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Emergency Provisions in India

Emergency Provisions
Part XVIII of the Indian Constitution deals with Emergency Provisions mentioned from Articles 352-360.

The term Emergency maybe defined as a difficult situation arising suddenly and demanding immediate action by public authorities under powers specially granted to them by the Constitution.

Dr. Ambedkar claimed that the Indian Federation was unique in that as much as in the times of emergency it could convert itself into an entirely unitary state.

The Emergency is a period of depression where all Fundamental Rights of a person is taken away except Article 20 and 21.

The concept of Emergency was borrowed from the Weimar Constitution of Germany.

Types of Emergency
  1. Article 352 - National Emergency
  2. Article 356 - State Emergency
  3. Article 360 - Financial Emergency

Article 352- National Emergency
Grounds for the Proclamation of Emergency
  1. War
  2. External Aggression
  3. Armed Rebellion
If the President is satisfied that because of WAR or EXTERNAL AGGRESSION or ARMED REBELLION, the security of India or any part of India is threatened, then he can proclaim an emergency.

There is no format for the proclamation or the declaration, the president can proclaim it as they deem appropriate.

War and External Aggression
There is a difference between War and External Aggression.
  • If two countries give a formal declaration that they are going to use armed forces against each other, it will be called War.
  • If none of the countries have given a formal declaration of using armed forces, but despite this, one country is using armed forces against the other but the other one is not, then that situation will be called External Aggression.
If the Emergency is declared on the ground of these two factors then it will be called External Emergency.

The term "Armed Rebellion" was inserted into the Constitution by the 44th Amendment. Before this, the ground that existed in its place was called "Internal Disturbance".
If the emergency is declared because of "Armed Rebellion" then it will be called Internal Emergency.

National Emergency has been proclaimed only Three Times in India.
1st Proclamation of Emergency
China attacks India
(October 1962- January 1968)
On 26th October 1962, China attacked India, because of which the 1st Emergency was proclaimed. The President, Dr. Sarvepalli Radhakrishnan announced this emergency on the Ground of External Aggression which is mentioned in Article 352. And with this, the president also suspended all the Fundamental Rights including Articles 21 and 22, and also said that the citizens can't go to the courts to enforce their fundamental rights.

More than 200 people were arrested on the ground that their activities were against the National Interest.

2nd Proclamation of Emergency
Pakistan attacks India
(3rd December 1971)
The Emergency was declared by the President Mr. V.V. Giri because there was an armed conflict between India and Pakistan. As the Emergency was declared immediately, the Parliament adopted MISA (Maintenance of Internal Security Act), COFEPOSA, and Government Defense of India Rules for the security of the nation. In November 1974, the President proclaimed that the citizens can't enforce their fundamental rights in court due to the Maintenance of Security Act.

3rd Proclamation of Emergency
(25th June 1975- 23rd March 1977)
Before the 2nd emergency could be revoked, in July 1975 3rd Emergency was proclaimed by President Fakhruddin Ali Ahmed.
On 25th June 1975, the President proclaimed an emergency on the grounds of Internal Disturbance (Article 352).
  • This Emergency was imposed at the behest of the Prime Minister Mrs. Indira Gandhi.
  • This Internal emergency was the most restrictive and pressurizing.
  • Amendments were made in the Constitution.
  • Fundamental Rights were curtailed.
  • Opponents were arrested.
  • Press Censorship.

Finally, this emergency was revoked on 23rd March 1977

Approval of Emergency
  • If the Cabinet (Council of Ministers and Prime Minister) is satisfied from the grounds mentioned in Article 352 that the Emergency should be proclaimed, then they can pass a Written Advice to the President to issue the emergency.
  • If the President is satisfied with the Written Advice then they can proclaim the emergency.
  • On the day, the President proclaims the emergency, it is imposed on the country.
  • But the Parliament decides whether the emergency should be continued or not. When the President declares an emergency, it goes to the parliament for further approval.
  • If both the Houses of Parliament (Rajya Sabha and Lok Sabha) approve it by the majority of the total membership of that house and not less than two-thirds of the members of the house present and voting, then the emergency is imposed for 6 months.
  • If only one house or none of them approves, then the emergency is imposed for 1 month.
  • This system was inserted by the 44th Amendment.
  • National Emergency has no time limit.

Revocation of Emergency
  • If the President is satisfied that the conditions due to which the emergency was proclaimed, don't exist anymore, then he can revoke the emergency immediately without the Parliament's approval.
  • If Lok Sabha wants to disapprove of the emergency, then it is revoked immediately.
  • If the parliament doesn't take any action.

Article 353- Effects of Proclamation of Emergency
According to Article 353 (a), during the National Emergency, the executive power of the Union shall give any directions to the state or formulate laws on the behalf of the state for the governance.

Article 353 (b) says that the Union Parliament can form any laws for the subjects given in State List.
The Centre becomes more powerful during the National Emergency, as the powers of State start shifting to the Centre.

Effects on Fundamental Rights
Article 358:
Under Article 358, during the Emergency, all the 16 Fundamental Rights guaranteed in Article 19 are automatically suspended. The president doesn't have to give a separate proclamation for this.
But the 44th Amendment brought a change that the rights will be suspended only if the threats are War and External Aggression.

Article 359:
The President has the power to declare a proclamation to suspend all the Fundamental Rights from Article 12- Article 35, except Article 20 and 21 (due to the 44th Amendment).
Because when these three emergencies were imposed, the rights of the people, who were detained or arrested, were misused.

Amendments related to Emergency
38th Amendment
Before the 38th Amendment, the reasons for which the President was imposing an emergency could be questioned and reviewed judicially.

But the 38th Amendment added Clause 5 in Article 352, which says that the reasons for which the president is imposing an emergency are Final and Conclusive, they couldn't be questioned or judicially reviewed.

But then after the 44th Amendment and the Minerva Mills Case, the 38th Amendment was undone, and all the reasons for the imposition of emergency could be questioned and judicially reviewed.

39th Amendment
39th Amendment was imposed when the Indira Gandhi case was already going on in Allahabad High Court.
39th Amendment was imposed to change the settlement for election disputes. After the 39th Amendment, the elections for President, Vice President, Prime Minister, and Speaker of the House can't be questioned.

42nd Amendment
42nd Amendment was the most controversial amendment in Indian Constitutional History. It is also called the 'mini constitution' because there were many changes brought by it. This amendment was added during the national emergency when maximum opposite leaders were already in jail.
The motive of this amendment was to decrease the power of the court as much as it can. This amendment says that:
  • Any amendment brought by the parliament can't be questioned or judicially reviewed.
  • The powers of State Government were being transferred to Central Government.
  • The three words SOCIALIST, SECULAR, and INTEGRITY mentioned in the Preamble of the Indian Constitution were added by the 42nd Amendment.
  • And it also added Article 31-D which is 'Prohibition of Anti-National Activities.

44th Amendment
The main motive of this amendment was to remove the changes brought by the 42nd amendment.
  • The 44th Amendment changed the term 'Internal Disturbance' to 'Armed Rebellion' because the meaning of Internal Disturbance is vague and any reason could be given the name of internal disturbance to impose an emergency.
  • The simple majority was changed to the special majority.
  • During the Emergency Article 20 and Article 21 can't be suspended, which means that courts can issue the Writs of Habeas Corpus.
  • Removing the 38th amendment, the 44th amendment added that the reasons for which the president was imposing an emergency can have a judicial review.

Article 356- State Emergency
Article 355:
Article 355 says that the Union has a duty to protect the States against External Aggression and Internal Disturbance and to ensure that the State is respecting Constitutional Provisions and is run according to the provisions.

So basically, Article 355 imposes a duty on Union to protect the State.

Article 356:
Article 356 says that if the Governor of any state conveys to the President through a Report that according to them their State is not being governed correctly or constitutionally, or if the President is satisfied for any other reason that the Government of any particular state is not respecting the constitutional provisions then the president can proclaim emergency in that state.
In the respect of the State, apart from Article 356 President has a power under Article 365 that if the State is not following the directions of the Centre, the president can have the reason to believe that the State is not functioning constitutionally and he can Proclaim Emergency in that State.

Approval and Duration
  • When the President issues an emergency in any state, it is valid for 2 months.
  • But the day emergency was issued, it goes to the Parliament for the approval i.e. Simple Majority of Rajya Sabha and Lok Sabha. Simple Majority means 50% of Total Membership.
  • If the Parliament approves the emergency then it becomes valid for 6 months. If it doesn't approve the emergency then it will end after 2 months.
  • State Emergency can exist for a maximum of 3 years but after the expiration of an emergency i.e. after 6 months, the president has to get the approval of the Parliament to proclaim an emergency again.
  • If the president wants to impose an emergency even after 1 year, then there are 2 conditions to be fulfilled:
    1. A National Emergency is in operation (Article 352)
    2. Election Commission certifies that the election to the State Assembly cannot be held.

Revocation - The president can revoke the emergency without anyone's approval.
  • State Emergency doesn't have any impact on the Fundamental Rights.
  • Can be Proclaimed on the grounds mentioned in articles 356 and 365
  • Simple Majority of Parliament (50% of Total Membership)
  • Can be approved only for a maximum of 3 years.

Article 360- Financial Emergency
Under Article 360, if the President of India is satisfied that the financial stability or credit of India or of any part of the territory is threatened then he may proclaim Financial Emergency.
As the emergency is issued by the president, within two months it should be approved by both houses of the parliament. If the parliament doesn't approve then the financial emergency will cease to exist. But if the Parliament approves this emergency then it has no maximum time limit to exist.

Revocation of Financial Emergency
The President can issue a proclamation to cease the Financial Emergency.

Effects of Financial Emergency
  • Union Executive can give directions to State Executive as to what functions and standards they should impose and how to manage financial statements in the State.
  • The Money Bill and Financial Bill of every state is stopped for the approval of the President.
  • The Union can direct the state to reduce the pension, salary, and allowance of the citizens working under state executives.
  • Along with this, it can also cease or reduce the pension, salary, and allowances of all the classes of persons that work in the Union like Supreme Court Judges and High Court Judges.

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