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Comparative Analysis Of Emergency Provisions In The Indian Constitution

The Indian Constitution is a written document that defines and limits the powers of the three government organs: the Legislature, the Executive, and the Judiciary. It establishes a defined set of rights and responsibilities for India's citizens and government. Furthermore, the Constitution has a provision for "Emergency" under Part XVIII to prevent damage from an extremely dangerous situation occurring throughout the country or on any of its territories (Article 352 to Article 360).

External aggression, armed rebellion, and/or war are all grounds for declaring a state of emergency under Article 352(1) of the Constitution. Internal Disturbance was the previous language, which was larger and undefined until the 44th Constitutional Amendment in 1978 adopted the term "Armed Rebellion." Furthermore, except for Articles 20 and 21, all Fundamental Rights can now be suspended during such a period, whereas previously, all of them could be.

This amendment was enacted to prevent the recurrence of the harm inflicted by the National Emergency imposed by then-Indian Prime Minister Indira Gandhi in 1975, which many people believe was unjustified. The Executive grew powerful, while the judiciary's independence was jeopardized. As a result, the focus of this research is on how the provisions of the Emergency Act evolved after the 1975 Emergency, what happened during that time, and the likelihood of a repeat forty-seven years later. For research, the author relied on secondary sources of information.

Introduction
On August 15, 1947, India gained independence from British rule, and the Indian Constitution, in its full, went into effect on January 26, 1950. The Constitution was drafted following many rounds of deliberation among members of the Constituent Assembly, and as a result, it is a very comprehensive and prolific document that defines and limits the State's authorities. The clause "Emergency" is a prominent aspect of the Indian Constitution. The framers of the constitution were concerned that there would be times when the country's stability would be jeopardized and situations would become volatile.

As a result, this clause was enacted to minimize the damage during such a period. In India, an "emergency" can be declared in three situations: a threat to India's security or any portion of its territory (Article 352), a breakdown of a state's constitutional machinery (Article 356), or a financial emergency (Article 360). Under Article 352(1) of the Constitution, a threat to the security of India or any portion of its territory can occur as a result of war, external aggression, or armed rebellion.

According to Article 356(1) of the Constitution, a state's constitutional machinery breaks down when the state's government is unable to comply with the Constitution. Finally, a financial emergency is deemed to have occurred when India's financial stability or credit, or any part of its territory, is threatened, as defined by Article 360(1) of the Constitution. On the advice of the cabinet of ministers, the President of India can declare an emergency under any of the aforementioned circumstances.

Article 355 of the Indian Constitution mandates that the central government take steps to ensure that all states in India are safe from external invasion and internal strife and that all states' governments are run in line with the Constitution. While Article 356 has been utilized and misused numerous times, the Centre has rarely used Article 355, which, while serving as a forerunner to Article 356, carries an onerous responsibility. forces to a state reeling from any of the aforementioned events, as defined in this Article.

In a nutshell, it is thus established that an emergency might be declared in the entire country or a specific area of it. The fact that the Central Executive becomes disproportionately powerful during an emergency is common to both. The founders of the Constitution believed that in the event of a national emergency, the Centre should be able to control and direct all parts of administration and legislation across the country.[1]

The general situation of affairs is absent during a nationwide emergency. The relationship between the federal government and the states changes dramatically, and the powers granted to the legislature are greatly expanded. Citizens' rights are also impacted negatively. Other than Articles 20 and 21, the enforcement of Fundamental Rights is suspended, even though Article 19 can only be suspended if the emergency is caused by War or External Aggression, as defined by Article 358 of the Constitution. The fact that Articles 20 and 21 could not be suspended was finally made possible by the 44th amendment in 1978.[2]

Before the amendment, India had been subjected to a 21-month state of emergency under then-Prime Minister Indira Gandhi, during which many severe measures were taken. This demanded such a modification, as it was purportedly done just to keep Indira Gandhi's unpopular government in office. Many people believe that the 1975 Emergency was completely unjustified and that the consequences could have been prevented. The 1975 Emergency was the turning point in the Indian Constitution and India's history.[3]

On the other hand, when the Governor of the state concerned submits a report to the President of India affirming the same, a state emergency might be declared as a result of a breakdown of constitutional machinery in that state. Once the President is satisfied with the state's disintegration, he can declare an emergency. Except for the powers of the relevant Legislature, the President can assume all or any powers of the Government, the Governor, or any other body or authority of that state under Article 356 (1).

Furthermore, under Article 356(1)(a), the President can proclaim that the State Legislature's powers can be exercised by the Parliament during an emergency. The current paper is an exploratory study that will be used to conduct an objective and descriptive examination. The study has a doctrinal bent to it. While writing the study, secondary sources such as published articles, research papers, and content available on relevant websites were used to gather data.

The interim report of the Shah Commission, which was established to look into the 1975 Emergency, was also read and examined. In addition, the decision in the case of Indira Nehru Gandhi against Raj Narain[4] and others was discussed. Interim findings were reached on a variety of dimensions, including political and constitutional issues, as well as other points of view.

Provisions For Emergencies as Outlined in The Constitution at The Time of Its Adoption
India's emergency preparedness has progressed over time. The provisions of the Indian Constitution at the time of its inception and the provisions currently are vastly different, with various seminal implications if an emergency is declared. Article 352(1) provided for the installation of Emergency on grounds of "war, external aggression, and internal disturbance" before the 44th amendment, i.e., from the Constitution's inception until the 42nd Amendment during the 1975 Emergency.

In the year 1962, a state of emergency was established on the grounds of "war," after China declared war on India despite having previously professed no such intentions. The same provision was used to declare an Emergency in 1971 when India and Pakistan were at war. "External Emergency" is the term for such a situation. However, President Fakhruddin Ali Ahmad, on the suggestion of Prime Minister Indira Gandhi, declared an emergency on the grounds of "internal unrest" only once, in 1975.

"Internal Emergency" is the term for such a situation. The proclamation of emergency on the grounds of "internal unrest" in the country sparked controversy, as most people did not see the need for such a drastic measure. People believed Ms. Gandhi established the emergency for political reasons since her position as Prime Minister and Member of Parliament had been jeopardized by the Allahabad High Court's decision in State of Uttar Pradesh v Raj Narain's[5] case on June 12, 1975.

People became agitated as a result of this verdict, which was aided by a variety of other causes, including widespread poverty. They then demanded the Prime Minister's resignation. The agitation was labeled "internal disturbance," and a state of emergency was declared. This incident became a model for how a broad ground like "internal disturbance" might be abused to impose urgency. The internal disturbance is recognized to include nearly any form of aggression occurring within the country, even if it is peaceful.

The ground, like Ms. Gandhi, was vulnerable to massive misappropriation. The clause has been replaced by "armed rebellion," which has a restricted scope and so is less likely to be abused, thanks to the 44th amendment. The subsection discusses the events that led to the revision. Furthermore, Article 352 of the Constitution formerly stated that the President could only declare an emergency if the Cabinet Ministers had given their written approval. This, too, was a rather open-ended provision. Only a few members of the Cabinet might persuade the President to declare an emergency, rather than the entire Cabinet.

Possibilities for constructive and necessary disagreement may potentially wither in such a scenario. It is said that Ms. Indira Gandhi did not even consult the Cabinet of Ministers when she declared an emergency in 1975. According to some, the only persons she contacted were then-West Bengal Chief Minister Siddharth Shankar Ray and her son Sanjay Gandhi, among others.[6] They made the decision totally on their own, and the Cabinet was not consulted on it. To eliminate the potential of a repeat of such an event in the future, Article 352(3) currently states that the President may only declare an emergency if the Cabinet of Ministers has advised him and the communication has been made and signed in writing.

It was also emphasized that the President has the authority to send such a proclamation for review just once. Before the 44th Amendment, another significant aspect of the Emergency Provisions was the protection of fundamental rights. When the National Emergency is declared, all Fundamental Rights may be suspended. During the 1975 Emergency, the same tactic was employed to varying degrees.

Articles 20 and 21 of the Constitution cannot be suspended under any circumstances, according to Article 358 (1 A) of the Constitution, which was adopted through the 44th Amendment. Article 19 will also be suspended only if the Emergency was created due to "war" or "foreign aggression," rather than "armed rebellion." As a result, the interim conclusion we can reach is that emergency powers before the 44th Amendment were substantially open-ended, and were massively abused during the 1975 Emergency.

The 44th amendment in 1978 [7]made the following changes:
  1. Under Article 352 of the constitution, the word "armed revolt" was replaced by "internal disturbances."
  2. For the declaration of an emergency under the leadership of the prime minister, the cabinet ministers should communicate the proclamation in writing.
  3. Within one month of the proclamation of the emergency, both houses of parliament must be present.
  4. For the emergency to continue, the houses must re-approve it within six months.
  5. For the emergency to be revoked, a simple majority must adopt a resolution and vote.
  6. Article 19 shall not be suspended in the event of armed revolt; nevertheless, after revision, it was claimed that article 19 will be suspended only in the event of wars or external attacks.
  7. It is also stated that articles 20 and 21 of the Indian constitution would not be included in the suspension of the ability to file a lawsuit if part iii of the constitution is violated.
  8. The Lok Sabha's term has been reduced from six to five years. These amendments in the 44th Amendment of 1978 were implemented to improve upon the 42nd Amendment of 1976, as well as to improve the national emergency. As a result, the 44th Amendment of 1978 has proven to be one of the most significant additions.

Criticism
After significant research, exhaustive studies, and protracted deliberations, the Indian constitution was drafted and framed. The most significant and vital emergency provision is placed with prudence and care. Over time, the provisions have proven insufficient, leading to the perception that they are ineffective in practice. India can only succeed if safeguards are put in place to prevent the abuse of emergency powers.

When it comes to emergency provisions, it's easy to see why they're included in the Indian constitution. However, upon further examination, we discover that, while these clauses are intended to ensure India's security and preserve individual fundamental rights, they also grant the government a great deal of discretionary power.

The exercise of executive powers transforms the federal system into a unitary one. We continue to believe that the check and balance system, which did not exist during the third national emergency in 1975, should be reinstated to ensure that the ruling party and executive use their authority wisely. Our constitution allows for the exercise of powers that may infringe on an individual's fundamental rights in times of emergency. The third national emergency was declared in 1975 in response to internal disturbances (later known as armed rebellion) in which many people's fundamental rights were violated. Within the scope of the Indian constitution, the researcher proposes certain control mechanisms for the limiting authority.

Conclusion
Every June, the Indian democracy is reminded of one of its darkest episodes: the Emergency of 1975. In a historical review of the events that led to the declaration of the Emergency in 1975 under Article 352 (1) and everything that followed, several authors argue that such a situation should not occur again. The Constitution was turned into a toy by the authorities at the time. The Constitutional modifications, particularly the 42nd amendment, which became known as the Mini Constitution because it changed the fundamentals of the Indian Constitution, inflicted a great deal of damage to the rule of law.

However, this did not go down well with the electorate, and Ms. Gandhi was defeated in the General Elections that followed the end of the Emergency. As a result, the next government was charged with ensuring that such an event never happened again in India, and the 44th amendment was enacted as a result. The 44th amendment righted the wrongs of the previous amendments and revitalized the Constitution's spirit. Since then, imposing an Emergency has become a more difficult task, and it is also ensured that people's rights are not inadvertently violated when the Emergency is in effect.

Finally, in light of the prospect of an emergency in today's circumstances, the provision for one should be abandoned. No doubt, if events warrant it, an emergency should be declared; but, an emergency like the one declared in 1975 should never be repeated because it will irreparably destroy the constitutional principles upon which Indian democracy is founded.

Furthermore, according to a huge number of authors, some of whom had previously been referenced, there is little chance that such irresponsibility would occur again because India has seen a wave of "media activism," and the voter is now conscious of its rights. According to the Supreme Court in Bhut Nath v Union of India[8], which was based on Goldwater v Carter[9], the subject of Emergency and President's satisfaction therefore is a political question, and though overruled in Minerva Mills[10], the voter will never allow such an extreme to sustain.

End-Notes:
  1. M.P. Jain, Indian Constitutional Law, 700, (7th Ed.) (2014).
  2. INDIA.GOV.IN., https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-fourth-amendment-act-1978, 8TH MAY 2022.
  3. THELEAFLET.IN., https://theleaflet.in/remembering-the-emergency-1975/, 8TH MAY 2022
  4. Indira Nehru Gandhi Versus Shri Raj Narain & Anr. - Lnind 1975 Sc 432 2
  5. State Of U.P. Versus Raj Narain and Others - Lnind 1975 Sc 32 (1975)2
  6. Business Standard, https://www.business-standard.com/article/beyond-business/1975-shock-treatment-114121201235_1.html, 8th May 2022.
  7. Blog.ipleaders.in., https://blog.ipleaders.in/all-you-should-know-about-44th-amendment-of-the-indian-constitution/, 8th May 2022.
  8. Bhut Nath Mete Vs. The State of West Bengal - Lnind 1974 Sc 31 (1974) 1 Scc 31
  9. Goldwater V. Carter, 444 U.S. 996, (U.S. December 13, 1979)
  10. Minerva Mills Ltd. And Others Etc. Etc. Versus Union of India and Others - Lnind 1986 Sc 307

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