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Emergency Under Constitutional Law

An emergency is an extreme situation when The President of India makes the final decision and declares an emergency when the nation's constitutional machinery fails to the point where it cannot be controlled by the democratic government or when there is a serious threat to the entire country or a specific region of it, which may also be of a financial nature.

As a democratic country where one authority has the last say, India's emergency planning has generated a lot of dispute. The Indian Constitution's Articles 352 to 360 permit emergency measures. The study discusses the sorts of emergency provisions available in India as well as the historical evolution of emergencies within the country.

In this paper we have also discussed the history of emergency in India. In 1975, when the President of India declared a national emergency on the advice of Ms. Indira Nehru Gandhi, who was serving as Prime Minister at the time. The proclamation's justification was "internal disturbance," and during the emergency's two-year tenure, innocent Indian citizens were imprisoned under harsh sedition laws. Since the Executive had temporarily suspended all fundamental rights, not even the nation's highest court could intervene.

The absence of an inherent "right to life and personal liberty" was an embarrassment to the Indian judicial system, which also failed to shield the populace from wrongful detentions. This paper investigates the factors that led to the proclamation of 1975 and checks at its reliability. The case laws, statutes, journals, and research articles that are related to these themes are discussed in this paper.

According to Dicey claims the distribution of authority between the Centre and the Units, federalism is a weak system of government. Every contemporary federation, however, has made an effort to avoid this shortcoming by allowing the federal government to assume more authority whenever unanimity is required due to internal or foreign unforeseen situations. [The Indian Constitution] grants the union unprecedented powers for certain types of emergencies.

When the circumstances call for it, the federal government can become a unitary one thanks to the emergency powers established by the Constitution. Occasionally, events and forces sweep a country off its feet, dangerously jeopardising both its security and the lives of its population.

In these circumstances, people' individual liberties may need to be temporarily suspended in order to deal with the threats facing the country. Emergency situations put democratic governments in a difficult position because they force them to choose between upholding the integrity of the State, which is their primary duty, and upholding the human rights of their citizens and other people under their jurisdiction, which is also a crucial duty.

The State is compelled to choose between conflicting values and make a trade-off between them. That is the justification behind emergency clauses, which are included in many national constitutions and allow the suspension of fundamental rights that are guaranteed.

Articles 352 to 360 of Part XVIII of the Indian Constitution are devoted to the Emergency Provisions. The central government can efficiently respond to any exceptional circumstance thanks to these provisions. Under the state of emergency, the federal government assumes absolute power, and the states come under union rule. The purpose of including these clauses in the Indian constitution is to safeguard the nation's sovereignty, unity, integrity, and security as well as the constitution and the democratic political system.

The Indian Constitution has a special provision for emergencies that gives the centre broad authority to deal with unusual circumstances. In a crisis, the Centre has the authority to assume all legislative and executive control over any state. The Centre is also permitted to restrict or suspend people' freedoms under emergency circumstances. Academicians are hesitant to refer to the Indian Constitution as totally federal in large part due to the existence of an emergency provision in the Constitution.

In this regard, Dr. B.R. Ambedkar noted in the Constituent Assembly that all federal systems are contained inside a strict framework of federalism that comprises America. Whatever the consequences, it is unable to alter its form or shape. Therefore, depending on the circumstances, the Indian Constitution may be either unitary or federal. It is designed to function as a federal system in normal times, but in emergency situations, the unitary system takes precedence.

Types of Emergencies under Indian Constitution:

  1. National Emergency
  2. State Emergency
  3. Financial Emergency

National Emergency (Art. 352)

According to this emergency, the president may declare a state of emergency in all or a portion of India as may be specified in the proclamation if he is of the opinion that a grave emergency exists and that either war, external aggression, or armed rebellion pose a threat to the safety of India or any part of it.

If the president is convinced that there is an immediate threat of war, external attack, or armed insurrection, he or she may declare a state of emergency before the actual event occurs. Therefore, it is not necessary for the events specified in Art. 352 to really occur. A threat of war, external attack, or armed insurrection that is about to occur is sufficient for the declaration of an emergency.

The union cabinet, which consists of the prime minister and the council of ministers, must be consulted before the president can issue a proclamation, unless he has been given written notice that he may do so. This means that the emergency will only be proclaimed with the consent of the cabinet and not just on the prime minister's recommendation.

The Court ruled in Minerva Mills Ltd v. Union of India[1] that there is no impediment or restriction on judicial review of the legality of a presidential proclamation of emergency issued in accordance with Art. 352 (1). This declaration of emergency may be contested in court on the grounds that it was not made in good faith, was based entirely on unrelated and extraneous information, was ludicrous, or was perverse.

Yet, the word satisfaction employed in Article 352 refers to the satisfaction of the cabinet, not the president himself. Only on the council of ministers' suggestion can the president use the emergency declaration power.

Prior to the 44th Amendment Act of 1978, a declaration of emergency could only last for the first two months after receiving parliamentary approval. Nevertheless, after receiving approval, the emergency may last as long as the executive wanted it to, regardless of how long that was. The executive's ability to unreasonably prolong the operation of an emergency has been limited by the 44th Amendment.

After the 44th Amendment, a declaration of emergency may initially last for one month; but, if accepted, it would then last for six months, unless it was repealed earlier. The resolution approving the proclamation must be approved by a special majority of not less than 2/3 of the members present and voting in each house of parliament, as well as by a majority of the combined members of both houses.

Every six months, parliament would need to approve the extension of the emergency beyond the first six-month period. If the proclamation is made at the same time as the dissolution of the Lok Sabha or if the dissolution occurs within six months after the proclamation's approval, it will stay in effect until 30 days after the first session of the reconstituted Lok Parliament.

Consequences of a National Emergency

The political structure of the government is significantly and widely affected by the declaration of an emergency.

Three kinds of effects can be made:
  1. Impact on Centre-State relations
  2. Impact on the activities of the Lok Sabha and State Assembly
  3. Impact on fundamental rights.
Impact on Centre-State relations:
When an emergency proclamation is in effect, the centre-state relations change fundamentally. This is classified as:
  • Executive: During a national emergency, the centre's executive power extends to advising any state on how to exercise its executive power. Normally, the union is only permitted to instruct a state on a limited number of specific issues. As a result, even though they are not suspended, the state governments are brought under the total supervision of the federal government.
  • Legislative: During a national emergency, the parliament has the authority to enact laws on any of the state list topics. Despite not being suspended, a state legislature's legislative authority is now subject to the parliament's veto power. After the emergency ends, the legislation passed by the parliament regarding state affairs will no longer be in effect.
  • Financial: The president has the authority to decrease or halt the distribution of funds from the federal government to the state while a declaration of a national emergency is being considered. Every such presidential order must be presented to both houses of parliament.

Impact on the existence of the Lok Sabha and State Assembly:

When a declaration of a national emergency is being prepared, a bill of parliament extends the existence of the Lok Sabha for periods of one year at a time beyond its regular term of five years. Nevertheless, this extension is only valid for a further six months after the emergency has ended. Similar to this, the parliament has the power to add one year to a state legislative assembly's five-year term limit each time. when a state of emergency exists, as long as it has been over for at least six months.

Impact on Fundamental Rights:

Articles 358 and 359 of the National emergency affects fundamental rights. The suspension of the fundamental rights protected by Article 19 is addressed in Article 358. The suspension of other fundamental rights outside those protected by Articles 20 and 21 is covered by Article 359.
  1. Suspension of fundamental rights:
    In accordance with Article 358, the six fundamental rights under Article 19 are immediately suspended when a proclamation of national emergency is made. Their suspension does not require a separate court order. The 44th Amendment Act of 1978 limited the applicability of Article 358 by stating that the suspension of the six fundamental rights under Art. 19 will only occur if the National emergency is declared on the basis of war or external attack, not armed revolt.
  2. Other fundamental rights may be suspended:
    Under Article 359, the president is permitted to revoke the right to petition any court to enforce fundamental rights when the nation is in a state of emergency To put it another way, only their implementation is postponed, not the fundamental rights themselves. The president's directive only affects those essential rights, and its execution has been suspended.

Revocation of the National Emergency

The President may at any time repeal the National Emergency by issuing a new proclamation, which is not subject to parliamentary approval. If the Lok Sabha adopts a resolution condemning the proclamation or its continuation, the president may withdraw it upon written notice from not fewer than one-tenth of the Lok Sabha's members. The announcement should be made:
  • If the lower house is in session, the notice must be delivered to the speaker.
  • If not, it must be delivered to the president. In either case, a special session of the Lok Sabha must be held within 14 days of the date the speaker or president receives the notice in order to examine the resolution.
In the following two ways, a resolution of disapproval varies from a resolution approving the continuation of a proclamation:
  • Unlike the second, which needs approval from both houses of parliament, the first one just needs to be approved by the Lok Sabha.
  • Only a simple majority is required to take action on the first, whereas a special majority is required to take action on the second.
State Emergency (Art. 356)
It states that the president may issue a proclamation if he believes that a situation has arisen where the state government is unable to carry out its duties in line with the provisions of the constitution. He may also act on a report from the governor. This means that even without the governors' report, the president can still take action.

According to Art. 355 of the Indian Constitution, the centre is required to ensure that the state's administration is carried out in line with its requirements. Because the constitutional machinery of the state has failed in that situation, the president's declaration is referred to as a proclamation.

According to that Proclamation:
  • The president is granted the right to exercise any and all of the governor's rights towards the state's authorities and other individuals.
  • The state's legislative authority may be exerted by or according to the authority of parliament, according to a presidential proclamation.
  • In order to give effect to the purpose of the proclamation, the president may make any necessary or desirable consequential provisions.
  • The president is not permitted to seize any of the authority granted to the high court for himself or to suspend any constitutional clauses dealing with the high court.

A proclamation must be presented to each house of parliament for approval before it may go into effect. After this two-month window has passed, the proclamation is no longer in effect. The proclamation lasts until 30 days after the first sitting of the Lok Sabha following its reconstruction if it is issued at the time the Lok Sabha has been dissolved or if the dissolution occurs during this window of two months without the proclamation receiving approval.

The proclamation will be in effect for six months if the parliament approves it. Parliament has the authority to extend proclamations for increments of six months. No proclamation may be in effect for longer than three years, and after that time has passed, neither the president nor the parliament may extend it. Additionally, the state's constitutional machinery must be reinstated.

Case: S.R. Bommai V. Union of India.[2]

Facts: On December 15, 1992, three BJP-ruled states�Madhya Pradesh, Himachal Pradesh, and Rajasthan�were placed under president's administration, and their legislatures were dissolved for failing to zealously enforce the federal government's ban on religious organisations.

The chief ministers of these states had ties to an organisation that had been outlawed, and these governments had pushed the Kar Sevaks to travel to Ayodhya, which was one of the main reasons the government had been ousted. So, the only assumption made was that they might decide not to implement the restriction. There was no evidence to suggest they were defying the centre's instructions.

Held: Following the Ayodhya event on December 6, 1992, the removal of the administrations in Madhya Pradesh, Himachal Pradesh, and Rajasthan was legal and the imposition of the president's control in these states was constitutional. A fundamental tenet of the constitution is secularism, and the president has the authority to dissolve any state administration that departs from that ideal. It was decided that the state should not be involved in religious concerns. No party can function as both a political party and a non-secular party at the same time.

Financial Emergency (Art. 360)

It gives the president the authority to declare a financial emergency if he determines that there is a threat to India's financial stability, consistency, or credit in whole or in part. In other words, it means that the president may declare an emergency if it is claimed that India's economy is in jeopardy.

If the Lok Sabha was already dissolved or was about to be dissolved at the time the proclamation was made, it survives until 30 days after the first sitting of the Lok Sabha after its reconstruction. Within two months after the date of their issuing, declarations of financial emergencies must be confirmed by both chambers of parliament. How long the proclamation will last before being repealed after it has been approved by both chambers of parliament is unknown.

Its continuation does not require ongoing parliamentary approval, in contrast to the other two emergencies. A motion to declare a financial emergency may be accepted by either house of parliament with only a simple majority, or a majority of the members present and voting in the house. Anytime with a new decree, the president may revoke it. The legislature is not required to ratify these proclamations.

Financial Emergency Effects:
The following are the results of the financial emergency:
  1. After being approved by the state legislature, the president may reserve all money bills or financial bills in order to preserve the country's credit and financial stability.
  2. The president has the authority to direct that the salary and benefits of any and all classes of state employees, union employees, high court and supreme court judges, as well as any other class of employees, be reduced.
As a result, when a financial emergency is declared, the union gains complete authority over the states' finances.

Financial Emergency Criticism:

  • The union will gain absolute authority as a result of the destruction of the constitution's federal character.
  • The union executive will be given complete state authority.
  • The president will impose his or her will.
  • The state's financial independence will be rendered useless.
  • Basic rights will lose all significance, which will demolish the democratic basis of the constitution.

Changes brought by 44th Amendment
The declaration of an emergency is a very significant subject since it interrupts the Constitution's usual structure and has a negative impact on the rights of the populace. Thus, such a proclamation should only be made under extraordinary circumstances and not just to remove an unpopular government from office. This occurred in June 1975 when, without sufficient justification, a state of emergency was declared due to domestic unrest.

The most contentious proclamation was that of 1975, which was based on domestic unrest and resulted in widespread violations of peoples' fundamental rights and draconian press suppression. Many individuals were held in preventative custody without cause. Several changes have been made to the emergency provisions of the constitutions by the 44th Amendment Act in order to make a repeat of the 1975 crisis exceedingly improbable, if not impossible.

44th Amendment: It significantly changed the Constitution's emergency provisions in order to prevent them from being exploited by the administration, as Ms. Indira Gandhi did in 1975. Also, it reversed some of the improvements made by the 42nd Amendment. Important aspects of this amendment include:
  1. Under Article 352, "armed rebellion" replaced "internal disturbance.".
  2. The Government must give written notice of its decision to declare an emergency.
  3. Within a month, the homes must declare an emergency.
  4. Every six months, the houses must reapprove the emergency in order for it to continue.
  5. An emergency can be withdrawn by a simple majority of the houses that are present and voting on a resolution to that effect. Such a resolution can be moved by one-tenth of the members of the house.
  6. Article 358 states that armed revolt will not result in the suspension of Article 19, only war or external attack will. Every such law that violates Article 19 must also state how it relates to Article 358. If any other legislation infringes upon Article 19, they may still be challenged.
  7. Article 359 states that Articles 20 and 21 are not subject to the suspension of the right to file court actions for violations of Part III.
  8. Changed the Lok Sabha's duration from six to five years.

Criticism of President's Rule
There are many issues with how President's Rule was implemented on different periods. Sometimes the circumstances really called for it. But other times, even though that particular party held a majority in the Legislative Assembly, President's Rule was enacted merely for political reasons to overthrow the government established by a party other than the one at the Centre The Union Government's partisan consideration, for which Article 356 has obviously been misapplied, has resulted in the suspension or dissolution of assemblies as well as the denial of other political parties the opportunity to create administrations in states.

Article 356 has become exceedingly debatable in light of the aforementioned circumstances. Despite the safeguards offered by the 44th Amendment Act, it has been claimed that the Union Government has abused this power. Because of this, there is a call for either its repeal or the inclusion of provisions in the Constitution that would limit the abuse of this Article. Article 356 should only be utilised as a last resort, according to the Sarkaria Commission, which was created to study the Centre-State ties.

The Commission recommended as well that the State Legislative Assembly should not be dissolved without first receiving Parliamentary approval. It further recommended that before the Centre declares an emergency in a State due to a breakdown in the constitutional machinery, all options for forming an alternative government should be thoroughly investigated.

In the Bommai case, the Supreme Court ruled that the Assembly cannot be dissolved before the Parliament has given its consent to the Proclamation. The President has occasionally sent recommendations for reconsideration, like as when the Gujarat Government suggested using Article 356 in Uttar Pradesh. The Union Government recognised the cue and abandoned the idea.

The Constitution's emergency provisions were modified for the country's security and the protection of its citizens, however these provisions give the Executives far too much power. This changes the Constitution's federal structure, making the union all-powerful. Although the need for emergency measures is accepted, some modifications to the process are necessary to prevent people' fundamental rights from being violated and the executive branch from abusing its power for political ends.

  1. Minerva Mills Ltd. & Ors vs Union Of India & Ors 1980 AIR 1789, 1981 SCR (1) 206
  2. S.R. Bommai vs Union Of India 1994 AIR 1918, 1994 SCC (3) 1

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