detention. It is of paramount importance that the
right to judicial remedies and especially the writ on Habeas corpus must not
only be guaranteed by the constitution of the State but should also be made
expressly non suspendable during emergencies.
6.6.3 Non-Derogable Rights Under the Indian Constitution.
Fundamental rights are set forth in Part III of the Indian Constitution.
Articles 12 to 35 of the Constitution deals with the fundamental rights. These
rights are not absolute but qualified in the sense that in defining their ambit,
159
ample power is expressly conceded to the State to control them by law.
However, all these rights are justifiable and the Supreme Court and the State
High Courts are equipped to grant protection of these rights in its writ
jurisdiction.
Under the Indian Constitution the power of suspension of fundamental
rights was very wide before 1978. Article 359(1) empowered the President
to pass an order. But the situation has changed after the 44th Constitutional
Amendment, which says- "when the Proclamation of Emergency is in
operation, the President may by order declare that the right to move any
Court for enforcement of the rights conferred by Part III except Article 20
and 21 shall remain suspended for the period during which proclamation is
in force.
The Constitutional rights under Article 20 prohibit ex post facto
operation of criminal law and confer immunity against double jeopardy and
protection against self-incrimination. Article 21 provides that, "No person
shall be deprived of his life and personal liberty except according to procedure
established by law". The rights embedded in Articles 20 and 21 are thus
non-derogable rights. Even during a state of emergency, these rights cannot
be derogated from. In the case of any violation the victim has a rights to
approach the Court for redress.
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present Covenant; to adopt such legislative or other measures as may be
necessary to give effect to the rights recognized in the present Covenant.
Under Indian Constitution following articles are relevant:
Article 51- this article specifically mentions separately international
law and treaty obligations. No explanation is found in the constituent assembly
debates either as to intent or the meaning and scope of these words.
Before the adoption of the Constitution of India the British practice
that customary rules of international law are part of the law of the land, applied
in India also. This position continues even after coming into force of the
Constitution of India.
As regards the treaty of obligation arising out of international treaties,
also India follows more or less the British dualist view and specific adoption
theory. That means international law can become part of municipal law only
if it has been specifically adopted or incorporated.
Article 253- As regards international treaties the most relevant
provisions is Article 253 of the constitution.
In Re Berubah case25 the Supreme Court observed - How treaties,
when made can be implemented, would be governed by the provisions in the
25 AIR 1960 SC 845
163
constitution of the country and subject to the limitations imposed by it.
In ADM Jabalpur vs. Shukla,26 one of the questions for consideration
of the Supreme Court was whether U.D.H.R. and the two covenants on human
rights were part of Indian municipal law. Justice H.R. Khanna held that in
case of conflict it is the later that will prevail. In his view the constitutional
provisions should be construed in such a way as to avoid conflict.
But the position will be different when there is no conflict. As pointed
out by Supreme Court in Vishakha vs. State ofRajasthan27-\u the absence
of domestic law, the contents of international conventions and norms are
significant for the purpose of interpretation. Any international conventions
must be read to enlargen the meaning and object of constitutional guaranty.
6.7.2 ICCPR and The Indian Constitution
Many of the civil and political rights contained the ICCPR are also
enumerated in part III of our constitution as fundamental rights. They were
adopted but with a number of major reservations. That means all the rights
were made subjects to the terms of the reservations in the Indian constitution.
Government of India has so far presented three periodic reports to
United Nations in compliance of its obligation under the covenant, 1983,
1989 and 1995 respectively. The Human Right Committee has examined
26. AIR 1976 SC 1207
27. AIR 1982 SC 3014
164
the report submitting serious issues of concern.
Committee has shown its disapproval to reservation made under Article
22 of Indian constitution, which provided for preventive detention without the
legal safeguards embodied in Article 9 of covenant. The reservation made
by the Indian government are not accepted to the committee and has heavily
commented on it to the extent as to characterize it as 'incompatible with
objects and purpose of the treaty.28
Committee has expressed deep concern over enacting of different
laws, which in its opinion infringes different rights guaranties by the ICCPR.
Special security Acts like National Security Act, Armed Forces Act, Terrorist
and Disruptive Activities Act, contained provisions that effectively derogated
from the rights contained in Articles 69 and 14 of the covenant.
The committee has also commented that this special security
legislation derogated even from the non derogable rights, contained in the
covenant. Committee has shown serious concern by holding that- 'the existing
practice may lead to defacto declaration of emergency made in certain parts
of the country which were not in line with the covenant'.29
Enumerated fundamental rights- Under Part III of the constitution Article
28. U.N. Doc. CCPR/C/SR 1604 dated 7 November 1977.
29. U.N. Doc. CCPR / C / SR 494 Para 7
165
21,22,23,19,14, 20,25,16,15,29 & 30. are the rights, which have adopted
ICCPR.
Unremunerated but recognized human rights- Fundamental rights
though not enumerated in Part III of the constitution, are yet fundamental
rights because they have been recognized as such by the courts.
The expanding range of Article 21 containing the Right to life and
liberty of person has attracted the greatest attention of Supreme Court and
number of fundamental rights, though unenumarated in part three have been
recognized by enlarging the meaning and scope of the Right of life and
personal liberty. These rights are as follows - Right to travel abroad, Right to
privacy, Right to speedy trail, Right of the accused, Right to provide legal
assistance, Right not to be subjected to torture or cruel inhuman or degrading
treatment or punishment, Right not to be imprisoned for inability to fulfill
contractual obligation, Right to compensation for unlawful arrest and detention.
Unremunerated but not yet recognized human rights- This category
consists of those human rights which are enumerated in the ICCPR but are
neither enumerated in the Indian constitution nor have yet been recognized
by the courts. These human rights are - Right not to be subjected to medical
and scientific experimentation, Special protection treatment of the juvenile,
Right to marry and to found a family, Right of self-determination (India has
made reservation about this right), Prohibition of slavery and slave trade and
Prohibition of propaganda of war.
166
However, parliament has been conferred the exclusive power to make
any lawfor the whole or any part of the territory of India for implementing any
treaty, agreement of convention with other country or countries or any decision
made at any international conference.
Entries 13 and 14 of List I of the Seventh Schedule of the Constitution read
asunder:-
Entry 13. Participation in international conferences, associations and other
bodies and implementing of decisions made thereat.
Entry 14. Entering into treaties and agreements with foreign countries and
implementing of treaties, agreements and convention with foreign countries.
In the earliest of cases Maganbhai vs. Union of India30. The Supreme
Court accepted the law laid down in attorney General for Canda vs. Attorney
General for Ontario that though treaties created by the executive action bind
the contracting parties, the executive authority in the State cannot acquire
new rights against the citizens and new offences cannot be created by the
mere fact of treaties and conventions entered into with other powers. Laws
will have to be made by the competent legislature for these two purposes.
The Supreme Court in the early 80' took the view that the international
conventions perse orpropno vigore has no force or authority. In Jolly George
Varghese v Bank of Cochin 31 krishana Iyer, J.held that until the municipal
30. AIR 1969 SC 783
31. AIR 1980 SC 470
167
law is changed to accommodate the Covenant what binds the court is the
former, not the latter. He further added that the arrest and detention of an
honest judgment -debtor in civil prison, who has no means to pay the debt in
absence of malafide and dishonesty, violates Article 11 of ICCPR and Art. 21
of constitution.
32
A. H. Robertson rightly points out that international conventional law
must go throughout the process of transformation into the municipal law
before the international treaty can become an internal law.
'The positive commitment of the State parties ignites legislative action
at home but does not automatically make the Covenant an enforceable part
of the corpus juries of India.'
However, by a plethora of precedents the Supreme Court has read
the rights under the international covenants into the municipal laws and made
them enforceable to the extent that they are not inconsistent with any provision
of the Constitution or the laws in force in India. The Supreme Court has
recognized such rights and imposed corresponding obligations on the State.
Under Article 141 & Article 144 of the Constitutions, law declared by the
Supreme Court shall bind all the courts and authorities in India.
32. Robertson A. H. In 'Human Rights in National and International Law'
168
Deviations
India's declaration (reservation) while acceding to the two
international covenants.
1 Regarding right of self-determination- India declared that right of self-
determination appearing in these articles apply to the people under foreign
domination and that words do not apply to sovereign, independent states or
to section of people or nation, which is the essence of national integrity.
2 Regarding right of compensation to the victim of unlawful arrest or
detention- India declared that the govt, of republic of India takes the position
that the provisions of article shall be so applied as to be in consonance with
the provisions of clauses 3 to 7 of Article 22 of Constitution of India.
3 Law relating to foreigners- The declaration India made was that it
shall reserve its right to apply its law relating to foreigners.
4 Right to form and join trade unions of choice and Right to liberty of
movement and freedom to choose his residence - India has made a
declaration that the provisions shall be so applied as to be in conformity with
Article 19 of Constitution of India.
5 Equal opportunity for promotion in employment- India has made the
reservation that the provisions of Article 7 of ICESCR shall be so applied as
to be in conformity with the provisions of the Constitution of India.
169
6. 8 EMERGENCY POWERS-COMPARISON WITH OTHER
COUNTRIES
Emergency laws are common to the countries. A comparative analysis
of emergency legislations in other countries like UK and America with India
can help to analyse the prevailing practices in the world.
6.8.1 Position in the United Kingdom
The two World Wars have shown that in times of war it is essential for
the safety to arm the Government, which would be unthoughtful of in times
of peace. The courts too have tolerated this in the interests of public safety.
In England the executive has no emergency powers except under
parliamentary authority. There is no prerogative of the crown to make a
proclamation of emergency. The principles of parliamentary sovereignty and
rule of law are left unimpaired even in times of war. The parliament itself
endows the executive with authority to arrest without trial suspected persons
by passing such Acts as the Defence of the Realm Act, 1914, the Emergency
Powers Defence Act 1939 and sanction extra-ordinary interference with the
citizen's most cherished rights of person and property which in view of
parliament may be necessary and proper in grave national danger.
In England a distinction is made between an emergency due to war
and an emergency in times of peace due to internal disorder.
The Emergency Powers Act 1920 authorized the Crown by a
170
proclamation to declare a state of emergency and to issue regulations by
order-in council so long as such declaration remains in force. The declaration
can be made by the executive only when the essentials of life are threatened.
As the declaration and the regulations are to be made by the executive under
statutory authority these must be in conformity with the conditions laid down
in the statute. The proclamation shall remain in force for not more than a
month but there may be fresh proclamation before the expiry of one month.
The regulations issued under the English declaration of emergency
can only secure and regulate the supply of essentials of life and to empower
the police for preserving peace. The executive has no power under the statute
to issue regulations such as to impose military service or industrial
conscription, to alter the existing procedure in criminal cases, to punish by
fine or imprisonment without trial and, to suspend the writ of habeas corpus.
In times of war, the Executive enjoys wider powers to make regulations
for public safety or defence of the realm including power to detain without
trial. It should however be noted that the right to access to the courts has
never been barred either during World War I or II.
During the First World War, large powers were conferred on the
government under various laws like the Defence of the Realm Act, 1914,
Military Lands Act and the Defence of the Realm (consolidation) Act, 1914.
But the administration of these emergency laws and regulations gave a rude
shock to the citizens who experienced their impact. The court, however,
171
tried to safeguard the liberties as much as possible, keeping in view, of course,
the war-time needs of the nation.
In King v. Holliday 33 the House of Lords upheld the validity of the
Defence of the Realm Regulation Act 1914; on the ground that it was a war
time measure passed at a time of national danger and its operation was
restricted to the duration of war only.
On the outbreak of Second World War 1939, a large volume of
emergency legislations was enacted by the parliament affecting all aspects
of life of the community including economic conditions in the society. In
Liversidge v. Anderson 34 Regulation of the Defence Regulation Act 1939
was examined. His Lordship, Lord Atkin said, "amid the clash of arms the
laws are not silent. They may be changed but they speak the same language
in war as in peace".
Thus during emergency parliament can restrict the liberties of the
citizens. The courts however can interfere if the executives commit excesses.
Lord Wright observed "All the courts today and not least this House
are as jealous as they have ever been in upholding the liberty of the subject.
But. if extraordinary powers are given they are given because the emergency
33. 1917 AC. 260.
34 1942 AC. 206.
172
is extraordinary and are limited to the period of emergency. It was further
held that the worlds used clearly indicated that it was a matter for executive
discretion and not subject to the discussion , criticism and control of a judge
in a court of law. Lord Atkin In his strong dissent observed, I view with
apprehension the attitude of judges who on a mere question of construction
when face to face with claims involving the liberty of the subject show
themselves more executive minded than the executive.
Thus during emergency Parliament can restrict the liberties of the
citizens the courts however can interfere if excesses are committed by the
executive.
Two considerations weigh strongly in favour of the study of emergency
experience of England. In spite of Monarchy, England is democratic, both
India and England are wedded to democracy and Rule of Law; emergency
poses an identical problem in regard to the state control on individual liberty
in a national crisis. Second, and the more pressing consideration emanates
from the fact that Indian laws with exceptions like Personal Law, are modeled
on the English pattern. Even the Constitution of India is based on the
Government of India Act, 1935 which was passed by British Parliament. And
what is more, the emergency laws in force today are more or less modified
versions of corresponding Acts passed during British Rule in India.
173
6.8.2 Position in the United States
In USA the emergency does not increase the powers of the legislature
neither the rights of executive nor the rights of people are affected. The only
constitutional provision dealing with the effect of emergency on the rights of
the people is Article 1(9) (2) which provides:-
"The privilege of the writ of Habeas Corpus shall not be suspended
unless when in cases of rebellion or invasion the public safety may require
it".
The courts may declare any law or executive action unconstitutional
even during war. However the courts uphold laws essential for the safety of
the nation. Thus, nothing of actual invasion or rebellion may justify the
suspension of the writ. The power to suspend the writ belongs to the congress
and not to the President. It is for the Courts to decide whether conditions
have arisen which would justify the suspension of the writ.
In the U.S.A. in times of grave emergency, the States acquire an ample
"police power". Executive or legislative is not the final authority to determine
as to what constitutes the proper exercise of police power.
The courts to aid the effective prosecution of war have liberally
interpreted the War power of the Congress.
174
Since 1950, the President has also been empowered with emergency powers
by federal legislation. For example the Internal Security Act, 1950 authorises
the President to proclaim an internal security emergency in case of invasion
or war of insurrection in aid of a foreign country.
In Hirabayashi vs. US 35the court upheld regulations, which required
during the war between the United States and Japan, that all persons of
Japanese ancestry residing in a particular area should be in their places of
residence between specified hours with a view to preventing sabotage and
espionage.
Justice Murphy in his opinion observed - "We give great defense to
the judgment of the congress and of the military authorities as to what is
necessary in the effective prosecution of the war, but we can never forget
that there are constitutional boundaries which is our duty to uphold".
Thus during emergency govt, exercise more powers but has to remain
within the constitutional limitations.
6.9 RELEVANCE OF TRADITIONAL IDEAL EMERGENCY NORMS
AND THE PRESENT PRACTICES
It is true that the drafters of international human rights instruments
had tried to adopt foolproof mechanism to restrict the misuse of emergency
35. 320 U.S. 81.
175
provision by the state. A careful study of various emergencies proclaimed
by state from time to time all together gives a different picture. In several
cases states have violated these safeguards with imparity.35
Oren Gross emphatically remarks- at the failure of international human
right law to oversee adequately and monitor the excessive recourse to crisis...
"This may lead in turn, to attempts at solving questions at hand by applying
wrong medicine as a result of a faulty diagnosis of the malice"37 In 1983 the
International Commission of Jurists undertook a comprehensive analysis of
states of emergency through out the world 38 The study examine in depth
the practice of 14 state which had experienced emergencies during 1960s
and 1970s India was also included in the list. Two questionnaires were also
circulated to 158 countries out of which only 74 replies were received. Out of
14 countries 9 countries fell into categories of permanent types, only two
states Canada and India fit the examples of emergency model that is the
working assumption of the major studies on emergency norms. ICJ showed
this alarming condition of permanent emergency. This shows need of deep
concern about international monitoring agency's practice of sticking to ideal
emergency as the means to examine and control of crisis power by states.
According to them the traditional discourse on emergency powers through
the mechanism present under the derogation system of three treaties it not
36. On the basis of reports submitted by Special Repporteur between January 1985 and may 1995 it was reported that 90 state have experience defacto state of emergency during this period
37. Quoted in, Human Rights- an agenda 21st centaury Chapter 5 p. 81
38. ICJ state of emergency; their impact on human rights 1983, Geneva ICJ
176
viable and relevant in present situation. The actual picture is entirely different.
The instances of emergency are not that ideal emergency envisaged in
derogation system of the three treaties, but defacto or institutionalized
emergencies are prevailing throughout the world. The examples of state
practices demonstrate that emergency has become the norm. Northern
Ireland is the leading example. The conceptual model is very obviously not
relevant to the realities of emergencies today. That is the biggest reason
why the traditional norms to judge the emergency situation have become
ineffective in dealing with the present emergency situation.
The states adopting to defacto conditions prove their reluctance to
abide by the treaty norms. They do not like the idea to be judged by an
agency which may not justified their attitude which is better known to them
only than any other foreign agency. Therefore instead of going in to the
formal declaration of emergency according to treaty norms and being subject
of vigilance by the international monitoring bodies, states prefering to go by
the less clearly defined emergencies called defacto or institutionalized.
India is no exception. The political situation after 1977 compelled
Indian government to opt for certain restrictive methods to control the situation
not amounting to emergency 39 Many instances similar to that of defacto
emergency situations can be found under Indian political history.
39. The Political Situation and passing of different laws in India has been discussed in detail under chapter IV
177
Also Instances of prolongation of emergency had been a common feature of
the emergencies that even India had witnessed. Government has enacted
number of laws and Innumerable ordinances without formally invoking the
emergency according to article 352 of the constitution.
Such instances prove that the conceptual model is significantly out of
touch with the practical realities of emergency experience.
6.10 CONCLUSION
An overall assessment of the legitimacy of an emergency practice in
India with the International existing norms lead to certain conclusions.
The Concept presents serious definitional problem that substantially
undermines the value of strict observance of International norms by states.
In spite of considerable steps, International control mechanism has not got
full success to combat violations of human right in crisis world over. At
national level too though Indian courts have developed many important
principles significantly to keep control and check the situation, it still is not
very favorable. Common man is still fighting to preserve his dignity and liberty.
There is need for full proof mechanism at International level taking
into consideration the prevailing practices by the countries. The Principles
are required to be developed that can keep continuous check on the State
practices.
178
Indian system provides for conditions, procedures, even far well
developed control mechanism to check the use of crucial power of emergency,
but both at government level as well as at administrative level there is need
for substantive reforms in conformity with international laws.
It is a formidable challenge before the international policy makers to
workout international obligations, which can be suitable and acceptable in
most part of the world. Sufficient progress has been made in this field. But
still lot more has to be done. Efforts made at International level have created
great awareness of human rights issues among the countrymen. There should
be more concentration on strengthening the domestic mechanism of control
over human right violations.
India has shown its determination to be more careful regarding
protection of its citizen's liberty, after 1975 experience, by acceding to ICCPR.
Though in recent years because of many harsh enactments to deal with
many political problems India has diverted from its commitments of ICCPR.
The Human Right Committee has criticized the divergence of India from the
Article 4 of ICCPR. India has to act more honestly towards its obligation
under ICCPR.
-ooOoo-