Saturday, February 20, 2010

Constitution of India - Emergency Provisions

contitution of IndiaNo Chapter of the Constitution has been subject of more acrimonious attack by the critics than those dealing with the emergency provisions. The Constituent Assembly witnessed one of its most agitated scenes during the discussion of these provisions. Many prominent members of the Assembly opposed the inclusion of these provisions in the Constitution as they thought that they were inconsistent with the democratic provisions embodied elsewhere. The majority of the members, however, favored the inclusion of these provisions, although reluctantly, as a precautionary measure, against possible disruptive forces destroying the newly established Union. The Constitution provides for three different categories of Emergency and in each case the President is empowered to declare the emergency.
War Emergency

If the president is satisfied that a grave emergency exists whereby the security of India or any part of its territory is threatended by war, external aggression or armed rebellion, he may proclaim a state of emergency under Article 352. It may be proclaimed even before the actual occurrence when external aggression is apprehended. But no such proclamation can be made by the President unless the Union Ministers of Cabinet rank, headed by the Prime Minister, recommend to him, in writing, that such a proclamation should be issued. The proclamation may be revoked subsequently; if not, it shall be laid before both Houses of Parliament. If Parliament does not approve of it within one month, it will become ineffective.
As soon as the emergency is proclaimed, the federal provisions of the Constitution cease to function in the area affected by the proclamation. As a result, there is a two-fold expansion of the authority of the Union. First, the executive power of the Union will extend to the giving of any direction to any State executive in the emergency area. Secondly,  Parliament's law-making power will extend to the subjects enumerated in the Sate List. Further, the President is empowered to prohibit by order the distribution of revenues that are normally to be assigned to the Sates under the financial provisions of the Constitution. However, all such orders have to be placed before each House of Parliament for its approval. The combined effect of the operation these provisions is the emergence of full-fledged unitary Government.
Constitutional Emergency in the States

If the President is satisfied on receipt of a report from the Governor or otherwise that a situation has arisen in which the Government of a Sate cannot be carried on in accordance with eh provisions of the Constitution, he is empowered to proclaim an emergency under Articles 356 and 365. As a result, 9I) he may assume to himself all or any of the functions of the State or he may vest all or any of those functions in the Governor or any other executive authority, (ii) he may declare that the powers of the State legislature shall be exercisable by Parliament; and (iii) he may make any other incidental or consequential provisions necessary to give effect to the objects of the Proclamation. The President, however, cannot assume to himself any of the powers vested in a High Court. The proclamation will have to be approved by both the Houses of Parliament in the same manner in which a war emergency proclamation has to be approved.
Suspension of Fundamental Rights: During the period of emergency, as declared under the either of the two categories discussed above, the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution. The term 'State' is used here in the same sense in which it has been used in the Chapter on Fundamental Rights. It means that the power to suspend the operation of these Fundamental Rights is vested not only in Parliament but also in the Union Executive and even in subordinate authority. Further, the Constitution empowers the President to suspend the right to move any court of law for the enforcement of any of the Fundamental Rights. It means that virtually the whole Chapter on Fundamental Rights can be suspended during the operation of the emergency. However, such order are to be placed before Parliament as soon as possible for its approval.
Financial Emergency : If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of its threatened, he may declare a financial emergency under Article 360. The proclamation in this case also should be approved by Parliament as in the other two cases of emergency. During the financial emergency, "the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the direction" or any other directions which the President may deem necessary for the purpose. Such directions may include those requiring the reduction of salaries and allowances of Government servants and even those of the Judges of the Supreme Court the High Courts.
An Analysis : So far, there have been four occasions when emergency of the first category was proclaimed by the President : 
1962 (Chinese aggression), 
1965 (Indo-Pakistan war), 
1971 (Indo-Pakistan war before the emergence of Bangladesh) and 
1975 (internal emergency).
 An analysis of these instances would indicate the purpose and the manner in which, in actual practice, a proclamation of emergency in the States will be made by the President. These may be summed up in the following terms :

  • The essential condition for the intervention by the Centre is the political instability of the State, that is the virtual breakdown of the Parliamentary System of the Government.

  • The Union will watch the situation of instability with utmost caution and provide every opportunity for the formation of an alternative ministry.

  • The proclamation of emergency will only be the last resort when (i) the existing ministry does not have the confidence of the legislature; and (ii) no alternative ministry can be formed.

  • During the period of emergency, the legislative work of the State will be transferred to Parliament Delegation of such work to any administrative boy will be reduced to the minimum.
  • As soon as the political situation within the State becomes conductive to a responsible Government, it will be restored.
Generally speaking in practice, the emergency provisions for Central intervention in cause of breakdown of Constitutional machinery in the States have proved to be not only a protective device for responsible government in politically unstable States but also a blessing to political parties who ere unwilling and incapable to shoulder responsibility for a time on account of group rivalries or any other unfavorable circumstances. During a period of emergency, it is natural that the Executive becomes unusually powerful. This is a tendency of governments all over the world, federal or unitary. The experience of parliamentary democracies indicates that a Parliament is vigilant and through the members of the opposition particularly. it manages to compel the Executive to account for all its actions. Thus, Parliament has the power to check the Executive whenever the latter goes beyond reasonable limits. Emergency provisions. do not, in any way, cut Parliament out of the picture and Parliament has always the right to call the Executive to order; and if they find that the Executive has exceeded its powers in regard to the operation of any of the provisions enacted under the emergency laws, they can always pull it up, even dismiss the ministry and replace it.
How effectively Parliament would and could function during a period of national emergency was a subject of speculation until 1962 when the President proclaimed emergency under Article 352. But the manner in which Parliament has dealt with the emergency shows that instead of the Executive arrogating to itself the powers of Parliament in the name of emergency. Parliament has subjected to Executive to greater control and security in all its actions vitally affection the nation. In fact, the debates in Parliament demonstrated the eagerness with which the Executive sought the approval of Parliament not only with regard to the action already taken by the Government but also that proposed for the future.
The only exception to this in practice was the internal emergency period of 1975-77. There was widespread abuse of executive power in many part of the country in many forms during this period. The extent of abuse became clear only after the lifting of emergency in 1977. Naturally the new Parliament, which came into being after the general elections of march 1977, was interested in prevention the repetition of such a situation in future and hence initiated steps to amend the Constitution suitably to limit the powers of the Government to proclaim internal emergency.
The 44th Amendment adopted by Parliament in December 1978 ensures that the proclamation of emergency can be made only on the basis of written advice tendered to the President by the Cabinet. Internal disturbance not amounting to armed rebellion will no longer be ground for declaration of emergency. Emergency can be proclaimed only when the security of the country is threatened by war, external aggression or armed rebellion. As an additional safeguard, proclamation of emergency will require approval within a month by a resolution of Parliament by a majority of the total membership and not less than two-thirds of the members present and voting. The provisions for financial emergency, again, show how the framers of the Constitution have drawn upon the experience of the working of federalism elsewhere.
Finally, one may consider the provision for the suspension of Fundamental Rights Apparently, this is by far the most unwholesome provision in the Constitution. The provision for the suspension of Constitutional rights does not means, however, that with the proclamation of emergency, there will be an automatic suspension of Fundamental Rights. It may be quite possible to keep the enforcement of the Fundamental Rights intact and there need not be a universal suspension throughout the country merely by reason of the proclamation. Further, the order of suspension should be placed before Parliament and it will be free to take whatever action it deems fit.
The working of the Constitution, so far, shows that the suspension of Fundamental Rights took place rarely. That happened as a result of the proclamation of national  emergency in 1962, 1965, 1971 and 1975.
In contrast to the national emergencies mentioned above, Fundamental Rights were never suspended during any of the emergencies proclaimed in the States. That remains a good precedent. Even during the national emergency, suspension of Fundamental Rights should be restricted to the absolute minimum. There have been only few instances so far of the Union Executive behaving high-handedly towards the States or ignoring Parliament in the name of emergency. The apprehension that the President may act as a dictator is not one of the acute discomforts of our political thinking. On the other hand, the emergency provision have been, on the whole, justified when viewed from the experiences of the past.


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