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1975 Emergency Provides Harrowing Reminder Of State Excess: Supreme Court Judges

Mehal Jain
26 Jan 2021 2:09 PM GMT
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Supreme Court Judges Justice NV Ramana, Justice DY Chandrachud and Justice SK Kaul have recently talked about the 1975 National Emergency during a book release function.The judges were speaking at the launch of the book "The Law of Emergency Powers" by Senior Advocate Dr AM Singhvi and Jindal Global Law School's Prof. Khagesh Gautam. The seniormost judge of the top court, Justice N. V....

Supreme Court Judges Justice NV Ramana, Justice DY Chandrachud and Justice SK Kaul have recently talked about the 1975 National Emergency during a book release function.

The judges were speaking at the launch of the book "The Law of Emergency Powers" by Senior Advocate Dr AM Singhvi and Jindal Global Law School's Prof. Khagesh Gautam. The seniormost judge of the top court, Justice N. V. Ramana, was the chief guest at the event, which also witnesses addresses by Justices D. Y. Chandrachud and Surya Kant.
Launching the book, Justice Ramana narrated that the book brought back to him memories of the national emergency of 1975- "I was then a young student having great optimism. In June 1975, a public meeting was organised in my hometown on civil liberties. I was presiding that meeting. As I was about to step out, my father asked me to pack an extra pair of clothes. He was convinced I would be arrested! As I was reaching the venue, I observed people were running in panic. One of my friends informed me that the police were arresting people. He took me to the outskirts and informed me about how the govt was about to proclaim emergency. We both took a lorry and then walked all night and reached my maternal aunt's house with only Rs. 10 in hand. In hindsight, my father should have given me some more money"
"Emergencies have a long lasting effect on generations. In my case, a year of academic studies and mental suffering can be attributed to the emergency. But I have no regrets. I have seen so many young people sacrificing their lives for the sake of human rights. I learned so much about human tragedy, pain, hunger and suffering...Our experience of this time brought forth the importance of understanding the concept of emergency", spoke Justice Ramana.

He elaborated that of the three countries of the USA, UK and India, which are the subject of the comparative analysis in the book, only the Indian Constitution explicitly provides for an emergency- "Our Constitution-makers may have been influenced by the historical conditions in which the document was framed – it was their foresight and understanding, the teachings of the past and the uncertainties of the future. It was the belief that when the very State is at risk, it becomes a necessary evil that some ideals are sacrificed, but in accordance with the Constitution. The Supreme Court of India has always been in the centre of this discussion - from Maneka Gandhi to Puttaswamy, from AK Gopalan to ADM Jabalpur, the growth of jurisprudence has been historic", he said.
In his turn, Justice Chandrachud articulated that the emergency encompasses "an unprecedented destruction of civil liberties in the garb of curbing the threat of internal disturbances", which provides a "harrowing reminder of the State excess".
"History is replete with instances of civil liberties being the collateral damage in the wake of an emergency. ADM Jabalpur was one such instance. I had a personal insight into the tribulations of a judge (former CJ Y. V. Chandrachud) grappling with his reconfigured role in the novel state of exception. But ADM Jabalpur is not a standout feature of international jurisprudence", he said.
He proceeded to point out Justice Frankfurter's concurring opinion in Korematsu v. United States upholding the conviction of a Japanese American for having violated an exclusion order requiring him to submit to forced relocation during World War II.
He indicated Lord Atkin's dissent in Liversidge v. Anderson against the Executive's overbroad powers of detention. "Fortunately, the international jurisprudence has found favour with Lord Atkin's opinion and has cultivated a deep respect for human rights and civil liberties", remarked Justice Chandrachud.
"Being in Delhi, we have an excessively Delhi-centric view of the Indian polity. We assume that the entire universe of law is consumed by the Supreme Court of India, not realising that the real law is developed in the district courts and in the High Courts. Our High Courts, including the Madhya Pradesh High Court with its ADM Jabalpur judgment, stand out in terms of their contributions. Several judges of the High Court were even transferred during the emergency due to their judgements", commended the judge.
He narrated that the 1975 emergency began with the Executive assuming enhanced powers to counter internal disturbances, as was then provided for in Article 352. What followed were oppressive norms of preventive detention and a pre-publication censorship. "Our constitutional doctrines underwent the deepest phase of introspection and reclamation, particularly the scope and nature of judicial review by the Courts over the State's temporary exceptional powers", he said.
He expressed the view that the COVID pandemic, with its fervent and frequent lock down, restrictions on movement and the enhanced Executive power, which was necessary to tailor the State infrastructure to battle the deadly virus, would be a deep influence on the scholars of today- "In the face of mortality, how could one argue their fundamental right to travel freely? Even if in the constitutional sense an emergency was not declared, several Executive and Legislative actions were initiated to meet the extraordinary situation. The judiciary as a countermajoritarian institution in the times of State crisis has to adopt a finer line of judicial review of Executive action"
He indicated how in the year 2020, the United States Supreme Court had to examine the COVID restrictions in Nevada and California on issues such as the seating capacity of church congregations- "The court had balanced the free exercise claim under the Fourth Amendment to the US Constitution in favour of Executive action"
He referred to the United Kingdom Court of Appeals upholding the relaxation of the Abortion Act to enable abortion pills being accessible at home through online prescriptions.
Finally, he indicated how the Supreme Court of New South Wales of Australia had, in balancing the freedom of public assembly with the public health risks, had denied notices of intention for holding assemblies over refugee actions and the 'Black Lives Matter' movement.
"The government has had to make choices at a very short notice, striking the right balance between the competing social, political, economic and budgetary considerations. This does not mean that we jettison all means of Constitutional scrutiny. It is incumbent on the Court to ensure that the State action is rational, with a legitimate aim, and causes the least infringement of rights", he explained.
He cited his own experience in dealing with the state of Gujarat, which, in its use of its exceptional powers under the Factories Act 1948, had declared the pandemic as a 'public health emergency' under the Factories Act to curtail workers' protection in terms of overtime pay and limiting working conditions. "The government had said that this was necessary to meet the minimum production targets and to counter the economic harm which had been caused in the lockdown. We found that the narrowing of these rights would result in the destruction of liberty", he said. The Supreme Court had in September, 2020 quashed the notification issued by the Gujarat Labour and Employment Department granting exemptions to all factories in Gujarat from provisions of the Factories Act, 1948 relating to daily working hours, weekly working hours, intervals for rest and spread overs of adult workers as well as from payment of overtime wages at double rates viz. Section 59.

A bench of Justices Chandrachud, KM Joseph & Indu Malhotra held that the pandemic situation cannot be a reason to do away with statutory provisions that provide dignity and rights for workers by the Gujarat Government. In this context, the bench has stated that the pandemic is not a "public emergency" within the meaning of Section 5 of the Factories Act threatening security of the country.

In his turn, Justice Kaul explained that the emergency power widened the scope of the ordinary power of the government which is insufficient in the times of the crisis. "The legal regime for the emergency is such that it is the constitutional limits combined with the statutory powers which are the key to ascertain whether the emergency would be a threat to constitutionalism or a measure to restore stability and constitutional order", he said.

"The critical questions of the separation of power, the independence of the institutions and the rule of law lie in addressing the fundamental tension which is premised in a government constrained by the law and the perceived need for unfettered power to address the issue of the emergency", he added.
He explained that the emergency provisions underwent a strenuous discussion in the Constituent Assembly, and that several safeguards were contemplated to minimise the abuse, to ensure that the Centre is able to function swiftly and smoothly and not trample on the rights of the citizens. "However, these checks and balances failed to work at the crucial time in 1975", commented Justice Kaul.
He elaborated that while Articles 352, 354 and 358-360 deal with national emergency, Articles 356 and 357 deal with 'state emergency' and were severely criticised for being a threat to provincial autonomy- "Article 356 has witnessed a litigious past on account of the separation of powers. If found its authoritative answer in the case of SR Bommai where it was held that the advice to the President of the Council of Ministers will be amenable to judicial review. There has been a decline in the proclamation of state emergencies thereafter"
"A wave of detentions during the 1975 emergency reached the Supreme Court in ADM Jabalpur, where, by a 4:1 majority, the Supreme Court had ruled in favour of the State. There was of course the brilliant dissent by Justice (H. R.) Khanna that the populace is not at the mercy of the State even during the emergency. The error in ADM Jabalpur was corrected in Puttaswamy, which held that certain basic, indispensable rights are recognised by the Constitution of India and not conferred on the citizen by it", he continued.
"Despite these developments, it remains critical that we, as a society, are conscious of taking the same road again. The threat looms large across the world of an emergency-like situation transpiring again, albeit in a de facto manner without explicitly taking aid from the emergency provisions. The pandemic provided one such occasion where, in attending to the public health emergency and affecting the rule of law, rights had to be carefully balanced. The recent events in one of the established democracies of the world is an example of what can go wrong", concluded Justice Kaul.
Justice Surya Kant expressed the view that now it is the time to stop, look over and ponder over the transformative document that is our Constitution- "The Constitution of India can be explained as the system of norms given by the body polity to itself, premised on the understanding that if normal behaviour and historical circumstances apply to extraordinary and supernatural events, unpredictable and undesirable results would follow"
"Imagine a war where the troops have to be deployed urgently. Or a pandemic which requires a quick pre-emptive travel restriction. The normal deliberative process of democracy is slow. In accommodating the rights of every citizen, the constitutional system and perhaps the entire population may be lost. The tendency of modern institutions to divide power as a check against despotism can lead to paralysis", he said.
"Most of the national constitutions have written or implied provisions for emergency, incorporated in the existing framework for decisive governance in such a time. Hardly any countries or mature democracies have invoked this power at the turn of the 21st century. India has never done so after 1975. Article 352 is constitutional history, not an alive or active provision. This is so because it has been found that its political consequences and international ramifications are larger than the benefits drawn from it", he continued.
He said that since the Second World War, most nations have remained the same, the boundaries have not been enlarged, the countries do not declare wars and survival is no longer the concern of governments. The focus now is on the two bigger challenges of domestic unrest and terrorism, which, though frightening, do not pose any threat to democracy. The nations now use ordinary legislation and delegated powers to tackle these. No nation has abrogated the constitution and invoked formal emergency even in the pandemic- In India, the Disaster Management and the Epidemic Acts have been taken recourse to and the organs of the government have worked in tandem. Justice Surya Kant said that it was on account of the cooperation between the Union of India and the states that the virus is now in check in the country.
"There is a growing tendency to tackle even domestic unrest and terror terrorism without the emergency power . There is a gradual crossover where various jurisdictions are incorporating harsh provisions in the normal framework of legislative powers to deal with these threats. For example, the Patriot Act of the United States, the Defence against Terrorism Act of the UK, the TADA, POTA and UAPA of India. However, the arbitrary exercise of this power, hindering individual liberty and human rights, is a matter of concern, it is an antithesis to the constitutional guaranteed rights. While their application is rendered necessary in an extraordinary situation, it is equally important to prevent abuse. This is where the overwhelming and extraordinary power of judicial review comes into play", he concluded.


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