EMERGENCY PROVISIONS -INDIA
Written By – Shruti Saha
A state of emergency in India refers to a period of governance which can be proclaimed by the President of India during certain crisis situations. Under the advice of the cabinet of ministers, the President can overrule many provisions of the Constitution, which guarantees Fundamental Rights to the citizens of India. The emergency provisions are contained partially in part XVIII of the Constitution of India, from Article 352 to 360.
These provisions enable the Central government to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution. The Constitution stipulates three types of emergencies-National Emergency, Constitutional Emergency, Financial Emergency. All three proclamation of emergency must be approved by both the homes of parliament within one month from the date of its issue. If approved by both the houses, the Emergency continues for six months and may be extended to an indefinite period with an approval of the Parliament for each six months. Every resolution approving the proclamation of emergency or its continuance must be gone either House of Parliament by a special majority. Emergency may be revoked at any time by the president without parliament approval. The emergency must be revoked if the Lok Sabha passes a resolution by a simple majority disapproving its continuation.
Under Article 352, the president can declare a national emergency when the security of India or an area of it’s threatened by war or external aggression or armed rebellion. When a national emergency is on the grounds of ‘war’ or ‘external aggression’, it’s referred to as ‘External Emergency’ and when it’s declared on the grounds of ‘armed rebellion’, it’s referred to as ‘Internal Emergency’. This term ‘armed rebellion’ is inserted from the 44th amendment. Before this term it had been mentioned as internal disturbance. The 38th Amendment Act of 1975 made the declaration of National Emergency immune to review but was subsequently deleted by the 44th Amendment Act of 1978.
During National Emergency, center becomes entitled to give executive directions to a state on ‘any’ matter. The parliament becomes empowered to make laws on any subject mentioned in the state list, the president can issue ordinances on State subjects also, if the parliament isn’t in session. Although they become inoperative six months after the emergency has ceased to be operational. The lifetime of the Lok Sabha could also be extended beyond the traditional term for one year at a time. However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate. Parliament may extend the normal tenure of a state Legislative Assembly by one year whenever during a national emergency, subject to a maximum period of six months after the emergency has ceased to work .
According to Article 358, when a proclamation of National Emergency is made, the six fundamental rights under article 19 are automatically suspended. The 44th Amendment Act laid out that Article 19 can only be suspended when the National Emergency is laid on the grounds of war or external aggression and not in the case of armed rebellion. Under Article 359, the President is authorized to suspend, by order, the right. The 44 Amendment Act mandates that the President cannot suspend the right to move the court for the enforcement of Fundamental Rights guaranteed by Article 20 and 21.National emergency has been invoked in 1962, 1971 and 1975.
Article 355 imposes a duty on the center to ensure that the government of every state is carried on in accordance with the provisions of the constitution. This is popularly known as ‘President’s Rule’. Article 356 empowers the President to issue a proclamation if he’s satisfied that a situation has arisen during which the government of a state cannot be carried on in accordance with the provisions of the constitution. The president can take up the functions of the state government and powers vested in the governor or any other executive authority in the state. He declares that the powers of the state legislature are to be exercised by the parliament, take all other necessary steps including the suspension of the constitutional provisions relating to anybody or authority within the state. The 38th Amendment act of 1975 made the satisfaction of the President in invoking Article 356 final and conclusive which might not be challenged in any court on any ground. But, this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the President isn’t beyond review .
Article 360 empowers the president to proclaim a Financial Emergency if he’s satisfied that a situation has arisen because of which the financial stability or credit of India or any part of its territory is threatened. the Financial Emergency continues indefinitely till it is revoked. There is reduction of salaries and allowances of all or any class of persons serving in the State. Reservation of all money bills or other financial bills for the consideration of the President after they’re gone by the legislature of the State. Direction from the President for the reduction of salaries and allowances of all or any class of persons serving the Union; and therefore the refore the judges of the Supreme Court and the High Courts. India has never experienced financial emergency.
The incorporation of emergency provisions also is criticized because the federal character of the constitution is going to be destroyed and therefore the union will become all-powerful. The powers of the State- both the Union and therefore the Units- will entirely be concentrated within the hands of the union executive. The president will become a dictator. The financial autonomy of the state is going to be nullified. Fundamental rights will become meaningless and, as a result, the democratic foundation of the constitution is going to be destroyed.