The forced sterilizations of emergency

Context

• As India marks the 50th anniversary of the Emergency, one of the most horrific and least acknowledged chapters of Indian democracy is of state-sponsored, forced sterilisation practices, popularly known as nasbandi in public memory.

• It is an atrocity almost without any parallel in any democracy, for its sheer scale, brutality, and brazen invasion of the bodily autonomy of men and women.

• While India’s National Family Planning Programme had long advocated sterilisation as a voluntary method of birth control, the campaign took a violent turn during Emergency, under the ambitious yet authoritarian leadership.

• The targets were mainly the poor, slum dwellers, Dalits, minorities, and rural communities.

• The Shah Commission, set up to investigate the Emergency’s abuses, recorded 1,778 sterilisation-related deaths and hundreds of injuries. It also noted that thousands of sterilisations happened unofficially.

National Emergency - Process and Provisions

• In India, a National Emergency (Article 352) refers to a period when the security of the nation is severely threatened.

• The President can declare a National Emergency in India under Article 352 when the security of India or a part of it is threatened by: war, external aggression, or armed rebellion.

• Originally, the Constitution mentioned ‘Internal Disturbance‘ as the third ground for the proclamation of a National Emergency.

• However, because of the vagueness and ambiguity of the phrase ‘Internal Disturbance’, it was replaced by the phrase ‘Armed Rebellion’ by the 44th Constitutional Amendment Act of 1978.

• Based on the grounds of the declaration, the National Emergency is called by any one of the following 2 names:

1. External Emergency – It refers to a National Emergency that is declared on the grounds of War or External Aggression.

2. Internal Emergency – It refers to a National Emergency that is declared on the grounds of Armed Rebellion.

• The 44th Constitutional Amendment Act of 1978 mandated that the President can proclaim a National Emergency only after receiving a written recommendation from the Cabinet i.e. only on the concurrence of the Cabinet and not merely on the advice of the Prime Minister.

• A proclamation of National Emergency may apply to the entire country or only a part of it.

• The proclamation of a National Emergency must be approved by both Houses of Parliament within one month from the date of its issue.

• Originally, the period allowed for approval of a National Emergency by the Parliament was two months.

• It was reduced to one month by the 44th Constitutional Amendment Act of 1978.

• If approved by both Houses of Parliament, the National Emergency continues for six months.

• It can be extended to an indefinite period with the approval of Parliament every six months.

• This provision of periodic approval (every six months) was added by the 44th Constitutional Amendment Act of 1978.

• Every resolution approving the Proclamation of National Emergency or its continuation must be passed by either House of Parliament by a Special Majority i.e. 50% of the total membership of the House, and a majority of not less than 2/3rd of the members of that House present and voting

• This provision of Special Majority was added by the 44th Constitutional Amendment Act of 1978.

• Earlier, such resolutions could be passed by a Simple Majority of either House of Parliament.

• A Proclamation of Emergency can be revoked by the President at any time by a subsequent proclamation.

• Such a proclamation does not require parliamentary approval.

• In Minerva Mills Case, 1980, the Supreme Court held that the proclamation of National Emergency can be challenged in a court on grounds of malafide or when the declaration was based on extraneous or irrelevant facts.