ABSTRACT
The emergency provisions are legal measures in a country`s constitution that helps the government respond to crises that threaten a nation`s stability, security or sovereignty. The emergency provision was added to our constitution to safeguard its other pillars. But the federal character of the Constitution is destroyed in the case of an emergency.
INTRODUCTION
A state of emergency in India refers to a period of governance that can be proclaimed by the President of India during certain crisis situations. Based on the advice of the minister’s cabinet. The President can overrule many provisions of the Constitution, which guarantees Fundamental Rights to the citizens of India.
The emergency provision are contained in Part XVIII of the Constitution of India, from Article 352 to 360. These provisions enable the Central government to address any otherwise situation.
PARTS OF EMERGENCY IN CONSTITUTION
- National Emergency
- State Emergency
- Financial Emergency
NATIONAL EMERGENCY
National Emergency can be declared on war, eternal aggression or armed rebellion. It express proclaimation of an emergency to denote it of this type.
GROUND OF NATIONAL EMERGENCY
The President can declare the emergency under Article 352 when the security of India or a part is threatened by war, external aggression or armed rebellion. The term armed rebellion was inserted in the 44th amendment. Before this term it was known as internal disturbance.
The 38th Amendment Act of 1975 declared the National Emergency immune to judicial review. However, this provision was subsequently deleted by the 44th Amendment Act of 1978.
DURATION OF NATIONAL EMERGENCY
National Emergency can continue for 6 months and it can be renewed by approval of Parliament after every 6 months.
But if the dissolution of Lok Sabha takes place in that 6 months and resolution for renewal of National Emergency is under consideration then emergency exists till 30 days from the first sitting of newly elected Lok Sabha provided that it is approved by Rajya Sabha.
EFFECT OF PROCLAIMATION OF EMERGENCY
The proclaimation of emergencies has had drastic and wide-ranging effects on the political system.
Executive: The centre becomes entitled to give executive directions to a state on any matter.
Legislative: The parliament becomes empowered to make laws on any subject mentioned in the state list, and the president can issue ordinances on state subjects which are made on state subjects by the parliament when it becomes inoperative six months after the emergency has ceased.
Financial: The president can modify the constitutional distribution of revenues between the centre and the states.
EFFECTS ON THE LIFE OF LOK SABHA AND STATE ASSEMBLY
While the proclamation of the National Emergency is in operation, the life of the Lok Sabha may be extended beyond the normal term for one year at a time.
Similarly, the Parliament may extend the normal tenure of a state Legislative Assembly by one year each time during a national emergency, to a maximum period of six months after the emergency has to be ceased.
STATE EMERGENCY
The State Emergency in Article 356 of the Indian Constitution which allows the Indian President to impose his rule in a particular state and rule out the state`s government.
GROUNDS OF STATE EMERGENCY
The President is empowered by Article 356 to issue a proclaimation if he is satisfied that a situation has arisen in which the government of a state cannot be carried out in accordance with the proviosions of the constitution.
It can also be declared during a situation or an imminent threat of a widespread or severe damage, injury or loss of life or property, resulting from a natural or manmade cause.
DURATION OF STATE EMERGENCY
The State Emergency continue for six months and can be extended to an indefinite period with the approval of the Parliament for every six months.
Independent India declared emergency three times.
FIRST EMERGENCY- On 26 October 1962 Prime Minister Jawaharlal Nehru acted against external aggression (Indo-China War).
SECOND EMERGENCY – On December 3 1971 Prime Minister Indira Gandhi when the Bangladesh Liberation War finally broke out.
THIRD EMERGENCY- On June 25 1975 while the second emergency was still active when everything was going against her after her 1971 election was challenged in court. If she lost the case her reign as Prime Minister of India would end . This Emergency lasted for 21 months, when both the second and third proclaimation were revoked.
FINANCIAL EMERGENCY
The National Emergency in Article 360 empowers the President to proclaim a Financial Emergency if he is satisfied that the situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened.
DURATION OF NATIONAL EMERGENCY
The proclaimation of declaring financial emergency must be approved by the both house of parliament within two months from the date of its issuance.
Once approved by both the houses of Parliament ,the Financial Emergency continues indefinitely till it is revoked.
EFFECTS OF FINANCIAL EMERGENCY
The executive authority of the union over the financial matters of the state is extended,
The salaries and allowances are reduced of all or any class of persons serving in the state.
The reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the states.
POWERS OF EMERGENCY PROVISION
The legal measures and clauses being highlighted for the country are those special prerogatives that a government or president can resort to an extraordinary situations.
Powers are given by the mentioned articles :-
ARTICLE 83 (2)- DURATION OF HOUSES OF PARLIAMENT:-
The completion of five years from the first day of its meeting brings to the dissolution of the lower house of parliament.
ARTICLE 353- EFFECT OF PROCLAIMATION OF EMERGENCY:-
According to Article 353 if a Member of Parliament wishes to make an allegation against a minister, they need to provide advance notice.
ARTICLE 353(b)- The Union can use its executive power to the extent of giving directions to the state relating to the manner in which the executive powers shall be exercised by the State.
ARTICLE 354- CENTRE EMPOWERED TO ALTER DISTRIBUTION OF REVENUE BETWEEN THE UNION AND THE STATE:- According to Article 354 it empowers the central government to make funding allocations within the centre state financial arrangements.
ARTICLE 358- SUSPENSION OF PROVISIONS OF ARTICLE 19 DURING EMERGENCIES:-
(Article 19 which states the PROTECTION OF CERTAIN RIGHTS REGARDING FREEDOM OF SPEECH)
The Article 358 concludes with the regulation that give rights to the state government to suspend the Fundamental Rights during any external aggression.
Under the Article 352, the President can declare a national emergency when the security of India or a part of it is threatened by nation’s security, stability, or financial integrity,
In n emergency, the fundamental rights can be suspended the enforcement of all the fundamental rights except Article 20 and Article 21
Article 20 is Protection in respect of conviction for offences and Article 21 is Protection of Life and Personal Liberty.
IMPLICATIONS :-
Under the Article 352, the President can declare a national emergency when the security of India or a part of it is threatened by nation`s security, stability, or financial integrity.
In an emergency, the Fundamental rights can be suspended or restricted for that the President of India has the authority to declare the emergency.
SUSPENSION OF FUNDAMENTAL RIGHTS (ARTICLE 359)
In this article, the president is empowered to suspend the enforcement of all the fundamental rights except Article 20 and Article 21.
(Article 20 is PROTECTION IN RESPECT OF CONVICTION FOR OFENCES and Article 21 is PROTECTION OF LIFE AND PERSONAL LIBERTY)
CASE LAWS
MINERVA MILLS Ltd. vs UNION OF INDIA
FACT OF THE CASE
The Sick Textiles Undertakings Act was established to fulfill a goal of wide public interest, its goal was to ensure that goods were available at reasonable costs so that the general population would not be harmed. Minerva Mills Ltd. was a textiles firm with a limited liability corporation. The Central government constituted a committee to investigate mechanism of the mill. The petitioner raised many points in his pleading. It contested the central government`s order to seize management and control of the Minerva Mills Ltd. It contested the 39th Amendment Act which introduced the Sick Textile Undertaking Act in the Entry 105 of the 9th Schedule; All these claims were addressed in a separate set of petitions.
CITATION OF THE CASE
Article 368 amend the constitution in such a way that the core structure of the constitution is not altered. The state is required to consider the Directive Principles Of State Policy for establishing legislation, which can be achieved through legal methods.
JUDGEMENT
The Supreme Court held that the parliament has the authority to change the Constitution without the fundamental structural concept. The Parliament can amend the Fundamental Rights for implementing the DPSP which amend does not damage or destroy the basic structure of the constitution. JUSTICE P.N. Bhagwati wrote the opinion for THE 42ND AMENDMENT ACT OF 1976 ARTICLE 31C Article 31C was amended by sec 4 with giving supreme powers to directive Principle Of State Policy .
VALIDATION IN ARTICLE 368
Basic Structure Doctrine is there to include the supremacy of law, rule of law, independence judiciary of law, sovereign democratic republic, the principle of free and fair elections, welfare of state. The court emphasized that any provision that provides an organ of the state infinite authority is unconstitutional.
BENETT COLEMAN vs UNION OF INDIA (1973)
FACT OF THE CASE
The petitioners in Benett Coleman vs Union Of India, engaged in newspaper publication, imposed on news as per the Import Control Order 1955. They also challenged the regulations governing the utilization of newsprint . The publisher of The Times Of India and other newspapers challenged these restrictions arguing that they violated the freedom of the press guaranteed under Article 19 (1) (a). But the government of India restricted on the import of newsprint, limiting the amount that newspaper could import.
JUDGEMENT
The judgement emphasized that any restrictions on the freedom of press must be justified in Article 19(2) The Court ruled imposed infringement on the freedom of the press. They also includes the right to determine the volume of circulation and the allocation of newsprint without interference.
ADM JABALPUR vs SHIVKANT SHUKLA
Popularly known as the Habeas Corpus Case
FACT OF THE CASE
The State argued that during an emergency, the States interest in military and economic security takes responsibilities over all other considerations. The state added that even if the advisory board found insufficient grounds for detention with highlighting the absolute nature of executive powers during an emergency and the Articles 358, 359(1), and 359 (1A) were essential for maintaining national security and suspending Article 21 was within constitutional bounds and did not imply the absence of rule of the law.
JUDGEMENT
The court held that during a state of emergency proclaimed under article 359(1) with do not have rights to petition the High Court under Article 226 for Habeas Corpus or any other writ to challenge The court affirmed the validity of Section 16A(9) of the Maintenance Of Internal Security Act, the court does not process the power to review the validity of a detention order under Maintenance Of Internal Security Act. The majority clarified the difference between Article 358 and 359, knowingly Article 359 suspends the enforcement of fundamental rights and allows for the suspension of any proceedings pending for the enforcement. They also added that the Basic Structure Theory can`t be invoked to create a conflict within the constitution and highlighted the importance of Part III of the Constitution.
END OF EMERGENCY
Gandhi called for elections on January 18 1977, and released all political prisioners. The general elections were held between March 16 and March 20, and the Emergency was officially lifted on March 21, 1977. It was the end of one of the darkest chapters in India`s history post- independence. “The President proclaimed the emergency . It is nothing to panic about .I am sure you are all aware of the deep and widespread conspiracy, which has been brewing ever since I began to introduce certain progressive measures of benefit for the common man and woman in India,” said Indira Gandhi in her address to the nation announcing the Emergency.
Sources~
NEWS ARTICLES
CONSTITUTIONAL LAW by J.N. PANDEY
This article has been written by Khushi Mishra from Deen Dayal Upadhyay Gorakhpur University.
