Model Answer
0 min readIntroduction
The Indian Constitution initially granted extensive powers to the executive to declare a state of emergency, a provision heavily criticized for its potential for abuse during Indira Gandhi’s tenure (1975-1977). The proclamation of emergency fundamentally alters the federal structure and restricts fundamental rights. Recognizing these concerns, the 44th Amendment Act, 1978, was enacted to curtail these powers and prevent arbitrary use. This amendment represents a significant effort to safeguard constitutional values and limit executive discretion in times of perceived crisis. It is crucial to understand these restrictions to appreciate the evolution of constitutional safeguards in India.
Background: Emergency Provisions Before the 44th Amendment
Prior to the 44th Amendment, Article 358 and 359 provided for the imposition of emergency based on grounds of war, external aggression, or internal disturbance. The President could proclaim emergency on the advice of the Council of Ministers. Crucially, fundamental rights could be suspended, and the executive could assume extraordinary powers. This period witnessed significant deviations from constitutional norms, raising concerns about potential authoritarianism.
Key Restrictions Introduced by the 44th Amendment
The 44th Amendment Act significantly altered the emergency provisions, primarily aiming to limit the scope and duration of emergency declarations. These changes can be categorized into three main areas: Proclamation Process, Duration and Revocation, and Grounds for Imposition.
1. Proclamation Process
- Requirement of Presidential Proclamation: Previously, the President could proclaim emergency on his own satisfaction. The 44th Amendment mandated a formal proclamation by the President based on a written recommendation from the Cabinet.
- Parliamentary Approval: The proclamation must be approved by both houses of Parliament. This ensures greater parliamentary oversight.
- Judicial Review: The Supreme Court, in ADM Jabalpur v. Shivkant Shukla (1976), had ruled that during an emergency, the judiciary was powerless to review the executive's actions. The 44th Amendment effectively overturned this judgment, restoring the power of judicial review of emergency proclamations.
2. Duration and Revocation
- Maximum Duration: The duration of emergency was initially unlimited. The 44th Amendment limited the maximum duration to six months, extendable by a further six months through a resolution passed by Parliament.
- Automatic Revocation: The emergency automatically ceases to exist after a period of one year unless extended by Parliament.
- Revocation by Resolution: The emergency can be revoked by a resolution passed by both Houses of Parliament.
3. Grounds for Imposition
- Internal Disturbance Eliminated: The ground of "internal disturbance," which was frequently used to justify emergency declarations, was removed as a valid ground. This significantly narrowed the scope for arbitrary imposition.
- ‘War’ and ‘External Aggression’ Only: The grounds were restricted to 'war' or 'armed conflict' and 'external aggression'.
- National Security: A new ground of "imminent danger" or "threat" to the security of India was introduced in 1990 through the 42nd Amendment (though the 44th Amendment's restrictions still apply to its use).
Comparison: Pre and Post 44th Amendment
| Feature | Pre-44th Amendment | Post-44th Amendment |
|---|---|---|
| Grounds for Emergency | War, External Aggression, Internal Disturbance | War/Armed Conflict, External Aggression |
| Presidential Discretion | Based on satisfaction | Based on Cabinet Recommendation & Parliamentary Approval |
| Duration | Unlimited | Maximum 6 months, extendable by 6 months |
| Judicial Review | Restricted (ADM Jabalpur case) | Restored |
| Suspension of Fundamental Rights | Easily suspended | More restricted, requires specific orders |
Effectiveness of the Restrictions
The 44th Amendment has undoubtedly curtailed the arbitrary use of emergency powers. The requirement of parliamentary approval and judicial review acts as a significant check on executive power. The removal of “internal disturbance” as a ground has also limited the potential for misuse. However, concerns remain about the potential for abuse if the grounds of “war” or “external aggression” are manipulated. Furthermore, the National Security Council (NSC) and other agencies could potentially influence emergency declarations, warranting continued vigilance.
Case Study: Post-1990 Emergency Landscape
Case Study Title: The Shadow of Emergency: Post-1990 Security Concerns
Description: Following the 1990 introduction of the “imminent danger” clause, there were concerns that the government might exploit this vague wording to invoke emergency-like conditions without formally proclaiming an emergency. While no formal emergency has been declared since 1977, instances of heightened security measures and restrictions on civil liberties, particularly in the context of terrorism and insurgency, have raised questions about the potential for creeping emergency powers.
Outcome: This case study highlights the need for constant scrutiny of executive actions and adherence to constitutional principles even in the name of national security.
Conclusion
The 44th Amendment Act represents a critical step in safeguarding constitutional democracy in India by imposing significant restrictions on the proclamation of emergency. While these restrictions have largely prevented the arbitrary use of emergency powers seen in the 1970s, ongoing vigilance is required to ensure that the executive does not circumvent these safeguards through alternative means. The balance between national security and individual liberties remains a delicate one, demanding a continuous commitment to constitutional principles and judicial oversight.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.