Proclamation under Article 356 | Constitutional Law - CLAT PG PDF Download

Proclamation under Article 356 

 Judicial Review of Proclamation under Article 356 

 Judicial review  of a Proclamation under Article 356 is accepted because Article 356(1) involves conditional power. Courts can check if the necessary conditions are met. The debate is about how far judicial review can go, which can differ based on the specific case, rights involved, and other factors.

• However, the court can challenge the satisfaction of conditions if it is found to be  mala fide  or based on irrelevant grounds.
• The importance of judicial review in Article 356 cases is highlighted in the Supreme Court case  State of Madhya Pradesh v. Bharat Singh  , where the court could annul a law passed before a Proclamation of Emergency, even if the Proclamation was active at that time.

 Judicial Review in State of Rajasthan v. Union of India 

• Judicial review of Proclamation under Article 356(1) was first examined in the case of  State of Rajasthan v. Union of India  .
• The Supreme Court, in a unanimous decision by a seven-member bench, upheld the central government's action of dissolving three state assemblies under Article 356 as constitutionally valid.

 Minerva Mills Case and Presidential Proclamation 

• In the case of  Minerva Mills and Others v. Union of India and Others  , the Supreme Court discussed its authority to review the validity of a Presidential Proclamation of Emergency.
• The Court emphasized its duty to examine political matters while ensuring that the constitutional criteria of Article 352 were met in declaring the Proclamation. It avoided questioning the adequacy of facts leading to the President's declaration of emergency.

 S.R. Bommai Case and Judicial Review 

• The  S.R. Bommai v. Union of India  case was pivotal in defining judicial review of Presidential Proclamations under Article 356.
• The Supreme Court established clear guidelines on the limits and application of Article 356, making it clear that this power is extreme and should only be used when the constitutional framework in a state has clearly failed.
• Prominent jurist  Soli Sorabjee  noted that after this judgment, Article 356 is viewed as a last resort for extreme situations where state governance has collapsed.

 Fundamental Rights vs. Emergency 

During a period of emergency, as outlined in the Constitution, the government has the authority to suspend certain Fundamental Rights guaranteed under Article 19. Here's a breakdown of how this process works:

 Suspension of Rights 

• The term "  State  " refers to the same entities as in the chapter on Fundamental Rights, meaning that the power to suspend these rights is not limited to Parliament alone. The  Union Executive  and even subordinate authorities also have this power.
• The  President  of India is given the authority to suspend the right to approach any court for the enforcement of Fundamental Rights. This means that, during an emergency, most of the rights outlined in this chapter can be put on hold.
• However, any orders related to the suspension of these rights must be presented to  Parliament  for approval as soon as possible.

 Protection of Rights 

• Article 20 and Article 21 cannot be suspended under any circumstances. Article 20 deals with protection in respect of conviction for offenses, and Article 21 ensures the protection of life and personal liberty.
• The suspension of Fundamental Rights during an emergency is a contentious issue. It is important to understand that human rights should not be seen as something that can be traded off against goals like security and development.
• Fundamental Rights are moral rights that have been enshrined in law by the Constitution. These rights are considered  'fundamental'  because they represent  rights in the 'strong sense'  .
• Unlike ordinary legal and constitutional rights, Fundamental Rights cannot be restricted for the sake of general utility. Their very essence lies in the fact that they are guaranteed even if doing so might be disadvantageous for the majority.
• These rights are crucial for protecting the dignity of individuals. Violating these rights is a serious matter, as it means treating a person as less than human. Such an act is a grave injustice, and it is worth incurring any additional social policy or efficiency costs to prevent it.

 The Habeas Corpus Case 

The period from 1975 to 1977 marked the most controversial use of emergency power in India's history. The state of emergency during this time revealed significant weaknesses in the safeguards designed to regulate the government's use of crisis power. While various rights were restricted, the most severe infringement was on personal liberty, which is the focus of the next section.

Under Article 359(1) of the Constitution of India, the President issued orders suspending the right of individuals to approach the courts for the enforcement of fundamental rights guaranteed under Articles 14, 19, 21, and 22 for the duration of the emergency. Following this declaration, hundreds of individuals were arrested and detained across the country under the Maintenance of Internal Security Act, 1971.

 Habeas Corpus Petitions 

• Various individuals detained under Section 3(1) of the Maintenance of Internal Security Act, 1971, filed petitions in different High Courts seeking the issuance of writs of habeas corpus.

 Balancing Rights and Security 

• The balance between rights and security could be improved by making further changes beyond those recommended in the 1978 amendment.
• This includes making the information withheld by the government under Article 22(6) subject to judicial review.
• Seervai suggests that this could be achieved by allowing judges to examine the government's claim that the grounds for detention must be withheld in the public interest.
• This approach is similar to the special advocate system in Britain.

 Indian Experience with Emergency Powers 

• The Indian experience with emergency powers shows a mixed record.
• These powers were used more responsibly in 1962 compared to 1970.
• The principle of proportionality should be the guiding principle to ensure that rights are not undermined in the name of security.

Judicial Interpretation of Validity of Suspension of Fundamental Rights

 Position Before 1978: 

•  Suspension of Art. 19 - Makhan Singh v. State of Punjab:  Art. 358 clarifies that actions taken during an emergency cannot be challenged even after the emergency ends. This means that the suspension of Art. 19 was complete during the emergency period, and any legislative or executive actions violating Art. 19 could not be questioned afterward.
•  Suspension of Art. 20, 21 - A.D.M. Jabalpur v. Shivkant Shukla:  The President, under Art. 359(1) of the Constitution, suspended the right to move any court for the enforcement of fundamental rights under Arts. 14, 21, 22, and 19 during the emergency. This led to the arrest and detention of many individuals under the Maintenance of Internal Security Act, 1971. Detained individuals filed petitions in various high courts challenging their detention. Despite high courts ruling in favor of the detainees, the Supreme Court upheld the government’s position, except for Justice Khanna, who emphasized that the right to life and liberty is a fundamental human right, not a privilege granted by the Constitution. The International Covenant on Civil and Political Rights recognizes the right to life and personal liberty as non-derogable even during emergencies.
•  Suspension of Art. 14 and 16 - Arjun Singh v. State of Rajasthan:  The Rajasthan High Court addressed whether Art. 16 was also suspended when not mentioned in the presidential order. The court ruled that Art. 16 remained in effect even though Art. 14 was suspended, emphasizing that only the fundamental rights specifically mentioned in the presidential order were suspended under Art. 359.

 Status of Art. 356 after Bommai Case 

• A landmark case in Indian constitutional history, S.R. Bommai v. Union of India, has significant implications for Center-State relations.

• The Supreme Court of India delineated the limitations within which Article 356 must operate, indicating that it is an extreme measure to be employed only when it is evident that the constitutional machinery in a State has failed.
• The Court established that the power conferred by Article 356 is conditional and not absolute. This power should be exercised only when the President is satisfied, based on relevant material, that the government in a State cannot function according to the Constitution.
• The Court's assertion that the proclamation of emergency under Article 356(1) is subject to judicial review is a significant development. The Supreme Court or High Court can annul the proclamation if it is found to be mala fide or based on irrelevant grounds.
• Previously, the 38th Amendment Act removed the reviewability of actions taken under Article 356(1), but the 44th Amendment Act restored this reviewability, requiring the Union of India to present the material justifying the action when challenged.
• The evolution of fundamental rights and their stability during emergencies in the Indian Constitution has progressed from the early cases like habeas corpus and Makhan Singh to the pivotal case of S.R. Bommai. Initially, even the suspension of Articles 20 and 21 during emergencies was deemed valid, although these rights are inherent by nature and not granted by the Constitution.