Don't Butcher National Interests by Creating Emergency Phobia
JULY 01, 2017
By Naresh Minocha, Consulting Editor
ANOTHER 25th June. And another attainment of high moral ground by Modi Government against the 1975 national emergency. Next year, the Government would attempt to scale a new height on this issue.
The pitch of official campaign against the Emergency is becoming sharper year after year. This is a great escape for the Government from its Emergency obligations, which have been meticulously articulated by two separate commissions on Centre-State relations and by Dr. B.R. Ambedkar, chief architect of Indian Constitution.
Emergency-bashers would never recall observations of these three great entities while referring to Shah Commission on highly exaggerated ‘emergency excesses'.
It is thus perfect time to tell the truth that the Government has buried under the carpet to humiliate the Congress Party year after year. Politics is legitimate. But playing politics that endangers the very existence of the country should be exposed and shunned.
Before elaborating what the Modi Government does not disclose on the Emergency, consider the Government propaganda.
The Prime Minister Narendra Modi, in his monthly sermon Mann Ki Baat, observed: "1975 – 25th June – it was a dark night that no devotee of democracy can ever forget. No Indian can ever forget. The country had virtually become a prison. The voice of the opposition had been smothered. Several prominent leaders including Jai Prakash Narayan had been jailed ."
He continued: "The judicial system too could not escape the sinister shadows of the Emergency. The press was completely muffled. The present-day students of journalism and the champions of democracy have been endeavouring towards raising awareness about that dark period, by constant reminders, and should continue to do so".
The Minister for Information & Broadcasting and Urban Development M Venkaiah Naidu, wrote an article in a daily ridiculing the Emergency. Headlined 'Does Emergency Retain its Relevance?' the article aptly notes: "The Emergency has attained a mythical status of contemporary India".
It is indeed shameful that both the ruling party and the Opposition are on the same page when it comes to competitive moral politics against the Emergency. Both have conspired to ridicule the importance of Emergency, which is very much provided for by the Indian Constitution.
We should re-establish the Emergency's relevance amidst growing instances of abuse of the rights of silent sections of society by the groups that flex vocal & muscle power. They do so to press for their demands varying from caste-based reservations to CBI/CID probe into a young person's disappearance/death.
Rail & Road roko is the new normal for our chaotic Democracy. So are rapes and day-light robbery in crowded cities. Brutal murders including mob lynching are a passe.
Violent agitations seeking separate States or enlargement of State territories have been integral part of our polity for decades. Naxal violence does not weaken the resolve of emergency critics. For them, Islamic radicalism-led slaughter of jawans and cops in Kashmir is necessary evil of democracy.
For populist politicians, rule of the law & fundamental duties of citizens are only meant for occasional lip service. They, however, love to rationalize conflicting demands of violent sections of society under garb of social justice & bridging class divide.
With this ground reality, it is thus important to recall what Sarkaria Commission (SC) and Punchhi Commission (PC) had stated on the Emergency provisions of the Constitution. The failure to act on their recommendations on this count speaks volumes about populist leaders' commitment to long-term interest of Bharat.
Indira Gandhi Government had constituted Sarkaria Commission on Centre-State relations under chairmanship of Justice R.S. Sarkaria in June 1983. This happened after public voted her back to power following crass failure of anti-Emergency Janata Government.
SC submitted its report in January 1988 after conducting several studies and after holding discussions with different stakeholders. In its chapter on emergency provisions of the Indian constitution, SC noted: "The framers of the Constitution were conscious that, in a country of sub-continental dimensions, immense diversities, socio-economic disparities and ' multitudinous people, with possibly divided loyalties', security of the nation and stability of its polity could not be taken for granted".
It continued: "The framers, therefore, recognised that, in a grave emergency, the Union must have adequate powers to deal quickly and effectively with a threat to the very existence of the nation, on account of external aggression or internal disruption. They took care to provide that, in a situation of such emergency, the Union shall have overriding powers to control and direct all aspects of administration and legislation throughout the country".
SC added: "A violent disturbance, paralysing the administration of a State, could pose a serious danger to the unity and integrity of the country. Coping with such a situation of violent upheaval and domestic chaos, may be beyond the capacity or resources of the State. Intervention and aid by the Union will be necessary. A duty has, therefore, been imposed by the Constitution on the Union to protect every State against external aggression and internal disturbance".
The key words in this quote are 'divided loyalties'. The glaring examples of this are separatist movement based on loyalty to Pakistan and Radical version of Islam in Kashmir, Gorkhaland agitation in West Bengal and Caste reservation arson in certain States.
India is a land of fragile unity amidst divided loyalties towards religion, region, caste and language. Unity in diversity is like glass that gets shattered time and again by communal and caste violence .
Even in countries where divided loyalties are not as vast and deep-rooted as in India, their respective constitution provides for imposition of emergency under different circumstances. And in those nations including United States and Australia, the Government does not generate negativism about emergency.
See how France declared national emergency (which is still continuing) after terrorists' attack in Paris during November 2015. India, on the other hand, remained unmoved even after Pak-sponsored terrorists attack on Mumbai in 2008, which was preceded by attack on Parliament in 2001. And status quo has continued under Modi Government in spite of Pak-masterminded attacks on Indian defense establishments. The Government thinks it is more important to play politics on Emergency than imposing Emergency to minimize deaths of jawans, cops and civilians.
The Union Government has rendered emergency provisions of the Constitution (spread over nine articles) as useless script except one provision that is prone to political abuse - Article 356 for imposition of Governor's/Central rule in a State. Even Modi Government has misused this provision in two opposition-ruled States, inviting adverse verdicts from the Supreme Court.
SC categorized emergency into four types. These are:
(a) A situation of grave emergency whereby the security of India or any part of its territory is threatened by war or external aggression or armed rebellion. (Articles 352 and related Articles: 353, Proviso to 83(2), 250, 354, 358 and 359).
(b) A situation involving breakdown of constitutional machinery in a State, i.e., where the Government of the State cannot be carried on in accordance with the provisions of the Constitution (Articles 356 and 357).
(c) A situation of 'external aggression' and/or 'internal disturbance' which is not grave enough to satisfy the requirements of either Article 352 or 356, but nevertheless, calls for other action by the Union pursuant to the first part of Article 355.
(d) A situation where the financial stability or credit of India or any part thereof is threatened enabling the Union to give suitable directions (Article 360).
The seventies witnessed imposition of double emergency under Article 352. First one was declared in December 1971 due to external aggression, which led to emergence of East Pakistan as a new nation (Bangladesh). Even as this external emergency continued, Mrs. Gandhi imposed 2nd one due to internal disturbances on 25th June 1975. This coincided with Allahbad High Court's conditional verdict, setting aside her election to Lok Sabha, the Opposition has dubbed it as abuse of article 352.
What the Opposition does not disclose is that it resorted to street violence to bring down legitimately-elected State Governments. Late Jaiprakah Narain's call to the security forces to disobey orders of the Government was indeed the trigger for imposition of internal Emergency as elaborated in this column two years back (Time to stand up & crave for the good side of 1975 Emergency! https://taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=23947)
Turn now to the Commission on Centre-State Relations (CCSR) that submitted its report in April 2010 under the Chairmanship of former Chief Justice of India, Justice Madan Mohan Punchhi.
Describing Article 352 as “emergency proper", CCSR observed: "It is to be used as a safety valve during really emergent times which rarely comes in the life of a Nation for preserving and protecting the Constitution. Post 1977, no such emergency has been pronounced and the 44th Amendment to the Constitution introduced its own safeguards with regard to the said provision".
Turning to Article 355 which has never been invoked, it noted that this imposes an obligation upon the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution. It has driven home the importance of this Article by referring to surge in maoist violence and Gujarat communal riots.
CCSR says: "The Constitution does not further elaborate on how this duty of the Union to protect a State against external aggression and internal disturbance is to be operationalised. This is left to the discretion and judgment of the Union".
It added: “Concern for the unity and integrity of India is the rationale for the obligation put on the Union to protect States even against internal disturbances which ordinarily is a matter for the states to handle. This obligation is coupled with the power to enforce that duty, if necessary without any request coming from the State".
After examining similar provisions in Constitutions of other democracies and looking at India's socio-political developments, the Commission felt that "a whole range of action on the part of the Union is possible under this power depending on the circumstances of the case as well as the nature, timing and the gravity of the internal disturbance".
CCSR has recommended a legal framework for utilizing Article 355 to declare emergency in localized areas. It says: "The imposition of local emergency, it is submitted, is fully justified under the mandate of Article 355 read with Entry 2A of List I and Entry 1 of List II of the Seventh Schedule. It is submitted that Art.
355 not only imposes a duty on the Union but also grants it, by necessary implication, the power of doing all such acts and employing such means as are reasonably necessary for the effective performance of that duty".
This analysis shows that Modi Government must rise above its obsessive compulsive disorder on 1975 emergency, which is a closed chapter post enactment of The Constitution (Fortyfourth Amendment) Act, 1978. The Amendment has built in stringent safeguards against abuse Article 352 for imposition of emergency on grounds of ‘internal disturbance', which was substituted with ‘armed rebellion'.
It is shocking to find that the Government is scared of even declaring Maoist deadly attack on security forces (dubbed as left wing extremism) and public infrastructure as an act of terrorism, if not armed rebellion.
Both Maoist and terrorist attacks in Kashmir are acts of armed rebellion, which would have grave consequences if not tackled with iron hand. And this requires imposition of emergency either under Article 352 or under 355 of the Constitution.
The Government, in fact, should amend the Constitution by substituting ‘armed rebellion' with domestic violence as ground for imposition of emergency under Article 352.
Similar provision for intervention of federal government against domestic violence in any state exists in constitution of countries such as the United States and Australia.
If all this analysis can't change the mind of emergency-bashers, they should ponder over what Dr. Ambedkar stated in the Constituent Assembly on 9th December 1949.
Mr. Ambedkar observed: "In times of emergency the life of the State itself is in jeopardy and if the State is not able to protect itself in times of emergency, the individual himself will be found to have lost his very existence. Consequently, the superior right of the State to protect itself in times of emergency, so that it may survive that emergency and live to discharge its functions in order that the individual under the aegis of the State may develop, must be guaranteed as safely as the right of an individual."
He added: "I know of no Constitution which gave fundamental rights but which gives them in such a manner as to deprive the State in times of emergency to protect itself by curtailing the rights of the individual. You take any Constitution you like, where fundamental rights are guaranteed; you will also find that provision is made for the State to suspend these in times of emergency".