Emergency Provisions in the Constitution of India
The Indian Constitution provides a detailed insight into the entire government structure, basic rights and duties of the citizen and special provisions. There are a total of 395 Articles in the constitution of India. Enacted on 26th of January, 1950, the Constitution contains Emergency and Special Provisions of the Indian Constitution. Special Provisions relating to certain clauses are included in Part XVI. The Constitution of India covers Emergency Provisions in Part XVIII.
Emergency Provisions in the Constitution of India:
According to our constitution as soon as the state of emergency is declared in the country fundamental rights stand suspended and the courts of law are debarred to enforce these. It is this provision which was very vehemently and bitterly opposed in the constituent assembly. The opposition felt that it was the darkest day of history when a provision was made for denying fundamental rights to our people. Under emergencies, the people are denied to take shelter under the roof of the judiciary in so far as fundamental rights are concerned.
These also stand suspended when the people are arrested under the Preventive Detention Act, which empowers the state to arrest a person for his being a danger to the security of the state The Emergency Provisions are mentioned from Article 352 to Article 360 of the Indian Constitution. Following are the Articles of the Indian Constitution, containing the Emergency Provisions.
According to article 352 due to external intrusion or war, the President of India can declare a state of emergency through a Proclamation. It can be revoked or a varied proclamation can also be issued. However, the decision of the Cabinet ministers to issue such a proclamation must be sent to the President in written form prior to his issuance of the same.
According to the Article, all such Proclamations should be presented to both the Houses of the Parliament. The Proclamations, if not accepted by a resolution, will be counted as ineffective after one month. If the Proclamation is not accepted after the passing of a second resolution, then it will become ineffective after the expiry of 6 months of the second resolution.
It is also mentioned in the Article that not less than two-thirds of the members of any of the Parliamentary Houses should be required to pass a resolution. There are certain rules specified in this article regarding President revoking or issuing a varied Proclamation during Emergency. Article 353 states that the Proclamation of Emergency includes extending the executive power of the union to the states in the form of directions.
The Parliament, as per this Article, can confer the power to make laws, upon the officers or authorities of the Union. Provisions made under Articles 268 to 279 can be modified or exceptions can be made by the President of India by order while the Proclamation period of emergency is going on.
Information about all such orders must be conveyed to both the Houses of Parliament. Article 355 bestows the duty of protecting the States against external aggression and internal disturbance on the union.
This Article states the fact that the Union or Center is solely responsible for defending the various states from all types of violence and aggressions erupting from outside and disturbances occurring within the nation's territory.
Article 356 has the provisions in case of failure of constitutional machinery in States.
The President of India can take charge of a state if the reports submitted to him by the Governor suggest that the government of the state has become incapable of exercising the Constitutional powers.
The President is also subjected to exercise the powers of the government of such state by Proclamation.
The Proclamation issued under such circumstances becomes ineffective after 6 months from the date of issuance, if not revoked during this time period.
All such proclamations have to be presented to both the Houses of Indian Parliament and will expire after two months.
The Legislative powers of such state shall also be exercised by the Parliament. In the Houses of Parliament, there are certain rules and regulations regarding the expiry of the Proclamation and the time period normally depends upon the fact whether it has been revoked earlier or not.
Article 357 deals with the exercise of legislative powers under Proclamation issued under article 356.
The powers of the Legislature shall be exercised by the Parliament during an emergency. Parliament has the right to delegate Legislative powers to the President of India or any such authority.
The President of India, after the Proclamation of Article 356, can make laws and shall have access to the consolidated fund, during the time period when the House of the People is not in operation.
Article 358: Provisions of article 19 during emergencies are suspended. Any provision under Article 19 will not affect during an emergency and the states can make law and undertake executive action.
However, only those laws and executive actions containing recital related to an emergency during the Proclamation of Emergency are effective as per the Article. Article 359: It deals with the suspension of the enforcement of the rights conferred by Part III during emergencies. The President of India can suspend all ongoing proceedings in any court of the nation during emergencies by an Order. The President can also call upon all pending court proceedings in case of emergencies.
All such orders declaring the suspension of court proceedings have to be submitted to both the Houses of Parliament. Article 359A: Repealed amendment has been done under the Constitution Act 1989 Article 360: Provisions as to financial emergency - a declaration shall be made by the President of India through a Proclamation regarding the financial crisis of the nation if such situation arises. Such a Proclamation can be revoked and, has to be presented in both the Houses of the Parliament.
The Proclamation thus issued will become null and void after two months if the same is not approved through a resolution passed by the Houses of Parliament. In case the houses are not in session the article suggests certain specific guidelines regarding the proclamation. This Article also includes provisions relating to the salary and allowance reduction of those who are employed with Union and state departments. A provision relating to money bills and other financial bills passed by the state Legislature is mentioned in the Article.
This provision states that all such bills have to be considered by the President during financial instability. When the proclamation of emergency is made Article 19 is suspended and the power of the legislature and the executive becomes wider.
The suspension of Article 19 during the pendency of emergency removes the fetters on the legislature and executive powers by Article 19 and if the legislature makes laws or the executive commits acts which are inconsistent with the rights guaranteed by Article 19, their validity is not open to challenge either during the continuance of the emergency or thereafter. Article 358 makes it clear that things are done or omitted to be done during cannot be challenged even after the emergency is over.
State of Emergency in India: A state of emergency in India refers to a period of governance under an altered constitutional setup. It shall be proclaimed by the President of India when he/she perceives grave threats to the nation from internal and external sources or during the financial crisis. Under the advice of the cabinet of ministers by using the powers vested in him largely by Part XVIII of the Constitution of India, the President can overrule many provisions of the constitution, which include fundamental rights and the acts that govern the devolution of powers to the states.
The President can declare three types of emergencies:
• National Emergency
• State Emergency
• Financial Emergency
National emergency under article 352: National emergency is caused by war, external aggression or armed rebellion in the whole of India or a part of its territory. Such an emergency was declared in India in 1962 (Indo-China war), 1971 (Indo-Pakistan war), and 1975 (declared by Indira Gandhi to maintain law and order in the country).
The President can declare such an emergency only on the basis of a written request by the Council of Ministers headed by the Prime Minister. Such a proclamation must be approved by the Parliament within one month. Such an emergency can be imposed for six months and can be extended by six months by repeated parliamentary approval. In such an emergency, the Fundamental Rights of Indian citizens can be suspended.
The six freedoms under Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended according to the original Constitution. It modifies the federal system of government to a unitary one. In January 1977 however, during the emergency declared controversially by Indira Gandhi, the government decided to suspend even the Right to Life and Personal Liberty by dispensing with Habeas corpus.
The Parliament can make laws on the 66 subjects of the State List (which contains subjects on which the state governments can make laws). Also, all money bills are referred to the Parliament for its approval. The term of the Lok Sabha can be extended by a period of one year but not more than six months from the date when the emergency has ceased to exist.
State emergency under article 356:
State emergency is declared on the failure of constitutional machinery in a state. Nearly every state in India has been under a state of emergency at some point of time or the other. The state of emergency is commonly known as 'President's Rule'. If the President is satisfied, on the basis of the report of the Governor of the concerned state or from other sources that the governance in a state cannot be carried out according to the provisions in the Constitution, he can declare emergency in the state. Such an emergency must be approved by the Parliament within a period of two months.
It is imposed for six months and can last for a maximum period of three years with repeated parliamentary approval every six months. But 42nd amendment act of 1976 extended the one-time duration of state emergency from 6 months to 1 year.
Therefore from now on after every one year, Parliament needs to approve the same. If the emergency has to be extended for more than three years, it can be done by a constitutional amendment, as has happened in Punjab and Jammu and Kashmir. During such an emergency, the President can take over the entire work of the executive, and the Governor administers the state in the name of the President. The Legislative Assembly can be dissolved or may remain in suspended animation.
The Parliament makes laws on the 66 subjects of the state list (see National emergency for explanation). All money bills have to be referred to the Parliament for approval. In this situation ministers of the state legislature are not allowed to perform an action in the state.
Financial emergency under article 360: If the President is satisfied that there is an economic situation in which the financial stability or credit of India is threatened, he or she can declare a financial emergency. Such an emergency must be approved by the Parliament within two months. It has never been declared. Such a situation had arisen but was avoided by putting the gold assets of India as collateral for foreign credit. It remains enforced till the President revokes it.
In case of a financial emergency, the President can reduce the salaries of all government officials, including judges of the Supreme Court and High Courts. All money bills passed by the State legislatures are submitted to the President for his approval. He can direct the state to observe certain principles (economy measures) relating to financial matters. The phrase Emergency period used loosely when referring to the political history of India, often refers to the third and the most controversial of the three occasions.
In Indian History:
In the country's history on three occasions, a state of emergency was declared which lasted for many years.
1. For the first time in independent India from 26 October 1962 to 10 January 1968 during the India-China war emergency was declared when "the security of India" having been declared "threatened by external aggression".
2. For the same reason of "the security of India" having been declared "threatened by external aggression". Emergency was declared during Indo Pakisthan war from 3 December 1971 to 1977. It was originally proclaimed during the Indo Pakistan war and was later extended along with the third proclamation.
3. Under controversial circumstances of political instability when Indira Gandhi was prime minister with the cause of threat due to internal disturbances emergency was declared from 26 June 1975 to 21 March 1977.