The Three Proclamations: 1962, 1971 and 1975

The Presidential order under it. ADM Jabalpur records that an order under article 359(1) suspended the enforcement of specified rights in respect of orders of detention made under section 3(1)(c) of the Maintenance of Internal Security Act, for six months from the date of the order or the period during which the Proclamation of 3 December 1971 was in force, whichever expired earlier; that the order was extended to the whole of the territory of India; and that on 20 June 1975 the President amended it by substituting twelve months for six months.

The amendment of 20 June 1975 is worth noticing. It is five days before the Proclamation of 25 June.

The third: 25 June 1975

Ground. That a grave emergency existed whereby the security of India was threatened by internal disturbance.

The Presidential order of 27 June 1975. In exercise of the power under article 359(1), the President declared that the right of any person, including a foreigner, to move any court for the enforcement of the rights conferred by articles 14, 21 and 22, and all proceedings pending in any court for the enforcement of those rights, shall remain suspended for the period during which the Proclamations of 3 December 1971 and 25 June 1975 are both in force. The order stated that it was in addition to and not in derogation of any earlier order under article 359(1); on 29 June 1975 it was applied to Jammu and Kashmir; and on 25 September 1975 its last paragraph was omitted.

The three differences from 1962, which are the heart of the argument in ADM Jabalpur and which an answer should reproduce.

The 1975 order added article 14, which the 1962 order had not mentioned.

The 1975 order contained no condition. It suspended the enforcement of the rights unconditionally, so that the courts were no longer obliged or able to test the validity of a detention by examining whether it conformed to statutory requirements, and would have to be content with compliance with the forms of the law.

The 1975 order suspended all pending proceedings, which the 1962 order had not, showing an intention to affect the jurisdiction of courts in which proceedings were actually pending.

The statutory changes. Ordinances were promulgated and replaced by the Maintenance of Internal Security (Amendment) Act 1975, which introduced section 16A, gave deemed effect to section 7 as from 25 June 1975 and to the rest as from 29 June 1975, and inserted a new section 18 with effect from 25 June 1975.

The constitutional changes. The Constitution (Thirty-eighth Amendment) Act 1975 amended articles 123, 213, 239B, 352, 356, 359 and 368. Its effect, as ADM Jabalpur summarises it, was to render the satisfaction of the President or the Governor in the relevant articles final and conclusive and beyond question in any court on any ground; and it added clauses to article 352, including the power to issue different Proclamations on different grounds whether or not one was already in operation.

End. Both Proclamations were revoked in March 1977, after the general election.

The comparison as a table

The row that decided ADM Jabalpur is the condition row. In 1962 the courts could ask whether the detention was under the Act; in 1975 they were told they could not.

What was not proclaimed

Because MU's papers misdate these, state the negatives plainly.

There was no Proclamation of Emergency in 1965, during the conflict with Pakistan of that year, because the Proclamation of 1962 was still in force and was not revoked until January 1968.

There was no Proclamation in 1970.

The Emergency did not begin in 1971 and end in 1977 as one continuous thing in the sense students often write. The 1971 Proclamation was on the ground of external aggression and did not by itself produce the events of 1975 to 1977; the 1975 Proclamation was a second and separate one, on a different ground, and it is the one meant when the period is called the Emergency.

A worked example

A question asks: during how many emergencies has article 359 been used, and with what difference?

Three Proclamations, and article 359 orders under all of them.

The difference in the first. The 1962 order was conditioned on the deprivation being under the Defence of India Act or rules, so the courts could test whether the detention was in truth under that Act.

The difference in the third. The 1975 order was unconditional, named article 14, covered foreigners, and suspended pending proceedings.

Why does that matter? Because the majority in ADM Jabalpur held that the unconditional terms of the 1975 order left no ground on which a detenu could move a court, which is precisely what the 1962 order had left open.

Could such an order be made today? Not in that form. Articles 20 and 21 cannot be mentioned in an order under article 359(1), so a detenu could still move a court for the enforcement of article 21.

What it does NOT mean

A Proclamation is not the same as its Presidential order. The Proclamation is under article 352; the suspension of remedies is a separate order under article 359 which must be laid before Parliament.

The 1962 emergency was not confined to the period of hostilities. It was revoked in January 1968.

Article 358 did not need an order. It operated automatically, then on any Proclamation and now only on one on the ground of war or external aggression.

The 38th Amendment was not what ended judicial review. It declared the satisfaction final and conclusive; what the courts did with the 1975 order is the subject of [ADM Jabalpur v. Shivkant Shukla], and the clause was removed in 1978.

Quick revision

• Three Proclamations under art 352: October 1962 on external aggression, revoked January 1968; 3 December 1971 on external aggression; 25 June 1975 on internal disturbance. The last two revoked in March 1977.
• No Proclamation in 1965 or 1970.
• 1962 order under art 359: arts 21 and 22, conditioned on deprivation under the Defence of India Act 1962 or rules, no mention of art 14 or of pending proceedings.
• 1971 order: as to detentions under MISA s.3(1)(c), for six months or the life of the Proclamation, extended to the whole territory, and amended on 20 June 1975 to twelve months.
• 1975 order of 27 June: arts 14, 21 and 22, any person including a foreigner, all pending proceedings, unconditional; applied to Jammu and Kashmir on 29 June 1975; last paragraph omitted on 25 September 1975.
• MISA amended to insert s.16A and a new s.18; the 38th Amendment made the President's and Governor's satisfaction final and conclusive and allowed different Proclamations on different grounds.

Test yourself

1. Give the three Proclamations with their dates and grounds. October 1962 on the ground of external aggression; 3 December 1971 on the ground of external aggression; and 25 June 1975 on the ground that a grave emergency existed whereby the security of India was threatened by internal disturbance.

2. Why was there no Proclamation in 1965? Because the Proclamation of 1962 was still in force and was not revoked until January 1968.

3. State the three differences between the 1962 and 1975 orders under article 359. The 1975 order named article 14, which the 1962 order did not; the 1962 order was conditioned on the deprivation being under the Defence of India Act 1962 or a rule or order made under it, while the 1975 order was unconditional; and the 1975 order expressly suspended all pending proceedings, which the 1962 order did not mention.

4. Why does it matter that two Proclamations were in force in 1975? Because article 358 attached to a Proclamation, because clause (9) of article 352 permitting different Proclamations on different grounds was inserted retrospectively by the 38th Amendment to meet that position, and because the order of 27 June 1975 was expressed to operate while both Proclamations were in force.

5. What did the 38th Amendment do to judicial review? It rendered the satisfaction of the President or the Governor in the relevant articles final and conclusive and beyond question in any court on any ground, and that provision was removed by the 44th Amendment in 1978.