Emergency Provision Of The Indian Constitution
Introduction
A national emergency is a circumstance in which people' rights are curtailed. The President may declare a national emergency in the event of war, foreign aggression, or armed insurrection. Articles 352 to 360 of Part XVII of the Indian Constitution are emergency provisions. These regulations give the central government the ability to react appropriately to any exceptional situation.
National Emergency - Grounds
When war, external aggression, or armed revolt threaten the security of India or a part of it, the President is authorized by Article 352 to proclaim a national emergency. Even before any of these events actually happen, the president may declare a national emergency if s/he believes there is an urgent threat of war, external aggression, or armed insurrection.
A national emergency that is declared as a result of "war" or "external aggression" is known as a "External Emergency." On the other hand, when it is declared as a result of "armed rebellion," it is referred to as a "internal emergency." The 44th amendment added the phrase "armed rebellion." Previously, it was referred to as an internal disturbance.
Any portion of India's territory may be declared to be in an emergency. The 42nd Amendment Act of 1976 gave the president the power to restrict the scope of an Indian National Emergency. Only with the written consent of the cabinet may the president issue an emergency proclamation. As a result, the emergency can only be declared with the consent of the cabinet and not just on the prime minister's advice.
National Emergency Duration And Legislative Approval
The declaration of Emergency must be approved by both Houses of Parliament within a month after its announcement.
The two months previously allotted to the Parliament for approval were shortened by the 44th Amendment Act of 1978.
Approval: Every proclamation issued in accordance with article 352 (aside from a proclamation revoking the prior proclamation) must be presented to each house of parliament and approved by a special majority, which is a majority of both the members of that house who are present and voting and at least two-thirds of the members of that house.
If a proclamation of this kind is not approved by parliament, it expires one month after it is proclaimed and is no longer in effect.
If a proclamation of this kind is accepted by the parliament, it will remain in effect for six months starting on the day it was approved, unless it is revoked earlier.
It can be approved by the parliament as many times as necessary, but only for a total of six months at once.
When Lok Sabha is not in session: However, if the declaration of an emergency is made at a time when the Lok Sabha has already been dissolved or during the course of a month without the proclamation receiving approval, the declaration will remain in effect until 30 days after the first meeting of the newly constituted Lok Sabha, provided that the Rajya Sabha has approved it in the interim.
It is possible to challenge the constitutionality of the president's declaration of an emergency under article 352 in a court of law on the grounds of mala fide intentions.
Revocation of The National Emergency Declaration
The President may, at any point during the duration of the emergency, rescind the proclamation by issuing another proclamation. The Parliament is not required to ratify such a proclamation.
If the Lok Sabha approves a resolution of disapproval with a simple majority, the President must revoke. This was added by the 44thAmendment Act.
If not less than 1/10th of Lok Sabha members send a notice to the President with the intention of disapproving an emergency, in the event that the Lok Sabha is not in session, the Lok Sabha has the power to object to the operation of a national emergency at any time.
If there isn't a session, the LS must hold a special session within 14 days to consider such a resolution.
National Emergency Impacts
A declaration of emergency has significant and widespread effects on the political system.
The normal framework of relations between the center and the state is substantially altered when an emergency declaration is in place.
Three categories: financial, legislative, and executive
On the Executive
• The President of India has the authority to give instructions to the states on how to execute their executive authority.
• State governments do not lose their authority, instead, they are placed under the effective supervision of the federal government, which now has the authority to direct the behavior of the state governments (Article 353(A)).
Legislative body
• According to Article 353 (B), state legislatures continue to function and pass laws, but parliament also has the authority to do so on state-related issues. Any law passed by parliament in this regard will become ineffective six months after the national emergency has been lifted.
• Additionally, Article 83(2) of the Constitution allows for the extension of the Lok Sabha's term by one year at a time. The maximum length of this extension, nevertheless, is 6 months from the day the emergency was revoked.
Financial
• According to Article 268-279, changes to center state financial ties may be made by presidential order (Article 354).
• This modification, however, may never extend past the fiscal year in which the emergency is lifted.
• The President has the authority to halt the allocation of funds between the federal government and the states, and the federal government may utilize any available national resources to combat the costs that led to the declaration of an emergency.
Impact of the Life of the State Assembly and Lok Sabha
• When a national emergency has been declared and is in existence, Lok Sabha's lifespan may be extended by a bill of Parliament for periods longer than its standard five-year span, up to an unlimited number of years.
• However, after the emergency has passed, this extension is only good for a total of six months.
• For instance, the tenure of the Fifth Lok Sabha (1971–1977) was twice extended by an extra year each time.
• Similar to this, during a national emergency, the Parliament may extend the normal term of a state legislative assembly (five years) by one year each time (for any length of time), up to a maximum of six months after the Emergency has ended.
Impact on Fundamental Rights
• The suspension of the Fundamental Rights outlined in Article 19 is covered by Article 358, whereas the suspension of additional Fundamental Rights is covered by Article 359 (except those guaranteed by Articles 20 and 21).
• The six essential rights under Article 19 are only suspended when a national emergency is proclaimed on the grounds of war or external attack and not on the grounds of armed revolt, according to Article 358.
• With the exception of articles 20 and 21, Article 359 permits the president to suspend the ability to petition any court for the enforcement of fundamental rights during a National Emergency.
• It has already been proclaimed three times in our nation. On October 26, 1962, after China invaded our northern borders, an emergency was first declared. Long after hostilities ended, on January 10, 1968, this National Emergency persisted.
• After the second India-Pakistan War, it was declared for the second time on 3 December 1971, and it was lifted on 21 March 1977 and during this time the second emergency, based on external aggression, was in effect.
• On June 25, 1975, the Third National Emergency (also known as the Internal Emergency) was declared. The reason for this emergency's declaration was "internal disturbances."
Criticism against Emergency Provision
• The federal character of the constitution will be gone, and the union will gain absolute power.
• The importance of fundamental rights will diminish, and the democratic framework will be destroyed.
• The union executive will have complete control over the state's authority, both in the Union and in the Units.
• The state's financial independence will be taken away.
• The president will become a despotic leader.
Changes relating to the National Emergency
The 38th Amendment to the Constitution Act of 1975
• It gave the president the authority to declare a national emergency on numerous grounds even if one was already in effect. If there is a war, external aggression, armed rebellion, or imminent danger, the president may issue a new proclamation regardless of whether he has already done so and whether that proclamation is currently in effect.
• It rendered the National Emergency declaration impervious to judicial review. However, the 44th Amendment Act of 1978 later repealed this clause.
39th Amendment Act of 1975
• It was adopted in reaction to a ruling by the Allahabad High Court, which invalidated Raj Narain's appeal and declared Prime Minister Indira Gandhi's election to the Lok Sabha.
• The judiciary no longer has the authority to decide cases involving the president, vice president, prime minister, and speaker of the House of Representatives. Whichever authority the Parliament deems appropriate will make those decisions.
42nd Constitution Amendment 1976
• It gave the president the authority to alter or change a national emergency. Only impositions or revocations were permitted under the original constitution.
44th Amendment to the Constitution 1978
• It was put into place to stop the executive branch from abusing its emergency powers.
• In Article 352, it has added a number of safeguards. These are listed below:
• A proclamation of emergency could have been made due to war, external aggression, or internal unrest prior to the 44th Amendment Act of 1978. The executive could abuse the internal disturbance since it was so imprecise. Thus, "armed rebellion" was substituted for "internal disturbance" in the Act.
• Originally, approval was to be based on a simple majority, but now a special majority is required.
• Once it had approved a proclamation of an emergency, there was no longer any parliamentary oversight. However, a Lok Sabha special session may now be called to discuss disapproval.
Effects of the national emergency
Judiciary Decisions Regarding a National Emergency
• The Supreme Court ruled in the Minerva Mills case (1980) that a national emergency proclamation can be contested in court on the grounds of malfeasance or that it was entirely superfluous and immaterial.
• In the case of Makhan Singh v. the State of Punjab: the Supreme Court made a distinction between Articles 358 and 359 of the Constitution. The Supreme Court ruled that it is a political concern and not a matter that may be litigated in the case of Bhut Nath v. State of West Bengal.
• In order to further clarify the situation, the 38th Amendment to the Constitution added clause 5 to Article 352, which states that the president's satisfaction, as used in paragraphs 1 and 3 of that article, is "final and conclusive" and "could not be contested in any court of law."
Does the Constitution recognize the 39th Constitutional (Amendment) Act of 1971?
In the historic case of Kesavananda Bharati v. the State of Kerala, the Supreme Court declared that Clause 4 of Article 329A is violative and unconstitutional for the first time. By giving the legislative control over the judiciary, it goes against the separation of powers premise. It went against the "Rule of Law" to make the modification.
The 39th Constitutional Amendment Act of 1971 has been declared invalid by the Supreme Court because it goes against the fundamental principles of the Indian Constitution and is therefore unconstitutional.
Conclusion
The Emergency Provisions give the President broad authority to handle unusual and extreme circumstances. Any abuse of these authorities has the potential to undermine democracy. However, the actual operation of the Constitution for more than 50 years has shown that, (with the exception of a few instances where an emergency was imposed due to political considerations), emergency powers were generally used in the country's best interests. Despite the fact that some States have abused emergency provisions, there is general agreement that emergency provisions are still necessary given the circumstances in India.