ANALYSIS OF NATIONAL EMERGENCY

46 Years ago, a state of Emergency was declared in India by the then President Fakruddin Ali Ahmad as per the behest of Smt. Indira Gandhi, the then Premier. By virtue of Article 352 (1), the emergency was communicated. The grounds for same was “a grave emergency exists whereby the security of India was threatened by internal disturbances”. In addition, the government cited the 1971 war with Pakistan and the drought of 1972 as reasons for imposing the emergency on 26th June, 1975. It is important to be aware of the series of events that lead to the 21-month long emergency. It all started with the peculiar judgement of State of Uttar Pradesh v/s Raj Narain wherein the Allahabad High Court convicted Indira Gandhi of having indulged in electoral malpractice, thereby declaring her election to be in contravention, and hence null and void. Making Smt. Gandhi approach the Supreme Court and then finally the President who then declared the emergency.
From the above it is very clear that, although the President is the one to exercise the power, the Cabinet led by the Prime Minister is has the real authority in authorizing the same. This is so because the phrase ‘satisfied’ as used in Article 352 does not mean mere personal satisfaction of the President, but it refers to the satisfaction of the Cabinet. Furthermore, the 44th Addendum made to the Constitution which annexed clause 3 to Article 352, rigidly mentions that the President shall declare emergency only on the written advice of the Union Cabinet, headed by the Premier.
It is therefore reasoned that the emergency provisions vest huge amount of power in the Executive as was vocalized by varied members in the Constituent Assembly debates. Hence, to act as a check & balance method the Judiciary steps in to exercise its power of judicial review as was held in Minerva Mills v/s UOI, 1980, wherein Justice Bhagwati states that there exists no such bar to judicial review of validity of such proclamation.
References –
1. IMPORTANT JUDGEMENTS THAT TRANSFORMED INDIA by Alex Andrews George.
2. State Of U.P vs Raj Narain & Ors on 24 January, 1975, https://indiankanoon.org/doc/438670/
3. CONSTITUTIONAL LAW OF INDIA by DR. J.N. Pandey
4. PROFESSIONAL’S THE CONSTITUTION OF INDIA BARE ACT.
5. https://legislative.gov.in/constitution-forty-fourth-amendment
6. Minerva Mills v/s Union of India, 1980, https://indiankanoon.org/doc/1939993/
By LOHITAKSH SHIVELY https://bulletprofitsmartlink.com/smart-link/76104/4

Comments

Post a Comment

Popular posts from this blog

THE DOCTRINE OF SEPARATION OF POWER

Image
                           Based on the principle of trias politica, the Doctrine of Separation of Power has been in existence in India since the days of “Magna Carta”. The Doctrine of Separation of Power envisages a division of powers in a tripartite system. The Indian system is formulated on three main organs; the legislative organ of the state makes laws, the executive forces them and the judiciary applies them to any cases arising out of the breach of those laws. The concept of Separation of Power as elucidated by Wade and Philips meant that no same individual should be a part of more than one out of the three organs of the government. It was further interpreted that one organ of the Government ought not to control or interfere with the activity of another organ, for example, the Judiciary ought to be free of the Executive and that one organ of the Government ought not to exercise the functions of another, for example, the Ministers cannot have administrative forces. Even though t
Read more

DELAYED JUSTICE IN DEATH PENALTY

Image
Justice is rightly called the shield of innocence and guardian of civil rights, as Martin Luther King said, “injustice anywhere is threat to justice everywhere”.  Justice basically means being just, impartial, fair and right. Justice to the accused/convict is as important as justice to the victim. Capital punishment has been in talk in India and other countries as well. In 1982, in the Bachan Singh Vs State of Punjab, the Supreme Court propounded the “rarest of rare” doctrine and since then, life sentence is the rule and the death sentence the exception. Capital Punishment is awarded in cases related to rape, murder, terrorism and atrocity. In Law Commission of India’s report on Death Penalty in 2015, it was stated that there were 12 crimes under IPC and 22 other laws which prescribed death penalty. In 2019, the NDA government amended the POCSO Act in order to grant death penalty to those who indulge in aggravated sexual assault against children.  William Edward Gladstone,
Read more

PROPERTY DIVISION IN MUSLIM LAW

Image
INTRODUCTION Succession is both a legal and a practical requirement. Every individual will be required to renounce the world once, after which all of their legal rights and responsibilities will be dissolved and transferred to someone else. In India, succession is governed by religiously based personal laws. As a result, the rule of succession is influenced by one's faith on religion. “THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937”, deals with intestate succession, the special property of women, inheritance, and the transfer of property under a gift or any other provision that is a subject of personal law among Muslims. DIVISION In Muslim law, the two forms of succession are also recognised. In the event that a man leaves a valid will, testamentary succession occurs, and the property is divided according to the will. When a person dies without leaving a will, intestate succession takes place. Since the joint family system is not recognised, the heirs are limited to t
Read more