This article has been written by Kavita Chandra, from Vivekananda Institute Of Professional Studies, affiliated to Guru Gobind Singh Indraprastha University, Delhi. She has discussed the provisions relating to Proclamation of National Emergency.
Table of Contents
Introduction
Black law’s dictionary defines emergency “as a failure of the social system to deliver reasonable conditions of life”. An emergency may be defined as “circumstances arising suddenly that calls for immediate action by the public authorities under the powers granted to them.”
In India, the emergency provisions are such that the constitution enables the federal government to acquire the strength of unitary government whenever the situation demands. All the pacific methods should be exhausted during such situation and emergency should also be the last weapon to use as it affects India’s federal feature of government.
There are three types of emergencies under the Indian Constitution namely-
- National Emergency
- State Emergency
- Financial Emergency
National Emergency
Article 352 of the Constitution provides for the provision of National Emergency which can be applied if any extraordinary situation arises that may threaten the security, peace, stability and governance of the country.
Whenever any of the following grounds occur, an emergency can be imposed:
- War,
- External aggression; or
- Internal rebellion.
Article 352 provides that if the President is ‘satisfied’ on the grounds that the security of India is threatened due to outside aggression or armed rebellion, he can issue a proclamation to that effect regarding the whole of India or a part thereof.
However, sub-clause (3) states that when a piece of written advice is given by the Union Cabinet then only the President can make such a proclamation. Such a proclamation must be placed before each house of the parliament and must be approved within one month of the declaration of the proclamation otherwise it will expire.
Furthermore, it is not necessary that for the proclamation of National emergency, external aggression or armed rebellion should actually happen. Even if there is a possibility that such a situation can arise, a national emergency can be proclaimed.
In Minerva Mills vs Union of India, it has been held that there can be no bar to judicial review of determining the validity of the proclamation of emergency issued by the President under Article 352(1). The court’s powers are limited only to examining whether the limitations conferred by the Constitution have been observed or not. It can check if the satisfaction of President is on valid grounds or not. If the President is satisfied that grounds for national emergency exist but the same is based on absurd, malafide or irrelevant grounds then it won’t be considered that the President is ‘satisfied’.
Procedure for revoking emergency
If the situation improves then the President can revoke the emergency through another proclamation. The 44th Amendment of the Constitution provides that a requisition for the meeting can be made by ten per cent or more members of the Lok Sabha and in that meeting; it can disapprove or revoke the emergency by a simple majority. The emergency will immediately become inoperative in such a case.
Territorial Extent of Proclamation
The President may make a Proclamation of Emergency in respect of the whole India or any part of India, as required.
Duration of Emergency
If approved by both houses of Parliament then 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 LS provided that it is approved by Rajya Sabha.
Until 44th amendment 1978, if Parliament approves proclamation of National Emergency then it remains in operation on pleasure or desire of cabinet or executive.
Any of the above resolution related to proclamation or renewal of National Emergency must be passed by both houses of Parliament by a special majority (i.e. the majority of the total membership of that house or not less than 2/3rd of members present and voting). This provision is added by 44th amendment 1978 and before that such resolution can be passed by simple majority i.e. more than total members present and voting.
Effects of Proclamation of Emergency
The following are the effects of Proclamation of emergency:
Extension of Executive Powers of the Centre
According to Article 353, 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.
As per Article 353 (b), the Union Parliament can make laws relating to the matters in the State List.
According to Article 354, the distribution of revenue between the Union and the State can be altered by the Centre.
As per Article 83(2), the normal life of the Lok Sabha may be extended by the President by a year each time up to a period not exceeding 6 months after the proclamation ceases to operate.
As per Article 358, during a national emergency, the fundamental rights under Article 19 shall be suspended. However, in any case, the fundamental rights under Article 20 and Article 21 will not be affected.
Effects of Proclamation of Emergency
There are serious consequences, once emergency is proclaimed. It results in adverse effects on the enforcement of fundamental rights of people. Consequences of proclamation of emergency are explained below:
1) Executive
While a Proclamation of Emergency is in operation, 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. The Constitution (42nd Amendment) Act 1976 made a consequential change in Article 353.
It states that the executive power of the Union to give directions and to make laws shall extend to other States too apart from the state where an emergency has been proclaimed and is in operation. The above-mentioned power shall be exercised if the security of India or any part of its territory is threatened by the activities in the part of the territory of India in which emergency has been proclaimed and is in operation.
In normal times, the power of the executive does not extend to giving such directions subject to certain exceptions.
2) Legislative
When an emergency has been proclaimed, the Parliament shall have the power to legislate as regards to State List (List II) as well. The emergency suspends the distribution of legislative powers between the Union and State and not the state legislature.
3) Financial
The centre is empowered to alter the distribution of revenue between the Union and the State.
While a Proclamation of Emergency is in operation, the President may, by order define the financial arrangement between the State and the Union as provided by Articles 268 to 279. Such order shall be laid before each House of Parliament and when the Proclamation of Emergency ceases to operate, such order shall too come to an end.
4) Extension Life of Lok Sabha
The normal life of Lok Sabha can be extended while a proclamation of emergency is in operation. Such an extension can be done by the Parliament for a period not exceeding one year at a time and not beyond a period of six months in any case after the Proclamation has ceased to operate.
5) Suspension of Fundamental Rights guaranteed by Article 19
Article 358 of the Indian Constitution provides for Suspension of fundamental freedoms guaranteed to the citizens by Article 19 of the Indian Constitution.
It provides that when an emergency has been proclaimed and is in operation, the provisions contained in article 19 shall not restrict the power of the State relating to the making of any law or taking any executive action which abridges or takes away the rights guaranteed by Article 19.
It means that the freedom guaranteed by Article 19 automatically stands suspended once the Proclamation of Emergency is made. Once the proclamation of emergency ceases to operate, Article 19 which stood suspended during the emergency automatically comes to life.
Suspension of the right of enforcement of fundamental rights (Art. 359)
A.D.M. Jabalpur v. S. Shukla, AIR 1976 SC 1207
This case is also known as the Habeas Corpus (to produce the body) case as whenever someone is arrested, this is the writ filed in the Supreme Court by the arrested person. Earlier, when the Proclamation of Emergency was made, this writ was not considered as a fundamental right under Article 21 and remained suspended.
The facts of the case were that on 26th June 1975 emergency was proclaimed by the President of India due to internal disturbances. The said proclamation was followed by another proclamation on 27th June 1975 where the President enforced the powers conferred by Article 359(1) of the Constitution. In exercise of these powers, the right of any person including a foreigner to move to the court for the enforcement of Article 14, 21 and 22 of the Constitution and the proceedings pending in any court relating to the enforcement of the above-mentioned articles will be curtailed.
The main issue involved in this case was “Whether the High Court can entertain a writ of Habeas Corpus filed by a person where he challenges the ground for his detention, in the case where such person has been detained in the execution of the Presidential Orders.
In this case, four judges – Chief Justice A.N. Ray, along with Y.V. Chandrachud, Justices M.H. Beg and P.N. Bhagwati arrived at the conclusion, that is, while a proclamation of emergency is in operation under Article 359 (1), the writ of habeas corpus is not maintainable.
The four judges observed that no authority or powers lie with the courts to challenge the detention made under Sec 16A(9)b of the Maintenance of Internal Security Act (which provides that the person against whom a detention order is passed under Section 3 shall not be entitled to the communication or disclosure of any such ground, information or material as is referred to in clause (a) or the production to him of any document containing such ground, information or material) as it is clearly stated under the Act that the disclosure of grounds of detention need not be done.
Hence the court cannot challenge the order and can not question the state or the executive body to validate the detention. Hence no locus standi exists, so the party can not move to any court for maintaining suit on fundamental rights.
Justice Khanna gave a dissenting opinion and observed that while the proclamation of emergency is in operation, the person can not move to the court for enforcement of fundamental rights but that does not prevent him from exercising his legal remedy through the statute.
Justice Khanna exclusively relied on the judgment delivered in the case of Makhan Singh v. State of Punjab in which he specified: If a person while challenging the validity of his detention order, pleads any right which is outside the scope of rights mentioned in the order, his right to move to any court is not suspended, as it is outside the rights specified in the order as well as the Presidential order itself. Let’s suppose a case where a person has violated the mandatory provisions of this Act, and due to this violation, he has been detained.
So, the detenu can contend that he has been illegally detained on the ground that the mandatory provisions of the Act have not been contravened. Such a plea is outside Article 359(1) and the right of the detenu to move for his release on such a ground cannot be affected by the Presidential order”. Curtailment of Article 21 leads to deprivation of the right to life and personal liberty which is against the fundamental right ensured to every citizen of India since birth, along with the rights guaranteed by the Universal Declaration of Human Rights.
Duty of the Union to protect the States
It is the duty of the Union to ensure that the State remains protected from disturbance and external aggression, while the Proclamation of Emergency is in operation. The Union shall ensure that the State Government works according to the provisions of the Constitution.
State Emergency
As per Article 356, if the President after receiving a report from the Governor of a State or otherwise is satisfied that such a situation exists where the Government of a State cannot be carried in accordance with the provisions of the Constitution, he may issue a Proclamation.
Duration
When a Proclamation is issued under Article 356, it shall be first laid before each House of the Parliament. Such Proclamation shall remain in operation for 2 months unless before the expiry of the said period it has been approved by both Houses of the Parliament according to Article 356(3). Suppose in a case where the Lok Sabha has been dissolved during the issuance of a proclamation of emergency or its dissolution takes place within the above said period of two months and the Rajya Sabha has approved the Proclamation but the Lok Sabha has not approved it.
In such a case, the said proclamation shall not operate unless before the expiry of 30 days it has also been passed by the Lok Sabha after its reconstruction. The Proclamation will remain in operation for 6 months after it has been approved by the Parliament. The duration of an emergency can be extended for 6 months at a time but it cannot remain in operation for more than 3 years.
Revocation
By a subsequent Proclamation, a proclamation of State Emergency can be revoked.
Effects
State Emergency shall have the following effects:
- The President shall have all the powers that are exercisable by the Governor in the State.
- The President shall declare that the State shall exercise its Legislative powers by or under the authority of the Parliament.
- If the President deems fit that necessary provisions shall be made to serve the purpose of the Proclamation, then he may make such provisions.
Difference between Articles 352 and 356
Under Article 352, the State Legislature and Executive continue to function but the Centre gets the concurrent powers of the legislation and administration in the matters of the State. Under Article 356, the executive, as well as legislative power, is vested in the Centre and the State Legislature is dissolved.
Under Article 352, the relationship between the Centre and all the States changes but in the case of Article 356 the relationship between the Centre and the State in which President’s Rule is applied undergo a change.
Financial Emergency
As per Article 360, a Proclamation of Financial Emergency may be issued, if the President is of the opinion that such a situation exists where the financial stability of India or any part of the territory is threatened.
Duration
The Proclamation of Financial Emergency shall cease to operate after 2 months unless it has been approved by both the Houses of Parliament. In a case where during the issuance of Proclamation the Lok Sabha has been dissolved or its dissolution takes place within the said period of 2 months and the Rajya Sabha has approved the proclamation but the Lok Sabha has not approved it. Then, such a proclamation shall not operate unless before the expiry of 30 days Lok Sabha has passed a resolution approving proclamation.
Revocation
By a subsequent Proclamation, Proclamation of Financial Emergency can be revoked.
Effects
Financial Emergency has the following effects:
- The executive authority of the Union shall give directions to the State regarding the maintenance of financial stability.
- It may include provisions for reduction of salaries and allowances of all or any class of persons serving in the State. This includes Judges of the High Court and the Supreme Court.
- The Money Bills shall be reserved for the approval of the President.
Conclusion
Having dealt with all emergency provisions, it is easy to understand the purpose behind the enforcement of such provisions. But it is important to note that even when these provisions are provided for the nation’s security and protection of the people, the provisions in themselves give drastic discretionary powers in the hands of the Executive. This affects the federal structure of the nation and essentially turns it into a unitary one.
Therefore, the courts should be given the power to expand the powers of the Centre, as the same will act as a built-in mechanism to check if the discretionary powers are being used arbitrarily by the Parliament and the Executive.
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