Emergency Provision: A Unitary Feature of the Constitution | Important Acts and Laws for Judiciary Exams PDF Download

Introduction

• India's federal system turns unitary during emergencies, as highlighted by Dr. B.R. Ambedkar. The Constitution's dynamism allows for interpretation without compromising its essence. The Constitution acts as a guiding principle for citizens and the government, ensuring a balance of power and responsibilities.
• Although our Constitution exhibits unitary traits during emergencies, it maintains federal characteristics essential for national development. The judiciary upholds the Constitution's supremacy, ensuring a balance of power between the Union and States.
• Specific provisions within the Constitution lean towards a unitary structure, emphasizing the Parliament's authority in various matters, especially during emergencies. The Constitution's design allows for flexibility, adapting to the needs of different situations.
• Various articles within the Constitution outline the distribution of powers between the Union and States, underscoring the practical federalism that overlays unitary features. This structure allows the Constitution to respond effectively to diverse national needs.
• Despite inclinations towards unitary elements, the Constitution recognizes the importance of States. Provisions like Article 252 and the establishment of inter-State councils demonstrate a cooperative approach between the central and State governments.

Research Question

• Is a writ of Habeas Corpus maintainable by the High Court during an emergency imposed by the President?
• Is the suspension of Rights and Liberty under Article 21 valid under the Rule of Law?
• Do detainees have locus standi during the proclamation of an emergency?

Definition of Emergency

• An emergency refers to a critical situation resulting from the failure of official equipment, requiring immediate action from authorities.
• As per Black Law's Dictionary, an emergency denotes a circumstance demanding swift action and attention due to the threat it poses to life and property within the state. It signifies a breakdown in the societal system's ability to provide acceptable living conditions.

Characteristics of Emergencies

• Emergencies are unforeseen events that necessitate urgent responses.
• They often involve risks to life, property, or the environment.

Examples of Emergencies

• A natural disaster like a hurricane or earthquake
• A medical emergency such as a heart attack or severe injury

Types of Emergency

• National Emergency (Article 352): Under Article 352 of the Indian Constitution, a National Emergency can be declared in situations of war, external aggression, or armed rebellion threatening the country's security. This empowers the central government to take extraordinary measures to address the crisis.
• President's Rule (Article 356): Article 356 deals with the imposition of President's Rule in a state facing governance breakdown or constitutional crisis. When the state machinery fails to function as per the Constitution, the President can assume direct control through the Governor.
• Financial Emergency (Article 360): Article 360 allows for the declaration of a Financial Emergency in cases of severe financial instability threatening the country's economic stability. This provision grants the central government special powers to manage the economy efficiently during such crises.

Grounds for the Proclamation of Emergency

National Emergency

• War: Declared when a country initiates a formal battle against India, involving violent conflict using military forces. The President of India can impose a National emergency in such a scenario.
• External Aggression: Occurs when a country attacks another nation without a formal declaration of war. This unilateral attack by any country near India can lead to the imposition of a National emergency by the President of India.
• Armed Rebellion: The President of India can declare an emergency due to armed rebellion when a group of individuals revolt against the government, posing a threat to lives and property.

State Emergency

• Failure in Constitutional Machinery: If the Governor believes that the State is not functioning in accordance with the Constitution, they may report to the President of India. Subsequently, if the President concurs with the report, the President's rule may be imposed, with the President assuming governance of the state.

Financial Emergency

• Economic Crisis: When a financial crisis emerges within the country, leading to economic turmoil, the President of India can declare a Financial emergency to address the situation. This empowers the Central Authority to make budget cuts, reduce state allocations, and potentially lower government officials' salaries.

Reasons for Emergency in India

National Emergency

• Article 352 deals with the "Proclamation of Emergency" or "National Emergency" in India.
• The President can declare a National Emergency if there is a grave emergency posing a threat to the country's security.
• Grounds for declaring a National Emergency include war, external aggression, and armed rebellion.
• External aggression refers to a unilateral attack on a country without a formal declaration of war.
• National Emergency has been imposed three times in India so far.

Examples of National Emergencies

• During the Indo-China conflict from October 26, 1962, to January 10, 1968, due to external aggression.
• From December 3, 1971, to March 21, 1977, during the Indo-Pakistan conflict for the same reason.
• From June 25, 1975, to March 21, 1977, due to a clash between the Legislature and Judiciary.

State Emergency

• Article 356 deals with State Emergency or President's Rule in a State.
• State Emergency is proclaimed when the State Government fails to operate as per Constitutional provisions.
• President's Rule has been imposed in various states for reasons like internal disturbances.

Instances of State Emergency

• President's Rule in Jammu and Kashmir from January 19, 1990, to October 9, 1996, due to threats from external elements.
• President's Rule in Punjab from June 11, 1987, to February 25, 1992, to control the situation caused by the Khalistan Commando Forces.

Financial Emergency

• Article 360 deals with Financial Emergency, which is imposed in case of a financial threat to India.
• Financial Emergency has never been imposed in India.
• In 1990, a potential financial emergency was averted through strategic financial management.

Emergency Provisions

• Article 352: Proclamation of Emergency
• Article 353: Effect of Proclamation of Emergency
• Article 354: Application of provisions relating to the distribution of revenues during Emergency
• Article 355: Duty of the Union to guard States against outside aggression and internal disturbance
• Article 356: Provisions in case of failure of constitutional machinery in State
• Article 357: Exercise of legislative powers under Proclamation issued under Article 356
• Article 358: Suspension of provisions of Article 19 during Emergencies
• Article 359: Suspension of the enforcement of the rights conferred through Part III during emergencies
• Article 360: Provisions as to Financial Emergency

Article 352

• Article 352 discusses the "Proclamation of Emergency."
• It allows the President to impose National Emergency in grave situations threatening India's security.
• An Emergency can be declared even without actual warfare, external aggression, or armed rebellion if there is an imminent threat.
• Proclamations must be approved by both Houses of Parliament within one month.

44th Constitutional Amendment Act, 1978

• This amendment revised the grounds for imposing an Emergency.
• It required approval by Parliament within a month and extended the initial proclamation period to six months.

Case Study: Indira Nehru Gandhi vs. Shri Raj Narain & Anr

• Raj Narain challenged Indira Gandhi's election, leading to a landmark legal battle.
• Indira Gandhi was found guilty of corrupt practices, resulting in her disqualification from elections.
• The case led to the declaration of a National Emergency under Article 352.
• The Supreme Court declared the 39th Constitutional Amendment Act, 1971 unconstitutional.

Article 356

• Article 356 discusses the "Provision in case of failure of constitutional machinery in states" or "President's Rule."
• It allows the President to impose State Emergency when the state machinery collapses.
• State Emergency can last up to three years and requires parliamentary approval every six months.
• The Supreme Court has the power to review and declare State Emergency void under Article 356.

Effects of State Emergency

• Transfer of State Administrative Machinery: During a State Emergency or President's Rule, the entire State administrative machinery is transferred to the Union. The President becomes the executive head of the State, and the Governor operates under his authority.
• Role of Legislative Assembly: The Legislative Assembly of the state may be dissolved or suspended. Parliament takes over the responsibility of creating laws in the areas listed in the State List.
• Restrictions on State Ministers: All ministers of the State Legislative Assembly are prohibited from taking any action without prior approval from Parliament for money bills.
• Independence of High Court: The State's High Court continues to function independently during a State Emergency.
• Judiciary Unaffected: The State Judiciary remains unaffected by the emergency, and the High Court may even entertain petitions against the President's Rule.
• Example of Uttarakhand: In 2016, the Congress Government challenged the President's Rule imposed by Pranab Mukherjee under Narendra Modi's regime. The High Court of Uttarakhand ruled in favor of Harish Rawat's government, later upheld by the Supreme Court, leading to the restoration of the Congress Government in Uttarakhand.

Article 360: Financial Emergency

• Financial Emergency Overview: Article 360 discusses "Financial Emergency," which can be proclaimed by the President in cases of economic instability.
• Duration and Approval: A Financial Emergency remains valid for two months unless approved by both Houses of Parliament through a resolution.
• Example of Economic Crisis: The economic crisis of 1991 led to the consideration of a Financial Emergency, which was resolved through the introduction of the New Economic Policy by Dr. Manmohan Singh.
• Parliament's Powers: During a Financial Emergency, Parliament can reduce the salaries and allowances of government employees and must review financial and money bills passed by State Legislatures.
• Duration of Emergencies: India has three types of Emergencies, each with a specific duration and parliamentary approval process.
• Approval Process: The Proclamation of National Emergency lasts for a maximum of six months, subject to renewal every six months with parliamentary approval.
• Parliamentary Approval: A Proclamation of Emergency under Article 352 must be approved by both Houses of Parliament within a month.
• Duration Extension: If Lok Sabha is dissolved within six months of the Emergency proclamation, it continues until a month after the reconstitution of Lok Sabha, provided Rajya Sabha has approved it.
• Renewal Process: The Emergency can be renewed every six months with the approval of both Houses of Parliament through a special majority vote.

Reason for Declaration of Emergency

• Background of 1975 Emergency:
  • Emergency declared in 1975 marked a significant event in Indian history.
  • Triggered by events following the 1971 Lok Sabha election where Indira Gandhi faced opposition.
• Legal Battle and Emergency Proclamation:
  • Indira Gandhi faced legal challenges after the Allahabad High Court ruled against her.
  • Barred from elections and the Prime Minister's post, Indira Gandhi faced a crisis.
  • Emergency declared by President Fakhruddin Ali Ahmed on June 28, 1975.
• Reasons for Emergency:
  • Emergency declared due to "Internal Disturbance" amid escalating political turmoil.
  • Existing tensions exacerbated by disobedience in military and police forces.
• Nationwide Impact:
  • Parliament's approval led to the imposition of National Emergency.
  • Widespread violence, protests, and political turmoil ensued across the country.
• Key Events during the Emergency:
  • Allahabad High Court's judgment against the Prime Minister had far-reaching consequences.
  • Opposition movements, like those led by Jayaprakash Narayan, gained momentum.
  • Strained relationship between Judiciary and Legislature due to disagreements over Fundamental Rights.
  • Agitations and protests, such as the one in Gujarat in 1974, added to the chaos.

Consequences

• Freedom of the Press was suspended, and Indian Raj Censorship was imposed. This meant that newspapers needed approval before publication.
• Basic rights of the citizens were taken away during this period.
• Opposition leaders were arrested, and their activities were prohibited.
• Through the 42nd Constitutional (Amendment) Act of 1976, the Election of the Prime Minister, President, and Vice-President were excluded from judicial review.
• The provision of Habeas Corpus was ignored, which deprived citizens of their rights under Article 21. Habeas Corpus is a legal action through which a person can seek relief from unlawful detention.

Effects

• Impact on Indian Polity: The emergencies in Indian history, particularly the 1975 Emergency, resulted in significant political and constitutional crises, shaking the foundation of the Indian polity.
• Emergence of New Political Events: Post the 1977 Emergency, a wave of new political events surfaced, reshaping the political landscape of the country.
• Electoral Impact: The 1977 Lok Sabha election following the Emergency saw the victory of the Janta Party, underlining the repercussions of the Emergency on electoral outcomes.
• Strengthening of Fundamental Rights: The emergencies led to a strengthening of fundamental rights for Indian residents, emphasizing the importance of individual liberties.
• Legislative Responses: The 44th Constitutional Amendment Act of 1978 was enacted to resolve the ambiguities arising from emergency provisions, highlighting the need for legal clarity during crises.

In summary, the emergencies in Indian history, notably the 1975 Emergency, cast a shadow over the Indian democracy. This period can be likened to a dark age for Indian democracy, weakening its federal structure and prompting frequent amendments to the Constitution to favor specific situations. Notably, the judiciary's role in upholding the Constitution's sanctity was crucial, as seen in cases like Kesavananda Bharati v. State of Kerala.

The first national emergency, declared during the Indo-China conflict in 1962, and the subsequent emergencies in 1971 and 1975, each had distinct triggers and impacts on the nation. These crises underscored the delicate balance between executive power and constitutional safeguards, shaping India's democratic evolution.

Impact of Emergency in India

• Imposition of Emergency in India has historically had detrimental effects on the country's democracy. When either a National Emergency or State emergency is declared, it significantly impacts the democratic structure of India.
• During an Emergency:
  • It results in the deprivation of citizens' Fundamental Rights.
  • The Freedom of Media is suspended, limiting the dissemination of information.
  • The Emergency situation can lead to a temporary suspension or deviation from the normal constitutional processes.
  • Censorship orders are issued, preventing newspapers from publishing content without prior approval from the government.
• The National Emergency of 1975, for instance, led to the arrest of several prominent opposition leaders such as Morarji Desai, Jay Prakash Narayan, Atal Bihari Vajpayee, and Lal Krishna Advani under the Maintenance of Internal Security Act, 1971.
• These arrests prompted the filing of petitions in various High Courts challenging the detentions. Due to the suspension of Fundamental Rights, particularly Article 21 during the Emergency, the writ of Habeas Corpus could not be enforced. This legal situation gave rise to what became known as the Habeas Corpus case.

Conclusion

• Emergencies in India can be imposed by the President after both houses of Parliament pass a resolution for the Proclamation of Emergency. While State Emergency or President's Rule is more common, National Emergency is less frequently invoked.
• The National Emergency of 1975 highlighted weaknesses in the judicial system, as seen in cases like Indira Gandhi v. Raj Narain and A.D.M Jabalpur v. Shiv Kant Shukla, where citizens' Fundamental Rights were not recognized during emergencies.
• Changes to emergency mechanisms were implemented following the Kesavananda Bharati case to address the loopholes in the system.
• Despite being intended for state and public safety, emergency provisions grant significant discretionary powers to the Executive, potentially undermining the federal structure of the state.
• The suspension of Fundamental Rights, although attempted to be justified, is essential to citizens' existence in a democracy. The 44th Amendment introduced some safeguards but there are still risks of unjust violations of basic rights.
• Courts, as in other federal constitutions like Australia and Canada, should have the power to limit the extent to which the Centre can expand its authority under emergency provisions to prevent arbitrary use of discretionary powers by the government.