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Constitutional Emergency Provisions: A Scholarly Inquiry Into Their Historical Development, Contemporary Relevance, And Legal Implications

In India, emergency measures are incorporated in Part XVIII of the Indian Constitution. It comprises a total of nine articles, numbered 352-360. Part XVIII of the Constitution defines three types of emergencies: national emergencies, state emergencies, and financial emergencies. Article 352 of the Constitution addresses national emergencies, Article 356 addresses "provisions in event of constitutional machinery breakdown in states," and Article 360 addresses financial emergencies.

Our structural design reflects a thorough understanding of the government's requirements in both normal and abnormal periods and in order to survive the struggle for existence, we must be prepared to deal with an unexpected crisis. Such anticipatory safeguards have been validated by historical practices and experiences. Unusual arrangements and procedures were designed to confront and avert imminent disasters. Internal dissensions and external aggressions may occur as a result of the absence of measures in the governmental system for dealing with such unexpected crises. To maintain a country's existing order, the constitutional framework must provide for emergency action.

The circumstances surrounding the constitution's formulation have a significant impact on the formulation of emergency measures and therefore the emergency measures were conceived in the face of critical situations necessitating immediate implementation.

Further this paper will elaborate briefly on the emergency provisions in Indian as well as the comparison of Indian emergency provisions with the provisions of other countries such as USA and Germany.

Emergency Provisions Under The Indian Constitution

Part XVIII of the Constitution, as previously stated, has provisions for three different types of unusual situations. The first is Article 352, which authorizes the President to declare a state of emergency if he is "certain that a severe emergency exists in which India's security or that of any portion of its territory is threatened, whether by war, external aggression, or armed insurrection." Following such a declaration, Parliament and the Union are allowed to pass laws on behalf of any State.

This includes the power to control how money is distributed. In the event of a military conflict, the President may also suspend Article 19. (which protects freedom of speech, assembly, association, and movement). Generally speaking, the President has the power to restrict citizens' access to filing court petitions to enforce their constitutional rights, which are listed in Part III of the Constitution (except for Articles 20 and 21). Various safeguards surround the invocation and exercise of powers during an emergency.

First, the Union cabinet must provide the President written approval before the President can issue or modify a proclamation. Second, neither House of Parliament may approve a proclamation that would endure more than a month (and then too by majorities of the total membership of each House and two-thirds of those present and voting).

Lastly, every six months, proclamations that have been approved by both Houses must be reaffirmed (by similar majorities, as described above). Finally, a "recital" noting that it is "in relation to the Proclamation of Emergency" must be included with legislation or actions that restrict rights or remedies under Part III of the Constitution (with the additional proviso that laws or actions suspending remedies must also be laid before Parliament).

Emergency Provisions Under Article 352

Since the Constitution's adoption, Article 352 has been invoked three times: in 1962 after a conflict with China; in 1971 after a conflict with Pakistan; and in 1975 after "internal upheavals." Over the course of each of these times, the Court has given new interpretations to Article 352. Sree Mohan Chowdhury v Chief Commissioner was a landmark case in which the Court heard a habeas corpus petition submitted by a person held under the 1962 Defence of India Act[1].

The Court denied the appeal, stating that "as a result of the President's Order aforesaid, the petitioner's right to move this Court... has been suspended during the operation of the Emergency, with the result that the petitioner has no locus standi to enforce his right, if any, during the operation of the Emergency."

The appellants in Makhan Singh Tarsikka v State of Punjab questioned whether the High Courts of Bombay and Punjab were correct in dismissing their petitions challenging the legality of the Defence of India Act.[2] The appellants argued that Article 359, as strictly construed, did not preclude them from seeking intervention from the High Court under Section 491 of the 1898 Code of Criminal Procedure, which stated that "any High Court may, whenever it thinks fit, direct that a person illegally or improperly detained in public custody be set at liberty."

The Court disagreed, stating that any writ in the "kind of habeas corpus" was in violation of the "content," if not the "form," of Article 359. Despite agreeing with Mohan Chowdhury that detainees lacked locus standi to dispute the Act's validity, the Makhan Singh Court willingly addressed the topic of what options remained accessible to detainees who wanted to challenge "the legality or appropriateness of their detentions." [3]

There were at least three reasons given. To begin, a detainee could go to Court to seek enforcement of fundamental rights not covered by the Presidential Order. Second, a detainee could file a lawsuit in Court claiming that his incarceration was "ordered mala fide."

Finally, a detainee could challenge the Act on the grounds that it suffers from "the vice of excessive delegation," meaning that it has delegated "basically legislative powers" to the administration. [4]To begin with, the Court's substantial engagement with Article 352 has been sporadic at best.

For example, it's unclear whether a Proclamation is justiciable, let alone what would happen if an adverse decision were made. YV Chandrachud J's opinion for the majority in Waman Rao v Union of India, which followed Minerva Mills, placed doubt on Bhagwati J's earlier frank dictum, further muddying the waters. Detention orders issued during an emergency can now be reviewed at any time.

However, this result is not the result of the Court absorbing Khanna J's opinion in Shukla. It is instead due to the Constitution's Forty-fourth Amendment, which prohibits the suspension of Articles 20 and 21 during a national emergency.

This implies the Court will have no precedents in favor of liberty to fall back on if habeas corpus is suspended in the future. It's possible that such a day will arrive. The forefathers of a nation recognized a fundamental truth-that Indian civilization is "fissiparous"-and offered a remedy that may have to be regained.

The preceding leads to a second observation. Since 1977, India has not suffered a national security crisis. However, there is no certainty that these fortunate circumstances will continue. There are still bold attacks, like the 2001 attack on Parliament, which aimed to eliminate the national leadership. These fundamentally parliamentary safeguards may be vulnerable when put to the test because parliaments are not immune to fear; they can be deceived; they can lack access to confidential material; and they might simply lack guts, as they did in 1975 and 1977. It's worth pondering the basic dichotomy presented by 'The Emergency' at this point.

Its genesis encapsulates many of the idioms of Indian political culture, including the personalization of positions, the fragility of institutions, and the unmanly penchant for sycophancy. Its conclusion emphasizes the inevitability of political opposition�that frustrating but sometimes essential tendency of pluralistic societies to obstruct the modest and large intentions of those in positions of power.

The brevity of this chapter prevents me from speculating on which of these tendencies can be relied upon more, but the question is worth asking because it focuses attention on estimating whether the relevant safeguards will hold firm on the day of reckoning rather than on the 'parchment barriers' that lawyers and textbooks cite with great certainty.

The preceding leads to a third point. If we have cause to anticipate that India may face national security crises sooner or later and that Parliament will be unable to stand up to the government, the Court must be prepared to step in. To paraphrase Lord Atkin's famous term, the Court has thus far proven to be "more executive-minded than the executive."

The fact that these are the views of four Chief Justices in a row says a lot about the Court's prior steadfastness. The point isn't that the separation of powers can't be trusted in India. Rather, if Article 352 is to be interpreted in accordance with the preamble, the Court must demonstrate a willingness to defer in times of crisis while refusing to submit in the face of obscenity. This willingness is yet to be determined

Emergency Provisions Under Article 356

When there is a "failure of constitutional machinery" in the State, Art. 356 enables the Union to impose "President's rule" and suspend the State Legislature and Executive. Section 93 of the Government of India Statute, which gave the governor the power to declare an emergency if the province could not be run in accordance with the provisions of the statute, is where Article 356's roots may be found.

According to According to Article 356 of the Constitution, if the Governor of a state notifies the President in writing that "the Government of the State cannot be carried on in accordance with the provisions of the Constitution," and the President is satisfied that such a situation has occurred, he may, after declaring to that effect, assume all or any of the duties and powers formerly held by the concerned State Government or the Governor of that state. In addition to the State Legislature, he may assign this authority to any other state body. Additionally, he has the authority to transfer to Parliament all of the State Legislature's duties and authority.

President's Rule is subject to judicial scrutiny, and the President is only held accountable when the Emergency is declared in the following circumstances:
  1. When a state's constitution does not adhere to the direction of the Union.
  2. When the state is in the grip of a political crisis.
  3. When there is a state-wide internal subversion.

Article 356 And Safeguards

The Indian Supreme Court has intervened from time to time to keep the Union's power under Art. 356 in check. However one instance is the landmark decision issued by a nine-judge bench in the SR Bommai case[5], which has unquestionably done a great deal in significantly restricting the constitutional power afforded by Art. 356, by drawing out the essential checks. [ii]

The majority ruling of the Supreme Court (S.R. Bommai case) in 1994 effectively broke a long tradition that the employment of Article 356 was not truly open to judicial review, a theory expressed in a landmark 1977 case, State of Rajasthan vs Union of India.[6]The Bommai case ruling established the requirements and methods for the dismissal of state administrations.

In the S.R. Bommai case, a nine-member Supreme Court bench interpreted the scope of Article 356, which also provides for the imposition of President's Rule in the States under strict conditions. These included determining if objective conditions exist that make it impracticable to carry out governance in the state in which the proclamation was issued, and the process must be approved by both Houses of Parliament before court review is considered.

The favourable impact of Bommai on the constitutional and political landscape is obvious when comparing the time period 15 years before to Bommai, i.e., before 1994, when Art. 356 was invoked 40 times, to the time period 15 years post-Bommai, when it was invoked only 11 times.

Emergency Provisions Under Article 360

Article 360 is about "Provisions for Financial Emergencies." The President declares a financial emergency when a scenario emerges that poses a financial threat to India or any region of India.

Article 360 of the Constitution grants the President the authority to act only when he is satisfied that the financial stability or credit of India, or any part of its territory, is jeopardised. If the President's subjective satisfaction (or lack thereof) under Article 360 is construed to be justiciable and judicially manageable, it will not only open the floodgates but also prove to be a dangerous proposition.

There may be a high likelihood of financial instability, but the power to declare a financial emergency under the scheme of Article 360 rests with the President, not the Supreme Court acting through its writ jurisdiction. The decision to make a proclamation making such a declaration is similarly based on the President's subjective satisfaction, but the Court would be unable to x-ray such subjective contentment due to a lack of knowledge in fiscal matters[7]

In India, a financial emergency has never been declared. However, the possibility of a financial emergency emerged in 1990, but the situation was under control of the Indian government, as the Reserve Bank of India pledged 46.91 tonnes of gold with the Bank of England and the Union Bank of Switzerland in July 1991 to raise $400 million.

Comparative Analysis Of The Emergency Laws Of India

USA And Germany

India has borrowed its emergency laws from Germany whereas on the other hand Germany and the United States of America's present emergency provisions are responses to years of abuse and misuse of the older rules. Although India and Germany have very precise and meticulous emergency laws, the same is not seen in the United States, where emergency provisions are fairly vague.

In the United States of America, the courts determine whether a certain act of the Central Government is justified or not under the emergency legislation. Even during times of conflict, the courts have the authority to determine whether an emergency statute is legitimate.

For example, in Hirabayashi v. United States 23, the court affirmed some measures imposing restrictions on citizens of Japanese heritage living in the United States by compelling them to remain in their dwellings during particular hours to prevent any espionage or sabotage activities

Additionally, the courts determine the operational area of the Centre in terms of emergency laws. It's also worth noting that the United States of America faced emergency situations during the first and second world wars, and during these times, a very expansive and liberal interpretation of the terms 'war' and 'defence' in relation to the central government's authority to declare them was given, and this is how the emergency was handled in the United States during the two world wars.

This broadens the center's scope and operational area, enabling it to take all essential steps to defend and protect the country from any threat or to conduct war efficiently. However, in India and Germany, emergency provisions are more explicit and direct, and are far simpler, as they are dependent on the central executive who declares an emergency. The Constitution itself deals with the repercussions of such emergencies, and there is no reliance on the judiciary or its interpretation.

Furthermore, if we look at the United States Constitution, there is no mention of the term "emergency," and the rules and provisions for dealing with a crisis are inherent in the Constitution, specifically in Articles I, II, and IV. Whereas India's and Germany's constitutions make explicit reference to emergency provisions. Germany and India both have two houses, and in order to declare a national emergency, both houses must vote by a two-thirds majority, which is then promulgated by the respective countries' presidents. Germany and India both have national and state emergencies, whereas the United States has national and financial emergencies, the latter of which the US Constitution shares with India.

Another significant point in common with all three countries is that, even when the Central Government assumes additional authorities and functions during a national emergency, they must remain within the limits established by their individual Constitutions.

For example, Articles 20 and 21 of the Indian Constitution, which provide for "protection against conviction for offences" and "protection of life and personal liberty," respectively, cannot be suspended in the event of a national emergency. Similarly, Article I of the German constitution declares certain fundamental human rights to be inviolable and non-alienable. Thus, while the Constitutions of these countries permit some deliberation outside of normal legal procedures, the governments of these countries cannot deviate from the Constitution during a national emergency.

Furthermore, it is noteworthy observing that all three Constitutions have numerous safeguards to guarantee that such law is not abused.

This paper has outlined the Constitution's emergency provisions and described how they have been interpreted over time. The paper further elaborated on the similar and distinct features of the emergency provisions of India, USA and Germany. The paper further discusses the measures taken by the court to prevent exploitation through the ambiguities in Articles 352 and 356.

  • Singh, R. (2006). Emergency provisions in Indian constitution. Vidhigya: The Journal of Legal Awareness, 1(1), 77-79.
  • Das, B. C. (1977). Emergency provisions in the Indian Constitution: A study in comparative analysis. The Indian Journal of Political Science, 38(2), 237-252.
  • Shandilya, A. (2012). Emergency Provisions in the Indian Constitution: A Study of the 'Internal Disturbance' of 1975. Available at SSRN 2260728.
  • Raj, H. (1992). Emergency In Indian Constitution.

  1. AIR 1964 SC 173.
  2. AIR 1964 SC 381.
  3. Makhan Singh Tarsikka (n 39) [36].
  4. Makhan Singh Tarsikka (n 39) [39].
  5. S.R. Bommai v. Union of India, (1994) 3 SCC 1.
  6. State of Rajasthan v. Union of India, (1997) 3 SCC 592.
  7. S.R. Bommai v. Union of India, (1994) 3 SCC 1, para 34.
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