Emergency Provisions under the Indian Constitution



The Constitution of India is the highest law of the land. It contains many provisions like the Relation between Union and the State, the proclamation of emergency, Fundamental Rights, etc. Emergency provisions are one of the most unique features of the Constitution because it shows how a Federal System becomes Unitary during Emergency. That is why India is often said to have a Quasi-federal system of governance.

Emergency simply denotes a situation when the constitutional machinery of the state has collapsed which demands immediate action from the authorities. In the Constitution, emergency provisions are mentioned in Chapter 18, from Articles 352-360. The Concept of Emergency is borrowed from the Constitution of Germany.

The President is the Head of the State and hence he has the power to impose an Emergency. The President takes this decision on the aid and advice of the Council of Ministers. The reason behind the incorporation of emergency in the Constitution is to secure the sovereignty, dignity, unity, integrity, and security of the nation.


Kinds of Emergency

Under the Constitution of India, there are three types of Emergencies - National Emergency, State Emergency, and Financial Emergency.


National Emergency:

In India, the emergency was imposed thrice, in the years 1962, 1971, and 1975. In 1962 emergency was imposed due to Chinese Aggression, and was continued till Jan 1968. In 1971, the Indo-Pak War started. While in 1975, the emergency was imposed due to a heated situation between the Executive and the Judiciary. The second and the third emergency were both revoked in March 1977.

National Emergency comes under Article 352 of the Indian Constitution. According to this, if the President of India is satisfied that a grave emergency exists where the security of India is under threat then he may impose an emergency on the grounds of War, External Aggression, or Armed Rebellion in the whole of India or any part of India. The proclamation of Emergency may be imposed before the actual occurrence of War or External Aggression or Armed Rebellion.

The word “war” denotes the formal declaration of war in which armed forces are used. The word “External Aggression” denotes an informal declaration of war without the involvement of the Armed Forces, and the word “Armed Rebellion” denotes the situation when a group of people protests against the present government through violence. Armed Rebellion was inserted in the Constitution through the 44th Constitutional Amendment Act, and it replaced the word Internal Disturbance.

The National Emergency should be approved by both Houses of Parliament within a month from the date of issue. An emergency is imposed for a maximum period of six months but for continuance, it may be renewed every six months. It can extend for an indefinite period also. The emergency should be passed in both the houses of parliament with a special majority. It can be revoked anytime by the President if, the Lok Sabha passes the resolution disapproving the proclamation by a simple majority.

Every act has its effects, that is a universal principle, similarly Emergency has its effects:

1) During an Emergency, the union has the power to issue executive directions to the state government.

2) Now the Parliament has the authority to make laws on the state list too.

3) The Union has the power to alter the revenue distribution between the state and the centre.

4) The term of the House of People is extended for one year but after six months of ceasing the emergency, this extension can not continue.

During the emergency, the six fundamental rights which are mentioned in Article 19 are automatically suspended but they revive after the emergency has ended. Article 19 is only suspended when the emergency is imposed on the ground of War or External Aggression under Article 358. The right to move to the court freely is also suspended during an emergency by the President of India under Article 359.

The 38th Constitutional Amendment, 1975, stated that National Emergency comes under the preview of Judicial Review but this was subsequently deleted by the 44th Constitutional Amendment, 1978. But in the case of Minerva Mills, 1980, the Supreme Court of India held that the National Emergency may be challenged on the grounds of mala fide intention or irrelevant facts of imposing the emergency.


State Emergency:

In India, many states were under state emergency like Jammu & Kashmir, Arunachal Pradesh, Delhi, etc. State emergency is also known as President’s Rule. It is a common form of Emergency. This emergency is only imposed by the President of India. According to Article 355, there is the duty of the Union to ensure that the state should act according to the constitutional provisions. The president has the power to proclaim emergency under article 356 of the constitution on any of the two grounds-

I. If the President is satisfied that the state government is not functioning according to the constitutional provisions.

II. If the state government fails to comply with the directions or orders of the union government, then it is lawful for the President to hold that a situation has arisen in which the state is not able to perform his functions as per the constitution.

The President’s Rule should be approved by both houses of Parliament within two months from the date of its issue. However, there are some consequences of President Rule:

1) Functions and powers of the state government are exercised by the Center or other executive of the State.

2) Powers to make laws of the Legislative Assembly are exercised by the Parliament.

3) Other actions in the national interest, are made by the Centre.

According to the 38th Constitutional Amendment, 1975, President’s Rule came under the Judicial Review but later was deleted by the 44th Constitutional Amendment, 1978. The 44th Amendment provides that satisfaction of the President of India is not beyond the Judicial Review.

Sometimes, this form of emergency is used in India by the political parties for their gain and political interest and not for the people of the state.


Financial Emergency:

Financial Emergency has never taken place in India till now. Financial Emergency is issued by the President under Article 360 of the Constitution. According to Article 360, the President has the power to proclaim a financial emergency if he is satisfied that the situation has arisen due to which financial stability of the country or credit of India or any part of India is under threat.

As I stated above, all these three emergencies can only be imposed by the Honourable President of India and they should be approved by both houses of Parliament. This emergency is imposed for an indefinite time till revoked by the President of India. When this kind of emergency is imposed by the Government then certain measures are also taken:

1) Reduction of salaries or allowances of all or persons who serve the government.

2) The financial or money bills of the state government which are passed by the State Legislative Assembly are reserved for the assent of the President.

3) During this emergency, the salaries or allowances of Supreme Court and High Court Judges are also reduced.

From the above discussion, we get to know about the emergency provisions under the Constitution of India. India is a democratic country where the government divides into two parts: the Centre and the State government.


Criticisms:

1) When the emergency is imposed, the President may become the ruler of the country and may act as a Dictator.

2) The Centre gets control over the country and our federal structure becomes a unitary system.

3) During an emergency, the fundamental rights which are guaranteed by the Constitution itself, become useless or meaningless.

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