Table of Contents
Introduction
The emergency provisions of the Constitution of India constitute a vital framework that was developed to deal with extraordinary occurrences that might threaten the nation’s stability, sovereignty, or constitutional order. The provisions in Part XVIII of the Constitution, enshrined in the section, define the processes by which the government can quickly react, at the same time upholding the democratic principles and protecting individual rights.
Consisting of three different types, these are the measures which are grounded on the specific criteria and each of them is aimed at solving a particular problem. National Emergency, known in casual parlance as the “State of Emergency,” gives the President exclusive power to react to an existential threat caused by war, external aggression, or rebellion, elevating the central government’s authority, including the suspension of some fundamental rights. State Emergency, or “President’s Rule,” is the mechanism functioning when the state’s constitutional machinery fails, while the President takes control of the state administration until the state gets stable. Financial Emergency deals with circumstances where the financial stability or credit of the whole nation or part of it is in danger, giving the central government authority to provide necessary instructions for fiscal discipline.
The invocation of these emergency measures, however, is not decided lightly because it implies the suspension of democratic principles and individual freedoms for a limited period. Thus, the Constitution stipulates severe regulatory frameworks to avert their misuse and maintain accountability requirements. Parliamentary oversight and judicial review are intended to provide checks to the abuse of power, therefore, approved only if the emergency powers are the ultimate resort the purpose of which is to guarantee democracy and constitutional integrity.
Type of Emergency in India
National Emergency
The national emergency under the Constitution of India is declared under Article 352 whenever the security of India is threatened by war, external aggression, or internal armed rebellion, providing the President with extraordinary powers such as suspending some fundamental rights and transferring extra powers to the central government.
Grounds to declaration
- Article 352, empowering the President to declare a national emergency if India’s security is threatened by war, external aggression, or armed rebellion, grants fairly broad powers to tackle such crises effectively.
- The President possesses the discretion to declare a national emergency even ahead of the start of the war, armed rebellion, or external aggression that would warrant such measures as an extra layer of safety and stability of the nation, considering possible danger in the future.
- ‘External Emergency’ is to be declared ‘War or external aggression’, and ‘Internal Emergency’ because of ‘Armed rebellion’. The classification of these terms is done based on the character of the danger. This defines the right approaches to the problematic occurrence.
- The term ‘armed rebellion’ is inserted from the 44th amendment. Before this term, it was known as internal disturbance.
Example:
- When both India and Pakistan openly declare their intention to deploy armed forces against each other, this is a direct state of war. This affirms an unambiguous and unequivocal engagement of two countries in a military conflict.
- An external aggression exists when a country doesn’t declare that it is sending its forces to fight against another one. Thus, this situation arises due to the use of means that endanger the security or sovereignty of another nation without the declaration of war followed by the escalation of tensions and probably the conflict.
Duration
In case both houses of parliament are in sync, a National Emergency can last for six months and can be extended every six months with the approval of Parliament. It therefore follows that if the Lok Sabha dissolves during this period before the renewal ends, the emergency continues for up to 30 days from the first sitting of the new Lok Sabha, provided the Rajya Sabha agrees too. Before the 44th Amendment was adopted in 1978, the length of the National Emergency was determined at the government’s will. Consequently, any proposed proclamation or renewal of a National Emergency will require a special majority vote in Parliament, thus securing the wider support needed in these critical decision-making processes. This amendment sought to reinforce plenary supervision and thus avoid the implementation of emergency measures without substantial backing. It stresses the significance of democratic principles and ensures that the people in control of the said powers are elected officials who have the support of most of the representatives elected. This shield will be essential in the maintenance of the balance between responding promptly to crises and fulfilling fundamental rights and democratic norms.
Effect of National Emergency
When an emergency regime is proclaimed, it has grave consequences, in the first instance, regarding protecting people’s fundamental rights and freedoms. This results in negative impulses and restraints on the individual rights and freedoms given to the person under the Constitution. The consequences of a proclamation of emergency are explained Below:
Executive
When the Union government takes over during the state of emergency in India, it derives the power to direct the states on how they should exercise their executive. This was further reinforced by the 42nd Amendment of the Constitution through the Constitution of India 1976 (Article 353).
According to this amendment, the executive power of the union, including its executive instruments and legal regulation, extends beyond the state that is declared a state of emergency into other affected areas. Further, if the security of India or a part of its territory gets endangered by the activities held in the area for which the emergency is in effect, then it applies to other states as well.
In a nutshell, this means that if there is a threat to India’s security which is coming out from that area that is in an emergency, the Union can issue directives that apply to all states to protect national interests. It ensures a response against the threat in case it happens even at the local level, in a region.
On the other hand, in normal conditions, the Union’s executive power has usually taken this specific measure against states only under extremely exigent circumstances.
Following this provision, the dominance of the federal system of the Indian government is shown. While most states operated with a fair level of autonomy in normal times, during the emergency, the Union will be allowed to step in to ensure a single action plan towards national threats.
This provision played a key role in the strain of procedures to respond to emergencies and also the provision of measures to ensure the safety of the country’s interests. It symbolizes the cohesion of interest between the unitary and the federal power, with both India being a democratic country and a diverse country following.
Legislative
In the event of a crisis being declared, Parliament obtains powers to pass laws that are covered by the subjects listed under the State List (List II). What happens effectively here is that the normal legislative power distribution takes a hit, placing the Union parliament in the position to legislate on matters it conventionally would not have the authority to. Please do notice that this won’t directly influence the work of the state legislature, but rather the way the balance between the Union and the States is set up, making Parliament’s legislative powers even greater. This article enables common purpose and thus coordination of the necessary response to emergencies, hence providing a rapid and effective action that seeks the well-being and security of the nation.
Financial
When an emergency is declared as a state of emergency, the central government receives equalizing power to reallocate the level of revenue between itself and the states. If this president finds herself in such a contingency; she can do so as established in Articles 268-279 of the Constitution. Such directions should be communicated to both chambers of the Parliament. These ordinances will likewise no longer be operating after the emergency is over. This provision makes it possible for the parliament to manage any financial arrangement during a crisis period and to balance this with the capacity to be able to push back to normalcy once emergencies subsides.
Effect on Fundamental Rights
Articles 358 and 359 describe the effect of a National Emergency on Fundamental Rights. These two provisions are explained below:
- Suspension of fundamental rights under Article 19: Article 358 extends to suspending fundamental rights such as those enshrined in Article 19 by the Proclamation of National Emergency. But after the emergency era is over Article 19 rights are restored. The procedure includes the temporary suspension of some civil rights and then their restoration when the uniqueness of the circumstances is over.
● The 44th Constitutional Amendment refined Article 19 so that it could only be suspended in the event of an Emergency proclaimed on account of war or external aggression, and not in a situation of internal armed rebellion. This amendment outlines the specific circumstances under which the potential limitations of some fundamental rights may be allowed, thus creating a clearer legal framework.
- Suspension of other fundamental rights: Article 359 rather gives the President the power to suspend the right to make court remedies for the Fundamental Rights, instead of the rights themselves, during a National Emergency. Thus, the right to legal remedies is suspended, but the underlying rights remain valid and are preserved for restoration after the emergency period has passed
● Only the Fundamental Rights specified in the Presidential Order can be put under the suspension of enforcement. This implies that during a National Emergency, the specific rights in the order are not enforceable while the others are, which only take effect when the emergency is lifted.
● The period of suspension of rights can be temporary (for the whole duration of the emergency) or it may be of shorter time frame. This flexibility enables the development of different responses to diverse emergencies, thereby ensuring that the restriction “is proportional and aligned with the changing situation” of a country.
● The Presidential Order must be communicated to the two Houses of Parliament for ratification. This stipulation provides Parliamentary oversight and accountability concerning the suspension of Basic Rights due to the National Emergency, thus maintaining democratic values and keeping an eye on executive power.
President’s rule/ State emergency
This is where the concept of President’s rule comes into play which is often called a state of Emergency under the provisions of Article 356 of the Indian Constitution and allows the central government to take direct control over the administration of a state within certain circumstances. This provision is sought when a state’s constitutional machinery fails or ceases to function appropriately, caused by political instability, disorderly circumstances, or the constant violation of constitutional provisions.
The Governor’s powers in a state are shifted to the President who will govern the state through the appointment of either a Commissioner or the Governor himself/herself acting on the President’s behalf. The state legislature would either dissolve or suspend operations in such an event and until peace is conceptualized in the state, the central government would execute all the duties of governance.
President’s rule imposition is regarded as a drastic step to be taken, to uphold principles of democracy, federalism, and the rule of law by maintaining governance continuity and hindering any legal vacuum during critical, unstable times. Nonetheless, its application is guided by supreme constitutional limits and comprehensive judicial scrutiny to check for possible misinterpretation or abuse of authority.
Ground of Imposition
The president’s ruler can be proclaimed under Article 356 on two grounds:
- Article 356 allows the President to proclaim if it’s evident that a state government can’t function per the Constitution. This step is taken when there’s a breakdown in state governance, enabling the central government to intervene temporarily until constitutional order is restored within the state.
- Article 365 permits the President to declare if a state fails to adhere to directives from the center, indicating a situation where state governance doesn’t align with the Constitution. This provision allows central intervention when there’s non-compliance, ensuring adherence to constitutional principles within the state.
Approval and Duration
President’s rule in India may not last for more than six months initially, but it can be extended for up to three years with the permission of the Parliament, it is ratified every six months. The President’s rule ordinance must be ratified by both Houses of the Parliament within two months of its announcement. If the President’s rule is approved by Parliament, it stays in force until the situation which led to it is settled, or until elections are held and a new government forms in the state. This process provides the parliamentary oversight and accountability about the imposition of central rule over a state which is to protect the democratic principles and to avoid the misuse of executive authority for a long period. The judicial review also is available to inquire about the constitutional validity of the Proclamation of the President’s Rule and adhering to the grounds specified in Article 356 of the Constitution.
Effect of President’s rule/State emergency
The President’s rule/State emergency shall have the following effects:
- He can undertake the functions of the state governments and get the powers of the governors or other executive state authorities. Thus, it allows him to manage both state and national affairs.
- The President affirms that Parliaments have the legal power to use the law. This indicates that the state-level powers are executed under the direction of approval of the Parliament thereby making sure that these legislations conform to the national-level laws.
- If the President believes it necessary, he may enact provisions to fulfill the objectives of the Proclamation, ensuring that appropriate measures are taken to serve its purpose effectively.
Financial Emergency
There is a financial emergency which is something that is stipulated in Article 360 of the Constitution of India. It also gives the President of India the power to announce a state of financial emergency if they believe that the financial stability of the country or any of its regions could be in danger. The financial emergency also empowers the President to direct the Central Government, the States, and all other agencies to follow specified financial policies. Such power allocation to the government gives it wider control over the financial condition of the country.
Grounds of declaration
The declaration of financial emergency in India under Article 360 of the Constitution can be made by the President, if he sees that the financial stability or the credit of the country or any part thereof is trifling. Such a risk can be illuminated by external factors such as war, aggression by neighbors, or armed rebellion, and in this case, the national financial system is put at risk. When an emergency is announced, the government has the power to issue orders and take essential actions to fix the situation. Nevertheless, an economic crisis in India has yet to be proclaimed since attaining independence from Britain in 1947, strikingly demonstrating the significance and the need to carefully deliberate before releasing such exceptional funds.
Duration
A Financial Emergency in India is generally expected to last for 2 months in case both the Houses of Parliament, i.e. Lok Sabha and Rajya Sabha, enact such legislation. If Parliament gets dissolved during the emergency and if the subsequent leg of the procedure was done in Rajya Sabha but not in Lok Sabha, there would be no proclamation emergency. Conversely, if no such approval is received from the Lok Sabha within 30 days, the emergency takes effect. This clause engages parliamentary supervision, which calls for substantial backing of the measures, but also the oversight of the financial emergency by consensus.
Effect of Financial Emergency
- The Union’s executive can guide the States in maintaining financial stability, fostering cooperation between central and state governments to ensure effective economic management and stability.
- It can involve measures to cut salaries and allowances for various State employees, including High Court and Supreme Court judges. This ensures equitable treatment and fiscal responsibility across all levels of government, particularly during times of financial constraint or as required by authorities.
- All money bills or financial bills passed by the State legislature are reserved or referred to the President for his consideration. This way, the President has a chance to review and sign off such financial bills which keep him governing and supervising how the state’s finances are managed.
Conclusion
It is this system that accommodates the emergency provisions of the Indian Constitution which form an important mechanism to deal with exceptional circumstances such as natural and manmade calamities that threaten to destabilize the country and undermine its integrity. Whatever might trigger the measure, it is the National Emergency, State Emergency, or Financial Emergency that allows the government to take immediate actions in the broad terms of protecting the democratic rule of law and the rights of individuals. Conversely, the necessity remains to take into account the pros and cons of such kind of measures, since they imply curbing the norms and essential liberties of the citizens. Thus, a strong regulatory regime with parliamentary scrutiny and judicial review provides the necessary guidance to the executive to avoid the misapplication of this surveillance for personal reasons. The fundamental underlying of the effective response to emergency crises and cherishing democratic values determines the essence. Thus, such measures, though valuable, should be used sparingly to maintain the integrity of the nation through various procedures of the constitution.
Read this also: 42nd Amendment of Indian Constitution
By : Aman Bijoriya (3rd year, B.A.LL.B)