As the term "emergency" makes clear, it describes an unforeseen development that prompts the government to act immediately within its jurisdiction. During an emergency, the state or nation may suspend human civil rights, with the exception of Articles 20 and 21 of the Indian Constitution. The majority of emergencies are caused by malfunctioning administrative equipment.Because the Indian federal system can become unitary in the event that an administrative apparatus fails, Dr. B.R. Ambedkar deemed it to be unique.
The main goal of emergency legislation was to protect the area against foreign invasions, wars, and autocracies combined with anarchy at home. According to the Black Law Dictionary, any emergency necessitates prompt action and notification since it poses a risk to the safety of individuals and their freedom in the area.
Context of Emergency Provisions in History
The unusual provisions that allow the President to declare an emergency presented a quandary to the writers of the Constitution. India's pre-independence history is replete with examples of harmful casteism, communalism, and religious conflict.
There was fighting with Pakistan after the Monarch of Kashmir was overthrown. Hyderabad and Junagagarh have demonstrated resistance to being a part of the Union of India. The Government of India created Article 352 in order to lessen the situation and stop the separatist movement.
Socialist regimes were emerging in India after independence, and Telangana's laborers' and farmers' communist activities were becoming more widespread. In order to safeguard legislative procedures and provide safety against severe circumstances, Article 356 was adopted.
Dr. B.R. Ambedkar subsequently added Article 360 to the list in order to support the nation's finances, which were rapidly deteriorating along with its foreign exchange reserves and banking system.
Emergency Provisions: Types of Emergency
National Emergency (Article 352)
President’s Rule (Article 356)
Financial Emergency (Article 360)
For the first time, the President’s Rule was imposed in Punjab in 1951 and the national emergency is declared three times so far- in 1962, 1971 and 1975.
1.Article 352: National Emergency
A national emergency is declared when there is armed revolt, war, or external aggression. Note: The 44th Amendment Act of 1978 replaced the term "internal disturbance," which was deemed too imprecise, with the term "armed rebellion."
Additionally, there are two components to a national emergency. One is the External Emergency Declaration, which is made in the event of war or external invasion. Internal emergency is another term for armed rebellion.
A national emergency may be declared for the entire nation or for any region (the 42nd Amendment Act of 1976 permits the operation to be limited to any region of the nation).
Proclamation of a State of Emergency
Only the President may declare a national emergency, and only then following a formal cabinet decision.
Acceptance of the National Emergency
The proclamation of emergency must be approved by both chambers of parliament with a special majority within thirty days of its issuance. (Special Majority: two-thirds of the house's members who are present and voting, as well as the majority of the house's overall membership).
NOTE
The declaration of national emergency is exempt from judicial review according to the 38th Amendment Act of 1975.
The aforementioned clause was removed by the 44th Amendment Act of 1978.
The Supreme Court made it apparent in the Minerva Mills case that a person could contest the national emergency in court.
Can Be Disputed Based On Which Grounds?- dishonest, unreasonable, or based on unrelated information while making a declaration.
For what duration may a National Emergency be declared?
It lasts for six months at a time after being approved by both houses of parliament and declared by the president. It can be extended to an indefinite term with parliamentary permission every six months. (Note: The 44th Amendment Act of 1978 added periodic legislative approval.)
Revocation of the State of Emergency
If the Lok Sabha adopts a motion with a simple majority opposing the emergency's continuation, the President may then issue a proclamation ending it.
Impact of the national emergency
The Center gained the authority to instruct the state on how to best use its executive power.
The state governments are not suspended, but they now fall within the purview of the central government and have the authority to issue executive orders to the state on any issue.
The legislature has the authority to enact laws on any topic listed in the state list, even though the state government's legislative authority is unaffected.
Highlight: Six months after the national emergency is over, the laws passed by parliament regarding state matters will no longer be in effect.
The President may also enact ordinances on matters of state when parliament is not in session.
The president will have the authority to change how the federal government and the states split money.
One year at a time, the Lok Sabha's life might be prolonged beyond its typical duration. However, continuance cannot go longer than six months following the end of the emergency.
Additionally, parliament has the authority to add one year to the state legislative assembly's regular term at a time.
The effect of a national emergency on fundamental rights is covered by Article 358
which deals with the suspension of rights protected by Article 19 of the Constitution.
Article 19 is automatically suspended upon the declaration of emergency, as per Article 358 of the emergency provision; an order to suspend it separately is not necessary.
Article 358 only falls under the purview of the position when an external emergency is in effect. This indicates unequivocally that article 19 is suspended in the event of an external emergency alone, not an internal one.
Article 359:
With the exception of Articles 20 and 21, it deals with the suspension of other fundamental rights.
Only the essential rights listed in the presidential order are suspended, and suspension calls for a second order.
Parliament must approve any order suspending basic rights in this way.
The suspension may last the entire emergency situation or it may end sooner.
The President cannot suspend the ability to file a lawsuit to safeguard fundamental rights under Article 20 (protection from conviction for crimes) and Article 21 (right to life and personal liberty), according to the 44th Amendment Act of 1978.
2. Article 356 of the President's Rule
Other names for President's Rule are State Emergency and Constitutional Emergency. President control may be imposed on a state if it disobeys central government directives or if there is a constitutional machinery breakdown.
When deciding whether to impose presidential control over a state, the president may decide to do so independently or in accordance with the governor's report.
President's Rule: Duration and Approval
In accordance with the emergency provisions outlined in the constitution, a proclamation imposing President's Rule on a state must be ratified by both houses of parliament within a two-month period. Following acceptance, it lasts for six months at a time and can be extended for a total of three years with the parliament's permission every six months.
President's Rule Restraint
The parliament must meet two requirements in order to declare the President's Rule to remain in effect for more than a year:
Two requirements must be met: first, there must be an operational national emergency throughout the nation, the state, or any portion of it; second, the Election Commission must certify that the state's unique challenges prevent the election from being held for the legislative assembly.
NOTE:
Article 355 states that the center must make sure every state government abides by the constitution's provisions.
Article 356: If a state's administration is not operating in compliance with a constitutional provision, the president may declare President's rule.
Revocation of the Executive Order
By proclamation, the Indian President may end President's Rule, and this action does not need parliamentary consent.
President's Rule's Impact
The parliament exercises the authority of the state legislature if the president declares.
The president fires the ministerial state council.
The state legislative assembly's suspension or dissolution is under the president's authority.
Point to note: Any legislation passed by the president or the legislature during this time remains in effect when the president leaves office.
Basic rights are unaffected by it.
3. Emergency Financial (Article 360)
The President has the authority to declare a financial emergency in the event that something has happened that could jeopardize India's credit or financial stability, or any portion of its territory. It is significant to remember that judicial review covers the President's decision to declare a financial emergency.
Financial Emergency: Duration and Approval
The declaration of a financial emergency can only be accepted by either house of parliament with a simple majority within a two-month period. Once the financial emergency was put into effect, it had to stay that way until it was lifted; hence, further parliamentary consent was not required to keep it in place.
Retraction of the Financial Emergency
The President may also revoke a financial emergency by issuing a proclamation thereafter that is not subject to parliamentary approval.
Significant Occurrences and Emergency Clauses in the Indian Constitution
The Indian Constitution distinguishes between three types of emergencies: financial, state, and national. The provisions for emergencies in India are included in Part XVIII of the Constitution.
The National Emergency is defined under Article 352: As per Article 352, in the event of an attack, external intrusion, or internal insurrection, the President is authorized to declare an emergency. The emergency was lifted after a month of notification, despite the fact that such a proclamation could only be made in the presence of the legislative house and further endorsed by each chamber.
The 1962–1968 war with China resulted in the declaration of the nation's first emergency. After then, Smt. Indira Gandhi imposed the most divisive emergency as a result of internal strife.
A state of emergency is now covered by Article 356: According to Article 356, the President may declare a state of emergency upon receiving briefs from the Governor of a certain state or upon observing that the state's processes are eroding. Under Smt. Indira Gandhi's administration, there have been 35 documented cases of President rule.
Article 360 addresses financial emergencies. In the event that credible proof of an unstable economy is found, the President may proclaim financial emergencies. The declaration of a financial emergency is primarily influenced by executive and legislative elements. Article 360 states that no comparable proclamation shall be made for the duration of the emergency. In India, no financial emergency has ever been declared.
The Indian Constitution's emergency provisions, which had previously been implemented in 1975 and limited the executive's unfair authority, were reinterpreted by the 44th Amendment. The "armed rebellion" takes the role of the "internal disturbance." It is also made very clear that in order to declare an emergency, there must be direct communication between cabinets. Additionally, permission for the inhabitants to proceed with the emergency should be renewed every six months. Lastly, a simple majority of the Houses has the authority to lift the state of emergency.
conclusion
India's Emergency Provisions reflect a nuanced constitutional response to historical challenges, encompassing war, internal strife, and economic instability. Amendments have refined these provisions, emphasizing parliamentary oversight and safeguarding fundamental rights, thereby ensuring a balanced approach to crises.
Note for UPSC Aspirants:
For UPSC aspirants interested in exploring further, here are some keywords to guide your research: Article 352, President’s Rule (Article 356), and Financial Emergency (Article 360); historical context involves wars, separatist movements, and economic crises, with key amendments (44th, 38th) shaping judicial review, suspension of fundamental rights, and grounds for emergency.
Comments