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Supreme Court Warns About Sobering Lessons Learnt From Our not-too-distant History Of Emergency Era. [Read Judgment]

The Supreme Court, while quashing the Gujarat Government notification regarding extending work hours under Factories Act without overtime pay, has discussed constitutional provisions about ‘public emergency’ and ‘security of the state.’

By: Ayushi Sahu

The Court caught sight of  Article 352 of the Constitution, before the Constitution (Forty-fourth Amendment) Act, 1978, which read as follows: If the President is satisfied that a 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 disturbance, he may, by Proclamation, make a declaration to that effect. 

The Court subsequently noted, owing to the Article being invoked thrice that “An emergency was declared for the first time in 1962 due to the Chinese aggression on Indian territory. The emergency was revoked in 1968. In 1971, when hostilities broke out with Pakistan, an emergency was proclaimed by the President on the ground that the security of India was threatened by external aggression. While this proclamation was in force, another proclamation was issued by the President on 25 June 1975 declaring that a “grave emergency exists whereby the security of India is threatened by ‘internal disturbance’.” Both these proclamations were revoked in March 1977.”

Justice DY Chandrachud observed that the Forty-fourth Amendment to the Constitution sought to limit recourse to emergency powers under Article 352 to prevent their abuse.

The said amendment, replaced the expression “internal disturbance” with “armed rebellion” and a proclamation of emergency now cannot be issued on a mere internal disturbance and must reach the threshold of an armed rebellion threatening the security of India, the court added. 

The bench remarked“The Parliamentary amendments to Article 352 are the product of experience: experiences gained from the excesses of the emergency, experiences about the violation of human rights and above all, experiential learning that the amalgam of uncontrolled power and unbridled discretion provide fertile conditions for the destruction of liberty. The sobering lessons learnt from our not-too-distant history should warn us against endowing a statute with similar terms of a content which is susceptible of grave misuse.”

On the scope of Article 352 post amendment, the bench further observed that “The expression ‘internal disturbance’ must be interpreted in the context in which it is used. Under Article 352, an internal disturbance must be of the order of an armed rebellion threatening the security of India to proclaim an emergency. Similarly, in order to sustain a valid exercise of power under Article 356 on the ground of an internal disturbance, it must be of such a nature as to disrupt the functioning of the constitutional order of the State; in other words, it must be of such a nature that the government of a state cannot be carried on in accordance with the Constitution.”

While discussing the phrase “security of India”, the judge noticed that a 1950 judgment, in Romesh Thapar vs. State of Madras (six judge bench) has observed that the concept of ‘security of State’ is narrower than that of ‘public order.’

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