The emergency of 1975 evokes horror even today. Mercifully, it was short-lived. But even that short period saw enough violations of human rights to fill volumes. There are countries living in a permanent state of emergency: Paraguay, Cameroon, Haiti and South Africa, for instance. The protection of human rights in emer-gencies is therefore a major concern of contemporary international law.
Article 4(2) of the International Covenant on Civil and Political Rights 1966 makes seven rights non-derogable even in terms of public emergency: The right to life, prohibition of torture, prohibition of slavery and servitude, prohibition of imprisonment for non-fulfilment of con¬tractual obligations, prohibition against retroactive criminal law and penalties, the right to be recognized as a person before law and the right to freedom of thought, conscience and religion.
The European Convention on Human Rights makes only four rights non-suspendable, while the American Convention on Human Rights makes eleven rights non-suspendable. These conventions and covenants are however not the sole bases of international law; customary law is also an important source of international law.
The International Law Association is the premier non-governmental organization of international lawyers with consultative status in the United Nations. The norms and standards set by it contribute to the evolution of customary international law. For over six years a special sub-committee of the International Law Association chaired by Subrata Roy Chowdhury studied the problem of evolving a set of minimum standard to govern the declaration and administration of states of emergency. The 61st Conference of the International Law Association held in Paris in August-September 1984 approved a set of standards known as the Paris Minimum Standards of Human Rights Norms in a State of Emergency. Roy Chowdhury is a leading counsel of Calcutta, and his contribution to the work of the International Law Association should be a matter of pride for the legal profession in India.
The Paris Minimum Standards specify sixteen rights as non-derogable in states of emergency. They are: the right to legal personality, freedom from slavery or servitude; freedom from discrimination, the right to life, the right to liberty, freedom from torture, right to fair trial, freedom of thought, conscience and religion, from imprisonment for inability to fulfill a contractual obligation, rights of minorities, rights of the family, right to a name, rights of the child, right to nationality, right to participate in government and most important, right to a remedy in respect of all these rights.
The book under review is a detailed commentary on the Paris Minimum Standards. As the progenitor of these standards, the distinguished author is eminently qualified for the task. The commentary draws upon decisions of the European Commission, the European Court of Human Rights, the Human Rights Committee under the Optional Protocol to the International Convention of Civil and Political Rights, The Inter-American-Commission and the American Court of Human Rights. The author also draws upon newspaper reports and reports of non-governmental organizations such as the International Commission of Jurists and Amnesty International, and the book should therefore serve as a standard reference work for both legal and factual material.
This reviewer was however a little disappointed with the commentary on the non-derogable rights, for its failure to deal with the relevant provisions of the Indian Constitution dealing with suspension of rights in emergencies. One particularly looked forward to the author’s views on the Fifty-Ninth Amendment (1988) which has once again made the right to life and personal liberty suspendable (The Janata Government had by the Forty-fourth Amendment made the right non-suspendable, in the light of what happened during the 1975 emergency and in the light of the Supreme Court’s controversial decision in the Habeas Corpus Case in 1976 that a citizen cannot question the legality of his detention when the right to life and liberty under Article 21 is suspended).
The specification of non-derogable rights in states of emergency is one concern of the Paris Minimum Standards. The vexed problem of judicial review of proclamations of emergncy is not solved by the Paris Minimum Standards. At the international level, the extent of review is left to be determined by the terms of the particular treaty to which a country is subject. At the national level the power of judicial review is left to be exercised ‘in terms of the Constitution and legal tradition of the state concerned, keeping in view the undertaking of the State to adopt legislative or other measures to give effect to the rights recognized by any treaty to which it may be a party’. our Supreme Court at least has not been particularly enthusiastic about pronouncing on whether judicial review of a proclamation of emergency is open. In Waman Rao’s case (1981) the Court observed that the question of justiciability of a proclamation of emergency ‘raises issues which are not easy to answer’ and observed ‘…in the first place, we are not disposed to decide the question as to whether the issuance of a proclamation of emergency raises a justiciable issue. Secondly, assuming it does, it is not possible in the present state of record to answer that issue one way Or the other. And, lastly, whether there was justification for continuing the state of emergency after the cessation of hostilities with Pakistan is a matter on which we find ourselves ill-equipped to pronounce’.
The seed for future development of our constitutional law on this subject has however been sown by Justice Bhagwati in his minority judgment in the Minerva Mills case (1980) where he took the view that if the satisfaction of the President on the necessity for a proclamation of emergency is malafide or based on wholly extraneous grounds, judicial scrutiny would be open, because in such a case the satisfaction of the President would be non-existent in the eyes of law.
The Paris Minimum Standards also lay down five conditions precedent to the power to take measures derogatory of human rights and fundamental freedom: due notification, proportionality of derogatory measures to the apprehended danger to the country, consistency with the state’s obligations under international law, non-discrimination in the matter of implementation of the measures of derogation and the protection of internationally recognized non-derogable rights.
The Paris Minimum Standards stress the importance of an independent judiciary in times of emergency. Says the author: ‘Broadly speaking, the independence of the judiciary, particularly during emergency, can be undermined in four different ways. Purges of recalcitrant judges, restructuring of the judicial system to the detriment of the normal power and security of tenure of the judges, a deliberate policy of carrot and stick pursued by the executive which means rewards for conforming to the executive’s standards of good behaviour and punishment for not being responsive to its will, and fourth, excessive deference to the discretionary powers of the executive and corresponding reluctance to interfere with the exercise of these powers.’ The author gives examples of these four factors from all over the world. On the fourth factor, the reviewer is reminded of what Justice Chandrachud said in the Habeas Corpus case: ‘But at the back of one’s mind is the facile distrust of executive declarations which recite threat to the security of the country, particularly by internal disturbance. The mind then weaves cobwebs of suspicion and the Judge without the means to knowledge of the full facts, covertly weighs the pros and cons of the political situation and substitutes his personal opinion for the assessment of the Executive… A frank and unreserved acceptance of the proclamation of emergency, even in the teeth of one’s own predispositions is conducive to a most realistic appraisal of the emergency provisions.’
Deference on the part of the judiciary to the discretion of the Executive may be a part of its constitutional perception. But there is a greater threat to the independence of the judiciary when judges needlessly give good conduct certificates to the Executive Mrs. Mrinal Gore was detained in a cell with a leper on one side and a lunatic on the other. Rajan, an engineering college student was ille-gally detained and was tortured to death. And yet Justice Chandrachud had this to say in the Habeas Corpus case: ‘Counsel after counsel expressed the fear that during the emergency the Executive may whip and strip and starve the detenu and if this be our judgment, even shoot him down. Such misdeeds have not tarnished the record of free India and I have a diamond bright, diamond hard hope that such things will never come to pass.’ Justice Beg went several steps further: ‘It seems to me that courts can safely act on the presumption that powers of preventive detention are not being abused… Furthermore, we understand that the case and concern bestowed by the state authorities upon the welfare of detenus who are well-housed, well-fed and well-treated is almost maternal.’ If the salt hath lost its savour…
Raju Ramachandran is a practising lawyer in the Supreme Court and High Court, Delhi.