Tag: #Emergency

NO PART OF THE ACTUAL SENTENCE WILL CONTAIN THE PERIOD OF EMERGENCY PAROLE GRANTED DURING COVID-19: SC

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-Report by Bhavana Bhandari


On 24.03.2023, the Supreme Court of India dismissed a plea by a prisoner seeking to allow parole granted during the COVID-19 outbreak to be included as a part of his actual term since it was compulsory in the case of Anil Kumar v. State of Haryana and Others. Taking reference from an earlier court decision, the bench unanimously decided that the period of parole should be aloof when deciding the term of imprisonment.

FACTUAL BACKGROUND:


Anil Kumar, the petitioner, and prisoner, was released on emergency parole as a result of the decision taken by the High-Powered Committee, which was established following the instructions provided by the Supreme Court in SWM (C) No.1/2020. The subsequent directives said that prisoners who had been freed earlier on emergency parole under the High-Powered Committee’s decision should not be ordered to surrender until further orders and not on any application filed by the petitioner or by Section 3(3) of the Haryana Good Behaviour Prisoners (Temporary Release) Act, 1988, led to the petitioner’s release (hereinafter referred to as the Act, 1988). Whereupon, the petitioner prayed that the court considers the time of parole as part of his real punishment.

APPELLANT’S CONTENTIONS:


The appellant’s counsel argued that in some states, the term of release on interim parole is directed to be considered against the entire duration of imprisonment of the convict/prisoner. If the petitioner had not been granted temporary parole and had instead served his sentence after a predetermined amount of time, he would have been eligible for remission. Moreover, since the petitioner was discharged on interim parole, his entitlement to request a remission would be further prolonged, which would be against the interests of the petitioner if the period in question is not taken into account when calculating the petitioner’s complete sentence.

RESPONDENT’S CONTENTIONS:


The learned counsel for the State stated that the petitioner was convicted of the charges under Sections 302/34 of the IPC and sentenced to life imprisonment. Since then, the Apex Court has maintained the conviction and sentence imposed by the learned Trial Court. Hence, in line with the law and the punishment pronounced by the learned Trial Court, the petitioner must serve and complete his full term of life imprisonment.

RELIANCE ON FACTS:


The court relied on the legal guidelines established in its January 5 decision on a petition submitted by Rohan Dhungat, who is now serving a life sentence for the murder of a person. In Rohan Dhungat’s case, the Apex Court had rejected a challenge to a decision made by the Goa Bench of the Bombay High Court on Rule 335 of the Goa Prison Regulations and Section 55 of the Prisoners Act 1894 (Extramural care, control, and employment of inmates), which states that the period of furlough and parole shall be considered as part of the sentence except in case there is a breach committed by the prisoner. However, noting that if the inmates’ request for the parole period to be taken into account when calculating the 14 years of real imprisonment is permitted, any prisoner who may be prominent might receive parole several times because there are no constraints on how many times it can be given. If the prisoners’ application is granted, it could undermine the entire goal and purpose of actual imprisonment.

JUDGEMENT:


The three-judge bench comprising Justices MR Shah, CT Ravikumar, and Sanjay Karol stated that the court had ruled that this time of release must be disregarded when determining the length of real incarceration. To avoid overcrowding, inmates were granted a term of parole during the COVID-19 pandemic, however, this time cannot be added to the prisoner’s real length of imprisonment.
In this instance, the legal issue was whether the Covid leave time of a parolee’s probation may be taken into account when determining the length of the prisoner’s actual sentence. The bench ruled that the petitioner convicted under section 302 (the punishment for murder) must serve the period specified and that the emergency parole term must be subtracted from the sentence; as a result, the court cannot provide relief. While Ms. Ritu Kumar, experienced counsel, addressed the appellant, Ms. Bansuri Swaraj represented the respondents on behalf of the State.

FINAL WORDS:


Therefore, the bench declared in its verdict that the suo-moto decision of parole to be granted to convicts during Covid was exclusively to avoid overcrowding and ensure the general health welfare of the prisoners, and shall not be deemed to be part of their real imprisonment in any manner.

READ FULL JUDGEMENT: https://bit.ly/40AKpcU

A Comparative study of Emergency provision from Germany to India

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Introduction 

The Indian constitution was drafted in the mid-twentieth century which gave an advantage to constitutional makers, in so far as they could take cognizance of the various constitutional processes operating in different countries of the world and thus draw upon a rich fund of human experience, wisdom, heritage, and traditions. The emergency provisions are taken from the Weimar Constitution of Germany. After the second world war, the allied forces to safeguard their troops still stationed in Germany asked for the formation of emergency provisions.

Similarities between German and Indian provisions

To understand the reason for taking emergency provisions from Germany we first need to establish what are the provisions in particular taken from Germany. Firstly, like India Germany also has 2 houses namely the Bundestag and Bundesrat, secondly like state emergency in India there is an internal emergency in Germany and the national emergency is common in both countries. The situation of both the countries are not similar before the proclamation of emergency like for example India follows common law and Germany is a civil law country, however, once the emergency is proclaimed both countries place similar restrictions on their citizens and this is an important factor by which one can say emergency provisions are taken from Germany, It is not the before effect that matches between both the countries but it is what happens after the proclamation of emergency that matches. 

One can argue that the aftereffects of emergency are similar in all countries worldwide, but the statement holds negligible truth. Like in countries where dictatorship exists fundamental rights are also suspended like in the case of North Korea, Turkey, Russia. Where the top leader holds absolute power to change the terms during an emergency. In recent times there is an example of Myanmar where the military threw out the democratically elected government led by Au Su Khi and imposed a martial rule suspending all the rights of the citizens. Even the basic right to life is hindered and the military explicitly kills the protesting citizens. Other provisions from Germany include suspension of fundamental rights during an emergency, apart from this all the other provisions too are from the Weimar constitution.

Discussions by the drafting committee 

While discussing the draft Art. 275 (Art. 352) that dealt with the promulgation of emergency H.V. Kamath warned the assembly about the German experience where Hitler used emergency provisions to establish a dictatorship, however, Hitler invoked many of the provisions of the Weimar constitution such as Art. 48 of the Weimar constitution that provided for the president to notify all the actions to the parliament, this provision is missing in the Indian constitution as observed by H.V. Kamath. 

An interesting fact emerged in this course is that the idea of a financial emergency was not taken from Germany, but it is from the American constitution which was implemented during the great depression as observed by Dr. B.R. Ambedkar. 

During the debate between our constitutional makers for the emergency provisions, a total of 12 countries were taken into consideration where the UK was most referred to followed by the USA and Germany. If we say the emergency provisions are taken from Germany does not mean the whole of emergency provisions are from the German texts but it means that the national emergency and the state emergency provisions are only taken from the German texts.

Reason for the adoption of emergency provisions from Germany

Germany was the most experienced country among all in terms of dealing with armed rebellion, civil war, and internal security and because Hitler exploited the country’s emergency provisions a system of checks and balances was established by the allied countries in Germany to prevent any such chances of dictatorship. 

The revised provisions and the amendments suggested earlier implemented in the year 1968 in the Federal Republic of Germany constitution made it the most favorable constitution to take emergency provisions from. Also, these emergency provisions were accepted and appreciated by all the allied countries around the world so it was best suited for India to take a reference from this nation. Under any form of government, a state of national emergency is considered as “hour of the executive” where the executives can misuse the authority, this was a matter of debate in the Federal Republic of Germany since the mid-1950s which Germany with numerous debates in their little parliament had resolved. 

This also gives our constitutional thinkers a reason to refer to the German text as this stand was still unclear in most of the countries like the US. As emergency is such a sensitive matter only nations who had ample experience in dealing with it should be taken into consideration and Germany was one such country. Also, after the partition of India and Pakistan based on religion, chances of civil war could arise in India which the German people had already experienced, so it made sense to our constitution-makers to take ideas from Germany to tackle the situation if it arises. 

The article has been written by Aakarsh Chandranahu, a student at Alliance School of Law.

The article has been edited by Shubham Yadav, a 4th year law student at Banasthali Vidyapith, Jaipur.

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The Dark Days in Indian Democracy

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Introduction

Emergency marks the dark chapters of History in India.

India is the world’s largest democracy with one well-defined Constitution that provides ironclad protection of our fundamental rights, but this same protection was challenged in an unprecedented manner. On this very day, 46yrs ago in 1975, Indians woke up to hear that the elected government led by Indira Gandhi proclaimed an eternal emergency. The announcement marked an immediate suspension of Fundamental rights, civil liberties were curbed, elections suspended, and voices of the dissents silenced for a period that lasted for 21months. Opposition leaders and others were jailed, habeas corpus was suspended, and censorship was imposed on the newspapers. June 26, 2021, marked the 46th year of that announcement.

Emergency was a seminal event in the history of Independent India. President Fakhruddin Ali Ahmed declared an emergency under Article 352 of the Constitution on the recommendation of Indira Gandhi in response to widespread “internal disturbance,” and it was imposed from June 25, 1975, to March 21, 1977. On June 25, 1975, the Government declared that there was a threat of internal disturbances, and thus, it invoked Article 352 of the Constitution. Under this article, the Government could declare a state of Emergency on the grounds of external threat or a threat of internal disturbances.

The Consequences of the imposition of the Emergency

Provisions of Emergency grants the Executive certain special powers that the Government decided to put into effect and suspended the freedom of the press. Moreover, strikes were banned, and many opposition leaders were put in jail.

Press censorship was also imposed, and the newspapers were asked to get prior approval before publishing any material.

Most significantly, the fundamental rights were snatched away from the citizens, including the right to move the Court for restoring their basic rights. The provision of Preventive detention was also used extensively, and people were arrested and detained based on the ground that they may commit an offense.

The Supreme Court’s constitution bench overruled the High Courts in April 1976 and approved the Government’s plea. It meant that the Government might take away a citizen’s right to life and liberty during an emergency.

Many new amendments to the Constitution were also enacted by Parliament. Following the Allahabad High Court’s decision in the Indira Gandhi case, an amendment was introduced stating that the Prime Minister, President, and vice President could not be challenged in Court. During the Emergency, the forty-second amendment was also passed.

Types of Emergency

  • National Emergency – When the security of India or a part of it is threatened by war, external attack, or armed insurrection, the President can proclaim a   national emergency under   Article   352.   When    a national emergency is declared on the grounds of ‘war’ or ‘external aggression,’ it is known as ‘External Emergency.’
  • State Emergency – Article 356 of the Constitution grants the President the authority to act only if he believes that a situation has developed in which the Government of a State cannot be carried on, in conformity with the Constitution’s provisions.
  • Financial Emergency– Article 360 authorizes the President to declare a Financial Emergency if he believes a situation has emerged that jeopardizes India’s financial stability or credit in any area of the country.

44th Amendment

Specific changes were made in Article 352 under the 44th Amendment, which substantially altered the emergency provisions, and some changes were also restored, which were established by the 42nd Amendment.

  • As per Article 352, the term “internal disturbance” was superseded by “armed rebellion.”
    • An emergency can be proclaimed only after receiving the confirmation of the crisis by the Prime Minister and the Cabinet.
    • The Houses must proclaim the Emergency within one month.
    • Every six months, the Houses must re-approve to continue Emergency.
    • An emergency can be bypassing resolutions to that effect by a simple majority of the houses present and voting. A resolution can be moved by a tenth of a house’s members.
    • Article 358 states that Article 19 is only suspended upon war or

external aggression and not upon armed rebellion. Furthermore, any law that breaches Article 19 must recite that it is connected to Article 358. If a law violates Article 19, it can still be contested.

  • Article 359 states that the suspension of the right to move courts for

violations of Part III won’t include Articles 20 and 21.

  • The term of Lok Sabha from 6 to 5 years was reversed back.

Case Laws

Minerva Mills and Ors vs. UOI and Ors

In Minerva Mills and Others v. Union of India and Others, the Supreme Court held that just because the Court would require to examine a political problem, it will not step back from carrying out its constitutional role. The Supreme Court, with great precision, detailed its authority to review the President’s Proclamation of Emergency.

State of Rajasthan vs. UOI (1977)

On March 24, 1977, the Janata party secured the verdict of the electorate and formed the new Government at the Centre. This was an unprecedented event since, for the first time in the history of the country, the ruling party at the Centre was not in power in any of the federating States – Bihar, Haryana, Himachal Pradesh, Madhya Pradesh, Orissa, Punjab, Rajasthan, Uttar Pradesh, and West Bengal. On the date that the Janata Party took office, Congress (R) was in power in various States. The Congress also lost its majority in the Lok Sabha as a result, which the Government at the Centre was formed by the Janata Party in coalition with the Congress for Democracy. On April 17, 1977, the Union Home Minister sent letters to the Chief Ministers of nine states asking them to advise their Governors to dissolve their respective legislatures and seek new mandates. Suits were filed by six of these nine states stating that the letter and the radio broadcast of the Law Minister constituted a clear-cut threat of dissolution of the Assemblies and disclosed grounds that are prima facie outside the purview of Article 356 of the Constitution.

According to Article 356 of the Constitution of India, the President can cease  from the Union the legislative and executive powers of any state “if he is satisfied that a situation has emerged in which the state’s administration cannot be carried out within the Constitution’s provisions.”

The Supreme Court held that one could not challenge the satisfaction of the President except because it has exercised malafide or irrelevant grounds.

Therefore the suits were upheld and dismissed by the Court.

Conclusion

The period of Emergency was the darkest phase in India’s tenure. On January 24, 1978, at a public meeting in Yavatmal, Indira Gandhi even apologized for the excesses committed during the Emergency and declared she was taking “the entire responsibility for the same.”

The Emergency ended, resulting in a defeat of the Congress in the Lok Sabha elections of 1977. The most precious lesson learned from Emergency is that the 1977 Lok Sabha elections were announced as soon as the Emergency got over. The 1977 elections became a referendum on the Emergency’s influence, at least in North India, where it was most felt. The opposition campaigned on the slogan “Save Democracy.” The people’s judgment was decisively against the Emergency. The experience of the entire period of Emergency from 1975 – 77 ended up strengthening the foundations of democracy in India.

This article is written by Shruti Bose student of Christ (Deemed to be University), Lavasa.

This article is edited by Shreya Litoria, a student of Banasthali Vidpyapith University, Jaipur.

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