Emergency

Introduction

• The framers of the Indian Constitution, having learned from historical experiences and global events, incorporated a robust set of emergency provisions to address extraordinary situations that threaten the security, integrity, and stability of the nation.
• Dr. B.R. Ambedkar characterized the Indian federal structure as unique due to its ability to transition to a unitary system when the administrative apparatus fails.
• These provisions, outlined in Article 352 to Article 360 under Part XVIII of the Constitution, empower the government with special powers during times of emergency.
• The emergency provisions in the Indian Constitution draw inspiration from Germany's Weimar Constitution.

Types of Emergencies

• National emergency (Article 352)
• State emergency (Article 356)
• Financial emergency (Article 360)

National Emergency (Article 352)

• Article 352 of the Indian Constitution deals with the proclamation of a National Emergency.
• This provision empowers the President to declare a state of emergency if he is satisfied that the security of the country or any part thereof is threatened by war, external aggression, or armed rebellion.
• The declaration grants the Executive vast powers to suspend fundamental rights, allowing the government to take necessary measures to address the crisis effectively.
• The proclamation of a National Emergency must be laid before each House of Parliament and can be revoked or extended through parliamentary approval.
• The utilization of Article 352 is an extraordinary measure, and its application raises concerns about the potential abuse of power and erosion of democratic principles.

Grounds for the Proclamation of National Emergency

• War:
  • This refers to a situation where India is officially at war with another country. It involves armed conflict and hostilities between nations.
• External Aggression:
  • External aggression refers to an attack or invasion of India by a foreign power. It could involve military aggression or any external threat that endangers the sovereignty and integrity of the country.
• Armed Rebellion:
  • Armed rebellion involves an uprising or resistance against the established government within the country. It implies the use of force or arms by a group of people to challenge the authority of the government.

Duration and Approval of National Emergency

• Only the President can declare a National Emergency, and this can happen when the cabinet gives a written recommendation.
  • If the cabinet is convinced that there is a need for a national emergency, they send a written request to the President.
• If the President agrees, they can announce the emergency. However, this announcement has to be endorsed by both Houses of Parliament within a month.
• If the emergency is declared when the lower house (Lok Sabha) is not in session or gets dissolved within that month without approving the emergency, it still stands until 30 days after the reassembly of Lok Sabha, as long as the upper house (Rajya Sabha) has given its approval.
  • If both houses approve, the emergency lasts for six months and can be extended indefinitely, but every six months, Parliament needs to grant permission for it to continue.

Judicial Review

• Earlier the National emergency was immune to judicial review. This provision was subsequently changed by the 4^4th Amendment Act of 1978. The Supreme Court held that National Emergency can be challenged in court in the Minerva Mills v. Union of India (1980).
  • SC in this case asserted that there should be no impediment to the judicial review of assessing the legitimacy of a presidential proclamation of emergency under Article 352(1).
  • The judiciary can examine whether the President's satisfaction is based on valid grounds or not.

Revocation of National emergency

• The decision to revoke the emergency is at the discretion of the President.
  • The revocation can be done through a subsequent proclamation when the President believes that the grounds for the emergency no longer exist.
• The emergency must be revoked if there is resolution passed in Lok Sabha by a simple majority disapproving of its continuation.

Effects of Proclamation of Emergency

• During a national emergency, the fundamental rights under Article 19 shall be suspended. But, in any case, the fundamental rights under Article 20 and Article 21 will not be affected.
• It was held in the case of ADM Jabalpur v. Shivkant Shukla (1976) that writ of habeas corpus against detention during national emergency cannot be availed as Article 21 also gets suspended during that proclamation period. However, the judgment is now overruled.

State Emergency (Article 356)

• Article 355 - It is the duty of the centre to ensure that the government of every state complies with the provision of the Constitution.
• Article 356 empowers the President to impose President's Rule in a state if he is satisfied that the government in the state cannot be carried on in accordance with the provisions of the Constitution.
• This provision is invoked in cases of breakdown of constitutional machinery in a state, allowing the Union to take over the governance of the state.
• The use of Article 356 has been a subject of controversy and debate, with concerns about its misuse for political purposes.
• The SC set guidelines to prevent arbitrary use of President's Rule, emphasizing that it should only be used in extreme cases when all other alternatives are exhausted in S. R. Bommai v. Union of India (1994).

Approval and Duration:

• If the President believes, based on information from the Governor or other sources, that a state cannot be governed according to the Constitution, the Governor can declare a state emergency.
  • Parliament must approve this within two months.
• The emergency initially lasts for six months but can be extended up to three years with Parliament's approval every six months.
• The 42^nd amendment in 1976 increased the initial period to one year, but the 44^th amendment in 1978 reverted it to six months.
• Originally, the President's Rule could last three years, divided into one ordinary year and two extraordinary years with specific conditions.
  • Now, it can be extended by six months each time, but not beyond three years, unless a constitutional amendment is made.

Effects of State Emergency

• The President shall have all the powers that are exercisable by the Governor in the State.
• The President shall declare that the State shall exercise its Legislative powers by or under the authority of the Parliament.
• If the President deems fit that necessary provisions shall be made to serve the purpose of the Proclamation, then he may make such provisions.

Financial Emergency (Article 360)

• Article 360 deals with the proclamation of a Financial Emergency.
• This provision allows the President to declare a state of financial emergency if he is satisfied that the financial stability or credit of India or any part thereof is threatened.
• Unlike the other two types of emergencies, a Financial Emergency has been never proclaimed in India to date.
• During a Financial Emergency, the President can direct the reduction of salaries and allowances of all or any class of persons serving in the civil services, including judges of the SC and High Courts.
• The central government also gains control over the financial resources of the states, with the power to give directions for their efficient management.

Effects of Financial Emergency:

• Reduced State Autonomy:
  • During a financial emergency, the President can issue directions to any state to observe such canons of financial propriety as may be specified by him.
  • This essentially means that the financial autonomy of the states is curtailed, and they must adhere to the directives issued by the President.
• Central Control Over State Finances:
  • The President can also give directions to the states to reduce the salaries and allowances of all or any class of persons serving in connection with the affairs of the state.
  • This allows the central government to have control over the financial decisions and expenditures of the states.
• Parliamentary Approval:
  • The proclamation of a financial emergency must be approved by both houses of Parliament within two months.
  • If not approved, the proclamation ceases to have effect. However, any such proclamation may be revoked or varied by the President at any time.

Conclusion

The emergency provisions outlined in Article 352 to Article 360 of the Indian Constitution provide the government with essential tools to tackle various crises, from internal rebellions to financial instability. However, the use of these provisions raises significant concerns about the potential abuse of power and the erosion of democratic principles.