By Pratham Gupta
Published On: February 19, 2022 at 14:00 IST
Introduction
The term “Emergency” refers to a circumstance in which the nation’s constitutional machinery collapses. When the security of India or any region of country is threatened by war, external attack, or armed insurrection, the President of India can declare a state of emergency. He has the authority to declare an emergency in any part of India.
The event’s real occurrence is not required under Article 352. The emergency period in India refers to the 21 months between 1975 and 1977, when Indira Gandhi, India’s Prime Minister, declared a state of emergency across the country. The emergency lasted from June 25, 1975, until March 21, 1977.
Only the President of India can declare an emergency with the approval of Cabinet Ministers, not just on the advice of the Prime Minister, as Indira Gandhi did in June 1975 when she recommended the President to declare an emergency without consulting the cabinet.
Except for Articles 20 and 21, the declaration of emergency automatically suspends fundamental rights and legal obligations. The emergency becomes a watershed moment in political history. The 44th Amendment now uses the phrase “Armed revolt” instead of “Internal disturbance.”
The President can proclaim a state of emergency in any section of the country under the 42nd Amendment. If the situation in that portion of the country returns to normal, the emergency can be lifted there, but it can still be used in other parts of the country.
The emergency imposed by Indira Gandhi is illegitimate since the opposition party has called for a movement to get the Prime Minister to resign because her election to the Lok Sabha was pronounced illegal by the Allahabad high court.
The article discusses the evolution of emergency provisions in India over time, as well as the several types of emergency provisions available in India.
Understanding Emergency
The constitutional definition of emergency differs from the dictionary definition. In the constitution, an emergency is defined as an abnormal condition that necessitates rapid remedial action, however, the dictionary definition of an emergency is a situation that poses an imminent risk.
It is the government’s job to prepare for any catastrophe and take all necessary precautions to protect its citizens. Because India is a democratic country, the President has the right to declare a state of emergency in the event of a serious catastrophe.
The President proclaims emergency after he is satisfied after advice and discussion with the council of ministers. The emergency is dealt with in Articles 352 to 360 of the constitution. India has been in a state of national emergency three times.
Whenever there is a threat to the constitutional machinery, the nation, or India’s financial credibility, the President of India can intervene and proclaim an emergency in any part of India.
By regulations, a national emergency has been proclaimed. During a state of emergency, all of a citizen’s or individual’s fundamental rights are suspended, except Articles 20 and 21.
Whereas Article 20 deals with protection against involvement in certain crimes, Article 21 deals with the right to life and personal liberty, which states that every person has the right to have a meaningful and dignified life from the moment they are born.
The President’s subjective satisfaction is that India’s security is threatened or is likely to be threatened by was or domestic aggression or armed revolt and that this cannot be changed in a court of law, even if the president has been actuated mala fides. The emergency provisions provide the executive branch with a considerable deal of power.
Several members of the constituent assembly have expressed concern that the executive could abuse emergency powers. Dr. Ambedkar emphasized that the constitution itself has protections against the abuse of emergency powers.
To begin, it must be exercised on the advice of the people’s representatives or the council of ministers. Secondly, it must be laid in front of parliament and cannot enforce for more than one month without its approval.
When it comes to national emergencies in India, the third national emergency was declared at the wrong moment and for the wrong reason. Except for the third national emergency, the other two were declared at the appropriate time and for the appropriate reason.
Indira Gandhi’s declaration of emergency in 1975 resulted in the darkest period in Indian history, lasting 21 months from 1975 to 1977.
A democratic country like India cannot deal with a crisis using its normal processes, the President is given the authority to declare an emergency and take immediate action. We’re talking about Articles 20 and 21, where Article 20 discusses some rights that require protection in the event of a conviction for specific violations, such as ex post facto law2, double jeopardy, and the right against self-incrimination.
Article 21 discusses the right to life and personal liberty, which states that everyone has the right to live a self-respecting existence. The goal of Article 21 is to prevent the loss of personal liberty. The right to life entails leading a decent and self-respecting existence.
Fundamental rights are the pillars of the Indian constitution, Article 21 being the core. As these rights are the basic structure they cannot be suspended. When it comes to the state of emergency, the union administration has been chastised by all sides for imposing the President’s rule arbitrarily.
According to Article 356 of the Indian constitution, the union government has broad powers to protect peace and order in the country, as well as the nation’s completeness and integrity.
However, the facts or the real scenario show that this power has been abused, with the proclamation of state emergency 39 times between 1966 and 1977 as an example. Both governments, namely the Congress government and the Janata Party government, used this power to dissolve state governments ruled by opposition parties.
Later, the Supreme Court established strict and mandatory guidelines to limit the scope of Article 356 and, as a result, the incidence of imposing the President’s rule has decreased significantly since early 2000.
According to the Sarkaria Commission, Article 356 will only be implemented if there are no other options to prevent the constitutional machinery from completely failing. The state of emergency in Punjab and Jammu and Kashmir has extended for three years, the longest period to record.
Types of Emergencies
- National Emergency: The declaration of emergency is contingent on India’s security. An emergency is declared when India’s security is endangered by war, external attack, or violent insurrection.
Article 352 of the Indian constitution allows the President to declare a state of emergency after consulting with council ministers. India has proclaimed a national emergency three times, the first time during the Indo-China War from October 26, 1962, to January 10, 1968.
For the second time, an external assault occurred during the India-Pakistan war, which began on December 3, 1971, and ended on March 21, 1977. Indira Gandhi declared a national emergency for the third time on June 25, 1975, citing internal aggression.
Further Details on National Emergency in India - State Emergency: When the state’s constitutional machinery fails, a state of emergency is declared. The state of emergency is defined in Article 356 of the constitution.
When the governor of the state is certain that the state’s constitutional machinery is failing, he delivers a report to the president, who confers with the council of ministers before declaring an emergency. Following the declaration of a state of emergency, the state legislature is suspended. Punjab was the first state in India to proclaim a state of emergency.
- Financial Emergency: When the country’s financial stability and creditworthiness are challenged, a state of emergency is declared. In such cases, the government has the authority to reduce salary and allowances, including those of the supreme court and high court justices.
In India, such an emergency has never occurred. Article 360 of the constitution defines a financial emergency.
Further Details on Financial Emergency in India
Procedure to Declare National Emergency
- Earlier the proclamation continues for two months without parliamentary approval. The period was deducted from 2 months to 1 month after the 44th amendment act 1978.
- Under the old provision the resolution of approval is passed by the simple majority of each house, but accordingly to the new provision under 44th amendment act 1978, such resolution must have the approval 2/3rd of the members of that house present and voting.
Procedure to Revoke National Emergency
- The President can repeal the declaration of emergency at any time by proclamation without parliamentary consent. When the President is satisfied that the threat has passed, he can revoke the declaration of emergency.
- If the Lok Sabha votes against keeping the emergency in place, the President can lift it.
- The Lok Sabha had no power to disapprove of the emergency before the 44th amendment act, and the proclamation of emergency could be lifted at any time.
- The other provision of the 44th amendment act explains that if the one-tenth member of the Lok Sabha gives written notice to the speaker then also it will lead to the discontinuation of the emergency.
Procedure to Declare State Emergency
- When the President of the country receives the receipt from the governor of the state, or if the president is satisfied that an emergency has arisen, he can declare it. It is also possible for the president to declare an emergency without first gaining approval from the governor, as President Venkataraman of Tamil Nadu did in 1991.
- The method for declaring an emergency is nearly identical to that for declaring a national emergency. The proclamation is also read in front of both houses of parliament. In the event of a state emergency, clearance must be obtained within two months. It can also be extended for another six months, but not more than a year.
Procedure to Revoke State Emergency
- Our constitution specifies both the proclamation and revocation of such an emergency, as well as the time frame for both. Except in the case of a proclamation canceling a prior proclamation, the proclamation of emergency must be delivered to both chambers of parliament, the Lok Sabha and the Rajya Sabha.
- If the Lok Sabha has dissolved or a proclamation has been issued at the time of dissolution, and if the council of ministers has passed a resolution proclaiming an emergency, and if there is no such resolution.
Procedure to Declare and Revoke Financial Emergency
The procedure to declare and revoke the proclamation of emergency is the same as the procedure in a national emergency. The financial emergency has never been invoked in India.
Conclusion
After significant research, long studies, and comprehensive research, the Indian constitution was drafted and framed arduous deliberations. The most vital and critical emergency provision is that it is placed on time with extreme caution and care.
The provisions have deteriorated over time, resulting in insufficiency and allowing the government more power leading to the conclusion that the provisions are in effect, but that they are a failure. India can only succeed if it is united provides protections against the use of emergency powers for nefarious purposes.
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 provisions are intended to ensure India’s security and protect individuals’ fundamental rights, they also grant the executive 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 of authority.
Edited by: Tanvi Mahajan, Publisher, Law Insider
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