EMERGENCY PROVISIONS AND ITS LEGAL ASPECTS.
Emergency provisions are enumerated in Part 3 of the Constitution from Articles 352-360. This part can also be understood as an element of India’s quasi-federal structure. Although being of a federal structure, the Constitution consists of many provisions which have a unitary tilt and upholds the principles and objectives of a strong center. During emergency, the State suspends all the federal features and acts as a strong central unit. All the decisions and administration, particularly the law and order are in the hand of the central government. The federal feature of India, nature of bicameralism is diluted in the face of emergency. This feature of transforming the federal structure to a unitary form is a feature unique to the Indian Constitution.
The rationality of incorporating and exercising the emergency provisions is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution (1). These provisions enable the central government to meet any abnormal situation effectively. Dr. B.R. Ambedkar, in the context of Emergency Provisions observed in the Constituent Assembly that, “All federal systems including American are placed in a tight mould of federalism. No matter what the circumstances, it cannot change its form and shape. It can never be unitary. On the other hand, the Constitution of Indian can be both unitary as well as federal according to the requirements of time and circumstances. In normal times, it is framed to work as a federal system. But in times of Emergency, it is also designed as to make it work as though it was a unitary system.” (2)
The Constitution has highlighted three types of emergencies that can be declared in the State under Articles 352, 356 and 360.
- Article 352: An emergency due to war, external aggression or armed rebellion. This is also known as National Emergency. The terms ‘proclamation of emergency is used in this context’
- Article 365: Popularly known as the President’s rule, State Emergency or constitutional emergency, is in effect when the constitutional machinery in the States fail/ However, the word emergency is not used in this situation.
- Article 360: Financial Emergency, when there is a threat to the financial stability or credit of India. This form of emergency has never been declared in the State.
- EFFECT ON THE CENTRE-STATE RELATIONS DURING NATIONAL EMERGENCY:
With the proclamation of National Emergency, the federal fabric of the state undergoes and alteration to a unitary feature. The executive, legislature and financial components of the state are the components where the effect of emergency can be witnessed.
Under the Executive paradigm, the Centre is eligible to give states direction on any matter, while under normal circumstances, the Centre can give executive directions to a state only on certain specified matters. The state governments are not suspended but are under the control of the Centre. In the legislative domain, the Parliament is empowered to make laws on the State List, although the power of state legislature is not suspended, the Parliament establishes an overriding power on the legislative powers of the state. During financial emergency, the President can modify the constitutional distribution of revenues between the centre and the states. Such modification continues till the end of the financial year in which the emergency ceases to operate.
- EFFECT ON FUNDAMENTAL RIGHTS:
Suspension of Fundamental Rights during National Emergency is incorporated under Articles 358 and 359. The former deals with suspension of rights under article 19 and the latter deals with suspension of all other rights except for those under articles 20 and 21.
The six freedoms under Article 19, namely: (3)
- Right to freedom of speech and expression
- Right to form an assembly
- Right to form an association
- Right to movement
- Right to residence
- Right to practice any profession
- ARTICLE 358:
Freedoms provided under the ambit of article 19 are automatically suspended when emergency is proclaimed and no separate order for their suspension is required. The aforesaid suspension of rights means that the state can take any actions in violation of the 6 freedoms mentioned therein and the individual cannot contest the same. It cannot be challenged on the grounds of being inconsistent with fundamental rights. Also, no remedy lies for anything done during the emergency even after the emergency expires. The legislative and executive actions taken during emergency cannot be challenged after the emergency ceases to operate.
- ARTICLE 359:
This article curbs an individual’s power to seek remedy for violation of fundamental rights. The individual cannot approach the court on violation of fundamental right, when the rights are theoretically alive. Thus, this article curbs on the enforceability of the violation of rights. The legislative and executive action taken during emergency cannot be challenged even after the emergency comes to an end. The fundamental difference of both the articles can be understood as, Article 358 operates in the case of external emergency only whereas Article 359 operates in case of both external as well as internal emergency.
- LEGAL ASPECTS:
- SR BOMMAI V/S UNION OF INDIA ( 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1)
This landmark judgement brought Article 356 under the preview of judicial review. The power to impose President’s rule and thus establish overriding powers on an elected state government was challenged through this judgement. The Supreme Court had to discuss the grounds and the extent of the imposition of President’s rule in a State. Questions were also raised whether the imposition of President’s rule is challengeable. The following procedure was established through this case:
- Power of the President to dismiss the state government is not absolute
- Approval of both houses of Parliament is essential for the President to use this power. Until the approval, only the legislative assembly can be suspended by the President
- The suspended legislative assembly also gets reactivated
- On account of non-approval of both houses, the proclamation ends after a period of two months and dismissed government is revived
- The proclamation of Article 356 is subjected to judicial review
This case acted as landmark judgement of securing state’s federal character against the arbitrary use of power by the centre. Earlier, political parties used this mechanism given in the Constitution to get political mileage and settle scores with opposition parties. The Bommai verdict restricted this practice to a large extent. The basic structure doctrine was applied by the Supreme Court in this case to protect the policies of a state government.
- ADM JABALPUR V/S SHIVKANT SHUKLA 1976 (AIR 1207, 1976 SCR 172)
One of the most debated cases of India’s judicial history is this case which dealt with a person’s right to life to be upheld in the High Court through a writ under Article 226, during a National Emergency. The major focus of the case was the ambit of Article 226 and Article 32 and the rights that can be exercised under both. The ambit of the writ petitions was observed by the court in this case, and the emphasis was not on Article 21.
Article 226 has a wider ambit than article 32, as the terms ‘for any other purpose’ in addition to upholding fundamental rights has been used in Article 226. Thus, it also upholds non-fundament constitutional rights. Article 359 of the Constitution allows the President to issue an order declaring all basic rights to be null and void upon his or her proclamation of a state of emergency. During this case, the president rule was in force and all rights, including a right to life under article 21 was suspended. It was contested that Article 226 cannot be enforced to uphold even article 21.
Article 21 can be understood as an inherent right and a principle of natural law. It is available to both citizens and foreigners. It is a right which is endowed by the virtue of being an individual and an intrinsic element of human life. The famous dissent of Justice H.R.Khanna for contesting for individual rights gained significant appreciation. The dissent even costed the judge his chance to become the Chief Justice at that time. In its dissent, Justice H.R. Khanna claimed that invoking Article 359(1) does not negate an individual’s right to approach the Court for the enforcement of statutory rights. Further, he also held that the right to not be deprived of one’s life or liberty, without the authority of law, was not the creation of the Constitution. Such rights existed before the Constitution came into force and even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. Article 21 is not the sole repository of the right to personal liberty. Such a right not only follows from common law, but it also flows from statutory laws like the penal law in force in India.
The judgement of ADM Jabalpur V/S Shivkant Shukla was later overturned in Justice KS Puttaswamy V/S Union Of India (2017) 10 SCC).
Emergency provision is the Constitution is safeguard for the security of the country. It is an essential tool for the centre to enforce law and order and take the executive, legislative and financial powers in its hands. However, emergency provisions act as major threat to the federal character of the Indian polity. Elected state governments are undermined and the centre has overriding powers on the elected representatives. In this constituent assemble debates, Dr. B.R. Ambedkar also accepted the possibility of the misuse of emergency provisions. He observed, “I do not altogether deny that there is a possibility of the Articles being abused or employed for political purposes”.
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ARTICLE BY ARYA THAKUR.
- M Laxmikanth, Indian Polity