"Understanding the Importance of Emergency Provisions in the Constitution of India"
Anshul Nandwani
Kalyan Law College, Durg
Introduction
One of the fundamental features of the Indian government structure is its federal character. The separation of powers between the governing organs of the state is well-defined both vertically and horizontally. The power is shared between the government of the union and the states as given in the constitutions. However, it is notable that the power structure is not balanced. The constitution which defines the power share is so designed by its architect that it is more inclined towards the union government. For managing the normal and abnormal times, the power is shared with the centre and states.
The Emergency provisions in the constitution are such examples where the power the concentrated in the hands of the union government. The emergency is invoked when there is an active threat or any threat apprehended. The power of the centre lies in effective and efficient tackling of the challenges imposed by the situation. The challenges could be of nature such as war, External aggression, or domestic issues such as armed rebellion or matters related to finances causing a threat to the credit or financial stability.
In this article, we will delve into the provisions of the emergency as mentioned in the Constitution of India and understand its types, the proclamation of emergencies, its effect on the governmental structure and fundamental rights.
National Emergency
Article 352 of the Constitution of India provides for the declaration of a National Emergency. An emergency is declared when a threat to the nation’s security is foreseen. The emergency can be declared from the threats either domestically caused or caused by external interventions. The National Emergency could be declared due to a war, external aggression, or armed rebellion. When an emergency is declared on the grounds of war or external aggression, it is called an External Emergency. Whereas, when declared on the grounds of armed rebellion, it is known as an internal emergency.
The third ground, Armed Rebellion on which the National Emergency is declared was added to the provision by the 44th Amendment Act of 1978. This replaced the term, Internal Disturbances which had a broader interpretation.
Proclamation and Approval Procedure
Proclamation of Emergency
The Emergency can be proclaimed to apply to the whole of the country or any part of it. The applicability of an emergency in a limited geographical territory was added in the provision by the 42nd Amendment Act in the year 1972. The Emergency is proclaimed once the Cabinet of the government gives a recommendation to the president in writing, This procedure is followed to ensure that the emergency is declared with the approval and agreement of the cabinet minister and not just on the wishes of the Honorable Prime Minister.
Parliament’s Approval
After the Emergency is proclaimed by the Honorable President, it is required to be passed by the Lok Sabha and the Rajya Sabha, the two houses of the Parliament. The houses must give their approval within one month from the date of the declaration of the Emergency.
There may be a situation when the Emergency is declared at the time when the Lower House of the Parliament has been dissolved or the dissolution took place during the time of the approval period. In such a case, the approval period is 30 days from the day of the first sitting of the Loksabha. Whereas, the Rajya Sabha has given their approval during the period of dissolution and reconstitution of the Loksabha.
The emergency continues for 6 months after receiving approval. The maximum period for the emergency to be declared is not fixed. It can be implemented for a period as long as parliament wishes. The only condition is that the parliament approval is renewed every 6 months.
The approval for the declaration and extension of emergency requires a special majority. The special majority means a majority of the total members in the house and a majority of more than two-thirds of the members present and voting in the house. The resolution must be passed by a special majority in both houses.
Revocation
Originally, the Emergency could be revoked only at the President’s discretion after the approval. Now, the Emergency is revoked by the president himself or after the Lok Sabha passes a resolution seeking the revocation of the emergency. This was added by the 44th Constitutional Amendment Act of 1978.
The procedure of revocation starts in the Lok Sabha when one-tenth of the total members send a notice to the speaker of the house. If the house is not sitting the notice is sent to the president. This notice calls for a special session of the Lok Sabha to discuss the deliberate on revoking the emergency. After the discussion, the resolution is passed if the house is satisfied that it is time to discontinue the emergency.
The procedure of revocation is conducted by the Lok Sabha only by passing the resolution by a simple majority
Outcomes of National Emergency
When a national emergency is declared it substantially impacts the power balance between the governmental structure. It broadly impacts the political framework of the government. The national emergency impacts the following in broadly-
●Centre-state Relations: The power balance between the central and state units makes a more inclined shift towards the centre. The power tends to get concentrated within the centre. In normal times the centre directs the state only on particular matters. This changes during an emergency. The centre can direct the state on any matter taking over the control of the state government as necessary. This is an Executive power that lies completely with the centre.
Secondly, the Legislative power of the state where the emergency is declared lies completely with the parliament. This means only the law-making power is transferred and not the suspension of the state legislature. The laws in force implemented by the parliament will not be operational after 6 months from the date of revocation of the emergency.
Lastly, the existing financial distribution as constitutionally mandated between the Centre and states can be changed during an emergency by the President.
●The life cycle of the Lok Sabha and State Legislative Assembly: The normal duration of Lok Sabha is 5 years. But, during an emergency, the life cycle of the Lok Sabha can be increased for an indefinite period. This period is increased by one year at a time. After 6 months from the date of the emergency ceases to be in operation, the Lok Sabha dissolves.
●Fundamental Rights: The declaration of emergency significantly impacts the Fundamental Rights of the citizens. Article 358 and Article 359 deal with the suspension of Fundamental Rights under Part III.
During an ongoing emergency, Article 358 provides for the automatic suspension of the Fundamental Rights provided under Article 19. The citizens are devoid of the 6 freedoms given under Article 19. This gives power to the state to make laws and pass orders in contrary to Article 19. Later, the 44th Constitutional Amendment Act, of 1978 was passed which provided that Article 19 can only be suspended if the grounds for declaration of emergency are war or external aggression.
Article 359 gives the president the power to forbid seeking the remedy for the enforcement of Fundamental Rights that are suspended by the order passed by him. The president can suspend the enforcement of all the Fundamental rights or some of them. This suspension could be for any period of time. The parliament gives its approval for the suspension.
Article 20, the Right to Protection in respect of conviction of Offences and Article 21, the Right to life and personal liberty cannot be suspended under the authority given to the president by Article 359. These fundamental rights remain enforceable.
State Emergency or President’s Rule
The union government must make sure that every unit of the country is functional according to the mandates fixed by the constitution of India. Article 355 reiterates the same. In case of a situation when the State government is not functioning according to the provision of the Constitution. When the regular functioning of a state government is not possible as per the provisions of the Constitution. This is a situation when the Constitutional Machinery fails. After the Failure of a Constitutional mechanism within a state, the central government take over the state intending to function and keep it running. This State emergency is popular by the term, ‘President’s Rule’.
Grounds of declaration
The president’s Rule can be declared on two grounds. These grounds are provided in the Constitution under Articles 356 and 365.
●If there is a situation arises within a state related to the matter of the functioning of the state where the state government cannot go on with the constitutional provisions. In such a situation, the governor shall send a report to the president describing the situation. The president acting on the report will proclaim the president’s rule if he is satisfied that the situation necessitates the imposition. This is dealt with under Article 356.
●Article 365 provides that when a state doesn’t follow the direction provided to it or comply with it, the president can lawfully declare a situation where that particular state cannot function according to the Constitution.
Proclamation and Approval Procedure
Parliament’s Approval
After the President’s rule is proclaimed by the Honorable President, it is required to be passed by the Lok Sabha and the Rajya Sabha, the two houses of the Parliament. The houses must give their approval within two months from the date of the declaration of the rule.
When the Lok Sabha has been dissolved or the procedure of dissolution is going on during the two months of the approval period, the approval can be given after it reconstitutes within 30 days. This situation will only be possible when the Rajya Sabha has already given its approval.
The president’s Rule can be imposed for a maximum period of 3 years. The approval is required by the parliament every 6 months. The approval is passed by a simple majority, which is a majority of members present and voting at that time in the house.
The 44th Constitutional Amendment Act of 1978 added two conditions if the Rule is to be extended beyond the period of one year. It added that to extend a president’s rule beyond one year, there must be a national Emergency declared to be in operation in any part of the state, the whole of the state or throughout the country. The second condition is the difficulty in conducting elections in the state as certified by the Election Commission.
Revocation
The procedure of revocation is simple. The revocation does not need the approval of the parliament. The president’s rule can be discontinued at any subsequent time after the proclamation by the President himself.
Outcomes of President’s Rule
When the President acquires the position to run the state, he is conferred with such power and function of the state government. Some of them are,
●He acquires the powers and function of the state government and the powers of the governor and other authorities.
●He can declare and transfer the functioning of the Legislature of the state to the Parliament.
●He can further dismiss any authority or body mandated by the Constitution.
●The State Legislature body is dissolved.
●The bills and budget are passed by the parliament.
The President’s Rule in a state doesn’t have any effect on the state’s Judiciary. The High Court's status, power, Status and Constitutionality stand firm.
Financial Emergency
The power of declaring the Financial Emergency lies with the President under Article 360 of the Indian Constitution. If the President is of the view that there has been a situation because of which the nation’s financial stability or the credit is under threat.
Procedure of Proclamation and Approval
Parliament’s Approval
Once the Financial Emergency is declared, the process of Approval is similar to the approval of the President’s Rule. which is approved by both houses within two months from the date of issue. However, once the Emergency is approved there are repetitive approvals are required and the period up to which a Financial Emergency can be imposed is not mentioned.
The approval is passed by a simple Majority.
Revocation
The procedure of revocation is simple. The revocation does not need the approval of the parliament. The president’s rule can be discontinued at any subsequent time after the proclamation by the President himself.
Effects of Financial Emergency
●The Salaries and allowances of the classes serving under the Union and the judges of the High Court and the Supreme will be reduced by the direction of the President.
● The State financial matter comes under the direct control of the Centre.
● The state’s financial autonomy is lost.
● The salaries allowances of persons working under the state may be reduced by an order.
●The money and Financial bills passed by the State will be reserved for consideration by the President.
The provision of Financial Emergency under Article 360 has never been imposed to date.
Criticisms
The emergency provisions are provided in the constitution for the safeguarding of the political fabric and the protection of the integrity of the nations. However, there are some points of concern which can be given attention.
●it has been observed that the provision has been misused and abused for political purposes. The provision has been misused and curbing of liberties arbitrarily has been experienced in the past.
●During times of emergency, the democracy faces a potential threat by way of suspension of legislatures. The power shifting makes the rule of checks and balances less efficient.
●The suspension of Fundamental Rights makes them meaningless. This is a violation of human rights and as a result, hampers the democratic character of the Constitution.
●The emergency declaration can cause varied socio-economic consequences.
●It threatens the fundamental character of the Constitution which is federalism.
Case laws
● A.D.M. Jabalpur Vs. Shivkant Shukla, 1976
The Court held in this case that the right to life and personal liberty could be suspended during an emergency. The courts can also not intervene in the situation of detention under such laws
● S.R. Bommai vs. Union of India, 1994
This case opened the door for the Judicial review in respect of the President’s Rule. the Supreme was of the view that the president’s satisfaction should be based on reason and substance. It further laid down that the onus of proof is on the Centre that there exists substantial proof to impose the President’s Rule. if the Court finds out that there exists a malafide intention and unconstitutionality, the Court will immediately restore the dismissed state government.
Conclusion
Invoking the Emergency primarily changes the very political structure of the Country. Though changing the fundamental character of federalism, it provides for the protection of the territory, and political fabric, from threats during extraordinary times. however, the invoking of emergencies and exercising powers should be matched with the core principles laid down in the Constitution and the rights of the citizens. It should be noted that the Constitution not only mandates the powers to exercise such a situation but also provides for a system of checks and balances that upholds the welfare and liberty of the people.
References
https://lawfoyer.in/emergency-provision-under-indian-constitution/
Indian Polity, M. Laxmikant