Title of the topic basically talks about two main and important factors of Indian constitution of India i.e. “Emergency provision & fundamental rights”
When the Constitution of India was being drafted, India was passing through a period of Stress and strain. Partition of the country, communal riots and the problem concerning the Merger of princely states including Kashmir. Thus, the Constitution-makers thought to Equip the Central Government with the necessary authority, so that, in the hour of emergency, When the security and stability of the country is threatened by internal and external threats. Therefore, some emergency provisions were made in Constitution to safeguard and protect the security, integrity and stability of the country and effective functioning of State Governments.
Keeping in view the above stated points constitution makers inserted three kinds of emergency.
Before moving to other points first we shall look into emergency provision and elaborate them.
1.1:-Art. 352 reads that-
352. Proclamation of Emergency.—(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.
Explanation-A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.
Provisions have been made in the Constitution for dealing with extraordinary situations that may threaten the peace, security, stability and governance of the country or a part thereof.
The Constitution of India has provided for imposition of emergency caused by war, external aggression or internal rebellion. This is described as the National Emergency. This type of emergency can be declared by the President of India if he is satisfied that the situation is very grave and the security of India or any part thereof is threatened or is likely to be threatened either, by war or external aggression by armed rebellion within the country. The President can issue such a proclamation even on the ground of threat of war or aggression. According to the 44th Amendment of the Constitution, the President can declare such an emergency only if the Cabinet recommends in writing to do so.
Role of 44th amendment we will be discussing in later sub heads.
by war or by external aggression-the opening words itself are of explanatory nature,so they don’t need to be explained much. when ever other objects (not within the Indian territory) try to create problems for India and its citizens through war or aggression.
armed rebellion within the country-the word “armed rebellion” was not there in the constitutional provisions from the very beginning.before 1978 an emergency could be declared because of “war,external aggression or internal disturbance”, that was too vague and broad in sense.the 44th constitutional amendment substituted the word “armed rebellion” for internal disturbance.
Supreme court explained in one of the case,the expression “internal disturbance “has a wider connotation than “armed rebellion” in the sense that armed rebellion is likely to pose a threat to the security of the country or a part thereof, while internal disturbace, though serious in nature, would not pose a threat to the security of the country or a part thereof.
The intention underlying the substitution of the words internal disturbance by “armed rebellion ”is to limit the invocation of art. 352 only to more serious situations where there is a threat to the security of the country.
1.2:- procedure of proclaiming emergency-
In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in session, it has to be approved by the Rajya Sabha within one month and later on by the Lok Sabha also within one month of the start of its next session. Once approved by the Parliament, the emergency remains in force for a period of six months from the date of proclamation. In case it is to be extended beyond six months, another prior resolution has to be passed by the Parliament. In this way, such emergency continues indefinitely.
In the case of Minerva Mills ltd.vs Union of India held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court’s power is limited only to examining whether the limitations conferred by the constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.
1.3:- procedure of revocking emergency-
1.4:-Effects of national emergency-
The most significant effect is that the federal form of the Constitution changes into unitary. The authority of the Centre increases and the Parliament assumes the power to make laws for the entire country or any part thereof, even in respect of subjects mentioned in the State List.
The President of India can issue directions to the states as to the manner in which the executive power of the states is to be exercised.
During period, the Lok Sabha can extend tenure by a period of 1 year at a time. But the same cant be extended beyond 6 months after the proclamation ceases to operate. The tenure of State Assemblies can also be extended in the same manner.
During emergency, the President is empowered to modify the provisions regarding distribution of revenues between the Union and the States.
The Fundamental Rights under Article 19 are automatically suspended and this suspension continues till the end of the emergency.
But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended only in case of proclamation on the ground of war or external aggression. From the above discussion, it becomes quite clear that emergency not only suspends the autonomy of the States but also converts the federal structure of India into a unitary one. Still it is considered necessary as it equips the Union Government with vast powers to cope up with the abnormal situations.
EFFECT OF NATIONAL EMERGENCY FALLS IN ART.353 OF THE CONSTITUTION OF INDIA.
2.1:-Art. 356 reads that-
356. Provisions in case of failure of constitutional machinery in States.—(1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation—
(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State:
Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
2.2:- procedure of proclaiming state emergency-
(a) a National Emergency is already in operation; or if
2.3:- procedure of revocking state emergency-
Every Proclamation shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
2.4:- effect of state emergency-
The President can assume to himself all or any of the functions of the State Government or he may vest all or any of those functions with the Governor or any other executive authority.
2.5:-criticism of president’s rule-
In view of the above facts, Article 356 has become very controversial. In spite of the safeguards provided by the 44th Amendment Act, this provision has been alleged to be misused by the Union Government. That is why, there is a demand either for its deletion or making provision in the Constitution to restrict the misuse of this Article. The Sarkaria Commission which was appointed to review the Centre–State relations also recommended that Article 356 should be used only as a last resort. The Commission also suggested that the State Legislative Assembly should not be dissolved unless the proclamation is approved by the Parliament. It further suggested that all possibilities of forming an alternative government should be fully explored before the Centre imposes emergency in a State on grounds of breakdown of Constitutional machinery. The Supreme Court held in the Bommai case that the Assembly may not be dissolved till the Proclamation is approved by the Parliament. On a few occasions such as when Gujral Government recommended use of Article 356 in Uttar Pradesh, the President returned the recommendation for reconsideration.The Union Government took the hint and dropped the proposal.
The third type of Emergency is Financial Emergency provided under Article 360. It provides that if the President is satisfied that the financial stability or credit of India or any of its part is in danger, he may declare a state of Financial Emergency. Like the other two types of emergencies, it has also to be approved by the Parliament. It must be approved by both Houses of Parliament within two months. Financial Emergency can operate as long as the situation demands and may be revoked by a subsequent proclamation.
Art 360 provides that if the president is satisfied that a situation has arisen whereby the financial security of India or the credit of India or of any part of India is threatened, he may make a declaration to that effect. Under such situation, the executive and legislative powers will go to the centre. This article has never been invoked.
A Proclamation issued under Art. 360—
IN INDIA FINANCIAL EMERGENCY HAS NEVER TAKEN PLACE,SO REGARDING THIS MATTER WE DON’T HAVE SUFFICIENT INFORMATION ,BACAUSE NO DISPUTE EVER AROSE OR ANY CASE LAW EVER CAME IN THE LIGHT.
Fundamental Rights are those basic conditions of social life without which a citizen cannot be at his best self or those basic conditions which are very essential for the good life of a citizen.
fundamental rights falls In Part III of the Constitution from art. 12 to art. 35.
the Fundamental Rights are justiciable when we say word“justiciable” It means that the citizens can seek the assistance of the courts for the enforcement of their Fundamental Rights under article 32 (Supreme Court) and article 226 (High Courts).
An individual as well as group of people can ask the court to issue the writs-
The writ of mandamus is an order of a court of law issued to a subordinate court or an officer of government or a corporation or any other institution commanding the performance of certain acts or duties.
The Fundamental Rights can also be suspended during the Emergency under Article 359 of the Constitution by the President of India.as we discussed earlier during national emergency
The Fundamental Rights are not absolute in nature.Certain restrictions can be placed on them in the interest of security of the state, public order, friendly relations with foreign states and to maintain decency or morality.
4.2:-description of fundamental rights-
there are some restrictions too,Due to these very restrictions it has been contended them that the Indian Constitution which has granted the fundamental rights with one hand has taken them away with the other hand.
These Fundamental Rights can be suspended during emergency by the President of India under Article 359.
The Fundamental Rights are justiciable. Under Article 32 of the Constitution, a person can go to the Supreme Court for the enforcement of these rights. Similarly, under Article 226 a person can go to the High Courts for the enforcement of these rights within their territorial jurisdiction.
Following are the Fundamental Rights granted under the Constitution of India:
(ii) Right to Freedom
(iii) Right against Exploitation
(iv) Right to Freedom of Religion
(v) Cultural and Educational Rights :
(vi) Right to Constitutional Remedies
(f) This right relating to constitutional remedies was rightly described by Dr. Ambedkar as the “heart and soul of the Constitution“. This description is quite justified as in the absence of this right all other rights are of no consequence since they could not be enforced. This right makes the other rights as justiciable.
NEED FOR EMERGENCY
For the first time,emergency was declared on 26 October 1962 after China attacked our borders in the North East. This National Emergency lasted till 10 January 1968, long after the hostilities ceased.
For the second time, it was declared on 3 December 1971 in the wake of the second India-Pakistan War and was lifted on 21 March 1977. While the second emergency, on the basis of external aggression, was in operation,
third National Emergency (called internal emergency) was imposed on 25 June 1975. This emergency was declared on the ground of ‘internal disturbances’. Internal disturbances justified impositin of the emergency despite the fact that the government was already armed with the powers provided during the second National Emergency of 1971 which was still in operation.
AND AS WE DISCUSSED IN EARLIER POINTS,THAT AFTER 1978 THE WORD”INTERNAL DISTURBANCES” WAS SUBSTITUTED BY “ARMED REBELLION”. TO NARROW THE VIEW OF DISTURBANCES ANT TO REMOVE THE VAGUENESS AND AMBIGUITY.
The basic need for an emergency occurs whenever there is imbalance within the country, whether wholly or partly.
The ultimate aim and object of every government or political entity is to secure good life and safe life to its citizen, and the time we say citizen it means the public of country at large.
Whether we talk about the first emergency caused by china attack or the second or the third emergency, in all the cases the social equilibrium of the country was imbalanced and security of citizen was on the stack.
Emergency though suspend the fundamental rights excluding those conferred in art.20 and art. 21,it does transfer the powers from the hand of state government to the hand of central government. but this all phenomenon took place just to secure its citizen. this is what the concept and policy of “welfare state”-“greatest happiness to greatest number”
Fundamental rights are given to individual, and the only reason they are suspended during an emergency is to secure the people of country at large.
Social interest is always upper then that of individual interest.
2.NEED FOR STATE EMERGENCY IN INDIA-
There have been many cases of misuse of ‘constitutional breakdown’.For example, in 1977 when Janata Party came into power at the Centre, the Congress Party was almost wiped out in North Indian States. On this excuse, Desai Government at the Centre dismissed nine State governments where Congress was still in power. This action of Morarji Desai’s Janata Government was strongly criticised by the Congress and others. But, when in 1980(after Janata Government had lost power) Congress came back to power at the Centre under Mrs.Gandhi’s leadership and dismissed all the then Janata Party State Governments. In both cases there was no failure of Constitutional machinery, but actions were taken only on political grounds.
In 1986, emergency was imposed in Jammu and Kashmir due to terrorism and insurgency.
In all, there are more than hundred times that emergency has been imposed in various States for one reason or the other. However, after 1995 the use of this provision has rarely been made.
3.NEED FOR FINANCIAL EMERGENCY IN INDIA-
FUNDAMENTAL RIGHTS VS. EMERGENCY
Suspension of Fundamental Rights
But art. 20 and art.21 can not be suspended in any case .
Suspension of fundamental rights during emergency is a matter of debate and conflicts of opinion ab initio.
it would be a mistake to treat human rights as though there were a trade-off to be made between human rights and goals such a security and development. . . . Strategies based on the protection of human rights are vital both for our moral standing and the practical effectiveness of our actions’ – Kofi Annan
Fundamental rights are moral rights which have been made legal by the Constitution. These constitutional rights which are ‘fundamental’ in character represent rights in the ‘strong sense’. They are distinct from ordinary legal and constitutional rights because they may not be restricted on ground of general utility.
The very essence of these rights is that they are guaranteed even if the majority would be worse off in doing so,that fundamental rights are necessary to protect the dignity of an individual. Invasion of these rights is a very serious matter and it means treating a man as less than a man. This is grave injustice and it is worth paying the incremental cost in social policy or efficiency that is necessary to prevent it.
After so many debates and many conflicts the question arise-
Whether the fundamental rights are absolute?
fundamental rights are not absolute in nature. The government may impose restrictions on three grounds.
The third possibility is if it may show that if the right were so defined then the cost to society would not be simply incremental but would be of a degree far beyond the cost paid to grant the original right, a degree great enough to justify whatever assault on dignity of the individual it may result in.
But another principle is there which is used in many human rights treaties and in national constitutions as well.
government may not arbitrarily deprive persons of their fundamental rights, Most of debates on the issue assume a necessary ‘trade off’ between rights
Restrictions on rights on ground of security are not justified per se. This may be because the trade off is unnecessary where the government may pass effective laws which do not violate rights or when harsh laws restricting rights will not yield results.However tensions do arise. If the security strategy genuinely implicates rights, then it may be justified and must be governed by the principle of proportionality.Proportionality analysis is an uphill task and involves balancing of the two social goods of liberty and security.
It involves analysing if there exists a rational connection between the aims of the legislation and the means employed, if there is a less restrictive means available in order to achieve the aim. Thirdly, comparing the effectiveness of the means with the infringement of rights.
The President issued orders under the Constitution of India, art. 359(1) suspending the right of any person to move any court for enforcement of fundamental rights under arts. 14, 21 and 22 and 19 for the duration of the emergency. Following this declaration hundreds of persons were arrested and detained all over the country under the swoop of the Maintenance of Internal
Various persons detained under Maintenance of Internal Security Act, 1971, s. 3(1) filed petitions in different high courts for the issue of the writ of habeas corpus.
This case we’ll discuss in more elaborate way in later topics.
The balance between rights and security may be enhanced by making further changes than those recommended in the 1978 amendment. This includes making the information withheld by the government under art. 22(6) justiciable.
Seervai suggests this may be achieved by allowing a judge to examine the claim of the government that the information of grounds of detention has to be withheld in public interest.This via media is on the lines of the special advocate system in Britain.
The Indian experience with emergency powers reveals a mixed record. These powers were used more responsibly in 1962 than in 1970. The principle of proportionality must thus be the governing principle to ensure that rights are not subverted in the name of security.
ROLE OF 42nd & 44th AMENDMENT
STATEMENT OF OBJECTS WITH RESPECT TO POWERS OF COURT, RIGHTS AND EMERGENCY PROVISION
to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed to be relied upon to frustrate socio-economic reforms for implementing the directive principles.
It is also proposed to take away the jurisdiction of High Courts with regard to determination of Constitutional validity of Central laws and confer exclusive jurisdiction in this behalf on the Supreme Court so as to avoid multiplicity of proceedings with regard to validity of the same Central law in different High Courts and the consequent possibility of the Central law being valid in one State and invalid in another State.
It is also necessary to make certain modifications in the writ jurisdiction of the High Courts under article 226.
`31D. Saving of laws in respect of anti-national activities.- (1)Notwithstanding anything contained in article 13, no law providing for-
(a) the prevention or prohibition of anti-national activities; or
(b) the prevention of formation of, or the prohibition of, anti-national associations,
Insertion of new article 32A.-After article 32 of the Constitution, the following article shall be inserted, namely:-
“32A. Constitutional validity of State laws not to be considered in proceedings under article 32.-Notwithstanding anything in article 32, the Supreme Court shall not consider the constitutional validity of
Insertion of new article 131A.-After article 131 of the Constitution, the following article shall be inserted, namely:-
“131A. Exclusive jurisdiction of the Supreme Court in regard to questions as to Constitutional validity of Central laws.- Notwithstanding anything contained in any other provision of thisConstitution, the Supreme Court shall, to the exclusion of any other court, have jurisdiction to determine all questions relating to the constitutional validity of any Central law.
SALIENT FEATURES OF CA-44
A Proclamation of Emergency under article 352 has virtually the effect of amending the Constitution by converting it for the duration into that of a Unitary State and enabling the rights of the citizen to move the courts for the enforcement of fundamental rights—including the right to life and liberty—to be suspended. Adequate safeguards are, therefore, necessary to ensure that this power is properly exercised and is not abused. It is, therefore, proposed that a Proclamation of Emergency can be issued only when the security of India or any part of its territory is threatened by war or external aggression or by armed rebellion. Internal disturbance not amounting to armed rebellion would not be a ground for the issue of a Proclamation.
Further, in order to ensure that a Proclamation is issued only after due consideration, it is sought to be provided that an Emergency can be proclaimed only on the basis of written advice tendered to the President by the Cabinet. In addition, as a Proclamation of Emergency virtually has the effect of amending the Constitution, it is being provided that the Proclamation would have to be approved by the two Houses of Parliament by the same majority which is necessary to amend the Constitution and such approval would have to be given within a period of one month. Any such Proclamation would be in force only for a period of six months and can be continued only by further resolutions passed by the same majority. The Proclamation would also cease to be in operation if a resolution disapproving the continuance of the Proclamation is passed by Lok Sabha. Ten per cent. or more of the Members of Lok Sabha can requisition a special meeting for considering a resolution for disapproving the Proclamation.
As a further check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure footing, it would be provided that the power to suspend the right to move the court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty. The right to liberty is further strengthened by the provision that a law for preventive detention cannot authorise, in any case.
JUDICIAL INTERPRETATION OF VALIDITY OF SUSPENSION OF FUNDAMENTAL RIGHTS
-Art.358 makes it clear that things done or omitted to be done during emergency could not be chal lenged even after the emergency was over.in other words the suspension os art.19 was complete during the period in question and legispative and excutive action which contravened art.19 could not be questioned even after the emergency was over.
Various persons detained under Maintenance of Internal Security Act, 1971, s. 3(1) filed petitions in different high courts for the issue of the writ of habeas corpus.
The high courts broadly took the view that the detention may be challenged on the grounds of ultra vires, rejecting the preliminary objection of the government. Aggrieved by this the government filed appeals, some under certificates granted by high courts and some under special leave granted by the Supreme Court. Despite every high court ruling in favor of the detenus36. The Supreme Court ruled in favor the government. What the court except for Khanna, J. failed to realise is that the right to personal to life and liberty are human rights and is not a ‘gift of the Constitution’. International Covenant on Civil and Political Rights ,art. 4 recognises the right to life and personal liberty to be a non- derogable right even during times of
C) suspension of art.14 and 16
S.R. Bommai Vs Union of India
The landmark case of S. R. Bommai v. Union of India, in the history of the Indian Constitution has great implications in Center-State relations. It is in this case that the Supreme Court boldly marked out the and limitations within which Article 356 has to function. The Supreme Court of India in its judgment in the case said that it is well settled that Article 356 is an extreme power and is to be used as a last method in cases where it is manifest that the constitutional machinery in a State has collapsed.
The views expressed by the bench in the case are similar to the concern showed by the Sarkaria Commission.
Similarly, Article 356 of the Constitution confers a power upon the President to be exercised only where he is satisfied that a situation has arisen where the Government of a State cannot be carried on in accordance with the provisions of the Constitution. Under our Constitution, the power is really that of the Union Council of Ministers with the Prime Minister at its head. The satisfaction contemplated by the article is subjective in nature. However, the subjective satisfaction if based on malice may be questioned in court of law.
The proclamation of emergency can be done by governor only after the approval by both Houses of Parliament under clause (3) of Article 356, and not before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause (c) of clause (1). However, the dissolution of Legislative Assembly can be resorted on only where it is found necessary for achieving the purposes of the Proclamation.
According to Article 356, clause (3) in case both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-month period, and in such a situation the gvernment which was dismissed revives. Also the Legislative Assembly, which may have been kept in suspended gets reactivated. Similarly, as the Proclamation lapses, the acts done, orders made and laws passed during the period of two months do not become illegal or void. However, the same laws may be considered for judicial review, repeal or modification by various authorities.
On the other hand, if the Proclamation is approved by both the Houses within two months, the Government which is dismissed does not revive on the expiry of period of the proclamation or on its revocation. Similarly, if the Legislative Assembly has been dissolved after the approval under clause (3), the Legislative Assembly does not revive on the expiry of the period of Proclamation or on its revocation.
The most important point of the court in the case is, according to it Article 74(2) merely bars an enquiry into the question whether any, and if so, what advice was tendered by the Ministers to the President. It does not bar the Court from calling upon the Union Council of Ministers (Union of India) to disclose to the Court the material upon which the President had formed the requisite satisfaction.
The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice. Article 74(2) and Section 123 of the Evidence Act cover different fields. It may happen that while defending the Proclamation, the Minister or the official concerned may claim the privilege under Section 123. If and when such privilege is claimed, it will be decided on its own merits in accordance with the provisions of Section123.
Judicial review of imposition of Article 356
The remark of the Supreme Court that proclamation of emergency is not beyond judicial review is welcome step. The court held that the Proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.
Earlier, with 38th (Amendment) Act by the 44th (Amendment) Act, government had taken out the power of reviewability of the action of imposition of emergency under Article 356(1). Now, under the new circumstances, when called upon, the Union of India has to produce the material on the basis of which action was taken.
But now the condition is different-
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Maintenance of Internal Security Act
From Wikipedia, the free encyclopedia
The Maintenance of Internal Security Act (MISA) was a controversial law passed by the Indian parliament in 1971 giving the administration of Prime Minister Indira Gandhi and Indian law enforcement agencies super powers – indefinite preventive detention of individuals, search and seizure of property without warrants, and wiretapping – in the quelling of civil and political disorder in India, as well as countering foreign-inspired sabotage, terrorism, subterfuge and threats to national security. The law was amended several times during national emergency (1975-1977) and used for quelling political dissent. Finally it was repealed in 1977, when Indira Gandhi lost the Indian general election, 1977 and Janata Party came to power.
It was enacted on July 2, 1971, and replaced by the previous ordinance, “Maintenance of Internal Security Ordinance” promulgated by the President of India on May 7, 1971. The act was based on Preventive Detention Act of 1950 (PDA), enacted for a period of a year, before it was extended till December 31, 1969.
The legislation gained infamy for its disregard of legal and constitutional safeguards of civil rights, especially when “going all the way down” on the competition, and during the period of national emergency (1975-1977) as thousands of innocent people were believed to have been arbitrarily arrested, tortured and in some cases, forcibly sterilized.
The legislation was also invoked to justify the arrest of Indira Gandhi’s political opponents, including the leaders and activists of the opposition Janata Party. In all, during the emergency period of 1975-1977, some 1,00,000 people, which included journalists, scholars, activists and opposition politicians were detained without trial for a period of up to eighteen months. Some people were even detained for opposing forced sterilization drives or demolition of slums carried out during this period.
The 39th Amendment to the Constitution of India placed MISA in the 9th Schedule to the Constitution, thereby making it totally immune from any judicial review; even on the grounds that it contravened the Fundamental Rights which are guaranteed by the Constitution, or violated the Basic Structure.
However, others coercive legislations like Armed Forces (Special Powers) Act, 1958 (AFSPA), the Essential Services Maintenance Act (ESMA, 1968), and economic counterpart of the act, Conservation of Foreign Exchange and Prevention of Smuggling Activities Act(COFEPOSA) enacted on December 13, 1974 to prevent smuggling and black-marketing in foreign exchange is still enforce. Controversial successors to such legislations include the National Security Act (1980), Terrorism and Disruptive Activities (Prevention) Act(TADA, 1985-1995), and the Prevention of Terrorism Act (POTA, 2002), criticized for authorizing excessive powers for the aim of fighting internal and cross-border terrorism and political violence, without safeguards for civil freedoms.
In the non-Indian National Congress ruled states of Madhya Pradesh and Chhattisgarh, people detained under Maintenance of Internal Security Act (MISA) and Defence of India Act (DIR) during the 1975-77 national emergency, get Rs. 15000 pension per month from respective state governments. In 2014, Rajasthan government restarted its pension scheme of Rs. 12000 per month for 800 enlisted former detainees, first launched under Chief Minister Vasundhara Raje‘s first term in 2008. The scheme was discontinued in 2009, by Ashok Gehlot-led Congress government.
Some notable political leaders imprisoned under Maintenance of Internal Security Act: