Essay on emergency provisions and authoritarian powers as per our constitution. Part XVIII of the constitution permits the state to suspend various civil liberties and the application of certain federal principles during presidential proclaimation of states of emergency.
The constitution provides for three categories of emergencies: a threat by ‘war or external aggression’ or by ‘internal disturbances’; a ‘failure of constitutional machinery’ in the country or in a state; and a threat to the financial security or credit of the nation or a part of it. Under the first two categories, the Fundamental Rights, with the exception of protection of life and personal liberty, may be suspended, and federal principles may be rendered inoperative.
A proclamation of a state of emergency lapses after two months if not approved by both houses of Parliament. The president can issue a proclamation dissolving a state government. If it can be determined, upon receipt of a report from a governor, that circumstances prevent the government of that state from maintaining law and order according to the constitution. This action establishes what is known as President5s Rule because under such a proclamation the president can assume any or all functions of the state government; transfer the powers of the state legislature to Parliament; or take other measures necessary to achieve the objectives of the proclamation, including suspension, in whole or in part, of the constitution. A proclamation of President’s Rule cannot interfere with the exercise of authority by the state’s high court. Once approved, President’s Rule normally lasts for six months, but it may be extended up to one year if Parliament approves. In exceptional cases, such as the violent revolt in Jammu and Kashmir during the early and mid-1990s, President’s Rule has lasted for a period of more than five years.
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President’s Rule has been imposed frequently, and its use is often politically motivated. During the terms of prime ministers Nehru and Lai Bahadur Shastri, from 1947 to 1966, it was imposed ten times. Under Indira Gandhi’s two tenures as prime minister (1966-77 and 1980-84), President’s Rule was imposed forty-one times. Despite Mrs. Gandhi’s frequent use of President’s Rule, she was in office longer (187 months) than any other prime minister except Nehru (201 months). Other prime ministers also have been frequent users: Morarji Desai (eleven times in twenty-eight months), Chaudhury
Charan Singh (five times in less than six months), Rajiv Gandhi (eight times in sixty-one months), Vishwanath Pratap (VP) Singh (two times in eleven months), Chandra Shekhar (four times in seven months), and P.V Narasimha Rao (nine times in his first forty-two months in office).
States of emergency proclamations have been issued three times since independence. The first was in 1962 during the border war with China. Another was declared in 1971 when India went to war against Pakistan over the independence of East Pakistan, which became Bangladesh. In 1975, the third Emergency was imposed in response to an alleged threat by ‘internal disturbances’ stemming from the political opposition to Indira Gandhi.
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The Indian state has authoritarian powers in addition to the constitution’s provisions for proclamations of Emergency Rule and President’s Rule. The Preventive Detention Act was passed in 1950 and remained in force until 1970. Shortly after the start of the Emergency in 1962, the government enacted the Defence of India Act. This legislation created the Defence of India Rules, which allow for preventive detention of individuals who have acted or who are likely to act in a manner detrimental to public order and national security. The Defence of India Rules were re-imposed during the 1971 war with Pakistan* they remained in effect after the end of the war and were invoked for a variety of uses not intended by their framed’ such as the arrests made during a nationwide railroad strikein 1974.
The Maintenance of Internal Security Act promulgated in 1971 also provides for preventive detention. During the 1975-77 Emergency, the act was amended to allow the government to arrest individuals without specifying charges. The government arrested tens of thousands of opposition politicians under the Defence of India Rules and the Maintenance of Internal Security Act, including most of the leaders of the future Janata Party government. Shortly after the Janata government came to power in 1977, Parliament passed the Forty-fourth Amendment, which revised the domestic circumstances cited in Article 352 as justifying an emergency from ‘internal disturbance’ to ‘armed rebellion’.
During Janata rule, Parliament also repealed the Defence of India Rules and the Maintenance of Internal Security Act. However, after the Congress (I) returned to power in 1980, Parliament passed the National Security Act authorising security forces to arrest individuals without warrant for suspicion of action that subverts national security, public order, and essential economic services. The Essential Services Maintenance Act of 1981 permits the government to prohibit strikes and lockouts in sixteen economic sectors providing critical goods and services. The Fifty-ninth Amendment, passed in 1988, restored ‘internal disturbance the place of ‘armed rebellion’ as just cause for the proclamation an emergency.The Sikh militant movement that spread through Punjab during the 1980s spurred additional authoritarian legislation.
In 1984, Parliament passed the National Security Amendment Act enabling government security forces to detain prisoners for up to one year. The Terrorist Affected Areas (Special Courts) Ordinance, 1984 provided security forces in Punjab with unprecedented powers of detention, and it authorized secret tribunals to try suspected terrorists. The Terrorist and Disruptive Activities (Prevention) Act, 1985 imposed the death penalty for anyone convicted of terrorist actions that led to the death of others.
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It empowered authorities to tap telephones, censor mail, and conduct raids when individuals are alleged to pose a threat to die unity and sovereignty of the nation. The legislation renewing the act in 1987 provided for in camera trials, which may be presided over by any central government officer, and reversed the legal presumption of innocence if the government produces specific evidence linking a suspect to a terrorist act. In March 1988, the Fifty- ninth Amendment increased the period that an emergency can be in effect without legislative approval from six months to three years, and it eliminated the assurance of due process and protection of life and liberty with regard to Punjab found in articles 20 and 21. The Sixty-third Amendment restored these rights in 1989.
By June 30, 1994, more than 76,000 persons throughout India had been arrested under the Terrorist and Disrupt^ Activities (Prevention) Act. The act became widely unpopular and the Rao government allowed the law to lapse in May1995.
