Emergency Provisions

Emergency Provisions

A state of emergency in India is designated period of rule that the President of India can declare in response to specific crisis scenarios like national security or failure of constitutional machinery within state or centre.  The President has the authority to suspend some provisions of the Constitution that ensure the protection of Fundamental Rights for Indian citizens under the guidance of the cabinet ministers.

There are three types of emergencies namely national, state, and financial emergency. During an emergency, fundamental rights can be suspended or restricted. Emergency provisions address serious threats to the nation’s security, stability, or financial integrity. The Emergency provisions are mentioned in Part XVIII of the Constitution in India.

According  to Gopal Subramanium , ” An emergency is state of affair unexpectedly arising and urgently demanding an immediate action.”

Oxford dictionary defines Emergency as political term to describe the condition appropriately that occurs as synonymous or euphism for war also state of emergency wherever normal constitution is suspended.

The National Emergency (Article 352)

1. The proclamation of emergency  made in these circumstances:

1. War , external aggression or armed rebellion
2. In apprehension or imminent danger also

The word armed rebellion was inserted  with 44^th Amendment Prior to amendment proclamation of emergency could be made even due to internal disturbance. These internal disturbance were vague and gave wide discretion to executive to declare emergency on flimsy grounds in 1975 when Emergency was proclaimed by Mrs Indira Gandhi. Therefore the word internal disturbance was substituted by the word armed rebellion

In Naga people movement of Human Right Vs Union of India 1998 2SCC , SC observed internal disturbance has wider meaning and armed rebellion is likely to pose threat to national security  or part thereof while internal disturbance will not .

The intention to substitute the word internal disturbance with armed rebellion is to limit the invocation of  emergency powers to serious situation where there is threat to security of the country pr part thereof  on  account of war external aggression or armed rebellion and to exclude proclamation of emergency provision during internal disturbance which are of lesser gravity.

• Before 42^nd Amendment proclamation of emergency was in all parts of India. Later after 42^nd Amendment , proclamation of emergency was made either in respect of whole of India or of such part of territory thereof.

• President shall not issue proclamation of emergency clause (1) unless decision of cabinet is communincated in writing. 44^th Amendment introduced the word cabinet (councilof ministers consistin P.M and other minister of cabinet). This meant that decision of proclamation of emergency can only be declared on the advice of cabinet and not merely on the advice of P.M as it had been done in 1975. Jnata party introduced the word cabinet  when they came in power to curtail the power of P.M in giving advice to the President. The word satisfaction used in Art. 352 does not mean the personal satisfaction of the President, but it is the satisfaction of the cabinet. The power to declare emergency can be exercised by the President only on the recommendation of the council of ministers.
•  The proclamation of emergency shall remain in force for one month for further continuation , approval of Parliament will be required before expiry of one month. It cannot remain in force beyond one month without approval . Speaker  will call the session to withdraw the proclamation. Art 352(8) provides that if speaker is absent the president will call upon the session and will preside over it. After approval of proclamation of emergency by Parliament it shall remain in force for the period of 6 months unless revoked earlier.

Note: In Minerva Mills Case Justice Bhagwati held that  there is no bar to judicial review of validity of proclamation of emergency by president.

Note: Art 352 of Constitution of India proclamation of emergency is made under clause (1) does not extend to Art 356 & Art 360. The word proclamation of emergency is confined to Art 352(1) which has been specifically mentioned under clause 1 of Art 366 which contains definition of the word used in our constitution .

Duration of emergency

After the 44th Amendment a proclamation of emergency could remain in force in the first instance for 1 month, such a proclamation if approved shall remain in force for the period of six months unless revoked earlier.

The resolution approving the proclamation must be passed by both the houses of Parliament by special majority, that is by majority of the total members of each house and also by a majority of not less than 2/3 of the members present and voting in each house.

National Emergency’s Impact on Fundamental Rights

Article 358- It deals with the suspension of fundamental rights guaranteed under article 19 of the constitution.

• As per Article 358, under the emergency provision, article 19 is automatically suspended when the proclamation of emergency is made i.e., it does not require any separate order of suspension.
• Condition- There is one condition, article 358 comes under the role only when External Emergency is operational. That clearly means that article 19 is suspended only when there is an external emergency and not an internal emergency.

Article 359- It deals with the suspension of other fundamental rights except for articles 20 and 21.

• It requires a separate order for suspension and only those fundamental rights are suspended that are mentioned under the presidential order.
• Such an order of suspension of fundamental rights requires the approval of Parliament.
• The suspension could be for the duration of the emergency or could be for a shorter duration.
• 44th Amendment Act 1978 says- President cannot suspend the right to move to court for the enforcement of fundamental rights under article 20 (protection in respect of conviction of offence) and article 21 (right to life and personal liberty).

1. State Emergency or Constitutional Emergency. (Art 356) is also known as President’s Rule:- If any state fails to comply with the direction of the centre or there is any failure of constitutional machinery, President rule can be imposed on the such state. President’s decision to declare President’s rule on any state can be based on the report of the Governor of the state or he can act otherwise too.

President’s Rule- Approval and Duration

• As per the emergency provisions made under the constitution, to impose the President’s Rule on a state, a proclamation must be approved by both houses of Parliament within two months of time.
• After approval, it continues for six months at a time and can be extended for three years in total with the approval of Parliament every six months. Approval by a simple majority in either house of Parliament is required. Afterward, the reign of the President has to be finished and the State has to restore regular legislative machinery.

Revocation of President’s Rule

The President of India can revoke the President’s Rule with a proclamation and such a proclamation does not require any Parliamentary approval.

 

Effect of President’s Rule

• There is no effect on fundamental rights.
• ·         Any law made by President or Parliament during this period continues to be operative even after the president’s rule.
• If President declared, the Parliament exercises the power of the state legislature.
• President dismisses the state council of ministers.
• President is responsible for the suspension or dissolution of the state legislative assembly.

3) Financial Emergency (Article 360)

If any situation has arisen that can threaten the financial stability or credit of India or any part of its territory, the President is empowered to proclaim the Financial Emergency. It is important to note that the satisfaction of the President to impose the Financial Emergency comes under the ambit of judicial review.

Financial Emergency- Approval and Duration

The proclamation regarding financial emergency must be approved by either house of the Parliament within two months of time only with a simple majority. Once came into force, the financial emergency must continue indefinitely till it is revoked i.e., in this there is no need for repeated Parliamentary approval for continuation.

Revocation of Financial Emergency

Revocation of a Financial Emergency is also done by President with a subsequent proclamation that does not require any Parliamentary approval.