EMERGENCY PROVISION-A CASE ANALYSIS

INTERPRETATION OF STATUTES

Submitted by: Anamika Singh

Roll No.: 2013021

VII SEMESTER

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

Visakhapatnam

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 ACKNOWLEDGEMENT

Writing a project is one of the most significant academic challenges, I have ever
faced. Though this project has been presented by me but there are many people who
remained in veil, who gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Mr Bharat Kumar without the kind
support of whom and help the completion of the project was a herculean task for me.
He donated his valuable time from his busy schedule to help me to complete this
project and suggested me from where and how to collect data.

I am very thankful to the librarian who provided me several books on this topic which
proved beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was
very useful and could not be ignored in writing the project.

Last but not the least, I am very much thankful to my parents and family, who always
stand aside me and helped me a lot in accessing all sorts of resources.

I thank all of them !

Ms Anamika singh
R. No. 2013021, Semester- VIIth
B.A.L.L.B. (H)

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Table of Contents
ABSTRACT............................................................................................................................................ 5
CHAPTER-1 .............................................................................................................................................. 7
INTRODUCTION ................................................................................................................................... 7
AIMS AND OBJECTIVES:....................................................................................................................... 8
HYPOTHESIS: ....................................................................................................................................... 9
LITERATURE REVIEW: .......................................................................................................................... 9
SCOPE OF THE STUDY: ........................................................................................................................ 9
METHODOLOGIES AND TECHNIQUES TO BE USED: ............................................................................ 9
CHAPTER-2 ............................................................................................................................................ 10
2. Emergency Provisions-Plain & ordinary meaning (Judicial Response) ......................................... 10
The Court conclude[d] that the plain and ordinary meaning of the term emergency in section
10(b) is an unforeseen circumstance involving imminent danger to a person or property requiring
an urgent response. .......................................................................................................................... 10
CHAPTER-3 ............................................................................................................................................ 12
3. Emergency Provisions- constitutional interpretations ................................................................. 12
3.1. Background: ........................................................................................................................... 13
3.2. Proclamation of Emergency ................................................................................................... 14
CHAPTER-4 ............................................................................................................................................ 15
4. Judicial response & interpretation to the emergency provisions ................................................. 15
4.1. INVOCATION OF ART. 352 ...................................................................................................... 15
CHAPTER-5 ............................................................................................................................................ 30
CONCLUSION..................................................................................................................................... 30

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ABBREVIATIONS

A.I.R. ALL INDIA REPORTER

S.C. SUPREME COURT

H.C. HIGH COURT

J. JUSTICE

V. VERSUS

GOVT. GOVERNMENT

CONST. CONSTITUTION

ART. ARTICLE

SEC. SECTION

PVT. PRIVATE

SCC. SUPREME COURT CASES

CO. COMPANY

RLY. RAILWAYS

M.N.C.-MUNICIPAL CORPORATION.

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 ABSTRACT

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NAME OF THE STUDENT-Anamika Singh.

TOPIC OF THE PEOJECT-Emergency Provisions Case Analysis

SEMESTER-VIIth

ROLL NO.-2013021

SUBJECT-Interpretation of Statute

ABSTRACT

Emergency has a deliberate effect on the rights of people in a democratic country. For
example, in the US, which has constitutionally guaranteed fundamental right comparable to
those of India, the privileges of the writ of habeas corpus may be suspended when in the case
of rebellion or invasion, the public interest requires it. The courts they can, however,
determine whether the condition has arisen to justify the suspension of habeas corpus. No
other fundamental right can be suspended in the US, but in an emergency, courts do
somewhat restrictive interpretation of these rights than they do on regular days.

In Britain during the two world wars were drastic discretionary powers it granted to the
executive to interfere with the right of the person and property of the persons. This severe
interference with the right people received legal sanction in different cases. The theory is that
when a country is involved in a war of survival, people have to sacrifice their actual rights to
point for the state to live. If the state fails, people also lower.

In India, a proclamation emergency was under Article 352, affects the fundamental right of
people drastically. The impact of the emergency the fundamental right is more widespread in
India than in the US case.

When the Constitution was being drafted India, India was passing through a period of stress
and tension. Partition of the country, communal riots and the problem concerning the merger
of the princely states including Kashmir. Therefore, manufacturers of Constitution, designed

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to provide the State Administration with the necessary authority, so that, at the time of
emergency when internal and external threats threaten the security and stability of the
country. Therefore, some of the emergency provisions were made in the Constitution to
safeguard and protect the security, integrity and stability of the country and the effective
functioning of state governments.

The following cases along with other cases are to be analysed in the proposed project reating
to the emergency provisions:-

ADM Jabalpur Vs Shiv Kant Shukla, 1966 AIR 740

Maharashtra State v. Prabhakar, 1964 AIR 1120

Makhan Singh the Vs State of Punjab 1966 AIR 424

M. M. Pathak vs The Union of India1978 AIR 803

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CHAPTER-1
INTRODUCTION

A state of emergency in India refers to a period of governance under an altered constitutional

setup that can be proclaimed by the President of India, when he perceives grave threats to the
nation from internal and external sources or from financial situations of crisis. Under the
advice of the cabinet of ministers and using the powers vested in him/her largely by Part
XVIII of the Constitution of India, the President can overrule many provisions of the
constitution, which guarantee fundamental rights to the citizens of India and acts governing
devolution of powers to the states which form the federation.

The President can declare three types of emergencies:

National emergency
State emergency
Financial emergency

Proclamation of Emergency means Proclamation issued under clause (1) of Article 352.
Accordingly, wherever the expression Proclamation of emergency occurs, it should not
include the two other emergencies, namely, the emergency arising out of the failure of the
constitutional machinery in a state or the financial emergency. Proclamations of Emergency
under Article 352 have been issued thrice- In October, 1962 during Chinese aggression which
was revoked in January 1968, December 1971 in connection with external aggression from
Pakistan and while this was in operation another in June 1975 on ground of internal
disturbances both of which were revoked in March 1977. While the provisions on the
breakdown of the constitutional machinery in the states have been invoked over a hundred
times, the provisions on financial emergency have never been invoked so far1. Article 352 of
the Constitution provides for proclamation of emergency in case of war or external
aggression or armed rebellion. Article 358 suspends the fundamental rights under Article 19
and Article 359 enables the President to suspend enforcement of other fundamental rights
except Articles 20 and 21 during the period of emergency. The result is that a law made
during the emergency even if violative of any fundamental right (except Articles 20 and 21)

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is not open to challenge on that ground. But such laws 'cease to have effect-except as respects
things done or omitted to be done' during their operation after the proclamation of emergency
is withdrawn. During the period of emergency, when the fundamental right under Article 22
was suspended by an order of the President under Article 359, Parliament added section 12A
in the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974
(COFEPOSA). This section which was to have effect only during the period of emergency
enabled detention in violation of clauses (4) and (5) of Article 22. Detention orders passed
under section 12A of COFEPOSA were withdrawn after the Emergency when the section
itself expired. But such orders were made the foundation for taking action under the
Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976
(SAFEMA). In proceedings to challenge the notices under SAFEMA it was contended that
the detention orders under section 12A of COFEPOSA were void being violative of
fundamental right under Article 22 and could not be relied upon for SAFEMA. This
contention was negatived on the ground that the detention orders under section 12A
COFEPOSA were 'things done' under that section and could not be treated to be void after
expiry of section 12A because of the saving clause 1A of Article 359 'as respects things done
or omitted to be done' during the period section 12A was in operation2.

AIMS AND OBJECTIVES:

The aim and objective of this study will be to critically analyze Emergency provisions &
related cases. Indian constitution, how they affect the fundamental rights of the citizens,
judicial & statutory interpretation, as well as legislative response to the same.

The aims and objectives of the study include the Following:

To study the provisions relating to Emergency in Indian Constitution.

To analyze how the judiciary interpreted the constitution & other statutes in cases of
proclamation of Emergency affects Fundamental Rights of the Citizens.
To analyze judicial statutotry response to the Emergency.

STATEMENT OF PROBLEM:

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Proclamation of Emergency brings about the limitation on the fundamental rights. In such
situation problem arises as to what extent the state can be interpreted in the cases arise during
emergency situations.

HYPOTHESIS:

Excessive powers in hands of executive leads to authoritative regime. Appropriate Judicial

statutory interpretation leads to checks and balances can aptly prevent abuse of powers and
suppression of fundamental rights.

LITERATURE REVIEW:

There is extensive literature on Emergency in India. The researcher has reviewed following
literature:

Survey of Illinois law: statutory interpretation, Steven J. Macias, Assistant Professor

of Law, Southern Illinois University, Carbondale
The Judicial Management of State of Emergency: Reinforcing or curtailing the
judiciarys role, Michael Haile.

SCOPE OF THE STUDY:

The researcher has covered the scope of this research to constitutional provisions related to
Emergency provisions and its interpretation and various cases in respect of suppression of
fundamental rights during emergency. This study will also briefly discuss the interpretation
of word emergency by foreign courts.

METHODOLOGIES AND TECHNIQUES TO BE USED:

The research methodology adopted is purely doctrinal in nature relying on primary and
secondary source material. The researcher has referred to Indian and International Journals,
Reference Books, Case Laws, Articles, Constitution of India along with the Amendments
made post Emergency era.

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CHAPTER-2
2. Emergency Provisions-Plain & ordinary meaning (Judicial Response)

The term plain meaning is deceptively simple, but it is the Illinois Supreme Courts starting
point as well as the basis of Scalia and Garners first semantic canon. As Scalia and Garner
put it, Words are to be understood in their ordinary, everyday meaningsunless the context
indicates that they bear a technical sense.3 They caution, however, that this presumption
will not always yield the easy answer since many words have multiple common meanings.
Hence, the importance of contextual and idiomatic clues as to which of the ordinary
meanings a particular word bears4.

The majority opinion, delivered by Chief Justice Kilbride, began the interpretation of 10(b)
of the Act by approving the appellate courts use of a dictionary to define emergency.5 The
key trigger for the Courts approval of dictionary use seems to be the absence of a statutory
definition of the disputed term contained within the Act itself. This time, the Court resorted
to Websters Third New International Dictionary to define emergency. In examining three
definitions of emergency, the Court concluded that, while the term includes an element of
urgency and the need for immediate action, which is how the appellate court understood the
term, another important factor was that it involves an unforeseen circumstance or event
requiring that immediate action.6

The Court conclude[d] that the plain and ordinary meaning of the term emergency in
section 10(b) is an unforeseen circumstance involving imminent danger to a person or
property requiring an urgent response7.

Justice Garman, joined by two other members of the Court, dissented as to the statutory
interpretation announced by the majority because it was not consistent with our
responsibility to give effect to the intent of the legislature. The better interpretation would
have been that of the appellate court, which omitted the unforeseen requirement and merely
required urgency to qualify as an emergency. Justice Garmans specific objection was to the

3
SCALIA & GARNER, 1& 6, at 69,
4
Id. at 70, SURVEY OF ILLINOIS LAW: STATUTORY INTERPRETATION, Steven J. Macias, Assistant
Professor of Law, Southern Illinois University, Carbondale
5
Id. 59 SURVEY OF ILLINOIS LAW: STATUTORY INTERPRETATION, Steven J. Macias, Assistant
Professor of Law, Southern Illinois University, Carbondale
6
Id. 62,supra 4
7
Id. 64.supra 4

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majoritys misuse of the dictionary, in effect, treating one particular definition of
emergency as if they were the words of the legislature. Her criticism is worth quoting at
length: This mechanical approach to statutory interpretation treats the words chosen by the
editors of a dictionary as if they were the words of the statute itself and creates a new
statutory requirement that was not intended by the legislature a requirement that may have
far-reaching effects in future cases. When Justice Garman accuses the majority of
employing a mechanical approach, she is reiterating the warnings sounded by scholars of
statutory interpretation. In other words, the Gaffney majority forgets that it is trying to
establish the meaning of statutory language and, instead, mechanically focuses upon a single
word. By contrast, Justice Garman urges a contextual approach that takes heed of the entire
statutory scheme. In performing this contextual analysis of the statutory language, the tools
and canons of interpretation are especially helpful explanatory devices.

A contextual analysis requires acknowledging that the statutory language at issue the
language triggering receipt of insurance benefits is but one trigger listed in a series of four
circumstances. As Justice Garman explains, If we are to give effect to the intent of the
legislature, we must read [the circumstance at issue] in a manner consistent with the other
three. That is to say, determining the statutory meaning of emergency requires close
attention to the surrounding words and phrases of the same subsection. This technique has a
name: noscitur a sociis (trans.: known by its associates). Even though Justice Garman
herself did not name the interpretive canon, it is worth noting because it reemphasizes the
deliberate, rather than intuitive, nature of statutory interpretation. Linda Jellum points out
that judges intuitively apply the canon whether they say they are applying it or not.
Likewise, Frank Cross notes, most basic linguistic canons are so unexceptional that they are
typically unstated. However, because the majority failed to pay close attention to the
statutory text, it is especially important to spell out where and how the misreading occurred.
If we apply the majoritys requirement that an emergency be unforeseen and the lack of a
requirement that it occur in the line of duty.

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CHAPTER-3
3. Emergency Provisions- constitutional interpretations

Federalism, says Dicey, is a weak government because of the distribution of powers between
the Centre and the units, but the war-time experiences of the U.S.A., Canada and Australia
have shown that this is not necessarily so and that a federation can very well stand the test of
time. As Corwin has asserted, Federalism as a system of counterpoise is no longer viable in
the field of war-making, and that there is incompatibility between the requirements of total
war and principles thus far deemed to be fundamental to government under the
Constitution8. These federations have faced the emergency of two world wars [191114 and
193945]. In the U.S.A. and Australia, the emergency was met by the courts giving an
expansive and liberal interpretation to the war or the defence power of the Centre and,
thus, giving it a greater area of operation than its peace-time ambit so as to enable it to do all
those things which are necessary for the safety of the country, or the effective prosecution of
war9. In Canada, the general power of the Centre was interpreted by the courts broadly and
so the Centre became more powerful during the war-time than it would be in the peace-
time.10

During the war crisis, the Constitutions of the U.S.A., Canada and Australia functioned very
differently from their normal peace-time behaviour. As Wheare points out11:

While it is the essence of federalism to be pluralistic, it is the essence of the war power to be
unitary, to be centralised and regimented, to be, in the modern word, totalitarian. There is an
immediate contrast between the multiplicity of federalism with its divisions of authority, and
the unity necessary if war is to be conducted efficiently.

He observed12:

War leads to the transformation of a federal government into a unified state, with its
plurality and multiplicity of jurisdictions co-ordinated for the unitary and totalitarian process
of war.

8
Total War and the Constitution, 70, 130
9
Ch. X, Sec. L.M.P.Jain
10
Murphy, The War Power of the Dominion, 30 Can B.R. 791, 798 (1952).
11
Federal Government, 197, (1953)
12
Page no 220,M.P JAIN,C onstitutional law of India

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The Indian Constitution seeks to achieve the same result in the area of federalism but in a
different way. In the three foreign constitutions, the final word rests with the courts to decide
whether a particular act of the Centre is justifiable under the war, defence or emergency
power. Thus, necessary adjustments in the Centre-State power balance in response to the
emergency are effectuated through the process of judicial interpretation. This, however, is a
somewhat uncertain process as one cannot be sure which way a judicial decision may go in a
particular disputed fact-situation, and the area of operation of the Centre depends on the view
the courts take at the time. In India, on the other hand, the method provided to meet an
emergency is more overt, more direct, and simpler because it depends on the Central
executive issuing the necessary proclamation, and the incidents flowing therefrom are settled
by the Constitution itself without making them dependent on the judicial attitude or inter-
pretation.

A reason underlying the Indian approach may be that owing to the elaborate nature of the
distribution of powers, there was not much room left for the judiciary to make necessary
adjustments in emergency situations. Moreover, the Indian Constitution envisages certain
emergency situations which are not to be found in the three federal constitutions, e.g., a
financial emergency. But it needs to be underlined that the powers of the Centre in the three
other federations do not extend to such an extent as they do in India whereas peace-time
federalism undergoes a drastic change.

Also, in the other federations, the powers of the Centre during emergency extend on
sufferance of the judiciary. The courts have to agree to what extent the Centre can expand its
powers. This is, therefore, a built-in control mechanism. In India, the control mechanism over
the executive and the Parliament is rather weak during an emergency, as it rests, primarily,
with Parliament and, secondarily, with the judiciary.

3.1. Background:

In the Elections held to the Lok Sabha in 1971 from the Rai Bareily Constituency 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 Allahabad challenging the
election of Smt. Indira Nehru Gandhi on a number of grounds, inter alia, alleging misconduct
against her. The High Court of Allahabad pronounced its judgment on June 12, 1975. Shri J.
M. L. Sinha of Allahabad 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. Accordingly,

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the respondent stands disqualified for a period of six years from the date of this order. Prime
Minister Indira Gandhi subsequently made an appeal to the Supreme Court. Justice Krishna
Iyer on 24h June, 1975 passed an interim order in which he suspended right of Mrs Gandhi to
take part in the proceedings in the Lok Sabha nor vote, nor draw a remuneration in her
capacity as a Member of the Lok Sabha.

3.2. Proclamation of Emergency:

Thereafter, on June 26, 1975, President Fakhruddin Ali Ahmed proclaimed an emergency
under Article 352(1) of the Constitution on the advice of Prime Minister Indira Gandhi. Later,
he issued a proclamation suspending the right to approach the courts for the enforcement of
the fundamental rights guaranteed under Articles 14, 21 and 22. The imposition of emergency
was necessitated, according to Mrs. Gandhi, because of the turmoil and incipient rebellion in
the country. Besides the maintenance of order justification, the government pointed to the
imperatives of saving democracy, protecting the social revolution and preserving national
integrity - all of which together compelled the resort to such a drastic step. On the contrary,
for the critics, the emergency was nothing short of a scandal on the Constitution, and
smacked of Mrs. Gandhi's dictatorial ambitions. The justifications notwithstanding, some of
its tangible consequences on the ground were the following: detention of nearly 1,11,000
persons, a significant number of whom belonged to the opposition, under the Maintenance of
Internal Security Act, 1971 and the Defense of India Act/ Rules, 1961; infliction of torture on
many of these detenues; press censorship and curbs on the freedom of speech and expression;
demolition of shanty towns in and around Delhi; and the subjection of rural and urban poor,
and the lower middle class in North India to forced sterilization programs. Fortunately for
those who suffered, the emergency was revoked and normalcy restored in eighteen months
and for the first time in the history of independent India, a non-Congress government came to
power at the centre after the Parliamentary elections in 1977.

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CHAPTER-4
4. Judicial response & interpretation to the emergency provisions

The discussion of cases falls into two parts: Cases decided during the emergency created by
war or external aggression and cases decided during the Emergency proclaimed on 25th June
1975 on the ground of internal disturbance.

During first two emergencies which were declared in October 1962 and December 1971 on
ground of External Aggression, no attempt had been made to impair permanently the
fundamental rights embodied in our Constitution. Under the circumstances, the courts
considered the effect of proclamation of emergency in a number of cases: (1) On Preventive
Detention, (2) On the effect of the suspension of Article 19 following on a proclamation of
emergency and (3) on the effect of the Presidents Order under Article 359.

On 26th October 1962, the President issued a Proclamation of Emergency under Article 352.
As the Parliament was not in session, the President promulgated the Defense of India
Ordinance, 1962. On 3rd November 1962, the President issued an order under Article 359,
declaring that the right of any person to move any court for the enforcement of the rights
conferred by Article 14, 21 and 22 was suspended during the time the proclamation was in
force.

4.1. INVOCATION OF ART. 352

Article 352 has been invoked three times so far.

Under Art. 352(1), if the President is satisfied that a grave emergency exists whereby the
security of India or any part thereof is threatened, whether by war, or external aggression, or
armed rebellion, he may, by proclamation, make a declaration to that effect. Such a
proclamation may be made in respect of the whole of India, or such part of the Indian
territory as may be specified in the proclamation.

Now the following judicial response followed the emergency:-

1. Additional District Magistrate, Jabalpur v Shivakant Shukla and Others13

FACTS;-

13
1976 Indlaw SC 655

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Habeas Corpus case arose out of habeas corpus applications filed by several detenues who
prayed for their release from illegal preventive detention.

ISSUE;-

A preliminary objection was raised by the Union that in view of the Presidents Order under
Article 359 suspending the right of any person (including a foreigner) to move any court for
the enforcement of his fundamental rights under Articles 14, 19, 21 and 22, the petitioners
had no locus standi to maintain the petition, because, in substance, the detenues were seeking
to enforce their fundamental right under Article 21, namely, that they should not be deprived
of their personal liberty except by procedure established by law.

REASONING;-

Justice Khanna dissented as in his opinion it takes us back to the pre constitutional 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 to life and personal liberty, and that therefore its
suspension did not give executive officers of the government carte blanche powers to detain
persons without the authority of law. For him, this right was not the gift of the Constitution; it
had existed long before the Constitution came into force. Merely because an aspect of the
right was incorporated in the fundamental rights chapter did not mean that its independent
identity had been exterminated.

CONCLUSION

In effect Article 21 required a proper procedure under a valid law before a person could be
deprived of his or her right. So at the most, its suspension meant the deprivation of the right
to a procedure, and not the denial of the right in the absence of authority of law.

2. Mohan Chowdhary v. Chief Commr. Tripura14

FACT

The Defense of India Ordinance and the rules made there under were challenged. On a
preliminary objection being taken that in view of the Presidents Order made under Article
359, the petitioner was not entitled to move the court or the enforcement of his fundamental
rights,

14
(1964) 3 S.C.R. 442

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ISSUE

The petitioner contended that as Article 32 itself conferred a fundamental right and as the
Presidents Order had not suspended that rights, the petitioner was entitled to move the court
under Article 32.

REASONING

The right to move that court under Article 32 was subject to Article 32(4) under which the
right could be suspended in accordance with the provisions of the Constitution. Article 359
enabled the President to suspend the right to move any court for the enforcement of the
fundamental rights which may be named by the President. The Presidents Order did not
suspend all rights vested in a citizen to move the Supreme Court but only his right to enforce
the provisions of Articles 21 and 22 in respect of anything done under the Defense of India
Act:

As a result of the Presidents Order, the petitioners 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.

CONCLUSION

Thus, the validity of the statutory provisions authorizing the detention could not be
challenged in view of the Presidential Order. The Court, however, held that the pleas which
were open to a detenu were that the mandatory provisions of the Defense of India Act and
rules had not been observed and the plea not merely alleged but proved that the detention was
mala fide

3. Makhan Singh v. State of Punjab15

FACT

In the wake of the Chinese aggression commencing form the 8th September, 1962, the
President declared emergency in India under article 352 of the constitution on the 26 October,
1962.The Defence of India Ordinance1962 was also promulgated on that day. An ordinance
promulgtaed on November 3, 1962 suspended the rights of citizens to move to any Court for
the enforcement of the rights conferred by Art. 21 and 22 of the Constitution for the period
during which the proclamation of emergency issued on October 26, 1962 would be in force;
under article 359(1) of the Indian Constitution. On November 6, 1962, the rules framed by
the Central Government were published. The amendment of the Presidential order passed on

15
AIR 1964 SC 381 : (1964) 4 SCR 797

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11 November, added Article 14 of the constiution as well.On December, 6, 1962, Rule 30 as
originally framed was amended and Rule 30-A added. On December 12, 1962 the Act was
made. Section 48(1) of the Act provided for the repeal of the Ordinances Nos. 4 and 6 of
1962. Section 48(2) provides that notwithstanding such repeal, any rules made, anything done
or any action taken under the aforesaid two Ordinances shall be deemed to have been made,
done or taken under this Act as if this Act had commenced on October 26, 1962. Hence, the
Rules made under the Ordinance continued to be the Rules under the Act, and the appellants
had been detained under Rule 30(1)(b).

ISSUES

The main issues considered by the Court in the case were the following:-
1. What was the true scope and effect of a Presidential Order issued under Article
359(l)?
2. Did the bar created by the Presidential Order operate in respect of applications for
habeas corpus made by detainees, not under Article 226 of the Constitution, but under
section 491 ofthe Criminal Procedure Code?

REASONING

In determining the question as to whether a particular proceeding falls within the mischief of
the Presidential Order or not, what has to be examined is not so much the form which the
proceeding has taken, or the words in which the relief is claimed, as the substance of the
matter...before granting the relief claimed by the citizen, it would be necessary for the Court
to enquire into the question whether any of his specified fundamental rights have been
contravened. If any relief cannot be granted to the citizen without determining the question of
the alleged infringement of the said specified fundamental rights, that is a proceeding which
falls under Art. 359(1) and would, therefore, be hit by the Presidential Order issued under the
said Article.The question of an alternate jurisdictional basis is irrelevant if the position
regarding the legal procedure to enforce it is unclear. The suspension of Article 19 during the
pendency of the Proclamation of emergency removes the fetters created on the legislative and
executive powers by Article 19 and if the legislatures make laws or the executive commits
acts which are inconsistent with the rights guaranteed by Article 19, their validity is not open
to challenge either during the continuance of the emergency or even thereafter.

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CONCLUSION

On this interpretation of Article 359, the Supreme Court unanimously" concluded that a
Presidential Order could never operate as a bar to proceedings in which executive action is
attacked on grounds which are not relatable to the specified Fundamental Rights. Speaking on
behalf of six of the seven judges of the Bench, Justice Gajendragadltar identified several
pleas which were not barred by the Presidential Order. These concerned the enforceability of
rights other than those specified in the Presidential Order infringement by the detaining
authority of mandatory provisions of the detention legislation; and mala fides.

4. Ram Manohar Lohia v. State of Bihar 16

FACT

The statutes which were in question were, arts. 32 and 352 of Constitution of India, 1950
&Defence of India Rules, 1962, r. 30(1) (b)

ISSUE

Whether petitioner can move Court u/arts. 21 and 22 in view of President's order u/art. 359(1)
of Constitution, 1950?

CONCLUSION

It was held unanimously that the Presidents Order suspended the enforcement 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 a mala fide, or an invalid, order, and in
either event, he was entitled to move a court for the for the enforcement of his rights under
Articles 21 and 22.

5. Jagadish Ch. Agarwal v Union of India and Others17

FACT

On the 14th of June, 1973 a notice under Section 269 (1) of the Income-tax Act, 1961 was
issued in respect of a property purchased by the petitioner. Being aggrieved by the said notice

16
(1966) 1 S.C.R. 709
17
AIR 1976 CAL 17

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the petitioner moved this Court under Article 226 of the Constitution on the 20th of
September, 1973 and obtained a Rule nisi.

ISSUE

The petitioner in his grounds challenging the notice, contends that Sections 269-C to 269-1
and Section 269-R are ultra vires Article 19 (1) (f), Article 14 and Article 31 of
the Constitution.

REASONING

In order to facilitate the disposal of these orders of injunctions obtained against the fiscal
authorities, the authorities should consider whether it is desirable that Article 359 (1) of
the Constitution should be amended. The result of the proclamation made under Article 359
of the Constitution and the order issued by the President seem to be that the orders of
injunction would continue until the emergency is revoked. That might not be what was
desired.

CONCLUSION

The application will remain adjourned sine die with liberty to the parties to mention for
hearing after the aforesaid proclamation is revoked.

6. Ghulam Sarwar v. Union of India18

FACT

The High Court ordered dismissing of petition & for issue of writ of habeas corpus. Petition
was sent to Supreme Court under Art. 32 Order of High Court if res judicata & Constitution
of India, 1950, Art. 359

ISSUE

If President can issue more than one order applicable only to foreigners whether violative
of Art 14?

REASONING

In England, technically an order passed on a petition for habeas corpus is not regarded as a
judgment and that places the petitions for habeas corpus in a class by themselves. Therefore,
18
(1967) 2 S.C.R. 271

20 | P a g e
we do not think that the English analogy of several habeas corpus applications can assist the
petitioners in the present case when they seek to resist the application of res judicata to
petitions filed under Art. 32. Before we part with the topic, we would, however, like to

add that we propose to express no opinion on the question as to whether repeated applications
for habeas corpus would be competent under our Constitution. That is a matter with which we
are not concerned in the present proceedings.

CONCLUSION

Subba Rao C.J. delivering the majority judgment held that an order passed by the President
suspending the right to move the court for the enforcement 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 Presidents Order violated Article 14,
the order would be void from its inception.

7. Mohd Yaqub v. State of J&K 19

FACT

It was concerned with a 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 Presidents Order issued
under Article 359(1) suspending the enforcement of fundamental rights under Articles 14, 21
and 22 during the period of emergency

ISSUE

1. Whether 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 fundamental right?
2. Whether that the enforcement of only such fundamental rights could be suspended
which had nexus with the reasons which led to the proclamation of emergency?

REASONING

The enforcement of only such fundamental rights could be suspended which had nexus with
the reasons which led to the proclamation of emergency the same Constitution stand on an
equal footing and the two provisions must be read harmoniously in order that the intention
behind Article 359 was carried out and not destroyed altogether. Thus though an order under

19
AIR 1968 SC 765

21 | P a g e
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 that were 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 enforcement of a particular fundamental right is suspended during the period of
Emergency, the order can still be tested with the aid of Article 13(2) on the anvil of the same
fundamental right the enforcement of which it suspends and a declaration made there under
has no meaning whatsoever. Secondly, it is implicit that the enforcement of a particular
fundamental right suspended by the President is for the sake of the security of India, for
which the Emergency has been declared under Article 352, and no further proof of it is
necessary. Declaration of Emergency is for the subjective determination of the President, and
he cannot be called upon to justify his action in a court of law.

CONCLUSION

Hidaytullah, J, in his dissenting judgment suggested that Article 359 must be circumscribed
in at least those theoretically 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 circumvent the ambit of
Article 359. Moreover, there has always been a remedy available in a court of law against
misuse of power or mala fides as an independent ground.

9. Naga Peoples Movement of Human Rights v. Union of India20.

FACT

Armed Forces (Special Powers) Act,1958, s.3 was in question. Exercise of function was not
according to the procedure Impleadment of party & Deletion of name was done. District in
question had been declared as disturbed area u/s.3 of the Act then the Petitioner filed petition
against same in which it impleaded UOI and State Govt. and also impleaded Governor of
State.

ISSUE

Whether name of Governor of State shall be deleted from petition?

REASONING

20
(1998) 2 SCC 109 : AIR 1998 SC 431

22 | P a g e
Personal immunity of Head of State does not bar any suit being brought or any writ being
issued against Govt., where suit or proceedings would have been otherwise maintainable
against Govt. and to such suit or proceeding, Governor is not a necessary party. There is no
bar to judicial writs being issued against Govt. in such cases provided other conditions for
their issuance are present. S.3 of the Act leaves no doubt that power exercised thereunder by
Governor is a part of sovereign Governmental functions of State. Same power can be
exercised by Central Govt. as well. Notification is to be in Official Gazette and it is function
performed in official capacity of Governor and not in personal capacity

CONCLUSION

It is ordered that name of Governor be deleted from petition. Order accordingly.

8. A. K. Abraham and Company v State of Kerala and Another21

FACT

Under the Constitution of India,1950, arts.14,52(1),352,359 emergency was proclaimed.A

building was built by a person he was needed to spend some money because of
proclaimnation of emergency.Under Kerala Building Tax Act,1974 interim order was
cancelled. Petitioner had to spend certain amount arising from finding money for construction
of building. Petition was filed before HC for appropriate order of injunction from enforcing
any of provisions of the Act whereby interim stay order was passed. State and Tahsildar were
served with notice but no motion was made for cancellation of interim stay - Hence, instant
Petitions were filed.

ISSUE

Whether by virtue of Proclamation of emergency issued u/art.352 of the Constitution and

order u/art. 359(1) of the Constitution passed by President, interim orders of stay passed in
Petitions cases should be vacated?

REASONING

Presidential Order u/art. 359(1) of the Constitution does not take away Fundamental Rights
conferred on citizens of India which are mentioned in the Order. Order only takes away
remedy or what may be called, right to enforce such rights. No doubt whatever that interim
order of stay passed by Court in exercise of its jurisdiction before Presidential Order was
21
1976 Indlaw KER 29633

23 | P a g e
passed u/art.359 of the Constitution can never get automatically vacated by virtue of mere
fact that Presidential Order had been passed u/art.359 of the Constitution. However, interim
orders have been passed as ago long as in 1974. Further, orders have been passed after
notices have been served on respondents and after hearing them. But for more than two years,
no attempt whatever has been made for cancellation of those orders. Conduct of party
indicates acquiescence in orders. Presidential Order came, which is more than year after
interim orders have been passed in cases. Respondents could have moved for cancellation of
interim orders or at least pressed for hearing of Original Petitions urgently.

CONCLUSION

Petitions dismissed. Where interim applications are proceedings for enforcement of any of
Fundamental Rights mentioned in Presidential Order then those applications made liable to
be only suspended during period of emergency and as such cannot be cancelled.

9. Selvi and others v State of Karnataka22

FACT

Constitution of India, 1950, arts. 19, 20(3), 21 - Fundamental rights - Involuntary

administration - Narcoanalysis, polygraph examination and the Brain Electrical Activation
Profile (BEAP) - Right against self-incrimination.

ISSUES

Whether the involuntary administration of the impugned techniques violates the 'right
against self-incrimination' enumerated in art. 20(3) of the Constitution?
Whether the involuntary administration of the impugned techniques is a reasonable
restriction on 'personal liberty' as understood in the context of art. 21 of the
Constitution?

REASONING

Compulsory administration of the impugned techniques violates the 'right against self-
incrimination' - This is because the underlying rationale of the said right is to ensure the
reliability as well as voluntariness of statements that are admitted as evidence - SC has
recognised that the protective scope of art. 20(3) extends to the investigative stage in criminal

22
AIR 2010 SC 1974

24 | P a g e
cases and when r/w. s. 161(2) of the CrPC it protects accused persons, suspects as well as
witnesses who are examined during an investigation - The test results cannot be admitted in
evidence if they have been obtained through the use of compulsion

Protective scope of art. 20(3) r/w. s. 161(2), CrPC guards against the compulsory extraction
of oral testimony, even at the stage of investigation - With respect to the production of
documents, the applicability of art. 20(3) is decided by the trial judge but parties are obliged
to produce documents in the first place - Compulsory extraction of material (or physical)
evidence lies outside the protective scope of art. 20(3) - Furthermore, even testimony in oral
or written form can be required under compulsion if it is to be used for the purpose of
identification or comparison with materials and information that is already in the possession
of investigators - Narcoanalysis test includes substantial reliance on verbal statements by the
test subject and hence its involuntary administration offends the 'right against self-
incrimination'

CONCLUSION

National Human Rights Commission had published 'Guidelines for the Administration of
Polygraph Test (Lie Detector Test) on an Accused' in 2000 - These guidelines should be
strictly adhered to and similar safeguards should be adopted for conducting the
'Narcoanalysis technique' and the 'Brain Electrical Activation Profile' test, Appeal disposed
of.

10. Ghasi Ram and Others v State and Others23

FACT

Constitution - Practice & Procedure - Constitution of India,1950, arts.19,358,359,352 -

Defence of India Rules,1962, r.30 - Detention - Legality of - President issued proclamation
u/s.352 of the Constitution that grave emergency existed in country whereby its security was
threatened - By order issued u/r.30 of the Rules, District Magistrate ordered detention
detenues with view to preventing them from acting in any manner prejudicial to defence,
public safety and maintenance of public order - Hence, instant Petition

ISSUE

Whether detention of petitioner is contrary to art.19 of the Constitution.?

23
AIR 1966 RAJ 247

25 | P a g e
REASONING

President declared state of grave emergency by issuing Proclamation. On same day President
promulgated Defence of India Ordinance and thereafter Rules were made there under. As
direct result of Proclamation of Emergency issued by President, operation of art.19 of the
Constitution stands completely suspended by virtue of provision contained in art.358 of the
Constitution. Thus, right of any person to move any Court for the enforcement of rights
referred to in order issued by the President u/art.359 of the Constitution has been suspended
provided that he is deprived of any such rights under the Ordinance or any rule or order made
thereunder.

CONCLUSION

As a result of declaration of grave emergency by Presidential order, it is futile for petitioner

to argue that his detention is contrary to art.19 of the Constitution which has been completely
suspended for period of emergency. Petition dismissed.

11. Raj Kumar Rajindra Singh v Union of India and Others24

FACTS

Court has either made an order restraining the respondents from taking further proceedings
under the Himachal Pradesh Ceiling on Land Holdings Act, 1972 for the determination of the
surplus area or an order permitting the proceedings to continue but restraining the making of
the final order determining the surplus area or in some cases, an order merely restraining the
respondents from dispossessing the petitioners from the surplus area.

REASONING

The possession of the petitioners in the surplus area should not be disturbed during the
pendency of the writ petitions. While making that order, it seems desirable in the interests of
justice and for the purpose of preserving the property in dispute, that the petitioner should be
restrained from changing the nature of the land, from cutting and removing the trees standing
thereon and generally from damaging and alienating the land and such property standing
thereon as may be affected by the provisions of the Act to the prejudice and the detriment of
the State.

24
1975 Indlaw HP 29; AIR 1976 HP 34

26 | P a g e
CONCLUSION

Respondents be permitted to go on with the proceedings for the determination of the surplus
area, including the making of an order determining the surplus area.

12. Shyam Behari Tewari and Others v Union of India and Another25

FACT

Constitution of India,1950, arts.14,16,309,311 - Indian Railway Establishment Code, s.149 -

Dismissal - Validity of the Rules - Determination of - Petitioner was employed in North East
Frontier Railway under District Electrical Engineer and no service agreement was entered
into between Union of India and petitioner - Petitioner received order of suspension passed
by District Electrical Engineer - Petitioner made application, requesting him to give petitioner
reasons for suspension - Petitioner was served with an order made by General Manager
u/r.149 of the Code, terminating the services of petitioner - Hence, instant Petition

ISSUE

Whether r.149 of the Code is legally and constitutionally valid rule, and action taken by
General Manager, in terminating the services of petitioners is valid and supportable in law?

REASONING

Petitioner is enforcing the rights conferred on him u/art.14 in the sphere of employment. In
view of his statement that he does not challenge validity of the rule on the ground of violation
of art.14 of the Constitution, he cannot be allowed to challenge the validity of r.149 of the
Code on ground that it infringes art.16 of the Constitution. Further, r.149 of the Code has
been made by President in exercise of his powers u/art.309 of the Constitution. R.149 of the
Code on its plain reading excludes cases which constitute dismissal and removal u/art.311 of
the Constitution and if particular termination of service comes within provisions of art.311 of
the Constitution, it cannot be said to be covered by r.149 of the Code. R.149 of the Code
empowers Railway authorities to terminate services of Railway employee on giving notice in
cases other than those where termination amounts to dismissal or removal as a disciplinary
measure, retirement on attaining age of superannuation and termination of service due to
mental or physical incapacity. R.149 (3) of the Code does not specify authority which has to

25
AIR 1963 ASS 94

27 | P a g e
issue notice and under general law notice can be given by appointing authority or one
superior to him and notice by General Manager cannot be said be illegal on that ground

CONCLUSION

As the services of petitioners could not be terminated u/ r.149 of the Code, orders terminating
services of petitioners are without authority of any rule and violative of art.311 of the
Constitution. Petition allowed.

13. Banku Behari Dutt v State of West Bengal26

FACT

Practice & Procedure - Land & Property - Land Acquisition Act,1894, ss.5A,6(1) -
Abandonment of jurisdiction - Determination - Petitioner was owner of certain premises and
had received notification Published in Gazette in which plan of land was to be inspected in
Office of respondent no.2 - Petitioner duly took inspection of said plan and caused enquiries
in office of respondent no.2 wherein petitioner was informed that said premises of petitioner
was being acquired for construction electrical arrangements - Petitioner filed petition before
respondent no.2 which was adjourned.

ISSUE

Whether provision of s.6 of the Act can be read consistently with principles of natural justice
by reading in provision that before decision for declaration u/s. 6(1) of the Act is taken?

REASONING

Where a procedure has been prescribed by legislature, it is not for Court to substitute a
different one according to its own notion of justice. Scheme of the Act provides that at first
stage the appropriate Govt. has to be satisfied that a particular land or a particular area of land
is needed for a public purpose and to make a declaration to that effect u/s.4(1) of the Act.
S.5A of the Act provides for objections to be filed and provides for objections to be heard
upon notice to parties concerned.

CONCLUSION

26
AIR 1976 CAL 393

28 | P a g e
Hence, procedure cannot be challenged on ground that it is violative of principles of natural
justice or purports to give arbitrary power to acquiring authority. Application dismissed.

14. I.R. Goelho (Dead) By Lrs v State Of Tamil Nadu & Ors27

FACT

Competence Of The Legislature, Freedom Of Press, Exclusion Of Judicial Review, Ex Post

Facto Law, Constitutionality

ISSUE:

whether on and after 24th April, 1973 when basic structures doctrine was propounded,
it is permissible for the Parliament under art. 31B to immunize legislations from
fundamental rights by inserting them into the Ninth Schedule and, if so, what is its
effect on the power of judicial review of the Court?
whether the basic structure test would include judicial review of Ninth Schedule laws
on the touchstone of fundamental rights ?

REASONING

Constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure
doctrine can be adjudged by applying the direct impact and effect test, i.e., rights test, which
means the form of an amendment is not the relevant factor, but the consequence thereof
would be determinative factor - Every insertion into the Ninth Schedule does not restrict Part
III review, it completely excludes Part III at will. For this reason, every addition to the Ninth
Schedule triggers art. 32 as part of the basic structure and is consequently subject to the
review of the fundamental rights as they stand in Part III.

CONCLUSION

Ordered accordingly.

27
AIR 2007 SC 861

29 | P a g e
CHAPTER-5
CONCLUSION

Proclamation of Emergency means Proclamation issued under clause (1) of Article 352.
Accordingly, wherever the expression Proclamation of emergency occurs, it should not
include the two other emergencies, namely, the emergency arising out of the failure of the
constitutional machinery in a state or the financial emergency.

The term plain meaning is deceptively simple, but it is the Illinois Supreme Courts starting
point as well as the basis of Scalia and Garners first semantic canon. As Scalia and Garner
put it, Words are to be understood in their ordinary, everyday meaningsunless the context
indicates that they bear a technical sense. They caution, however, that this presumption will
not always yield the easy answer since many words have multiple common meanings.
Hence, the importance of contextual and idiomatic clues as to which of the ordinary
meanings a particular word bears.

The majority opinion, delivered by Chief Justice Kilbride, began the interpretation of 10(b)
of the Act by approving the appellate courts use of a dictionary to define emergency. The
key trigger for the Courts approval of dictionary use seems to be the absence of a statutory
definition of the disputed term contained within the Act itself. This time, the Court resorted
to Websters Third New International Dictionary to define emergency. In examining three
definitions of emergency, the Court concluded that, while the term includes an element of
urgency and the need for immediate action, which is how the appellate court understood the
term, another important factor was that it involves an unforeseen circumstance or event
requiring that immediate action

30 | P a g e
BIBLIOGRAPHY

Justice G.P.Singh, Principles of Statutotry Interpretation, 13th Ed, LexisNexis

Butterworths Wadhwa, Nagpur, 2012
M.P.Jain, Indian Constitution Law,
Basu, Durga Das; Shorter Constitution of India, 14th Ed., Volume 1, Lexis Nexis
Butterworths Wadhwa, Nagpur, 2010.
Bakshi, P.M., The Constitution of India, 8th Edition, Universal Law Publishing
Co., Delhi, 2008.
Pandey, J.N., The Constitution of India, 47th Edition, Central Law Agency,
Allahabad, 2010
R.K. Mallik, War and the Constitution,3rd Ed, Universal Publication House, New
Delhi
Murphy, The War Power of the Dominion, 30 Can B.R. 791, 798 (1952).

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http://amherstnoise.weebly.com/constitution-house-bylaw.html, accessed on oct.19

2016 at 5.45pm (IST).

http://www.legalservicesindia.com/article/print.php?art_id=825, accessed on oct.18

2016 at 3.03pm (IST).

http://legal-dictionary.thefreedictionary.com/Constitutional Law, accessed on oct.17

2016 at 4.00pm (IST).

www.ppgbuffalo.org/wp-content/.../Interpretation of statutes-Users-Guide-1.pdf,
accessed on oct.17, 2016 at 6.00pm (IST).

www.lawteacher.net/PDF/adminisrative Laws%20Lecture.pdf, accessed on oct. 18

2016 at 8.30pm (IST).

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