Judicial Review of Presidential Proclamation Under Article 352
KIIT Law School
February 9, 2010
A notable feature of the Indian Constitution is the way in which the normal peace-time federalism can be adapted to an emergency situation. Proclamation of emergency is therefore a very serious matter which adversely affects the rights of the people. So, it must be issued only in exceptional circumstances and not merely to keep an unpopular government in office. An emergency according to Art. 352(1) can be proclaimed by a president if he is satisfied as to the existence of a threat to the security of India, or a part thereof. The question which the topic deals with is – whether this satisfaction of the President is justifiable or not.
The courts have through a span of time considered the effect of a proclamation of emergency in a number of cases on preventive detention, effect of the suspension of Art. 19 following a proclamation of emergency and on the effect of the President’s Order under Art. 359. These decisions will be discussed as and when the need arises.
Through the 42nd Amendment sub-article (5) was inserted in Article – 352 which made the President’s satisfaction in proclaiming an emergency final and conclusive and provided that such satisfaction shall not be questioned in any court on any ground and further barred any of the courts to consider the validity of the proclamation made by the president and also the continued operation of such a proclamation. It was clearly meant to exclude Judicial scrutiny of a proclamation or its continuance. Then, this clause (5) was deleted by the 44th Amendment and this itself shows that at any rate the jurisdiction of the court to go into the mala fide issue of a proclamation or its mala fide continuance was not to be excluded.
Number of Pages in PDF File: 9working papers series
Date posted: February 11, 2010
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