As we pledge on the Constitution it is important to know more about its structure and democratic values
Emergency Provisions
The emergency provisions under the Indian Constitution are outlined in Part XVIII, specifically Articles 352 to 360. These provisions empower the President of India to declare three different types of emergencies in various situations, thereby temporarily centralizing power and suspending certain fundamental rights guaranteed by the Constitution.
1. National Emergency (Article 352):
- A national emergency can be declared by the President if they are satisfied that the security of India or any part thereof is threatened by war, external aggression, or armed rebellion.
- War is when another country declares formal war with India.
- External aggression is when a foreign country declares war without any formal declaration of the same. In such cases, national emergency can be imposed
- Armed rebellion is when extreme unrest is observed against government leading to destruction of life and property.
- Once declared, the central government gains extraordinary powers to deal with the emergency situation. It can assume control over the states, including formulating laws on subject matter covered under State List.
- During a Proclamation of Emergency due to war or external aggression, Article 19 of the Indian Constitution, which guarantees certain freedoms like freedom of speech and assembly, is temporarily restricted. This means that the government has the power to make laws or take executive actions that it wouldn’t be allowed to make under normal circumstances. However, any law made during this time will stop being effective as soon as the emergency ends, except for things that were done before the law became ineffective.
- If the emergency is only in certain parts of India, the government can still make laws or take actions in other parts of the country if the security of India as a whole is threatened by activities related to the emergency area. However, this doesn’t apply to laws or actions that don’t explicitly state that they are related to the emergency, or to actions taken without a law that mentions the emergency.
- Article 358 also specifies that such restrictions must be consistent with the emergency situation and cannot go beyond what is necessary to address the emergency. It’s important to note that Article 358 does not authorize the suspension of these rights in the case of an armed rebellion (internal disturbance), thereby preserving some degree of civil liberties even during emergencies.
- According to Article 359, during national emergency, fundamental rights guaranteed under Part III of the Constitution stand suspended, except rights under Articles 20 and 21.
- Any decision the President makes to suspend rights during an emergency must be shared with the Parliament so that they know what’s happening. Any order issued under Article 359 needs to be approved by both houses of Parliament within two months, otherwise it becomes invalid.
- It’s crucial to understand that Article 359 suspends the ability to enforcethese rights through courts, not the rights themselves. The rights still exist, but legal remedies might be unavailable during the emergency.
- Declaration of emergency empowers the Parliament and central government to alter the distribution of revenues between the Centre and states. All proclamations relating to distribution of revenue and changes shall cease upon proclamation of ceasing the emergency. It also shall not extend till after end of financial year from when the proclamation of emergency was made.
- The national emergency must be approved by both Houses of Parliament within one month of its proclamation and can be extended indefinitely with parliamentary approval every six months.
It is to be understood that under article 355, it is the duty of the protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.
2. State Emergency (Article 356):
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- A state emergency, also known as President’s Rule, can be imposed by the President if they are satisfied that the governance of a state cannot be carried out in accordance with the provisions of the Constitution due to reasons such as failure of constitutional machinery, internal disturbance, or financial instability.
- The President’s Rule entails the dismissal of the state government and the imposition of direct central rule in the state. The Governor of the state acts as the representative of the President and exercises executive authority on behalf of the Centre. The President can assume all powers as vested in the Governor.
- The State Legislature may also be directed to operate under the guidance of the parliament, or it may be asserted that the authority to formulate laws rests solely with the Parliament.
- It’s crucial to note that the state judiciary remains independent and is not subject to the President’s authority during President’s Rule. Regardless of the circumstances, the President does not possess the authority to assume powers vested in High Courts or to suspend the operation of any provision related to the High Court. This safeguards the autonomy and integrity of the state judiciary, ensuring that it continues to function independently despite the imposition of central rule in the state.
- The proclamation of President’s Rule must be approved by both Houses of Parliament within two months and can be extended for a maximum period of six months at a time, with a total duration not exceeding three years.
3. Financial Emergency (Article 360):
- A financial emergency can be declared by the President if they are satisfied that the financial stability or credit of India or any part thereof is threatened. The decision to proclaim a financial emergency is based on the President’s satisfaction, and it requires the advice of the Council of Ministers.
- During a financial emergency, the President can issue directions to states to observe certain financial principles or priorities, direct the reduction of salaries and allowances of all persons serving in connection with the affairs of the Union (including the President, Vice-President, judges of the Supreme Court and High Courts, and the Comptroller and Auditor-General of India), and make provisions for the grant of financial assistance to any state.
- Like other emergencies, a financial emergency must also be approved by both Houses of Parliament within two months and can be extended indefinitely with parliamentary approval every six months.
It’s important to note that while emergency provisions are intended to be exceptional measures to deal with extraordinary situations, they have been criticized for potentially being misused to curtail civil liberties and concentrate power in the hands of the central government. The Constitution includes safeguards such as parliamentary approval and judicial review to prevent arbitrary use of emergency powers.
