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25. Article 352 of the Constitution empowers the President, if he is satisfied that a grave emergency exists whereby the security of India or of any part thereof is threatened, whether by war or external aggression or internal disturbance*, to declare by a proclamation that an emergency exists. One of the consequences of such declaration is provided in Article 358. Article 358, as it stood prior to 44th Amendment, read thus:

"358. While a Proclamation of Emergency is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would, but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect."

(By the Constitution 42nd Amendment Act, a proviso was added and by the 44th Amendment Act, some further amendments were made but it is not necessary to notice them for the purposes of these cases.)

26. Clause (1) of Article 359, as it stood prior to the 44th Amendment, provided that:

"Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order."

27. The purport and effect of Articles 358 and 359(1) and the distinction between them fell for consideration of this Court in Makhan Singh7. A Special Bench of seven Judges stated the effect of Article 358 in the following words:

"It would be noticed that as soon as a Proclamation of Emergency has been issued under Article 352 and so long as it lasts, Article 19 is suspended and the power of the legislatures as well as the executive is to that extent made wider. The suspension of Article 19 during the pendency of the Proclamation of emergency removes the fetters created 7 (1964) 4 SCR 797 : AIR 1964 SC 381 : 1964 (1) Cri LJ 269 By the 44th Amendment Act, the words "armed rebellion" were substituted for the words "internal disturbance".

The tendency to treat these matters in a somewhat casual and cavalier manner which may conceivably result from the continuous use of such unfettered powers, may ultimately pose a serious threat to the basic values on which the democratic way of life in this country is founded."

53. In matters touching liberty, greater care is called for on the part of the authorities exercising powers of detention.

An additional question

54. Dr Ghatate, appearing for one of the petitioners raised an interesting submission to the following effect: By Constitution 44th (Amendment) Act, Parliament, acting in its constituent power, has substituted clause (4) as well as clause (7) of Article 22 leaving it to the Central Government to specify the date from which the said amendment shall come into force. Sub-section (2) of Section 1 of the (Amendment) Act empowers the Central Government to fix different dates for coming into force of different provisions of the said Act. Though the Central Government has specified the date of coming into force in respect of several other provisions of the Amendment Act, it has not chosen to specify the date from which the Amendments to substitution of clauses (4) and (7) of Article 22 shall come into force. The 44th (Amendment) Act was enacted as far back as April 1979 and even though more than fourteen years have passed by, the Central Government has not thought it fit to enforce the said Amendments. This failure on the part of the Central Government has the effect of virtually nullifying the said Amendments. While enacting the said Amendments, Parliament could never have contemplated that the Central Government would sit on them for more than fourteen years. The Central Government must act in accordance with the spirit of the Amendment Act. It must act reasonably. It cannot undo a Constitution Amendment just by refusing to specify a date from which it shall come into operation. Even if the power given to the Central Government is characterised as a conditional legislation still the fact remains that such power too must have to be exercised reasonably and within reasonable time. Can the Central Government wait for few more years and would the Court be powerless to command the Central Government to bring into force the said Amendment? If no such command can be given, would it not mean that Parliament was, in the year 1979, amending the Constitution, not for that generation but for the next generation? Section 1(2) of the 44th (Amendment) Act is indeed an instance of abdication of or delegation of essential constituent power and, therefore, bad. Such a thing has never happened and cannot be allowed to happen; the Central Government ought not to be allowed to play with a constitutional amendment an amendment which, in particular, tends to strengthen the safeguard contained in clause (4) of Article 22, says the counsel.