Comparative Constitutional Law

Class 18

Crisis Management in the Indian Constitutional System

Emergency Powers

• War Powers in Article I and II of US Constittution

• POGG power in s. 91 of the BNA Act of 1867

Indian Constitution

• National Emergency (arts. 352, 353, 354, 358 359) has this been proclaimed? How many times?

• Emergency in states (art. 356, 357) what about this? How many times?

• Financial Emergency (art. 360) what about this?

Indian Constitution

• National Emergency (arts. 352, 353, 354, 358 359) has this been proclaimed? How many times? 3 times

National Emergencies Proclaimed Under art. 352

• 1962: Chinese aggression – attack on India in 9/1962

• 1971: War with Pakistan

• 1975: “internal disturbance” (later ground revoked by Forty-Fourth Amendmentand replaced with “armed rebellion.”

What effects result from proclaiming an emergency?

What effects result from proclaiming an emergency?

• 1, extension of executive power to direct state executives (art. 353)

• 2. Union Parliament has power to legislate on matters in state List in Sch. VII (art. 353(b)

• 3. Union can alter distribution of revenue between Union and State (art. 354)

What effects result from proclaiming an emergency?

• 4. Extension of life of Lok Sabha

• 5. Suspension of fundamental rights guaranteed by art. 19 while proclamation of Emergency is in operation (only in case of war or external aggression, not armed rebellion) (Art. 358)

Art. 19

• 19. Protection of certain rights regarding freedom of speech, etc

• (1) All citizens shall have the right - • (a) to freedom of speech and expression;• (b) to assemble peaceably and without arms;• (c) to form associations or unions;• (d) to move freely throughout the territory of India;• (e) to reside and settle in any part of the territory of India;

and• (g) to practise any profession, or to carry on any

occupation, trade or business.

Effects of proclamation of emergency cont’d

• art. 359

Effects of proclamation of emergency cont’d

• art. 359: empowers President to suspend the right to enforce fundamental right guaranteed by Part III of the Constitution

• Some changes by the 44th Amendment

Arts 20 and 21 now excepted

• 20. Protection in respect of conviction for offences• (1) No person shall be convicted of any offence except

for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

• (2) No person shall be prosecuted and punished for the same offence more than once.

• (3) No person accused of any offence shall be compelled to be a witness against himself.

• 21. Protection of life and personal liberty• No person shall be deprived of his life or personal liberty

except according to procedure established by law.

Makhan Singh v. State of Punjab AIR 1964 SC 381

• What was the issue for the Court in this case?

• How did the court rule?

A.D.M. Japalpur v. Shukla (“The Habeas Corpus Case”

• Proclamation of emrgency under art. 352 on 25 June 1975.

• Presidential order suspending enforcement of rights conferred by arts. 19, 21, 22

• Order of detention under MISA made against respondents.

• They filed applications in various High Courts for issue of a writ of habeas corpus.

A.D.M. Japalpur v. Shukla (“The Habeas Corpus Case”

• Why did this decision cost the Supreme Court of India legitimacy and credibility?

Post-1975 Emergency

• 44th Amendment overturns Habeas Corpus case: Arts. 21 and 22 can’t be suspended during the proclamation of an emergency so a person can challenge the validity of a detention even during operation of an emergency

• Court becomes more activist

U.S. suspension provision

• Art. I § 9 Clause 2. 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.

Indian Constitution

• Emergency in states (art. 356, 357) what about this? How many times?

Indian Constitution

• Emergency in states (art. 356, 357) what about this? How many times?

• Many – more than 100 times• Power in art. 356 flows from responsibility in art.

355 (duty on Union to protect every state against external aggression and internal disturbance and to ensure government of every state is carried on in accordance with the provisions of the Constitution.”

U.S. Constitution

• Article IV §4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

Indian Constitution

• Financial Emergency (art. 360) what about this?

• never