Salient features of the 59th Amendment of the Indian Constitution*
The country’s rulers expect the constitution to serve as a form of mass anesthesia. ‘In an emergency, we have assumed the authority to suspend the right to life and liberty.’ ‘With the declaration of an emergency, we now have the authority to kill you if we so desire,’ the argument goes. Not only have the political, bureaucratic, and military establishments come to believe this; but during the ‘internal emergency’ in 1976, the Supreme Court accepted the argument in the habeas corpus case.[i]
The Constitution (Fifty-ninth Amendment) Bill, 1988’s statement of purposes and justifications, which became law as THE CONSTITUTION (Fifty-ninth Amendment) Act, 1988
- Summary of Objects and Justifications
A resolution approving the continuation of a Presidential Proclamation issued under clause (1) of that article beyond a period of one year cannot be passed by either House of Parliament unless the two requirements outlined in that clause are met, according to clause (5) of Article 356 of the Constitution. The Proclamation published about the State of Punjab’s one-year duration is set to expire on May 10, 1988. Given the persistently unsettling situation in Punjab, the increase in the operations of the Constitution (Fifty-ninth Amendment) Bill, 1988, which was enacted as THE CONSTITUTION (Fifty-ninth Amendment) Act, 1988[ii], included a Statement of Objects and Reasons.
Because of the deaths of innocent men, women, and children as a result of terrorists and anti-national forces, as well as the fact that the Punjab State Legislative Assembly had to be dissolved due to the virtual impossibility of forming a popular government in the current circumstances, the continuation of the said Proclamation beyond the period of one year may be necessary for Punjab.
As a result, it is proposed that Article 356(5) of the Constitution be amended to allow for the extension of the said Proclamation for up to three years, as permitted by clause (4) of that article. The continuation of the Proclamation after May 10, 1988, may not be effective, as terrorist activities had increased.
To declare a partial Emergence in the entire State of Punjab or only some areas of that State, it might be necessary to apply the provisions of article 352 of the Constitution. If such a circumstance occurs, the phrase “armed rebellion” included in that article as one of the grounds for a declaration of Emergency (which alone could be used in the case of an Internal Emergency) may not be appropriate in the situation in Punjab at the time to declare a Proclamation in that State. From the Constitution’s inception until the Constitution (Forty-fourth Amendment) Act of 1978, the phrase “internal disturbance” was one of the grounds listed in that article. The powers that are proposed to be bestowed by these modifications would not be used for any duration longer than what is necessary for accomplishing the stated object, as the proposed amendments are intended to more effectively reduce terrorist activities in the State of Punjab.
The 59th Amendment to the Constitution, which had been rushed through both houses of Parliament the plan, is for the government to declare an emergency in Punjab to deal with the worsening terrorist situation.
Nobody knows how effective this latest legislative initiative aimed at combating terrorism in that state will be. But it’s also unlikely to work. In the last five years, 18 special laws have been enacted in Punjab, giving security forces increasing powers. The government already has virtually unrestricted powers in the state under these existing special laws: people can be convicted based on the uncorroborated testimony of a co-accused during a confession to a police officer; Special courts are allowed to conduct quick trials away from the public eye, and preventative detention for a year in judicial custody without bail is more common than not. The Punjabi legislature is currently disbanded. And now that he has it, Punjab’s police commander has the authority of a Field Marshal. Punjab essentially has an unofficial state of emergency.
- Why then was a new amendment necessary?
Even staunch Punjab supporters like L.K. Advani, the leader of the Bharatiya Janta Party, is quite skeptical. As he previously stated: “The situation in Punjab continues to deteriorate, not as a result of insufficient powers, but as a result of a lack of Will.”
Even in an emergency, Article 21[iii] of the Constitution, which guarantees the fundamental rights to life and liberty, cannot be suspended anywhere in the nation. However, this modification only allowed for the declaration of an emergency in cases of “war, external aggression, or armed revolt.” It particularly omitted “interior troubles” as one of the compelling grounds, which was a highly individualized and all-inclusive word used by Mrs. Gandhi to defend the Emergency. The new amendment gives the Central Government the authority to revoke Article 21 in addition to restoring “internal disturbances” as a cause for an Emergency.
The Rajiv Gandhi administration had demonstrated a propensity for deviating into risky territory. Politically, it makes little sense to deny the people of Punjab their right to life and liberty while other states in the nation enjoy theirs. It will only serve to further alienate Sikhs from our nation and solidify their support for terrorist causes. Gagging the media will also not solve the problem. It will only further undermine public trust in government and encourage the spread of rumors rather than accurate, concrete news. The legitimacy of the government on its activities will be even less believable to the rest of the nation during any news blackout in Punjab.
The constitution must be amended on a regular basis to adjust inadequate provisions to respond to new needs, such as supplementary rights, etc. A constitution’s text cannot otherwise reflect societal realities and political needs over time.
* * Harshita Malviya, B.com LL.B (Integrated) fifth year student, Banasthali University
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