DR.

RA
M
MA
NO
HA
R
LO
HIY
A
NA
TIO
NA
L
LA
W
UNI
VE
RSI
TY

PRO
JEC
T
OF
CO
NS
TIT
UTI
ON
AL
LA
W- I
SUP
PRE
SSI
ON
OF
FUN
DA
ME

NTA
L
RIG
HTS
DU
RIN
G
EM
ERG
ENC
Y:
JUDICIA
L AND
LEGISL
ATIVE
RESPON
SE.

Sub
mitte
d

to

Sub
mitte
d by
Ms.
Ankit
a
Yada
v
Avina

sh
Maur
ya
(Assi
stant
profe
ssor)
Roll
no.35
RML
NLU,
Luck
now
sec(A
)

ACKNOWLEDGEMENT

First of all, I would like to thank Ms. Ankita Yadav for giving me this opportunity
to make the project on such an immense topic and all the support and guidance that
I have received from her, without which this project could not have turned into a
reality. I would also like to thank all my colleagues and seniors for providing me
support and material facts and figures related to this topic. Last but not the least, I
would like to thank my parents for providing me appropriate guidance and support
to prepare the project. All the above-mentioned people have very whole-heartedly
helped me to make this project in the present shape.

THANK YOU!

TABLE OF CONTENTS
CHAPTER 1. -INTRODUCTION
CHAPTER 2. -SUPPRESSION OF FUNDAMENTAL RIGHT DURING
EMERGENCY.
CHAPTER 3.- JUDICIAL RESPONSE
CHAPTER 4.- LEGISLATIVE RESPONSE
CHAPTER 5.- CONCLUSION

CHAPTE
R 1
GENER
AL
INTROD
UCTION
INT
RO
DU
CTI
ON:
A state
of
emerge
ncy

in

India
refers to
a period
of
governa
nce
under
an
altered
constitu
tional
setup
that can
be
proclai
med by

the
Preside
nt

of

India,
when
he
perceiv
es grave
threats
to

the

nation
from
internal
and
external
sources
or from
financia
l
situatio
ns

of

crisis.
Under
the
advice
of

the

cabinet
of
minister
s

and

using
the
powers
vested

in
him/her
largely
by Part
XVIII
of

the

Constit
ution of
India,
the
Preside
nt

can

overrule
many
provisio
ns

of

the
constitu
tion,
which
guarant
ee
fundam
ental
rights to
the
citizens
of India
and acts
governi
ng
devoluti
on

of

powers

to

the

states
which
form
the
federati
on.
The
Presiden
t
can
declare
three
types of
emergen
cies:
N
at
io
n
al
e
m
er
g
e
n
c
y
St
at
e
e
m
er
g
e
n
c
y
Fi
n
a

n
ci
al
e
m
er
g
e
n
c
y
Proclam
ation

of

Emergen
cy
means
Proclama
tion
issued
under
clause (1)
of Article
352.
Accordin
gly,
wherever
the
expressio
n
Proclam
ation

of

emergenc
y
occurs, it
should
not

include
the

two

other
emergenc
ies,
namely,
the
emergenc
y arising
out of the
failure of
the
constituti
onal
machiner
y

in

state

a
or

the
financial
emergenc
y.
Proclama
tions

of

Emergen
cy under
Article
352 have
been
issued
thrice- In
October,
1962
during
Chinese

aggressio
n which
was
revoked
in
January
1968,
Decembe
r 1971 in
connectio
n

with

external
aggressio
n

from

Pakistan
and while
this was
in
operation
another
in

June

1975 on
ground of
internal
disturban
ces both
of which
were
revoked
in March
1977.
While the
provision
s on the

breakdo
wn of the
constituti
onal
machiner
y in the
states
have
been
invoked
over

hundred
times, the
provision
s

on

financial
emergenc
y

have

never
been
invoked
1

so far.

V. N.
Shuklas
Constituti
on
of
India

Eastern
Book
Company

Eleventh
Edition.
Pg. 952.

CHAP
TER 2
SUPP
RESS
ION
OF
FUN
DAM
ENT
AL
RIG
HTS
DURI
NG
EME
RGE
NCY
Backgro
und:
In

the

Elections
held
the

to
Lok

Sabha in
1971
from the
Rai
Bareily
Constitue
ncy Smt.
Indira
Gandhi
was
declared
elected,

defeating
Shri Raj
narain
and other
who had
contested
the
election.
Shri Raj
narain
then filed
a petition
in

the

High
Court of
Allahaba
d
challengi
ng

the

election
of

Smt.

Indira
Nehru
Gandhi
on

number
of
grounds,
inter
alia,
alleging
miscondu
ct against
her. The
High

Court of
Allahaba
d
pronounc
ed

its

judgment
on

June

12, 1975.
Shri

J.

M.

L.

Sinha of
Allahaba
d

High

Court
ordered:
In view
of
findings,
this
petition
is
allowed
and the
election
of Smt.
Indira
Nehru
Gandhi
to

the

Lok
Sabha is
declared
void.
Accordi
ngly, the
respond

ent
stands
disquali
fied for
a period
of

six

years
from the
date of
this
order.
Prime
Minister
Indira
Gandhi
subseque
ntly
made an
appeal to
the
Supreme
Court.
Justice
Krishna
Iyer

on

24h June,
1975
passed
an
interim
order in
which he
suspende
d right of
Mrs
Gandhi

to

take

part

in

the
proceedi
ngs

in

the

Lok

Sabha
nor vote,
nor draw
a
remunera
tion

in

her
capacity
as

Member
of

the

Lok
Sabha.
Proclam
ation of
Emergen
cy:
Thereaft
er,

on

June 26,
1975,
Presiden
t
Fakhrud
din Ali
Ahmed
proclai
med an
emergen

cy under
Article
352(1)
of

the

Constitu
tion on
the
advice
of Prime
Minister
Indira
Gandhi.
Later,
he
issued a
proclam
ation
suspendi
ng

the

right to
approac
h

the

courts
for

the

enforce
ment of
the
fundame
ntal
rights
guarante
ed under
Articles
14,

21

and 22.
The
impositi
on

of

emergen
cy was
necessit
ated,
accordin
g

to

Mrs.
Gandhi,
because
of

the

turmoil
and
incipient
rebellio
n in the
country.
Besides
the
mainten
ance of
order
justificat
ion, the
govern
ment
pointed
to

the

imperati
ves
saving

of

democra
cy,
protecti
ng

the

social
revoluti
on

and

preservi
ng
national
integrity
- all of
which
together
compell
ed

the

resort to
such

drastic
step. On
the
contrary
, for the
critics,
the
emergen
cy was
nothing
short of
a
scandal
on

the

Constitu
tion, and

smacked
of Mrs.
Gandhi'
s
dictatori
al
ambitio
ns. The
justificat
ions
notwiths
tanding,
some of
its
tangible
consequ
ences on
the
ground
were the
followin
g:
detentio
n

of

nearly
1,11,000
persons,
a
significa
nt
number
of
whom
belonge

d to the
oppositi
on,
under
the
Mainten
ance of
Internal

Security
Act,
1971
and the
Defense
of India
Act/
Rules,
1961;
inflictio
n

of

torture
on many
of these
detenues
;

press

censorsh
ip

and

curbs on
the
freedom
of
speech
and
expressi
on;
demoliti
on

of

shanty
towns in
and
around

Delhi;
and the
subjecti
on

of

rural
and
urban
poor,
and the
lower
middle
class in
North
India to
forced
sterilizat
ion
program
s.
Fortunat
ely

for

those
who
suffered
,

the

emergen
cy was
revoked
and
normalc
y
restored
in
eighteen

months
and for
the first
time in
the
history
of
indepen
dent
India, a
nonCongres
s
govern
ment
came to
power at
the
centre
after the
Parliam
entary
election
s

in

1977.

What
happens
when
the
state,
enjoyin
g

monopo

ly over
coercio
n,
suspend
s

the

regular
constitu
tion and
decides
to
express
its force
and
might,
if

its

own
security
is under
threat?
Is

the

rule of
law

powerfu
l
enough
check
under
such
circums
tances
when
all other
protecti
ve
mechan
isms are

slowly
taken
away?
And
what
exactly
can we
expect
it to do
as

final
bastion
for
actual
or
potentia
l
victims
of state
violenc
e under
emerge
ncy?

W
hi
le
th
e
N
ati
on
al
E
m
er

ge
nc
y
of
19
75
w
as
in
op
er
ati
on
,
th
e
go
ve
rn
m
en
t
m
ad
e
fo
ll
o
wi
ng
att
e
m
pt
s
to
su
pp
re
ss
F
un

da
m
en
tal
ri
gh
ts
th
ro
ug
h
va
ri
ou
s
st
at
ut
or
y
pr
ov
isi
on
s
:

a. T
h
e
D
ef
e
n
se
of
I
n
di

a
(
A
m
e
n
d
m
e
nt
)
A
ct
,
1
9
7
5

T
h
e
A
ct
e
xt
e
n
d
e
d
th
e
pr
o

vi
si
o
ns
of
th
e
D
ef
e
ns
e
of
In
di
a
A
ct
,
1
9
7
1,
til
l
th
e
pr
o
cl
a
m
at
io
n

of
In
te
rn
al
E
m
er
g
e
n
c
y
la
st
e
d
a
n
d
fo
r
a
p
er
io
d
of
si
x
m
o
nt
hs
th

er
ea
ft
er
.
It
al
so
a
d
d
e
d
w
or
ds
li
k
e
in
te
rn
al
se
c
ur
it
y
a
n
d
in
te
rn
al

di
st
ur
b
a
n
ce
s
in
th
e
pr
ea
m
bl
e
of
th
e
pr
in
ci
pl
e
A
ct
.

b. Th
e
M
ai
nte
na

nc
e
of
Int
er
na
l
Se
cu
rit
y
(A
me
nd
me
nt)
Ac
t,
19
75

Th
is
A
me
nd
me
nt
pro
vid
ed
for
(i)
Re

vo
cat
ion
of
a
det
ent
ion
ord
er
sha
ll
not
bar
ma
kin
g
an
oth
er
det
ent
ion
ag
ain
st
the
sa
me
per
so
n;
(ii)
Per

so
n
det
ain
ed
un
der
Se
cti
on
15
sha
ll
not
be
rel
eas
ed
on
bai
l,
bai
lbo
nd
or
oth
er
wi
se,
(iii
) a
ne
w

Se
cti
on
16
A
wa
s
ad
de
d
bar
rin
g
pro
vis
ion
s
of
gro
un
ds
an
d
ap
pro
ac
h
to
a
la
w
Co
urt
an

d
(iv
)
ma
kin
g
the
gro
un
ds
of
det
ent
ion
as

On
Indias
PostColonial
Engage
ment
with the
Rule of
Law
Moiz
Tundaw
ala

NUJS
Law
Review,
2013.

S
hah
Commis
sion

Interim
Report1, Pg. 4,
5.

confid
ential
and
barring
its
disclos
ure to
anyone
.

c. The
Const
itutio
n
(Thirt
yeighth
Amen
dment
) Act,
1975
By
this
Amen
dment
Act
power
to
issue
Ordin
ances
by the
Presid
ent,

the
Gover
nor
and
the
Admi
nistrat
or
under
the
releva
nt
provis
ions of
the
Consti
tution
was
confer
red,
laying
down
that
their
satisfa
ction
as

to

the
necess
ity of
imme
diate
action
shall

be
final
and
conclu
sive
and
shall
not be
questi
oned
in any
Court
on any
groun
d.

It

also
entitle
d

the

Presid
ent to
issue
differe
nt
procla
matio
ns on
differe
nt
groun
ds and
to
make
satisfa
ction

of the
Presid
ent as
to the
emerg
ency
final
and
conclu
sive.
Durin
g

the

Emerg
ency
the
satisfa
ction
and
the
declar
ation
of the
Emerg
ency
could
not be
questi
oned
in any
court
on any
groun
d.

d. The
Consti
tution
(Thirt
yninth
Amen
dment
) Act,
1975
This
Amen
dment
inter
alia
provid
ed
for:(a) the
electio
n

of

Presid
ent
and
VicePresid
ent
shall
not be
questi
oned
in any
court;

(b)
similar
ly,
electio
ns

of

the
Prime
Minist
er and
the
Speak
er

of

the
House
were
placed
above
the
law
Courts
and
were
to

be

judged
by

Body/
Author
ity to
be
constit
uted
by the
Parlia
ment.

This
amend
ment
preven
ted
even
filing
of
electio
n
petitio
ns
against
the
named
person
s

and

even
pendin
g
petitio
ns
abated
.

e. The
Press
Coun
cil
(Repe
al)
Act,
1976
The

Press
Coun
cil
Act,
1965
was
repeal
ed
dissol
ving
the
Press
Coun
cil of
India
and
also
abatin
g

of

cases,
suit,
appea
ls etc.
pendi
ng
befor
e
Court
in
which
Press
Coun
cil
was a
party.

f. The
Preven
tion of
Public
ation
of
Object
ionabl
e
Matter
act,
1976
The
Act
provid
ed for
(i)
inclusi
on

in

the
express
ion
object
ionable
matter
any
words,
signs
or
visible
represe
ntation
s

which
are
defama
tory of
the
Preside
nt

of

India,
the
VicePreside
nt

of

India,
the
Prime
Minist
er

or

the
Speake
r of the
House
of the
People
or the
Govern
or of a
State;
(ii)
Seizure
of
copies
of the
publica

tion
made
in
disobe
dience
of the
Central
Govern
ment
Order
prohibi
ting the
printin
g

or

publica
tion,
closure
of any
printin
g press
or
other
instru
ment
or
apparat
us used
in

the

publica
tion;
(iii)
power
to

deman
d
securit
y from
the
presses
,
publish
ers and
editors
of
newspa
pers
and
news
sheets,
when it
spears
to

the

compet
ent
authori
ty that
the
publica
tion
contain
s

any

objecti
onable
matter;
(iv)
power

of

the
Ce
ntr
al
Go
ver
nm
ent
to
dec
lar
e
cer
tai
n
pu
bli
cat
ion
s
for
feit
ed.

g. P
a
rl
i
a
m
e
n
t
a
r
y
P
r
o
c

e
e
d
i
n
g
s
(
P
r
o
t
e
c
ti
o
n
o
f
P
u
b
li
c
a
ti
o
n
)
R
e
p
e
a
l
A
c
t,

1
9
7
6

B
y
t
h
is
A
ct
t
h
e
P
a
rl
ia
m
e
n
ta
r
y
p
r
o
c
e
e
d
i
n
g
s
(
P

r
o
te
ct
i
o
n
o
f
P
u
b
li
c
at
i
o
n
)
A
ct
,
1
9
6
5
w
a
s
r
e
p
e
al
e
d.

h. T

h
e
C
o
n
s
t
i
t
u
t
i
o
n
(
F
o
r
t
y
S
e
c
o
n
d
A
m
e
n
d
m
e
n
t
)
A
c

t,
1
9
7
6

T
h
e
c
o
n
s
ti
t
u
ti
o
n
w
a
s
e
x
t
e
n
s
i
v
e
l
y
a
m
e
n
d

e
d
b
y
5
9
c
l
a
u
s
e
s
.

Some of
the
Instance
s
of
Abuse of
Executiv
e Power
during
National
Emerge
ncy
included
:a. Wr
on
gfu
l
arr
est
s:

Inv
oki
ng
arti
cle
35
2
of
the
Ind
ian
Co
nst
itut
ion
,
Mr
s.
Ga
nd
hi
gra
nte
d
her
sel
f
ext
rao
rdi
nar
y
po
we

rs
an
d
lau
nc
he
d a
ma
ssi
ve
cra
ck
do
wn
on
civ
il
lib
erti
es
an
d
pol
itic
al
op
pos
itio
n.
Th
e
Go
ver
nm

ent
use
d
pol
ice
for
ces
acr
oss
the
co
unt
ry
to
pla
ce
tho
usa
nds
of
pro
test
ors
an
d
stri
ke
lea
der
s
un
der
pre
ve

nti
ve
det
ent
ion
.
Cri
tics
we
re
det
ain
ed
by
pol
ice
wit
ho
ut
cha
rge
or
not
ific
ati
on
to
fa
mil
ies
an
d
the
y

we
re
ab
use
d
an
d
tort
ure
d
in
cus
tod
y.

b. Fa
mil
y
Pla
nni
ng
an
d
Fo
rce
d
Ste
rili
zat
ion
s:
Sa
nja
y

Ga
nd
hi
init
iat
ed
a
birt
h
co
ntr
ol
pro
gra
m,
chi
efl
y
em
plo
yin
g
ste
rili
zat
ion
,
pri
ma
rily
vas
ect
om
ies.
Qu

ota
s
we
re
set
up
an
d
the
pro
gra
m
co
unt
ed
as
ma
ny
as
8.3
mil
lio
n
for
cef
ul
ste
rili
zat
ion
s,
up
fro
m
2.7

mil
lio
n
the
pre
vio
us
yea
r.

c. U
s
e
o
f
p
u
b
l
i
c
a
n
d
p
r
i
v
a
t
e
m
e
d
i
a
i
n
s
t
i
t
u
t
i
o
n
s

,
l
i
k
e
t
h
e
n
a
t
i
o
n
a
l
t
e
l
e
v
i
s
i
o
n
n
e
t
w
o
r
k
D
o
o
r
d
a
r
s
h
a
n
,
f
o
r
g
o
v
e
r
n

m
e
n
t
a
n
d
p
a
r
t
y
p
r
o
p
a
g
a
n
d
a
,
d. De
str
uct
io
n
of
the
slu
m
an
d
lo
winc
o
me
ho
usi
ng
in
the
Tu
rk
me
n
Ga
te
an
d
Ja
ma
M
asj

id
are
a
of
ol
d
De
lhi
.

CHAPTER 3
JUDICIAL
RESPONSE

The
discussion
of cases
falls into
two parts:
Cases
decided
during the
emergenc
y created
by war or
external
aggressio
n
and
cases
decided
during the
Emergenc
y
proclaime
th

d on 25
June 1975
on
the
ground of
internal
disturbanc
e.
During
first

two

emergenci

es

which

were
declared
in October
1962 and
December
1971

on

ground of
External
Aggressio
n,

no

attempt
had

been

made

to

impair
permanent
ly

the

fundament
al

rights

embodied
in

our

Constituti
on. Under
the
circumsta
nces,

the

courts
considered
the effect
of
proclamati
on

of

emergenc
y

in

number of

cases: (1)
On
Preventive
Detention,
(2)
On
the
effect of
the
suspensio
n
of
Article 19
following
on
a
proclamati
on
of
emergency
and
(3) on the
effect of
the
President
s
Order
under
Article
359.
On

26

th

October
1962, the
President
issued a
Proclama
tion
of
Emergen
cy under
Article
352. As
the
Parliame
nt
was
not
in

session,
the
President
promulga
ted the
Defense
of India
Ordinanc
e, 1962.
On

rd

Novembe
r 1962,
the
President
issued an
order
under
Article
359,
declaring
that the
right of
any
person to
move any
court for
the
enforcem
ent of the
rights
conferred
by
Article
14,
21
and 22
was
suspende
d during

the time
the
proclama
tion was
in force.
In Mohan
Chowdha
ry

v.

Chief
Commr.
Tripura

the
Defense of
India
Ordinance
and

the

rules made
there
under
were
challenged
.

On

preliminar
y
objection
being
taken that
in view of
the
President
s

Order

made
under
Article

359,

the

petitioner
was

not

entitled to
move the
court

or

the
enforceme
nt of his
fundament
al

rights,

the
petitioner
contended
that

as

Article 32
itself
conferred
a
fundament
al

right

and as the
President
s

Order

had

not

suspended
that rights,
the
petitioner
was
entitled to
move the
court
under
Article 32.

The
Supreme
Court held
that

the

right

to

move that
court
under
Article 32
was
subject to
Article
32(4)
under
which the
right could
be
suspended
in
accordanc
e with the
provisions
of

the

Constituti
on. Article
359
enabled
the
President
to suspend
the right to
move any
court

for

the
enforceme

nt of the
fundament
al rights
4

(1964) 3
S.C.R. 442

which
may

be

named by
the
President.
The
President
s Order
did

not

suspend
all rights
vested in
a citizen
to

move

the
Supreme
Court but
only

his

right

to

enforce
the
provision
s

of

Articles
21 and 22
in respect
of
anything
done
under the
Defense
of
Act:

India

As

result

of

the
Presidents
Order, the
petitioner
s right to
move this
court,

but

not

this

courts
power
under
Article 32
has

been

suspended
during the
operation
of

the

emergency
with

the

result that
the
petitioner
has

no

locus
standi

to

enforce his
right,

if

any, during
the
emergency.

Thus, the
validity of
the
statutory
provisions
authorizin
g

the

detention
could not
be
challenge
d in view
of

the

Presidenti
al Order.
The
Court,
however,
held that
the pleas
which
were open
to

detenu
were that
the
mandator
y
provisions
of

the

Defense
of
Act

India
and

rules had
not

been

observed
and

the

plea

not

merely
alleged
but
proved
that

the

detention
was mala
fide.
Makhan
Singh

v.

State

of

Punjab

showed
that

even

when

the

President
s

Order

suspended
the

right

of

the

detenu to
move the
Courts for
the
enforceme
nt of his
fundament
al

rights

under
Articles 21
and 22, his

right

to

challenge
his
detention
on several
other
grounds
was

not

taken
away
These
grounds
were
the

(i)
law

authorizin
g
detention
was
colorable
or

was

passed by
a
legislature
which had
no
legislative
competenc
e, (ii) the
detention
was

in

violation
of

the

mandatory
provisions
of the law

authorizin
g
detention,
(iii)

the

detention
was

in

excess off
the powers
conferred
by the Act
and

the

Rules, (v)
the

order

of
detention
was
passed
mala fide.
The court
has
reiterated
this
position in
Attorney
General v.
Amratlal
Prajivand
as.

In

Ram

Manohar
Lohia v.
State
Bihar

of
7

it

was held
unanimou
sly

that

the
President
s

Order

suspended
the
enforcem
ent of a
persons
rights
under
Articles
21 and 22
if he had
been
deprived
of

those

rights by
an

order

passed
under the
Defense
of

India

Act, 1962
or

the

rules
made
there
under. But
it

was

open

to

him

to

show that
the order

under the
said

Act

and rules
was

mala fide,
or

an

invalid,
order, and
in

either

event, he
was
entitled to
move

court for
the for the

AIR
1964 SC
381
:
(1964) 4
SCR 797

(19
94)
5
SCC 54 :
AIR 1994
SC 2179

66)
S.C.R.
709

(19
1

enforceme
nt of his
rights
under
Articles 21
and 22.
What
constitutes
Mala fide
has

been

interpreted
in case of
Jaichand
Lal

v.

State

of

West
8

Bengal

in this
context
a

mala

fide
exercise
of

power

does

not

necessaril
y

imply

any moral
turpitude
as a matter
of law. It
only
means that
the
statutory
power

is

exercised

for
purposes
foreign to
those

for

which it is
in

law

intended
i.e. for
some
indirect
purposes
not
connected
with

the

object

of

the statute
or

the

mischief it
seeks

to

remedy.

In
Ghulam
Sarwar
v. Union
of India

Subba
Rao C.J.
delivering
the
majority
judgment
held that
an

order

passed by
the

President
suspendin
g

the

right

to

move the
court for
the
enforcem
ent

of

rights
under
Article 14
was itself
subject to
a
challenge
that

it

violated
Article
14.

In this, the
court
made
a
distinction
between
the order
made by
the
President
and
the
effect of
the order.
Only
a
valid order
could take
away the
rights
under

Article 14
therefore
if
the
President
s
Order
violated
Article 14,
the order
would be
void from
its
inception.

The

real

import of
the words
used

in

Article
359 came
up

for

considerat
ion

in

Mohd
Yaqub v.
State

of

J&K

10

which
overruled
Ghulam
Sarwar v.
Union of
India.

It

was
concerned

with

number of
habeas
corpus
writ
petitions
to test the
validity of
arrests
made
under
Rule 30(1)
of

the

Defense
of

India

Rules,
1962 and
the
President
s

Order

issued
under
Article
359(1)
suspendin
g

the

enforceme
nt

of

fundament
al

rights

under
Articles
14, 21 and
22 during
the period

of
emergenc
y. Among
other
grounds, it
was
contented
firstly, that
the
President
being

an

authority
under
Article 12,
the

order

passed by
him under
Article
359 was a
law within
the
meaning
of Article
13(2) and
was,
therefore,
liable

to

be

tested

on

the

anvil

of

fundament
al

rights,

and
secondly,
that

the

enforceme
nt of only
such
fundament
al

rights

could

be

suspended
which had
nexus
with

the

reasons
which led
to

the

proclamati
on

of

emergenc
y.

The

Supreme
Court
rejected
both

the

arguments
.

Firstly,

because
Article
13(2) and
Article
359 being
parts of
8

A.S
C. 483,
485

67)
S.C.R.
271

10

(19
2

AIR
1968 SC

765

the
same
Constit
ution
stand
on an
equal
footing
and the
two
provisi
ons
must
be read
harmo
niousl
y

in

order
that
the
intenti
on
behind
Article
359
was
carried
out
and
not
destro
yed
altoget

her.
Thus
though an
order
under
Article
359

may

be
assumed
to be law
in

the

widest
sense,

it

cannot be
law within
the
meaning
of Article
13(2) for,
if
were

that
so,

Article
359 would
be
nugatory.
If

the

order is a
law within
the
meaning
of Article
13(2), the
result

would be
that
though the
order says
that

the

enforceme
nt

of

particular
fundament
al right is
suspended
during the
period

of

Emergenc
y,

the

order can
still

be

tested with
the aid of
Article
13(2)
the

on
anvil

of

the

same
fundament
al right the
enforceme
nt

of

which

it

suspends
and

declaratio
n
there

made

under has
no
meaning
whatsoeve
r.
Secondly,
it

is

implicit
that

the

enforceme
nt

of

particular
fundament
al

right

suspended
by

the

President
is for the
sake of the
security of
India, for
which the
Emergenc
y has been
declared
under
Article
352,

and

no further
proof of it
is
necessary.
Declaratio
n

of

Emergenc
y is for the
subjective
determinat
ion of the
President,
and

he

cannot be
called
upon

to

justify his
action in a
court

of

law.
Hidaytulla
h, J, in his
dissenting
judgment
suggested
that
Article
359 must
be
circumscri
bed in at
least those
theoretical
ly possible
cases
where the
power
may

be

misused or
exercised

mala fide,
and

for

that
purpose
room must
be let for
the
operation
of Article
14.
However,
it

is

submitted
that

once

this
suggestion
is
accepted,
it

would

unduly
circumven
t the ambit
of Article
359.
Moreover,
there

has

always
been

remedy
available
in a court
of

law

against
misuse of

power

or

mala fides
as

an

independe
nt ground.

While
considerin
g
the
Right to
Freedom
guaranteed
under
Article 19,
Supreme
Court in
Makhan
Singh v.
State of
11
Punjab
said that,
The
suspensio
n

of

Article 19
during the
pendency
of

the

Proclamat
ion

of

emergenc
y removes
the fetters
created on
the
legislative

and
executive
powers by
Article 19
and if the
legislature
s

make

laws

or

the
executive
commits
acts
which are
inconsiste
nt

with

the rights
guarantee
d

by

Article
19,

their

validity is
not open
to
challenge
either
during the
continuan
ce of the
emergenc
y or even
thereafter.

11

(1964) 4
S.C.R. 797

Before
1975,
the
impact
of
Article
359

on

the
fundame
ntal
rights
conferre
d

by

Part III
had not
been
fully
realized,
partly
because
the
power of
preventi
ve
detentio
n

was

not

as

grossly
abused
as it was
during
Emerge

ncy

of

1975.
In

1975,

for

the

first

time

after

the

constitutio
n

came

into force,
the
Emergenc
y

was

proclaime
d on the
ground of
internal
disturbanc
e, and it
was made
a cloak for
gross
abuse

of

political
power.
After

the

declaratio
n

of

Emergenc
y,

the

President
of

India

issued an
order
under

Article
359 of the
Constituti
on on June
27,

1975

suspendin
g the right
to

move

any court
for

the

enforceme
nt

of

fundament
al

rights

conferred
by Article
14, 19, 21
and 22 of
the
Constituti
on.
ADM
Jabalpur
vs.
Shivkant
12
Shukla ,
famously
known as
the
Habeas
Corpus
Case,
The
appeals
decide by
the

Supreme
Court

in

the
Habeas
Corpus
case arose
out

of

habeas
corpus
applicatio
ns

filed

by several
detenues
who
prayed for
their
release
from
illegal
preventiv
e
detention.
A
preliminar
y
objection
was
raised by
the Union
that

in

view

of

the
President
s

Order

under
Article
359
suspendin
g the right
of

any

person
(including
a
foreigner)
to

move

any court
for

the

enforcem
ent of his
fundamen
tal rights
under
Articles
14, 19, 21
and

22,

the
petitioner
s had no
locus
standi

to

maintain
the
petition,
because,
in
substance,
the
detenues

were
seeking to
enforce
their
fundamen
tal

right

under
Article
21,
namely,
that they
should
not

be

deprived
of

their

personal
liberty
except by
procedure
establishe
d by law.
The High
Court

of

Allahabad
, Andhra
Pradesh,
Bombay,
Delhi,
Karnataka
, Madras,
Madhya
Pradesh,
Punjab
and

Haryana
and
Rajasthan
, rejected
this
contentio
n and held
that
though
the
petitioner
s

could

not move
the court
to enforce
their
fundamen
tal

right

under
Article
21,

they

were
entitled to
show that
the order
of
detention
was
under

not
or

in
complianc
e with the
law

or

was mala

fide.
However,
the
Supreme
Court held
that:
In view
of

the

Presidenti
al

Order

dated 27

th

June
1975, no
person
has

any

locus
standi to
move the
High
Court for
habeas
corpus or
any other
writ order
or
direction
to
challenge
the
legality of
an

order

of
detention
on

the

ground
that
order

the
is

not under

or

in

complianc
e with the
Act

12

A.SC
1325

(76)
Pg

(Mainte
nance of
Internal
Security
Act,
1971) or
is illegal
or
is
vitiated
by mala
fides
factual
or legal
or
is
based
on
extraneo
us
consider
ation.
The
Ord
er
was
pass
ed
as
the
resu
lt of
four
maj
orit
y
jud

gme
nts
deli
vere
d by
Ray
C.J.
,
Beg
,
Cha
ndr
ach
ud
and
Bha
gwa
ti
JJ.
Just
ice
Kha
nna
gav
e
diss
enti
ng
jud
gme
nt
but
he
sign
ed
the
Courts
order.

The
Supreme
Court
inflicted
a

deep

wound
on itself
when
four
judges
passed
this
misleadin
g

order

which
barred
and
bolted
the
prison
doors
behind
which
helpless
and
innocent
persons
were
illegally
detained
and

ill

treated.
Dissentin
g
judgment
of Justice

Khanna
in Habeas
Corpus
case:
Justice
Khanna
dissented
as in his
opinion it
takes

us

back to the
pre
constitutio
nal British
period.
The most
salient
feature of
Justice
Khanna's
decision
was

that

Article 21
could not
be viewed
as the sole
repository
of

the

right
life

to
and

personal
liberty,
and

that

therefore

its
suspension
did

not

give
executive
officers of
the
governme
nt

carte

blanche
powers to
detain
persons
without
the
authority
of law. For
him,

this

right was
not the gift
of

the

Constituti
on; it had
existed
long
before the
Constituti
on

came

into force.
Merely
because an
aspect
the
was

of
right

incorporat
ed in the
fundament
al

rights

chapter
did

not

mean that
its
independe
nt identity
had

been

exterminat
ed.

In

effect
Article 21
required a
proper
procedure
under

valid law
before

person
could

be

deprived
of his or
her

right.

So at the
most,

its

suspension
meant the
deprivatio
n of the
right to a
procedure,

and

not

the denial
of

the

right in the
absence of
authority
of law.

CHAPTER 4
LEGISLATIVE
RESPONSE
Emergen
cy
provision
s under
Indian
Constitut
ion prior
to
passing
th
of
44
Amendm
ent Act:
P
ar
t
X
V
II
I
of
th
e
In
di
a
n
C
o
ns
tit
ut
io
n
d
ea

ls
w
it
h
th
e
E
m
er
g
e
n
c
y
pr
o
vi
si
o
ns
.
T
h
e
re
le
v
a
nt
pr
o
vi
si
o
ns
pr
io
r
to
p
as
si

n
g
of
4
t

4
h

A
m
e
n
d
m
e
nt
A
ct
ar
e
as
fo
ll
o
w
in
g:
Article
352:
Proclamati
on
of
Emergenc
y.

(1) If the
President
is satisfied
that

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
disturbanc
e, he may,
by
Proclamati
on, make a
declaratio
n to that
effect

in

respect of
the whole
of India or
of

such

part of the
territory
thereof as
may

be

specified
in

the

Proclamati
on.

Article
353:
Effect of
Proclamati
on
of
Emergenc
y.
While
a
Proclamati
on
of
Emergenc
y is in
operation,
then
(a) Notwi
thstandin
g
anything
in

this

Constituti
on,

the

executive
power of
the Union
shall
extend to
the giving
of
directions
to
State
to

any
as
the

manner in
which the
executive
power
thereof is
to

be

exercised;
(b) the
power of
Parliamen
t to make
laws with
respect to
any matter
shall
include
power to
make laws
conferring
powers
and
imposing
duties, or
authorizin
g

the

conferring
of powers
and

the

impositio
n

of

duties,
upon

the

Union or
officers
and
authorities
of

the

Union as
respects
that

matter,
notwithsta
nding that
it is one
which

is

not
enumerate
d in the
Union
List;
Provided
that where
a
Proclamati
on
of
Emergenc
y is in
operation
only
in
any part of
the
territory
of India,
(i) the
executi
ve
power
of the
Union
to give
directio
ns
under
clause
(a), and
(ii) the
power
of
Parliam
ent

to

make
laws
under
clause
(b),
shall
also
extend
to

any

State
other
than

State in
which
or

in

any part
of
which
the
Proclam
ation of
Emerge
ncy is in
operatio
n if

and in so
far as the
security
of

India

or

any

part

of

the
territory
thereof is
threatene
d

by

activities
in or in
relation
to
part

the
of

the
territory
of

India

in which
the
Proclama
tion

of

Emergen
cy is in
operation
Article
358:
Suspensio
n
of
provisions
of Article
19 during
emergenci
es.

(1)
While

Proclamat
ion

of

Emergenc
y

is

in

operation,
nothing in
Article 19
shall
restrict
the power
of
State

the
as

defined in
Part III to
make any
law or to
take any
executive
action
which the
State
would but
for

the

provision
s
contained
in
Part

that
be

competen
t to make
or to take,
but

any

law

so

made
shall,

to

the extent
of the in
competen
cy, cease
to

have

effect as
soon

as

the
Proclamat
ion ceases
to
operate,
except as
respects
things
done

or

omitted to
be

done

before the
law

so

ceases to
have
effect:
Provided
that where
a
Proclamati
on

of

Emergenc
y

is

in

operation

only

in

any part of
the
territory of
India, any
such

law

may

be

made,

or

any

such

executive
action may
be

taken,

under this
article

in

relation to
or in any
State

or

Union
territory in
which

or

in any part
of

which

the
Proclamati
on

of

Emergenc
y is not in
operation,
if and in
so far as
the
security of
India

or

any part of
the

territory
thereof is
threatened
by
activities
in

or

in

relation to
the part of
the
territory of
India

in

which the
Proclamati
on

of

Emergenc
y

is

in

operation
A
r
t
i
c
l
e
3
5
9
:
S
u
s
p
e
n

s
i
o
n
o
f
t
h
e
e
n
f
o
r
c
e
m
e
n
t
o
f
t
h
e
r
i
g
h
t
s
c

o
n
f
e
r
r
e
d
b
y
P
a
r
t
I
I
I
d
u
r
i
n
g
e
m
e
r
g
e
n
c
i
e
s

.
(1)
Where

Proclamat
ion

of

Emergenc
y

is

in

operation,
the
President
may

by

order
declare
that

the

right

to

move any
court for
the
enforcem
ent

of

such

of

the rights
conferred
by Part III
as may be
mentione
d in the
order and
all
proceedin
gs
pending
in

any

court for

the
enforcem
ent of the
rights

so

mentione
d

shall

remain
suspended
for

the

period
during
which the
Proclamat
ion is in
force
for

or
such

shorter
period as
may

be

specified
in

the

order
(1A)
While an
order
made
under
clause
(

mentionin
g any of
the rights
conferred
by Part III

is

in

operation,
nothing in
that

Part

conferring
those
rights
shall
restrict the
power of
the

State

as defined
in the said
Part

to

make any
law or to
take

any

executive
action
which the
State
would but
for

the

provisions
containing
in

that

Part

be

competent
to

make

or to take,
but

any

law

so

made
shall,

to

the extent

of the in
competen
cy, cease
to

have

effect

as

soon

as

the order
aforesaid

ceases
to
operate,
except
as
respects
things
done or
omitted
to
be
done
before
the law
so
ceases
to have
effect.
Provided
that where
a
Proclamati
on

of

Emergenc
y

is

in

operation
only

in

any part of
the
territory of
India, any
such

law

may

be

made,

or

any

such

executive
action may
be

taken,

under this
article

in

relation to
or in any
State

or

Union
territory in
which

or

in any part
of

which

the
Proclamati
on

of

Emergenc
y is not in
operation,
if and in
so far as
the
security of
India

or

any part of
the
territory
thereof is
threatened
by
activities
in

or

in

relation to

the part of
the
territory of
India

in

which the
Proclamati
on

of

Emergenc
y

is

in

operation
(2) An
order
made as
aforesaid
may
extend to
the whole
or
any
part of the
territory
of India:
Provided
that where
a
Proclamati
on

of

Emergenc
y

is

in

operation
only in a
part of the
territory
of
any

India,
such

order shall
not extend

to

any

other part
of

the

territory
of

India

unless the
President,
being
satisfied
that

the

security of
India

or

any part of
the
territory
thereof is
threatened
by
activities
in or in
relation to
the part of
the
territory
of India in
which the
Proclamati
on

of

Emergenc
y

is

in

operation,
considers
such
extension

to

be

necessary
(3)
Every
order
made
under
clause
(1) shall,
as soon
may be
after it is
made, be
laid
before
each
House of
Parliame
nt
Justice
Khanna
dissentin
g
in
ADM
Jabalpur
v.
Shivkant
Shukla
(Habeas
Corpus
case),
ended his
judgment
with this
note:

A
dissent
in

Court of
last
resort is
an
appeal
to

the

broodin
g spirit
of

the

law,

to

the
intellige
nce of a
future
day,
when a
later
decision
may
possible
correct
the
error
into
which
the
dissenti
ng
Judge
believes
the

court to
have
been
betraye
d."
On
th

18
Jan
uar
y
197
7,
19
mo
nths
afte
r
Em
erg
enc
y
was
decl
are
d,
Indi
ra
Gan
dhi
ann
oun
ced
diss
olut
ion
of
Parl
iam

ent,
call
ed
fres
h
elec
tion
s
and
rele
ase
d
all
poli
tica
l
pris
one
rs.
The
eme
rge
ncy
offi
cial
ly
end
ed
on
rd

23
Mar
ch
197
7.
Recen
t
experi
ence
had

show
n that
the
funda
menta
l
rights
,
includ
ing
those
of life
and
libert
y,
grante
d

to

citize
ns by
the
Const
itutio
n
were
capab
le of
being
taken
away
by

transi
ent

majorit
y.
It
was,
therefor
e,
necessa
ry
to
provide
adequat
e
safegua
rds
against
the
recurren
ce
of
such a
conting
ency in
the
future
and to
ensure
to the
people
themsel
ves an
effectiv
e voice
in
determi
ning the
form of
govern
ment

under
which
they
were to
live.

13

Thus,
newly
formed
Janata
Party
governme
nt
appointed
the

Shah

Commissi
on on 28

th

May 1977
under
Section 3
of

the

Commissi
ons

of

Inquiry
Act, 1952
to inquire
into all the
excesses
committed
during
Indian
Emergenc
y

(1975-

77). It was

headed by
Justice
J.C.Shah,
a

former

Chief
Justice of
India. The
commissio
n
published
its

report

on

the

illegal
events
during the
emergency
and

the

persons
responsibl
e in three
volumes
totaling
525 pages.
The

first

interim
report was
submitted
on

11

March
1978,
dealing
with

the

lead-up to
the

declaratio
n of the
Emergenc
y and the
way

in

which the
press was
prevented
from
speaking
out.

The

second
interim
report
discussed
police
actions
and

the

role

of

Sanjay
Gandhi at
the
Turkman
Gate
incident in
which
police
fired on a
crowd

of

people
protesting
against
demolition
of

their

houses.
The

final

report was
issued on
6

August

1978 and
covered
prison
conditions,
torture and
family
planning
atrocities.
In

May

1978, after
the second
interim
report

of

the
commissio
n had been
issued,
some
leaders of
the Janata
party
began
demandin
g

that

special
courts be
set up to
ensure
speedy

trial

of

cases
related to
the
emergenc
y.
Parliament
eventually
passed an
act
establishin
g

two

special
courts on
8

May

1979.
However,
it was too
late.

The

governme
nt fell on
16

July

1979.
After
Indira
Gandhi
returned
to

power

in January
1980

the

Supreme
Court
found that
the special

courts
were

not

legally
constitute
d, so no
trials were
conducted
.
Janata
Party
led
govern
ment,
howeve
r,
passed
th

44
Constit
utional
Amend
ment
act
which
made
major
changes
in
Emerge
ncy
provisio
ns.
The
Emergen
cy
Provision
s of our
constituti
on

as

embodie
d

in

Articles
352, 358
and 359
raise
three
different
questions
:

First,

are they
necessary
at

all?

Secondly,
what
changes
must

be

made in
these
provision
s

to

prevent
abuse?
Thirdly,
how

far

has

the

th

44

Amendm
ent gone
to
prevent
the abuse
of

these

provision
s?

The

first two
questions

are
outside
the scope
of

this

research.
The third
question
has been
answered
here
under.

13

The
Constitutio
n
(Forty
Fourth
Amendme
nt)
Act,
1978

Statement
of Object
and
Reasons.

After the
Proclama
tion of
Emergen
cy,

39

th

Amendm
ent Act
inserted
a law of
preventiv
e
detention
into
Schedule
9
namely,
the
Maintena
nce
of
Internal
Security
Act
(MISA)
thus
excludin
g
all
challenge
to
the
Act on
the
ground
that
it
violated
fundame
ntal
rights, as

Schedule
9
had
been
interprete
d by the
Supreme
Court at
that time.
th

44

Amendm
ent Act
took
away the
President
s power,
under
Article
359, to
suspend
by
an
order the
right to
move any
Court for
the
enforcem
ent of the
fundamen
tal rights
conferred
by
Articles
20
and
21. Also,
the
iniquity
of

inserting
MISA in
Schedule
9
was
realized
and

the

th

44

Amendm
ent
removed
MISA
from
Schedule
9.
Article
352
has
been
amended
in several
respects
by
the
FortyFourth
Amendme
nt Act so
as
to
minimize
the
chances of
abuse of
power to
declare
Emergenc
y.
Firstly,
the

expressi
on
internal
disturba
nce has
been
replaced
by
armed
rebellion

in
order to
delimit

internal
disturba
nce
which
has wide
connotat
ion.
Secon
dly, a
Procla
mation
of
Emerg
ency
will
not be
issued
by the
Presid
ent
unless
a

recom
menda
tion of
the
Counci
l

of

Minist
ers to
that
effect
is
comm
unicate
d

to

him in
writing
. This
is done
to
elimin
ate any
possibi
lity of
the
Prime
Minist
er
alone
taking
a
decisio
n

for

the
imposi
tion of

Emerg
ency
as
Mrs.
Indira
Gandh
i

is

alleged
to have
done
in June
1975.
Thirdly,
the
Proclamati
on

of

Emergenc
y must be
approved
within one
month
instead of
two
months as
provided
earlier, by
resolution
s of both
Houses of
Parliament
and such a
resolution
has to be
passed by

a majority
of the total
membersh
ip of the
House and
a majority
of not less
than

two

thirds

of

the
members
present
and
voting.
Before the
Amendme
nt

such

resolution
could

be

passed by
simple
majority.
Fourthly,
a
Proclamati
on

of

Emergenc
y ceases to
operate
automatica
lly at the
expiry

of

six months
and can be

continued
beyond
that period
only

on

approval
by

resolution
of

both

Houses of
Parliament
every

six

months.
Fifthly,
the
President
shall
revoke a
Proclama
tion

of

Emergen
cy on a
resolution
of

the

House of
the
People to
that
effect and
for

that

purpose a
special
sitting of
the
House
can

be

called at
a

14

days
notice by
one-tenth
of

the

total
members
of

that

House.
Before
the
Amendm
ent once
a

Proclamat
ion was
made and
approved
by
Parliamen
t it could
be
continued
indefinitel
y unless
the
President
revoked it
on
his
own.
Sixthly,
Article 19
which
used

to

get
suspended
automatic
ally on a
Proclamat
ion

of

Emergenc
y

will

now
remain
unaffecte
d if the
ground of

Proclamat
ion

is

only
armed
rebellion
and

not

war

or

external
aggressio
n.
Moreover
special
conditions
have been
added

to

the
suspensio
n

of

Article 19
even
when the
proclamat
ion is on
the
ground of
war

or

external
aggressio
n.
Interpretin
g
the
changes
made
through
th
44
Amendme

nt
Act,
Supreme
Court in
Naga
Peoples
Movemen
t
of
Human
Rights v.
Union of
14
India
observed
The
expression
internal
disturbanc
e

has

wider
connotatio
n

than

armed
rebellion
in

the

sense that
armed
rebellion
is likely to
pose

threat

to

the
security of
the
country or
a

pert

thereof,
while
internal

disturbanc
e, though
serious in
nature,
would not
pose

threat

to

the
security of
the
Country or
a

part

thereof.
The
intention
underlying
the
substitutio
n of the
word
internal
disturbanc
e by the
word
armed
rebellion
in Article
352 is to
limit

the

invocation
of

the

emergency
powers
under

Article
352

only

to

more

serious
situation
where
there is a
threat

to

the
security of
the
country or
a

part

thereof on
account of
war

or

external
aggression
or

armed

rebellion
and

to

exclude
the
invocation
of
emergency
powers in
situations
of internal
disturbanc
e

which

are
lesser
gravity.

of

After the
FortyFourth
Amendm
ent

the

only
differenc
e

left

between
Articles
358 and
359

is

that
firstly,
while the
former is
confined
to Article
19,

the

latter
extends
to

all

fundame
ntal
rights
except
those

in

Articles
20

and

21.
Secondly,
the
former

suspends
the rights
while the
latter
suspends
only the
remedy.
Thirdly,
because
of

the

precedin
g
differenc
e

until

the
Thirtyeighth
Amendm
ent,
which
introduce
d clause
(1-A) in
Article
359,
while no
actions
could be
initiated
against
the
violation
of Article
19 either

during or
after the
Emergen
cy,
actions
could be
taken
against
the
violation
of

other

fundame
ntal
rights
whose
enforcem
ent

was

suspende
d by the
President
under
Article
359.

14

(1998) 2
SCC 109 :
AIR 1998
SC 431

CHAPTER 5
CONCLUSION
The
history of
the

1975

Emergenc
y and its
aftermath
has taught
us

the

lesson:
that

if

need

be,

the peace
loving
masses in
India will
rise

from

their
slumber to
exercise
their
political
sovereignt
y, to take
back from
their
representat
ives their
solemn
trust.
With

the
imposit
ion of
Emerg
ency
the
executi
ve had
set up
an
aggress
ive
front.
In the
face of
this
aggress
ion, the
Court
under
the
leaders
hip of
Chief
Justice
s

Ray

and
Beg,
abdicat
ed

its

power
of
judicial
review.
Subsequ

ently
during
the
tenure of
the
Janata
Govern
ment in
19771980, it
bounced
in

with

vengean
ce
against
the
emergen
cy

and

with
massive
public
support,
the
Court
under
the
leadershi
p of the
Chief
Justice
Chandra
chud
endorsed
the

policy
decision
of

the

new
Govern
ment.
The
relaxed
political
atmosph
ere made
the
executiv
e

more

liberal in
its
approach
,
providin
g

an

opportun
ity

for

the
Court to
retrieve
its

lost

judicial
territory.
It
extended
its
jurisdicti
on

and

acquired

immense
power of
administ
ration,
becomin
g

the

most
powerful
judiciary
in

the

world. It
extended
the
meaning
of
'State',
prescribe
d limits
to
executiv
e
discretio
n,

and

redefine
d

the

scope of
judicial
interfere
nce,
which
was

in

fact
unbound
ed

and

limitless.
The
Court
and
Executiv
e shared
the glory
of

this

brief but
significa
nt period
in

the

history
of

the

country.
These
were the
Court's
finest
years.
There has
been
vacillation
between
hope and
disappoint
ment, but
ultimately
hope

has

survived;
the Court
is

indeed

the forum
for

legitimizin
g

the

establishm
ent as well
as

the

dissent.
There is a
general
feeling
that
whatever
the
failures
and
disappoint
ments, the
Court has
inspired
an

anti-

establishm
ent

force

to seek its
interventio
n

in

defense of
democrac
y and the
rule

of

law,

and

thus

the

Court
remains
the

main

bulwark
of Indian

democrac
y because
other
organs of
the

state

have

not

shown any
promise of
rejuvenati
15

on.

The
judiciary
plays
important
role
throughou
t a state of
emergenc
y,

from

the
inception
of

the

declaratio
n of the
state

of

emergenc
y

to

its

terminatio
n.

The

rising
skepticism
about the
role of the
judiciary

in times of
crises

is

based

on

an
unbalance
d
evaluation
of the past
experience
of

the

judiciary
and

fails

to

take

into
account
the
resultant
lessons
and
developm
ents from
these
15

Contributi
on of the
Supreme
Court
to
the Growth
of
Democrac
y in India
NUJS Law
Review,
2013

experie
nces.
The
judiciar
y
is
reinvig
orated
by
these
experie
nces
and
more
fortifie
d for an
ever
more
audacio
us
protecti
on of
human
rights.
Dr.
Babas
aheb
Ambe
dkar
speaki
ng in
Const
ituent
Asse
mbly
on
th

25

Nove
mber
1949
rightl
y
concl
uded
thus-:
However
good

Constituti
on may be,
it is sure to
turn

out

bad
because
those who
are called
to work it,
happen to
be a bad
lot.
However
bad

Constituti
on may be,
it may turn
out to be
good

if

those who
are called
to work it,
happen to
be a good
lot.

The

working of

a
Constituti
on

does

not depend
wholly
upon

the

nature

of

the
Constituti
on.

The

Constituti
on

can

provide
only

the

organs of
State such
as

the

Legislatur
e,

the

Executive
and

the

Judiciary.
The
factors on
which the
workings
of

those

organs of
the

State

depend are
the people
and

the

political
parties
they

will

set up as
their
instrument
s to carry
out

their

wishes and
their
politics.

16

Bibliogr
aphy
Books:
-

H.
M.
Se
erv
ai,
th
4
Edi
tio
n,
Vol
2
&
3.
Int
rod
uct
ion
to
the
Co
nst
itut
ion
of
Ind
ia

Dr.
Du
rga
Da
s
Ba
su.
Th
e
Co
nst
itut

ion
of
Ind
ia
P
M
Ba
ksh
i.
-

Wo
rki
ng
of
a
De
mo
cra
tic
Co
nst
itut
ion
A
his
tor
y
of
the
Ind
ian
Ex
per
ien
ce
by
Gr
an
vill
e
Au

sti
n,
Ox
for
d
Ind
ia
Pu
bli
cat
ion
s
-

V
.
N
.
S
h
u
kl
a
s
C
o
n
st
it
ut
io
n
of
In
di
a
b
y
M
a

h
e
n
dr
a
P.
S
in
g
h,
E
le
v
e
nt
h
E
di
ti
o
n

E
as
te
rn
B
o
o
k
C
o
m
p
a
n
y.

Acts:
-

Co
nst
itut
ion
of
Ind
ia,
19
50

44

Co
nst
itut
ion
al
A
me
nd
me
nt
Ac
t
Ma
int
ena
nce
of
Int
ern
al
Se
cur
ity
Ac
t,
19
71.
(M
IS
A)
De
fen
se
of
Ind

ia
Ac
t,
19
62.
Web
Bibliograp
hy:
-

htt
p://
jst
or.
org

htt
p://
w
ww
.en
.wi
kip
edi
a.o
rg

htt
p://
par
lia
me
nto
fin
dia
.ni
c.i
n/l
s/d
eba
tes/
vol
11
p1
1.h
tm