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Constituent Assembly: Govt’s Right to Impose Emergency

Possibility of clamping emergency in country had generated a debate in Constituent Assembly: Aug 2 1949

TT Krishnamachari
Publish Date: Oct 28 2016 2:26PM | Updated Date: Oct 28 2016 2:27PM

Constituent Assembly: Govt’s Right to Impose Emergency

The possibility of clamping emergency in the country had generated a fierce debate in the Constituent Assembly when it met with President Dr Rajendra Prasad in chair on August 2, 1949. We have been carrying excerpts from the debate on that day.

Shri TT Krishnamachari: Mr President, my excuse in intervening in the debate at this late stage is that I do not like the public in this country to get the impression that we are putting into this Constitution something which is wholly unconstitutional or something which is going to be the means of subverting the Constitution or something which is going to nullify all the rights and privileges given to our citizens under this Constitution and-concentrate in the hands of the executive of the Centre’s enormous powers which will ultimately make them virtual dictators in this country.

Sir, I am one of those who believe that it would be well if we could frame a Constitution without providing therein powers to the executive to abridge at any time the liberty of the citizens or do anything which is either unconstitutional or extra-constitutional. I heard with attention the speech of my Friend Mr Kamath, a very eloquent speech, in which he took objection to the entire part 9 and asked whether there is any constitution in the world in which similar provisions had been embodied. He did very wisely make an exception in regard to the Weimar Constitution in which article 48 contained some provisions of this sort. Surely, the framers of any Constitution at the present day would be failing in their duty if they do not take note, in times like this, of the difficulties that abound around every country. Not merely are there threats of wars and undeclared wars and internecine disturbances, but there are also other calamities which are likely to arise partly because of economic conditions that exist within the countries and economic maladjustments which demand immediate settlement and partly because, there are forces in the world that wish to make the economic maldistribution the basis for subversive political action and in the result making these worse than what they actually are. Therefore if the Constitution framers do not provide safeguards for protecting the Constitution in times of emergencies that might arise, I feel that the framers of that Constitution would be guilty of a grave dereliction of duty. Sir, I feel that that is the excuse for out putting in this Constitution this Part IX entitled Emergency Provisions. It is not that the Drafting Committee has merely borrowed the wording of Section 102 and Section 126-A of the Government of India Act 1935. They have bestowed great thought and care to see that the Government has adequate powers to face an emergency which may very well threaten this Constitution, which may practically make this country come under a rule which is entirely unconstitutional They have at the same time provided enough safeguards to see that the popular voice would be heard, that the popular will dominate whatever might be the conditions under which we will have to function under these emergency provisions.

There is another aspect of this matter which those who are critics of this Constitution should note, viz. that this, as a written Constitution, has got therefore all the defects, incidental to it. If we do not envisage the possibility of there being some disturbance in the future which will upset the Constitution and provide against that contingency, it may be that the powers that be, whoever may happen to be in power at the time would find themselves unable to act because there are no powers given to them to deal with the emergency.

I would ask my friends, both Mr. Kamath and Professor Shah, to read the history of the American Constitution and to spend some time and thought over that portion of the Constitution which gives the President the powers of the Commander-in-Chief and also go into the history of that country during the years 1861 and thereafter when the whole country and the Constitution which in very many respects served as a model constitution for us were made safe only because of a very wide interpretation of the duties, obligations and powers that the President had by virtue of the fact that he was also the Commander-in-Chief. The literature on that particular clause, the clause which gave powers to the President as the Commander-in-Chief to maintain law and order, to fight aggression and also to lead the country in times of war, is enormous. In fact, on a subsequent occasion when America came into the First World War, it was by virtue of these powers, though exercised in a different manner and though the methods followed were totally different, that President Wilson was able to get the entire economy of the country geared up to war effort. Yet, why should we, with all that experience before us, omit to put in explicit terms such safeguards in the Constitution that will protect the Constitution in times of grave danger? Is it wise for us to come here and indulge in heroics and say "Here is something which is being sought to be done which would result in unconstitutional action being made constitutional, which will put so much power in the hands of the President and in the Central executive that will make them completely autocratic." What is the pleasure, may I ask, for those who are drafting this Constitution, in empowering somebody who is to come later on some years or perhaps some decades hence, with whom they might probably have no connection whatever, in clothing them with such extraordinary powers unless it be that their only consideration is that the Constitution that we are framing here today must be safeguarded in all circumstances? To use a phrase which has come into vogue, it may be that the President and the executive would be exercising form of constitutional dictatorship, acting under the provisions of Part 9 but as I said before such dictatorship would be very necessary in order to safeguard the constitution and it is a grim fact from which we cannot escape so long as the world is what it is today with the threat of war, aggression and internal strife, arising out of various causes, mainly economic, as I understand it that are ever-present. I would ask my friends who criticize there provisions, Who would like, the people outside to know that they are the champions of the liberty of the people by telling them that those who have drafted this Constitution want to encircle this country by a Constitution which gives the executive so much power that a dictatorship would result, I would ask them to consider why in several Constitutions, particularly in the French Constitution between the years 1813 and1853, provisions have been made for the declaration of what was called a state of siege, which perhaps was the counterpart of the constitutional' dictatorship envisaged in article 48 of the Weimar Constitution.

 

Not even a country like England is completely free from the possible exercise of such emergency powers After the First World War England passed the Emergency Act of 1920 wherein they gave full powers to the Executive to deal with the situation as they liked and to issue proclamations of emergency subject only to Parliamentary approval and subject to a limited duration. In fact, that particular Emergency Act was not brought into being for the purpose of meeting a foreign enemy; it was not brought into being for the purpose of meeting any force which would threaten or upset the Constitution as such but in order to meet the grave economic consequences that would arise if the Government were not acting. That was the justification for a country like England framing an Act like the Emergency Act that perhaps surpasses in its scope and comprehension any of the Acts that have been passed by the British Government in India when they were in power. I would ask my friends who criticize us for inserting, this provision to look at history. Do they really want us not to provide the means by which this Constitution would he saved? This emergency provision is merely intended to meet one purpose namely that all our efforts all these years spent in Constitution making may not go in your and those people who will be in power in the future would be adequately empowered to save the Constitution. I would ask the House to consider this chapter as a sort of safety valve, which is intended to save the Constitution. Sir, with regard to the wording of the article that is before us it happens to be the central provision governing not merely provisions contained in articles 276, 277, 179 and 280 but of another set of provisions as well. Care has been taken in framing these articles that as soon as it would be physically possible the Parliament should be summoned and its ratification should be-obtained and even the exercise of the, powers under article 276, 277, 279 and 280 cannot be done without Parliament giving some kind of imprimatur to the action initiated by the executive. After all we are not suspending by means of these provisions sittings of Parliament. We are not suspending Parliament's powers over the Constitution and Parliament has always the right to call the executive to order; and if they find that the executive had exceeded their powers in regard to the operation of any of the provisions enacted under the emergency laws, they can always pull them up; they can dismiss the Ministry and replace them, so that it would appear on examination that we have taken very great care to see that Parliament’s powers shall be kept intact and Parliament shall be summoned with the least possible delay. In fact, it may be a question of argument amongst the members of the House whether the two months that is allowed before' Parliament can be summoned and their approval can be obtained which is the maximum that is allowed to the executive, is not erring on the liberal side. In a country of distances there is no point when we are enacting a statutory prohibition against the continuance of a proclamation beyond a specified period to put it under a very straitjacket, when it might be well highly impossible for the Parliament to be summoned in time which is perhaps ordinarily less than a month and Parliament might need a month to discuss the various provisions that will arise as a consequence of the emergency being declared. So long as we have safeguards that the ultimate control of Parliament will remain intact these provisions really fall into their proper perspective, and there is nothing very seriously objectionable in them. – The debate continues