“That there may happen cases in which the national Government may be necessitated to resort to force, cannot be denied. Our own experience has corroborated the lessons taught by the examples of other nations; that emergencies of this sort will sometimes arise in all societies, however, constituted; that seditions and insurrections are, unhappily, maladies as inseparable from the body politic as tumors and eruptions from the natural body; that the idea of governing at all times by the simple force of law (which we have been told is the only admissible principle of republican government), has no place but in the reveries of those political doctors whose sagacity disdains the admonitions of experimental instruction.”
—Hamilton (Federalist No. 28)
Article 352(1) provides that the President of India may issue a pro-clamation when he is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened by war, external aggression or internal disturbance. Sub-article 3 is to the effect that a proclamation of emergency declaring that the security of India or any part of the territory thereof is threatened by the aforesaid causes, may be issued even before the actual occurrence of them, if the President is satisfied that there is imminent danger thereof. It is proposed to amend the article inter alia by substituting the words “armed rebellion” for those of “internal disturbance”. The proposal would seem to imply that is only when there is an armed rebellion that a grave emergency threatening the security of India or any part of the territory thereof would arise and not when there is an internal disturbance not amounting to an armed rebellion whatever be its magnitude. It is difficult to imagine why if an internal disturbance is of such magnitude as to create an emergency threatening the security of India or any part of the territory thereof the President should have no power to issue a proclamation. It will look ridiculous for the President, the guardian of the security of India to say, that although a grave emergency exists whereby the security of India is threatened, I have no power to issue the proclamation as the threat arises from internal disturbance which is not an armed rebellion. Is there anything sui generis in a grave emergency produced by the threat to the security of India caused by an armed rebellion as contrasted with the one arising from a threat to it by an internal disturbance which does not amount to an armed rebellion necessitating the issue of the proclamation in the one and not in the other. Is the brand of emergency produced by the threat to the security of India in the cauldron of an armed rebellion of such a different kind from the one brewed from that threat in the distillery of an internal disturbance as would justify a different consequence. Unless therefore an apriori assumption is made that a grave emergency threatening the security of India will never arise by reason of an internal disturbance which is not an armed rebellion or that the emergency caused by the threat on account of it is of a different kind as would justify a different treatment, it is difficult to perceive the point of the proposed amendment.
To answer the question whether these a priori assumptions can be made, it is necessary to consider what is meant by the expression security of India or of any part of the territory thereof. Security is a nebulous concept with an indefinite content. Many are the imponderable factors that enter into the concept of security of State, with the expansion of its functions in modern times. The expression can mean the security of India as a State in the sense of a juristic entity or the security of the Government of India for the time being in power, or of the people of India organised as a unit or of the territory of India or any part of it. That there is a difference between the conception of a state as juristic entity or the idealistic topmost organisation of the body politic and the agent namely the Government through which it functions has been recognised by most of the writers on public law. One thing seems to be rather clear and that is, the expression in the context cannot mean the security of the Government of India for the time being in power, for the juxtaposition of the words “any part of the territory thereof” would be wholly inapposite if it is the security of the Government of India that is intended to be denoted by the expression. A Government has no territory. It is only a State that owns or occupies territory. What then is meant by the security of India, if India is viewed as a State? What meaning of the word State would be appropriate in the context? The word State is used sometimes in a broad sense to denote a society as such. It is also used to denote a particular organ of the State namely the Government, or nation or an organised unit of mankind inhabiting a territory. This unsatisfactory state of the political theory is due in the main, to the fact that different writers treat different problems under the same name and the same author unconsciously uses the same word in several meanings. When a State is discussed from a juristic point of view, it is the opinion of the majority of the writers that it is a legal phenomenon, a juristic person. An armed rebellion is generally directed against the Government. But we are in the habit of saying—and that is supported by the decisions of the highest Court in the land—that Government is the agent of the State, the machinery by which the will of the State is formulated, expressed and executed (State of Karnataka v. Union of India1), and as the continued existence of a Government established by law is an essential condition of the stability of the State, anything which affects the security of the Government, “the visible symbol of the state” would affect the security of the State. (See Kadernath Singh v. State of Bihar2). But it is difficult to see how the security of a State is affected merely because the security of its Government is threatened if the State is conceived of merely as a juristic, intangible person. For even if an armed rebellion were to succeed and a new Government established, the State would remain the same. It is not possible to assume that the State had ceased to exist and another State has come into existence because of a victorious armed rebellion and the establishment of a new Government in consequence thereof. As the same State continues to exist under a new Government which came into existence as a result of the armed rebellion, it is difficult to say that the security of the State is affected in any way. A Legal order remains the same so long as the territorial sphere of its validity remains the same, even if that order is changed in a manner different from that prescribed by it. If a victorious armed rebellion does not destroy the identity of the State, how is it possible to say that an armed rebellion would affect the security of the State? Therefore the expression cannot possibly refer to the security of the Union of India as a State in the sense of juristic entity or Corporation. To put it differently, if the expression means the security of the Union of India as an ideal juristic person, it will not comport with the purpose of the article. We must therefore give a purposive interpretation to the expression. It seems therefore appropriate to take the expression as meaning the security of the Union of India as a State in the sense in which the word State is understood by such writers as Burgess, Storey and Cooley. Burgess said that a State is a particular portion of mankind viewed as an organised unit. Storey and Cooley would define State as a body politic or body of men when united together, for promoting national safety and advantage, by joint effort of their combined strength and occupying a territory. We may therefore say that the expression in the context means the security of the people of India as an organised unit and of the territory occupied by them or any part of the territory. An armed rebellion by affecting the security of the Government might affect the security of India as a State as defined above, since the Government is the agency or the machinery of the State to preserve law and order and thus safeguard the security of the people. A community would degenerate into a state of nature—‘the condition of war of every one against every one’ as conceived by Hobbes without security to life, liberty and property if the Government of a State is paralysed or subverted by an armed rebellion. An armed rebellion will affect the security of the territory of India or any part of it and of India as a State when it is conceived of as juristic person or entity only in case it has as its object to aid an external power to conquer and annex the territory of India or any part of it or to work secession of any part of its territory from the rest. With the conquest and annexation the State will cease to exist as juristic person and when there is secession it will cease to exist pro tanto. In the final analysis therefore, the security of India must connote the security of the life, liberty, and property, collective and individual, of the people of India and of the territory of India or any part of it, and in case of war or external aggression, it must also mean the security of the State of India as a juristic Corporation, as conquest and annexation would result in its extinction. It is in this sense that the expression ‘Security of State’ is used in Article 19(2) of the Constitution. Now war and external aggression apart, who are the persons who are likely to threaten the internal security of India in this sense? They are the persons who are engaged in sabotaging operations like removing fish-plates from rails, planting time bombs in planes, committing arson to public buildings, destroying or damaging other public property all in the process of offering resistance to the Government for redress of some real or imaginary grievances. These enemies of the constitutional order interfere with the supply and services vital to the community such as electricity, transport and other means of communication in resisting or defying the Government. These activities when repeated and conducted in an organised manner with widespread support and participation would attain a magnitude and proportion sufficient to create an emergency threatening the security of India. These silent and subtle foes of the constitutional order threaten the life, liberty and property of the nation and the individuals by attempting to paralyse the Government in a way which it is difficult to combat by means of ordinary law. We witness every day how successfully some of them carry on their nefarious operations, and the utter impotency of Government to deal with them, beyond making empty threats of dire consequences or undignified overtures. An armed rebellion is thought to threaten the security of India by rendering the life, the liberty and property of the people of India insecure either as its immediate effect or as a result of its rendering the Government impotent. So also the subversive and sabotaging activities by rendering the life, liberty and property of the people insecure, threaten the security of India. It seems rather difficult to spin out a difference between the two as respects the nature of the threat to the security of India to justify differential remedies. These people being persons enjoying all the fundamental rights cannot be dealt with successfully even though their activities threaten the security of the country, unless those fundamental rights which enable or assist them to carry on these operations are suspended or abridged at any rate so far as they are concerned. The Constitution must have a mechanism to deal with these enemies of the constitutional order if by their repeated and organised subversive acts with intent to resist the Government they threaten the life, liberty and property of the people although their activities may not amount to armed rebellion. In a modern State with a well maintained army, it is very seldom that a section of the people would rise up in armed rebellion, as it is rather too easy to quell it by assistance of the army, but no so the secrets, sabotaging activities having repurcussions on the security of the country as already explained above.
History records that there was little fighting before the actual fall of the Government in the course of the French revolution and that the Government tumbled in consequence of minor challenges in the form of riots and demonstrations and all the ruthless violence causing bloodshed occurred after the revolutionaries succeeded in forming the Government. In any case—and this is very important—a subjective judgment will have to be made by the President whether the armed rebellion or threat of it is of such a character as to create a grave emergency threatening the security of India even if the amendment is carried out just as he has to make one under the article as it stands, whether the internal disturbance is of such magnitude as to create an emergency threatening the security of India. It is really this power to make the subjective evaluation which is liable to be abused, but that power must willy-nilly be exercised by the President even if the proposed amendment is made.
And then, is there a really efficacious judicial remedy in case the President were to abuse his power? Clause 5 to Article 352 as it stands provides that the satisfaction of the President under sub-articles (1) and (3) shall be final and precludes the jurisdiction of courts to question the satisfaction of the President under the article or of the continued legality of the proclamation. That clause is to be deleted by the proposed amendment. But it is doubtful whether that will have any real impact upon the question of the jurisdiction of the court, as the clause itself was introduced only by way of abundant caution. A President arrives at the satisfaction that there is a grave emergency threatening the security of India by reason of an armed rebellion only on the basis of the advice tendered by the Council of Ministers. The court cannot call for that advice even if it be in writing as no court has power to do so. Therefore the satisfaction of the President under the article is final, except in very extraordinary cases. A court generally declines to enter the field as forbidden on the basis of the political question doctrine. That doctrine is based on the concept that certain questions are committed exclusively by the constitution to another branch of Government. The President, as the head of the executive, is responsible for the security of the country under the Constitution. So he should have the exclusive right to decide when that security is threatened. The right to make the decision should rest with the person in whom the responsibility resides. So the court will never interpose its authority in that area unless perhaps a clear case of mala fide is made out. The existence of an armed rebellion is not an immediately evident fact. In the light of our experience it is not difficult to imagine interested persons organising faked rebellion, by hiring people from highway and hedges, and after arming them with sickles and hammers, make them march and counter-march. That which in the assessment of the President would be an armed rebellion, might not be adjudged so by a court. The question is, should the assessment of the President, even if wrong should prevail in this area? The impossibility of the court undertaking an independent resolution of a question without expressing lack of respect due to a co-ordinate branch of Government is a ground to abstain from making a decision under the rule in Baker v. Carr3, a decision which has been quoted with approval by our Supreme Court. According to some writers, prudential consideration, which rather than constitutional commitment as a matter of interpretation is the main determining factor in the political question doctrine also might counsel abstention by court. When a court abstains as a matter of constitutional interpretation or on prudential consideration to abstain, there is no implied decision that the judgment of the President, that there was an armed rebellion is correct. The court only says that the matter is not within its jurisdiction. However, the doctrine of political question is a slippery slope and one cannot venture to make a prediction with certainty how a court will behave in a particular case. It will depend upon its mood and the colour of the judges making the decision whether they are activists or passivists.
Does the provision for approval by Parliament within one month of the proclamation of the emergency furnish a guarantee against the abuse of the exercise of the power? If experience is to be our guide in this matter, a powerful but unscrupulous executive with an overwhelming majority in Parliament of a docile hue will be able to manage the situation.
History shows that Constitutional crisis created by internal disturbance is not anything new. In ancient Rome when the Senate determined that an emergency created by insurrection war existed it appointed a dictator usually for a period of 6 months. Even before that Aristotle spoke of elective tyranny to deal with emergency. Emergency powers, that is some species of constitutional dictatorships have had many advocates. Locke took refuge in rationalizing the traditional English doctrine of prerogative. He was of the view that in every Constitution worthy of survival, there must be somewhere, someone, who can do whatever the emergency situation requires, an outlook still dominant in the United States. Hegel thought that it is more or less a matter of spiritual force. For Hegel the State represents the realisation of freedom. All worth the individual possesses, he possesses through State. The individual has moral value only because he is part of the State which is the complete actualisation of reason, the divine idea as it exists on earth. To him therefore the world spirit which wishes constitutionalism to survive as it is the most advanced embodiment of freedom would sanction any measure required for its victory. All these thinkers acknowledge their debt to Machievelli who faced with candour the problem of security and survival of State. Although he faced the problem he could not go beyond admiring the virtues of Roman dictatorship. He failed to grasp the significance of Constitutional Government and the problem of its survival.
The demand that all claims of morality and ethics should be subordinated to the requirement of security and survival of State arise from the fact that polis or civitas was for the ancients the essential pre-requisite of all virtues. They thought that man can realize his true nobility and status only in a State. And by reason of State they meant nothing else but the doctrine that whatever is required to ensure survival of State must be done, no matter how repugnant it might be to them in their private capacity. Reason of State means nothing but a particular form of the general proposition that whatever means are necessary to achieve the result must be employed; that means must be natural with regard to the end and these means are the best which are most natural in the sense of being most likely to succeed. Today the doctrine of reason of State raises the fundamental question of the treatment to be given to the declared enemies of the Constitutional order when these men are entitled as citizens to the protection of the Constitution. Many would in line with tradition going back to Milton and Calvin outlaw such persons by depriving them of their citizenship. Security and survival have taxed the ingenuity of writers from ancient days to our own times. But no clear-cut solution is forthcoming. Those who framed new Constitutions fell back upon the device of resorting to some sort of monarchical prerogative, war powers with martial law, the State of siege, or emergency powers. The problem of security and survival calls for some kind of solution. What shall be the yard-stick, the moral law or the requirement of expediency. The key value is freedom. The survival of free community is threatened by several factors. The desirability of defending the existing order has come to be taken as self evident and hence the task of calling for whatever means which are at hand. Survival as a goal though primitive in a sense is very basic to modern State. Security and survival are taken as accepted goals of a political order. The issue has perplexing ramifications. Can you justify violation of law when the survival of the good legal order is at stake? One view is that survival at the cost of values to which the constitutional order is wedded is no survival at all, as implicit in the notion of survival are certain values. If the maintenance of constitutional freedom and of civil liberties is implicit in the goal of survival then their suppression for survival becomes paradoxical.
A rational solution of the problem in constitutional terms imposes itself as the very essence of the Constitutional Reason of the State. This will involve the taking of calculated risks, for without taking risk there can be no security. In other words, security is not an absolute anti-thesis of risk but can be realized only by risk taking. This is the paradox of security risk. A person will be wanted for the security of the constitutional order. But he is a risk, a risk worth taking. Our constitution makers were not spokesmen of parties. They were keen students of history. They could fathom the future with the light of the lessons of history. They chose the more comprehensive phrase ‘Internal disturbance’ as they found it impossible to rule out that the security of India will under no circumstances be threatened by internal disturbances, not amounting to armed rebellion.
At the back of the proposed amendment lies the apprehension that a discretionary power, if misused once, will be misused again. The apprehension may be legitimate. But the question is what is the solution? There never has been a Government of laws alone in the sense of eliminating all discretionary powers. All Governments are Governments of laws and men. Discretionary power is potentially as dangerous as it is essential for a Government. No Government can function efficiently without the power being lodged somewhere. And history shows that the search for a mortal vessel made of the stuff of which the “philosopher king” is made of, to lodge it without danger of being misused, is as vain as the search for the philosopher’s stone.
* Judge, Supreme Court of India (Retd.)
** This Article was first published in Supreme Court Cases (1978) 3 SCC J-27. It has been reproduced with the kind permission of Eastern Book Company.
3 369 US 186 (1962).