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Emergency Provisions and Authoritarian Powers

Discuss Emergency Provisions and Authoritarian Powers within the Miscellaneous Project Reports forums, part of the Resolve Your Query - Get Help and discuss Projects category; Part XVIII of the constitution permits the state to suspend various civil liberties and the application of certain federal principles ...



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Sunanda K. Chavan
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Emergency Provisions and Authoritarian Powers - October 29th, 2010

Part XVIII of the constitution permits the state to suspend various civil liberties and the application of certain federal principles during presidentially proclaimed states of emergency. The constitution provides for three categories of emergencies: a threat by "war or external aggression" or by "internal disturbances"; a "failure of constitutional machinery" in the country or in a state; and a threat to the financial security or credit of the nation or a part of it. Under the first two categories, the Fundamental Rights, with the exception of protection of life and personal liberty, may be suspended, and federal principles may be rendered inoperative. A proclamation of a state of emergency lapses after two months if not approved by both houses of Parliament.

The president can issue a proclamation dissolving a state government if it can be determined, upon receipt of a report from a governor, that circumstances prevent the government of that state from maintaining law and order according to the constitution. This action establishes what is known as President's Rule because under such a proclamation the president can assume any or all functions of the state government; transfer the powers of the state legislature to Parliament; or take other measures necessary to achieve the objectives of the proclamation, including suspension, in whole or in part, of the constitution.

A proclamation of President's Rule cannot interfere with the exercise of authority by the state's high court. Once approved, President's Rule normally lasts for six months, but it may be extended up to one year if Parliament approves. In exceptional cases, such as the violent revolt in Jammu and Kashmir during the early and mid-1990s, President's Rule has lasted for a period of more than five years.

President's Rule has been imposed frequently, and its use is often politically motivated. During the terms of prime ministers Nehru and Lal Bahadur Shastri, from 1947 to 1966, it was imposed ten times. Under Indira Gandhi's two tenures as prime minister (1966-77 and 1980-84), President's Rule was imposed forty-one times.

Despite Mrs. Gandhi's frequent use of President's Rule, she was in office longer (187 months) than any other prime minister except Nehru (201 months). Other prime ministers also have been frequent users: Morarji Desai (eleven times in twenty-eight months), Chaudhury Charan Singh (five times in less than six months), Rajiv Gandhi (eight times in sixty-one months), Vishwanath Pratap (V.P.) Singh (two times in eleven months), Chandra Shekhar (four times in seven months), and P.V. Narasimha Rao (nine times in his first forty-two months in office).

State of emergency proclamations have been issued three times since independence. The first was in 1962 during the border war with China. Another was declared in 1971 when India went to war against Pakistan over the independence of East Pakistan, which became Bangladesh. In 1975 the third Emergency was imposed in response to an alledged threat by "internal disturbances" stemming from the political opposition to Indira Gandhi

The Indian state has authoritarian powers in addition to the constitution's provisions for proclamations of Emergency Rule and President's Rule. The Preventive Detention Act was passed in 1950 and remained in force until 1970. Shortly after the start of the Emergency in 1962, the government enacted the Defence of India Act.

This legislation created the Defence of India Rules, which allow for preventive detention of individuals who have acted or who are likely to act in a manner detrimental to public order and national security. The Defence of India Rules were reimposed during the 1971 war with Pakistan; they remained in effect after the end of the war and were invoked for a variety of uses not intended by their framers, such as the arrests made during a nationwide railroad strike in 1974.

The Maintenance of Internal Security Act promulgated in 1971 also provides for preventive detention. During the 1975-77 Emergency, the act was amended to allow the government to arrest individuals without specifying charges. The government arrested tens of thousands of opposition politicians under the Defence of India Rules and the Maintenance of Internal Security Act, including most of the leaders of the future Janata Party government (see Political Parties, this ch.).

Shortly after the Janata government came to power in 1977, Parliament passed the Forty-fourth Amendment, which revised the domestic circumstances cited in Article 352 as justifying an emergency from "internal disturbance" to "armed rebellion." During Janata rule, Parliament also repealed the Defence of India Rules and the Maintenance of Internal Security Act. However, after the Congress (I) returned to power in 1980, Parliament passed the National Security Act authorizing security forces to arrest individuals without warrant for suspicion of action that subverts national security, public order, and essential economic services.

The Essential Services Maintenance Act of 1981 permits the government to prohibit strikes and lockouts in sixteen economic sectors providing critical goods and services. The Fifty-ninth Amendment, passed in 1988, restored "internal disturbance" in place of "armed rebellion" as just cause for the proclamation of an emergency.

The Sikh militant movement that spread through Punjab during the 1980s spurred additional authoritarian legislation (see Insurgent Movements and External Subversion, ch. 10). In 1984 Parliament passed the National Security Amendment Act enabling government security forces to detain prisoners for up to one year. The 1984 Terrorist Affected Areas (Special Courts) Ordinance provided security forces in Punjab with unprecedented powers of detention, and it authorized secret tribunals to try suspected terrorists.

The 1985 Terrorist and Disruptive Activities (Prevention) Act imposed the death penalty for anyone convicted of terrorist actions that led to the death of others. It empowered authorities to tap telephones, censor mail, and conduct raids when individuals are alleged to pose a threat to the unity and sovereignty of the nation.

The legislation renewing the act in 1987 provided for in camera trials, which may be presided over by any central government officer, and reversed the legal presumption of innocence if the government produces specific evidence linking a suspect to a terrorist act.

In March 1988, the Fifty-ninth Amendment increased the period that an emergency can be in effect without legislative approval from six months to three years, and it eliminated the assurance of due process and protection of life and liberty with regard to Punjab found in articles 20 and 21. These rights were restored in 1989 by the Sixty-third Amendment.

By June 30, 1994, more than 76,000 persons throughout India had been arrested under the Terrorist and Disruptive Activities (Prevention) Act. The act became widely unpopular, and the Rao government allowed the law to lapse in May 1995.

Indian street children are routinely detained illegally, beaten and tortured and sometimes killed by police. Several factors contribute to this phenomenon: police perceptions of street children, widespread corruption and a culture of police violence, the inadequacy and non-implementation of legal safeguards, and the level of impunity that law enforcement officials enjoy. The police generally view street children as vagrants and criminals.

Indian law contributes to the problem. Under the Indian Penal Code, anyone over the age of twelve is considered an adult, and ambiguities in the code concerning the ability of the child to be cognizant of a crime have made it possible for children as young as seven to be treated as adults under the law.
There are no provisions in the code that prohibit the detention of juveniles in police stations or jails.

The Juvenile Justice Act, which applies to all the states and Union Territories in India except Jammu and Kashmir, does prohibit the detention of "neglected" or "delinquent" juveniles in police lock-ups or jails, but these provisions are routinely ignored by police. Moreover, at the remand stage, the law makes no distinction between neglected and delinquent children, so that a six-year-old orphan on the street and a fifteen-year-old child who has committed murder are likely to be treated the same way under the law, an issue analyzed further below.

Finally, there is the de facto immunity of police from prosecution. The government of India has known about the extent of custodial abuse, including abuse of children, at least since 1979 when the National Police Commission issued a devastating indictment of police behavior. More than a decade and a half later,none of its recommendations have been adopted, and police can detain, torture and extort money from children without much fear of punishment.

Although prohibited under Indian and international law, the illegal detention of street children is common in every part of India.32 Arbitrary detention is illegal under Articles 21 and 22 of India's constitution. Sections 50, 56, and 57 of the Code of Criminal Procedure mandate that no person can be detained in custody without knowing the grounds for arrest, and that a detainee must be presented before a magistrate within twenty-four hours of arrest. Section 160 of the code prohibits the detention of males under the age of fifteen or females of any age for the purposes of investigation or questioning by the police.

Torture, usually in the form of severe beatings with fists, lathis, or other instruments, and kicking is a common feature of police treatment of street children.66 Beatings themselves are used extensively as a means of investigation, punishment, and retribution. As an NGO representative in Madras told us:
Regardless of the situation the police beat the children. I have seen broken bones, broken teeth, bruises, etc... The older a child is, the more horrible the treatment. They will tie boys down ina spread-eagled position and beat them, use knives or needles, they will hang them up by the arms and beat them brutally.

The police routinely torture children in order to obtain both evidence and confessions
Police also torture possible witnesses, accomplices, or people who were near a crime scene into revealing the identity and location of the perpetrator. Although it is illegal under Section 160 of the Code of Criminal Procedure to detain males under the age of fifteen and females of any age who are not suspects, this tactic is extremely common.

In some instances, the police detained and beat children because they claimed it was a method of crime prevention.

The other major problem faced by street children is that they are often nabbed by police for crimes they have not committed.

Corruption, in the form of extortion, reinforces the use of custodial violence. With street children, extortion by police is an integral part of the processes that perpetuate illegal detention and custodial violence. The police prey on street children for money.

When children are arrested, they or their guardians are asked to pay money in order to get them released. This is true whether the charges are fabricated or real. The police threaten the families and children by telling them that their children will be beaten, kept in custody, or sent to jail if they do not pay.

Children working on the street as ragpickers, porters, shop vendors, or shoe shiners have all reported the payment of hafta (protection or kickback money) to the police. Failure or inability to pay usually results in a child's being beaten, detained, or arrested by police. In some cases, payment is no guarantee against further extortion.

Political activists are not the only targets of police violence in India. These workers were beaten by the police in July 2005 after seeking to have their sacked colleagues reinstated at the Honda Motorcycles and Scooters India Ltd. near New Delhi.

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