This article is written by Upasana Dash, from Madhusudan Law College, Odisha. This is an exclusive article that deals with several laws and regulations regarding the proclamation of emergency.
Indian Constitution is quasi-federal in nature, it has more unitary features than federal. But the principles are independent in their sphere and not subordinate to one another. The power of the Center and State Government is divided. Coordination of authorities is a vital objective of the federal principle. While drafting the Constitution Dr. B.R Ambedkar had borrowed several provisions from different countries. The Emergency provision was brought from Germany.
The crucial feature of the Indian Constitution is during an emergency situation, the federal principle can be followed. It envisages the circumstances when the strict rules of federal features need to be escorted over basic assumptions of our Constitution. During proclamations of emergency the Centre takes greater power than the State Legislature. All the fundamental rights cease except Article-20 and article 21 of Indian constitution. When the machinery of government fails Central authority declares an emergency before the actual occurrence.
Till now India has declared three National Emergency (under Article-352), the President’s Rule has been imposed on more than a hundred occasions under Article-356, India has not yet declared Financial Emergency (under Article-360) despite having a worse economic condition in 1991.
What happens to the legislative operations during an emergency
There are three types of emergency in the Constitution of India outlined below:
- National Emergency (Article-352),
- President’s Rule (Article-356),
- Financial Emergency (Article-360).
If the President is satisfied with the circumstance that there is an imminent danger or threat to the country on the grounds that war, external aggression, or armed rebellion (added by 44th Constitutional Amendment Act, 1977), he may declare an emergency within the territory of India or any part which is under the governance of India. Here, the word “satisfaction” neither implies personal satisfaction, nor more advice of the Prime Minister. The President needs to communicate in writing with the Union Cabinet which contains the Prime Minister and other appointed Ministers (under Article-75) as well.
A resolution for the proclamation of emergency passes by the special majority that is by a majority of total members of each House and by a majority of not less than two-thirds of the members present and voting in each House. Once the resolution is approved in Parliament, it shall be for six months. Approval for the next proclamation of emergency resolution needs to be passed in both Houses of the Parliament.
To remove a proclamation of emergency a notice in writing signed by one-tenth of the total members of Lok Sabha for a disapproving resolution to the Speaker of the House if the House is in session; if the House is not in session, then to the President. Within 14 days a special sitting will be held by the Speaker or the President.
Before the 44th Amendment, “internal disturbance” was grounds for the Proclamation of National Emergency. This ground was considered to be indistinct to declare an emergency. The word “satisfaction” of the President is not justiciable in the Court because he is the Supreme authority to declare whether the circumstance exists to declare an emergency.
When the Presidents get a notice from a Governor of a State or realized that the Government of a State is quite unable to function in accordance with the Constitution, in the circumstance he may order an emergency. By this order:
- President becomes the sole power of the State,
- All the power of the State Legislature shall be vested upon the Union Parliament,
- President may make provisions for his satisfaction with the circumstances.
However, the President can not suspend any provisions of the High Court. If the Lok Sabha is dissolved by that time, the expenses of the Consolidated Fund of the State may proceed by the order of the President.
Distinguishing between the National Emergency and President’s Rule
In National Emergency all the States get centralized but in the Presidents’ Rules, only the concerned State’s power is vested upon the Union. In the National Emergency, the State Legislature and the State Executive remain unaffected. But in the case of the President’s Rule, all the Legislative and Executive power goes to the Union.
When the economic stability of India gets worse, the President by his satisfaction may declare Financial Emergency under Article-360. Here, all the money bills shall go to the President for his consideration, before passing it by the State Legislature.
What are the emergency management laws and regulations
The Legislative Power of the State, authorized by the direction of Parliament: During an emergency, the lawmaking power of the State shall not cease, rather with the aid of the Parliament imposes laws under Article-354.
Conveyance of revenue between the Union and the State (Article-354): Every financial arrangement made between the Union and the State shall be laid before each House of the Parliament under Article-268 to 279 by the order of the President.
Life of Lok Sabha gets extended not beyond 6 months by the accent of the President, during an Emergency under Article-83(2).
Fundamental Rights get suspended (Article-358): Except Article-20 and 21, all the Fundamental Rights guaranteed by Article-19 get suspended under Article-358.
Rules for functioning under emergency situation
The very crucial function is to protect all the States from external aggression and internal disturbances. The Center should ensure all the States, the same duty is also followed by other federal countries like America, Australia. The Union Government is to keep an eye on every State whether they are maintaining the provisions of the Constitution. This principle is not governing in other federations. The Right to move to any county under Article-19 when applied under Article-359 remains suspended till the revocation of emergency. However, the Supreme Court ordered that if the detention had been ordered mala fide, the person can move to the appropriate Court for a writ of habeas corpus. The restraint can also be counted on the ground of transgression of Part-III of the Constitution.
Adjustments to operations during COVID-19 pandemic
By considering to provide protection to public health and well being of the population, countries worldwide need to take extraordinary measures on COVID-19 pandemic, those steps should be valid in the eyes of law. To take exceptional actions, emergency power is used within the ambit of International Human Rights Law, International Covenant of Civil and Political Rights (ICCPR). Without proclaiming States of Emergency formally, the State may restrict certain human rights guaranteed by government which threatens the life of the nation in order to safeguard public health and maintenance, and those restrictions must ensure that they are not contravening any legal provisions or discriminatory in nature.
The abrogation of certain rights need to respect the fundamental rights of citizens these can not be suspended under any situation, certain basic rights should remain in effect during an emergency i.e right to food, shelter, health, social protection, water, sanitization, education, and standard living condition.
How do different countries regulate their legislative operations during an emergency
In other federal countries, their emergency management plan is generally based on the following two cases; to deal with an emergency by the civil population, to deal with a civil emergency in accordance with the Humanitarian Law. Their fundamental principles regarding emergency are mitigation, preparedness, recovery, and response.
Advantages and disadvantages
By taking away the freedom of speech, citizens can not create unwanted chaos during an emergency. However, unlawfully detaining a person is a possibility of infringing fundamental rights. This can be challenged by the Court. During proclamation emergency citizens can not move freely in the country, which is to some extent, violating Part-III of the Constitution. Nonetheless, these rules and regulations are meant to protect our citizens from any threat. All the foreign tours remain canceled so that outsiders can not enter in such circumstances. When an emergency is proclaimed, prices of essential commodities rise very high and black-marketing of such products has also been seen there, in that case, common people bear a lot of financial issues regarding this.
Makhan Singh v. State of Punjab. AIR 1964 SC 381 the petitioners here appealed that their detention was illegal because the Defence Act, 1962, under Section-491 (1)(b) and alleged that this was contrary to the Fundamental Rights given under Article-14, 21 and 22. The petition was laid aside by the High Court on the ground that the Presidential Order issued under Article-359 created an obstacle. They further filed a case in the Supreme Court. It was held there. As long as the proclamation of emergency is in force, rights under Article-19 will remain suspended. And citizens would not be deprived of his right to move the appropriate Court for writ petition in case of arbitrary detention.
In Mohd. Yakub v. State of Jammu and Kashmir, AIR 1968 SC 765, an order given by the President under Article-359(1), within the purview of Article-13 was not law. Hence this can be challenged on the grounds of Fundamental Rights. No order can be challenged if by any means that order discriminates against Article-14. Because during the emergency Fundamental Rights itself remain suspended. The Supreme Court quashed its own judgment in Ghulam Sarwar v. Union of India, AIR 1968 SC 1335 i.e one can challenge on grounds of discrimination through an order by President issued under Article-359.
A.D.M Jabalpur v. Shivkant Sukla, AIR 1976 SC 1207, this is a famous case of habeas corpus in which the respondent pleaded on the validity of the Proclamation of Emergency under Article-352 and on the ground of arbitrary detention. Under Section-3 of Maintenance of Internal Security Act, 1971. The High Court held that all the rights under Article-19, 21 and 22 should be examined strictly. if the detention is not satisfying under the MISA or is mala fide should be checked. The petition moved further to the Supreme Court. The question of fact was whether the writ petition under Article-32 would lie to the High Court, whilst Presidential order under Article-352 is in force; secondly, whether the petition was valid in the scope of Article-22 and Section-16 of the MISA. However, the Supreme Court by 4:1 majority held that no person has the right to move to the High Court under Article-226 for any writ petition when the Presidential order is in force.
Sarbananda Sonowal v. Union of India, AIR 2005 SC 2920, in this case, is the first time the word “aggression” has been added to the Article-352. The petitioner filed a case on the grounds of the constitutional validity of illegal migrants i.e in the Illegal Migrants Determination Act, 1983, this was applicable only for Assam and deportation of Bangladesh. Some Bangladeshi had entered into the territory of India illegally. The Court held that “aggression” can not be termed as only war, this has other aspects within it. War is a competition between the two states.
S.R Bommai v. Union of India, AIR 1994 SCC 1, in this case, President’s Rule was imposed in States of Madhya Pradesh, Rajasthan, Himachal Pradesh, state assemblies also dissolved on the grounds of failure of Constitutional machinery. The main issue was the Chief Minister of those states were connected to some outlawed organization and influenced Kar Sevaks to go to Ayodhya. The three Governors had submitted reports to the Central Authority and the Centre had no evidence that these States are not following orders of Union Government. This was held that the detention was completely mala fide, a clear misuse of Article-356. The Court held that no State assembly can be dissolved by the order of Presidential Rule unless the President confirms its approval.
The Union Government plays an important role during the Proclamation of Emergency. All the States need to cooperate with the Center. The Center should pay attention to that no state can misuse the provision of emergency. The emergency provisions should not be declared arbitrarily. Along with all the rules and regulations, no person should be deprived of his fundamental rights malice.
LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join: