Emergency Provisions in India

Emergency Provisions in India

This Article is written by Mridushi Damani, a student of Hidayatullah National Law University.

Introduction

The Cambridge Dictionary defines the term ‘emergency’ as “something dangerous or serious, such as an accident, that happens suddenly or unexpectedly and needs fast action in order to avoid harmful results”. In relation to a country, an emergency may thus be referred to as a circumstance or situation which arises out of the blue, requiring immediate action by the public authorities under the powers which have been granted to them. The Indian Constitution enlists three types or categories of emergencies which are National Emergency, State Emergency, and Financial Emergency.

National Emergency

Article 352 of the Indian Constitution envisages the provision for the National Emergency, which may be applied to any situation which poses a threat to the security, stability, peace, and governance of the nation.

As per the above-referred Article, the National emergency may be imposed on any of the 3 grounds, which are as follows:

  1. War, or
  2. External aggression, or
  3. Armed rebellion.

As per the provision, the President of India may issue a proclamation to the effect of a National Emergency, if he/she is ‘satisfied’ on the previously mentioned ground, wherein the proclamation may affect either the entire country or a part thereof. However, as per sub-clause (3) of Article 352, the President may pass such proclamation only upon written advice by the Union Cabinet, which much further as per sub-clause (4), be approved by each house of the parliament within the time period of one month failing which it will expire.

It is also imperative to point out that it is not necessary for war or external aggression or internal aggression to actually take place, even if there is a possibility that such a scenario may arise in the near future, a National Emergency may be declared.

In the landmark case of Minerva Mills v/s Union of India, the Hon’ble Supreme Court of India held that there can be no bar to judicial review in the determination of the validity of the proclamation of National Emergency issued by the President under Article 352(1) of the Indian Constitution. However, the court’s powers’ are limited only to the examination of whether the various limitations conferred by the Indian Constitution have been observed and abided by or not. The court may check if the satisfaction of the President is on valid grounds or not, where if the President is satisfied that the grounds for a national emergency, however, the same is based on absurd, malafide, or irrelevant grounds, then it shall not be considered that the President is ‘satisfied’ and the proclamation may be declared invalid.

Duration Period of Emergency

If the proclamation for an emergency is approved by both the houses of parliament then the National Emergency may continue for 6 months and the same can be renewed by the approval of both the houses of the Parliament after every 6 months.

However, if the dissolution of the Lok Sabha takes place within the duration of 6 months and resolution for renewal of National Emergency is under consideration, then as per Article 352(5), the emergency exists till 30 days from the first sitting of the newly-elected Lok Sabha provided that the proclamation is approved by Rajya Sabha.

Furthermore, as per Article 352(6) which was added by the 44th Amendment of the Constitution, 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).

The effects of the proclamation of National Emergency

As specified in Article 353 of the Constitution, the Union may expand its executive powers and use it to the extent of giving directions to the State Government in matters relating to the manner in which the executive powers are to be exercised by the State.

Additionally, according to Article 353 (b), the Union Parliament in the state of a National Emergency may also make laws relating to the matters which have been enumerated in the State List.

The Centre through Article 354 also gains the power to make alterations to the distribution of revenue between the Union and the States in a National Emergency, however, with the revocation or termination of the proclamation for an emergency, this arrangement also comes to an end.

The normal life of the Lok Sabha may also be extended by the President by a year, each time up to a period not exceeding six months, after the proclamation of emergency ceases to operate as mentioned in Article 83(2) of the Constitution.

Moreover, during the period of National Emergency, Article 358 suspends the fundamental rights provided under Article 19. However, the fundamental rights enumerated under Article 20 and Article 21 stand unaffected.

State Emergency

As per the provisions mentioned in Article 356 of the Indian Constitution, if upon receiving the report from the Governor of a particular State or otherwise, the President is satisfied that such a situation exists where the governance of the state cannot be carried out in accordance with the provisions of the Constitution then the President may issue a proclamation of State Emergency.

Duration of Emergency

Whenever 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 is approved by both the houses of the Parliament as per Article 356(3).

However, 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, the proclamation shall not operate unless, before the expiry of 30 days, it is also passed by the Lok Sabha after its reconstruction.

The Proclamation remains in operation for six months after it has been approved by the Parliament. The duration of an emergency can be extended for a time period of six months at a time but it cannot remain in operation for more than 3 years.

The effects of the proclamation of State Emergency

Upon the declaration of a State Emergency, all the powers that are exercisable by the Governor in the State shall be transferred to the President only till the emergency lasts in the State.

Further, the President may also declare that the State shall exercise its Legislative Powers by or under the authority of the Parliament, and all the more, if the President deems fit that certain necessary provisions are to be made in order to serve the purpose of the Proclamation, then he may make such provisions.

Financial Emergency

If in the opinion of the President, the financial stability of the nation or any territory thereof is threatened, then under Article 360 of the Indian Constitution, the President may issue a proclamation of Financial Emergency.

Duration of Emergency

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 scenario where during the issuance of Proclamation, the Lok Sabha has been dissolved or its dissolution takes place within the period of two months and the Rajya Sabha has approved the proclamation but the Lok Sabha has not approved it, then in such a situation, the proclamation shall not operate unless, before the expiry of 30 days, the Lok Sabha has passed a resolution approving the said proclamation.

The effects of the proclamation of Financial Emergency

During the period of Financial Emergency, the executive authority of the Union shall give directions to the State regarding the maintenance of financial stability, which may even include provisions for reduction of salaries and allowances of all or any class of persons serving in the State, which includes the Judges of the High Court and the Supreme Court.

Further, in a Financial Emergency, all Money Bills shall be reserved for the prior approval of the President.

Thus, the emergency provisions as mentioned in the Constitution of India provide for the nation’s security and protection of the people, and as a whole try to include each and every scenario so that there are no unforeseen casualties at the time of crisis.

References

  • The Cambridge Dictionary.
  • Relevant Articles of the Indian Constitution from Article 352- Article 360.
  • Minerva Mills v/s Union of India, 1980 AIR 1789.
  • Article 83(2) of the Indian Constitution.
  • Article 19 of the Indian Constitution.
  • Article 20 of the Indian Constitution.
  • Article 21 of the Indian Constitution.