The Indian Constitution during a state of Emergency

List OF ABBREVIATIONS

Art.

Article

APSDLO

Andhra Pradesh Sugar Dealers Licensing Order

CG

Cardinal Government

Amd.

Amendment

COI

Fundamental law of India

SCO

Sugar Control Order

Air

All India Reporter

HC

High Court

Travel

Government Order

Department of the interior

Defense mechanism of India

Introduction

An high feature of the Indian fundamental law is the manner in which the normal peace clip federalism can be adapted to an exigency state of affairs. [ 1 ] The Central Government… . The drafters of the fundamental law felt that during an exigency the Centre should hold overruling powers to command and direct all facets of disposal and statute law throughout the state. Our fundamental law speaks in inside informations about exigency in portion XVIII. [ 2 ] That portion comprises of Articles 352-360. In the present instance, the President of India has declared a province of exigency on October 26, 1962 under Art.352 of the Constitution. [ 3 ]

Prior to 42neodymiumAmendment of the Constitution of India, exigency could be proclaimed either in whole state or nowhere ; but post 42neodymiumAmendment, exigency can be proclaimed either in whole state or any portion thereof. [ 4 ]

Art. 352 provinces that if the president is satisfied that a grave exigency exists whereby the security of India or of any portion of the district thereof is threatened, whether by war or external aggression or internal perturbation, he may, by announcement, do a declaration to that consequence and such announcement is required to be laid before each house of parliament and approved by declarations of both houses before the termination of two months. [ 5 ] It is non necessary that there should be existent happening of war or external aggression or internal perturbation in order to warrant a announcement of exigency. [ 6 ] It is adequate if there is at hand danger of any such crisis. Art.358 which is the effect of the announcement of exigency, suspends the operation of the cardinal rights guaranteed under Art.19

The Constitution of India envisages 3 types of exigencies:

1. Emergency originating from a menace to the security of India.

2. Breakdown of constitutional machinery in a province.

3. Fiscal exigency.

Announcement of an exigency is a really serious affair as it disturbs the normal cloth of the fundamental law and adversely affects the rights of the people. [ 7 ] Such a announcement should hence be issued merely in dire and exceeding fortunes.

Fact

In exercising of the power conferred by Section 3 of the Essential Commodities Act, 1955, The State of Andhra Pradesh issued the Andhra Pradesh Sugar Dealers Licensing Order, 1963. Harmonizing to that order no 1 may transport on concern as a trader except under and in conformity with the footings and conditions of a licence issued by the particularised authorization. The respondents are traders in sugar and similar other trade goods and carry on their concern in the metropoliss of Secunderabad and Hyderabad. Under the Andhra Pradesh, Sugar Dealers Licensing Order, 1963, the respondents were issued licences. Shortly thenceforth the Cardinal Government, the Sugar Control Order, 1963 was promulgated in exercising of the power conferred under Sub-rule ( 2 ) of Rule 125 of the Defense of India Rules, 1962. A recognized trader was defined by that Order as a individual transporting on the concern ; of buying, merchandising or distributing sugar and licensed under the order associating to the licensing of sugar traders for the clip being in force in a State. Under the Andhra Pradesh Sugar Dealers Licensing Order, 1963, the respondents being holders of licenses were treated as recognized traders under the Sugar Control Order, 1963. Quotas of sugar were allocated by the State Government which it received from the Cardinal Government for distribution in different countries and nominative licensees or traders to take bringing of the allotted quotas from the mills. On December 30, 1964 the State Government ordered that the full sugar quota allocated to“The twin metropoliss of Hyderabad and Secunderabad”be given to the Greater Hyderabad Consumers Central Co-operative Stores, Ltd. , Hyderabad. Subsequently, respondents who held licences under the Andhra Pradesh Sugar Licensing Order for distribution of sugar and were besides recognized traders under the Sugar Control Order, 1963, were by an executive action debarred from transporting on their concern in sugar. The respondents moved in the High Court of Andhra Pradesh, via requests, disputing the cogency of such an order.

ALSO READ  Effectiveness Of Use Of Social Media Network Marketing Essay

Issue

Can a writ of Mandamus be issued against the District Collector, Hyderabad, the State of Andhra Pradesh directing them to hold back from moving under the authorization of or in pursuit of the said Government Order and to forbear from interfering with the transporting on the sweeping sugar concern by the suppliants?

Are the suppliants entitled to seek any alleviation kicking misdemeanor of their rights under Articles 14 and 19 of the Constitution of India?

Whether the executive order passed by the State Government with regard to assignment of sugar quotas to the concerted shops alternatively of the authorised traders, was secured under Arts.358 and 359, on the evidences that the President had declared a province of exigency or non?

Scope OF STUDY

The range of survey is confined to the exigency commissariats relevant to the instance and enshrined in the Constitution of India i.e. Articles 358 and 359.

Pleading OF THE PARTIES

The council of the suppliants moved to the High Court of Andhra Pradesh seeking a writ of mandamus against the respondents directing them to hold back from moving under the authorization of or in pursuit of the said Government Order and to forbear from interfering with the transporting on the sweeping sugar concern by the suppliants. The respondents besides contended that, under the Sugar Control Order, despite of authorities holding right to put up any individual for such a intent created a monopoly by put uping merely the 4Thursdayplaintiff in error.

The requests were opposed by the respondents, based on the evidences that the impugned Government Order was valid and good and was in tandem with the commissariats of the Sugar Control Order. They besides contended that the Government Order was issued in pursuit of public involvement for the intents of extinguishing unneeded bureau of suppliants in lifting and administering the sugar. It was besides argued that the impugned G.O. is made in execution of the policies laid down by the Cardinal Government for the encouragement of co-operative societies ; but the contention was rejected. The suppliants besides urged that they are entitled to seek alleviation due to misdemeanor of their Cardinal Rights under Articles 14 and 19 of the Constitution of India. Although, it was urged by the respondents that Articles 14 and 19 have become decadent by the ground of announcement dated 3-11-1962 and besides by presentment dated11-11-1962 and the suppliants can non kick misdemeanor of Fundamental Rights under Art.359.

ALSO READ  Success Factors Of Etailing Of Electronics India Marketing Essay

Opinion

Under Art.352 of the Constitution, the President declared a province of exigency on October 26, 1962.

All the pleadings of the suppliants were repelled except:

The impugned order was neither supported by nor issued under any of the commissariats of either the Sugar Control Order or the Andhra Pradesh Sugar Dealers’ Licensing Order, 1963 ;

It is simply an executive direction which straight affect constitutional and legal rights of the suppliants.

As a consequence of the order of the Government, the Licenses held by the respondents were cancelled without following the process laid down in Clause 7 the Andhra Pradesh Sugar Dealers Licensing Order. The proviso of the order could non be sidestepped by the executive direction and since the order discriminated between the respondents and the Central Consumers Cooperative Stores in that it vested a monopoly in neglect of the bing rights of the respondents and amounted to“Hostile and invidious”favoritism of the Sugar Control Order.

It was further held that the Government had non taken any action in conformity with the Defense of India Rules or under any Control Order made under those Rules ; hence, the respondents were non debarred under Arts.358 & A ; 359 of the Constitution of India from claiming protection against violation of their rights by the order issued by the State. Since the executive action of the State Government was invalid or obviously contrary to the statutory commissariats contained in the Andhra Pradesh Sugar Dealers Licensing Order and the Sugar Control Order apart from the Art 19, it was non immune from onslaught simply because a Proclamation of Emergency was in operation.

Preference given should foremost be warranted or contemplated by the commissariats of jurisprudence and non by administrative instructions which run public violence with them.

Therefore, the tribunal cancelled the executive order passed by the State of Andhra Pradesh in 1964 and the entreaties were dismissed.

Analysis

Harmonizing to Art.359 the President is authorized, where a announcement of exigency was in operation, to declare that the right to travel any tribunal for the enforcement of such of the rights conferred by Part III as may be mentioned shall stay suspended for the period during which the announcement was in force or for such shorter period as may be specified in the order. [ 8 ] On November 3, 1962 the President issued an order in exercising of the power under Art. 359, that“the right of any individual to travel any tribunal for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution shall stay suspended for the period during which the Announcement of Emergency issued under clause ( 1 ) of Article 352 thereof on the 26th October, 1962, is in force, if such individual has been deprived of any such rights under the Defence of India Ordinance, 1962 ( 4 of 1962 ) or any regulation or order made there under.”Merely if the impugned order was shown to be made under the authorization reserved by the Defence of India Rules or Ordinance made there under, the legal power of the High Court to entertain any request for violation of the warrant under Art.14 may be excluded. But the action was non shown to be taken under the Defense of India Ordinance or under the regulation or any order made there under.

ALSO READ  The Pregnancy Project: A Memoir Essay

By Art.358 while a announcement of exigency is in operation, nil in Art. 19 shall curtail the power of the State ( as defined in Part III ) to do any jurisprudence or to take any executive action which the State would but for the commissariats contained in that Part ‘be competent to do or to take’ . [ 9 ] In Art.358 it is clearly stated that the executive can take action merely to the extent that the proviso in Part give the competency to take that action. Further, in the present instance, the State did non ordain any statute law impairing the Fundamental Right of the respondents to transport on concern which is guaranteed by Art. 19 ( 1 ) ( g ) , they proceeded to do an executive order. The impugned order in the present instance was issued while the announcement of exigency under Art.352 of Constitution of India was in operation. The respondents could non dispute the cogency of any jurisprudence enacted by the State Legislature so long as the announcement of exigency was in operation, on the footing that it impaired the freedoms guaranteed by Art. 19. This can be corroborated by the rule laid in the instance of State of M.P v. Thakur Bharat Singh [ 10 ] that“Article 358 does non purport to put the State with arbitrary authorization to take action bias of the citizen and others ; it simply provides that so long as the announcement of exigency subsists jurisprudence may be enacted, and executive action may be taken in pursuit of lawful authorization which if the commissariats of Article 19 were operative would be invalid.”[ 11 ]