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India: Emergency Provisions and Authoritarian Powers
Country Study > Chapter 8 > Government and Politics > The Constitutional Framework > Emergency Provisions and Authoritarian Powers

EMERGENCY PROVISIONS AND AUTHORITARIAN POWERS


Part XVIII of the constitution permits the state to suspend various civil liberties and the application of certain federal principles during presidentially proclaimed states of emergency. The constitution provides for three categories of emergencies: a threat by "war or external aggression" or by "internal disturbances"; a "failure of constitutional machinery" in the country or in a state; and a threat to the financial security or credit of the nation or a part of it. Under the first two categories, the Fundamental Rights, with the exception of protection of life and personal liberty, may be suspended, and federal principles may be rendered inoperative. A proclamation of a state of emergency lapses after two months if not approved by both houses of Parliament. The president can issue a proclamation dissolving a state government if it can be determined, upon receipt of a report from a governor, that circumstances prevent the government of that state from maintaining law and order according to the constitution. This action establishes what is known as President's Rule because under such a proclamation the president can assume any or all functions of the state government; transfer the powers of the state legislature to Parliament; or take other measures necessary to achieve the objectives of the proclamation, including suspension, in whole or in part, of the constitution. A proclamation of President's Rule cannot interfere with the exercise of authority by the state's high court. Once approved, President's Rule normally lasts for six months, but it may be extended up to one year if Parliament approves. In exceptional cases, such as the violent revolt in Jammu and Kashmir during the early and mid-1990s, President's Rule has lasted for a period of more than five years.

President's Rule has been imposed frequently, and its use is often politically motivated. During the terms of prime ministers Nehru and Lal Bahadur Shastri, from 1947 to 1966, it was imposed ten times. Under Indira Gandhi's two tenures as prime minister (1966-77 and 1980-84), President's Rule was imposed forty-one times. Despite Mrs. Gandhi's frequent use of President's Rule, she was in office longer (187 months) than any other prime minister except Nehru (201 months). Other prime ministers also have been frequent users: Morarji Desai (eleven times in twenty-eight months), Chaudhury Charan Singh (five times in less than six months), Rajiv Gandhi (eight times in sixty-one months), Vishwanath Pratap (V.P.) Singh (two times in eleven months), Chandra Shekhar (four times in seven months), and P.V. Narasimha Rao (nine times in his first forty-two months in office).

State of emergency proclamations have been issued three times since independence. The first was in 1962 during the border war with China. Another was declared in 1971 when India went to war against Pakistan over the independence of East Pakistan, which became Bangladesh. In 1975 the third Emergency was imposed in response to an alledged threat by "internal disturbances" stemming from the political opposition to Indira Gandhi.

The Indian state has authoritarian powers in addition to the constitution's provisions for proclamations of Emergency Rule and President's Rule. The Preventive Detention Act was passed in 1950 and remained in force until 1970. Shortly after the start of the Emergency in 1962, the government enacted the Defence of India Act. This legislation created the Defence of India Rules, which allow for preventive detention of individuals who have acted or who are likely to act in a manner detrimental to public order and national security. The Defence of India Rules were reimposed during the 1971 war with Pakistan; they remained in effect after the end of the war and were invoked for a variety of uses not intended by their framers, such as the arrests made during a nationwide railroad strike in 1974.

The Maintenance of Internal Security Act promulgated in 1971 also provides for preventive detention. During the 1975-77 Emergency, the act was amended to allow the government to arrest individuals without specifying charges. The government arrested tens of thousands of opposition politicians under the Defence of India Rules and the Maintenance of Internal Security Act, including most of the leaders of the future Janata Party government returned to power in 1980, Parliament passed the National Security Act authorizing security forces to arrest individuals without warrant for suspicion of action that subverts national security, public order, and essential economic services. The Essential Services Maintenance Act of 1981 permits the government to prohibit strikes and lockouts in sixteen economic sectors providing critical goods and services. The Fifty-ninth Amendment, passed in 1988, restored "internal disturbance" in place of "armed rebellion" as just cause for the proclamation of an emergency.

The Sikh militant movement that spread through Punjab during the 1980s spurred additional authoritarian legislation Act imposed the death penalty for anyone convicted of terrorist actions that led to the death of others. It empowered authorities to tap telephones, censor mail, and conduct raids when individuals are alleged to pose a threat to the unity and sovereignty of the nation. The legislation renewing the act in 1987 provided for in camera trials, which may be presided over by any central government officer, and reversed the legal presumption of innocence if the government produces specific evidence linking a suspect to a terrorist act. In March 1988, the Fifty-ninth Amendment increased the period that an emergency can be in effect without legislative approval from six months to three years, and it eliminated the assurance of due process and protection of life and liberty with regard to Punjab found in articles 20 and 21. These rights were restored in 1989 by the Sixty-third Amendment.

By June 30, 1994, more than 76,000 persons throughout India had been arrested under the Terrorist and Disruptive Activities (Prevention) Act. The act became widely unpopular, and the Rao government allowed the law to lapse in May 1995.

Data as of September 1995




Last Updated: September 1995


Editor's Note: Country Studies included here were published between 1988 and 1998. The Country study for India was first published in 1995. Where available, the data has been updated through 2008. The date at the bottom of each section will indicate the time period of the data. Information on some countries may no longer be up to date. See the "Research Completed" date at the beginning of each study on the Title Page or the "Data as of" date at the end of each section of text. This information is included due to its comprehensiveness and for historical purposes.

Note that current information from the CIA World Factbook, U.S. Department of State Background Notes, Australia's Department of Foreign Affairs and Trade Country Briefs, the UK's Foreign and Commonwealth Office's Country Profiles, and the World Bank can be found on Factba.se.

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