Emergency

What is Emergency?

• The concept of emergency in India refers to the period when the President of India can suspend certain constitutional provisions to address a crisis.

Constitutional Provisions Related to Emergency:-

• Provisions related to emergencies are given in Articles 352 to 360 in Part XVIII of the Indian Constitution.
• The Constitution of India provides for three types of emergencies:
  • National Emergency (Article 352)
  • President’s Rule (Article 356)
  • Financial Emergency (Article 360)

Article 352: National Emergency:-

• It is declared due to war, external aggression, or armed rebellion.
• Procedure: Requires a presidential proclamation, which must be ratified by both Houses of Parliament within a month.
• Duration: Once ratified, it remains in force for six months and can be extended indefinitely with the approval of Parliament every six months.

Examples:-

• 1962: Indo-China War (external aggression)
• 1971: Indo-Pak War (external aggression)
• 1975-77: Internal disturbance (later called armed rebellion)

Article 356: President’s Rule:-

• It is imposed when there is a failure of constitutional machinery in a state.
• Procedure: Proclamation by the President, subject to parliamentary approval within two months.
• Duration: Initially for six months, may be extended from time to time with parliamentary approval up to three years.

Examples:

• 1992: Jammu and Kashmir
• 2016: Arunachal Pradesh and Uttarakhand

Article 360: Financial Emergency:-

• May be declared when the financial stability or credit of India or any part thereof is threatened.
• Procedure: Proclamation by the President, subject to parliamentary approval within two months.
• Duration: Indefinite, unless revoked by the President.

Examples:-

• No financial emergency has been declared in India so far.
• Effect of National Emergency on Fundamental Rights

1. Suspension of Fundamental Rights:-

• Article affected: Article 19 (freedom of speech and expression, assembly, association, movement, residence and profession).
• Article 359: It allows the suspension of the right to move any court for enforcement of fundamental rights during an emergency.

2. Detention without trial:-

• Article 22: Protects from arrest and detention in certain cases but was effectively suspended during the Emergency.
• Many political opponents were detained without trial under the Maintenance of Internal Security Act (MISA).

3. Press censorship:-

• Press freedom: Severely restricted; pre-publication censorship was imposed, and dissenting voices were suppressed.

Emergency in 1975

Grounds for Emergency in 1975:

• In 1975, the Emergency was declared on the grounds of “internal disturbance” rather than “armed rebellion”.
• This was the only instance of a proclamation of emergency due to “internal disturbance”.

Amendments after the Emergency:-

• The ground of “internal disturbance” was removed by the Constitution (44th Amendment) Act, 1978, by the Janata Government that came to power after the Emergency.

Constitutional Amendments during Emergency

38th Amendment Act (August 1975):

• Judicial Review Barred: This amendment barred judicial review of the Emergency, effectively preventing the courts from questioning the validity of the proclamation of emergency.

39th Amendment Act (10 August 1975):

• Election of Prime Minister: It stipulated that the election of the Prime Minister could not be challenged in the Supreme Court, thereby ensuring that Indira Gandhi’s election remained uncontested.

42nd Amendment Act (18 December 1976):

• Judiciary and Election Petitions: The judiciary was stripped of the right to hear election petitions.
• Expansion of federal authority: The authority of the Union government to encroach upon state subjects was broadened, leading to the centralization of power.

Legal and judicial developments

ADM Jabalpur vs Shiv Kant Shukla case 1976 :-

• Supreme Court verdict: A five-judge bench ruled that detention without trial during the Emergency was legal, reflecting the judiciary’s rapprochement with the executive during this period.

Effects of National Emergency in 1975

1. Political impact:-

• Mass arrests: Thousands of opposition leaders, activists, and dissidents were arrested.
• Cancellation of elections: Scheduled elections were postponed and political activities were largely suspended.
• Authoritarian rule: Indira Gandhi ruled by decree, bypassing democratic institutions and processes.

2. Social impact:-

• Forced sterilization: Under Sanjay Gandhi’s population control program, many men were forcibly sterilized, leading to widespread public outrage.
• Demolition of slums: Slums were demolished on a large scale in Delhi and other cities, leading to displacement and distress among the urban poor.

3. Economic impact:-

• Economic measures: Some measures like the 20-point program were aimed at economic reform, but were suppressed due to repression.
• Industrial strikes: Suppression of labor strikes and trade union activities, which affected labor rights.

4. Judicial impact:-

• Judicial independence: The judiciary faced pressure to align with the government.
• ADM Jabalpur case (Habeas Corpus case) in which the Supreme Court ruled in favor of the government’s right to suspend fundamental rights during the emergency.

5. Public reaction: 

• Growing public outrage and opposition led to widespread protests.

Effect on the federal structure

Change in unitary structure:-

• The declaration of emergency transforms the federal structure into a de facto unitary structure.
• The Union gains the right to give any direction to the state governments, bringing them under the complete control of the Centre.

Extended powers of Parliament:-

• During the Emergency, Parliament can extend the (five-year) term of the Lok Sabha by one year at a time.
• Parliament can also legislate on subjects in the State List and extend the executive powers of the Union to the States.

End of Emergency:

• Facing mounting pressure, Indira Gandhi lifted the Emergency in January 1977 and announced general elections, which resulted in her electoral defeat.

Post-Emergency Reforms by the Janata Government

Reversal of changes made in the 42nd Amendment:-

• Many constitutional changes made by the 42nd Amendment Act were rolled back, restoring judicial review and other democratic processes.

44th Amendment Act:-

• Removal of “Internal Disturbance”: The amendment removed “internal disturbance” as a ground for imposing an emergency, restricting it to armed rebellion, war, and external aggression.

 

Procedure for Revocation of Emergency

National Emergency (Article 352)

• A proclamation of emergency can be revoked by the President at any time utilizing another proclamation.
• If either House of Parliament passes a resolution disapproving the continuance of the emergency, the President must revoke that proclamation.
• Emergency due to failure of constitutional machinery (President’s Rule) Article 356
• Revocation by President: A proclamation can be revoked by the President at any time by issuing another proclamation.
• Automatic Termination: If it is not approved by Parliament within the prescribed period, it automatically ceases to be effective.

Difference between Article 358 and Article 359

Article 358:

Suspension of provisions of Article 19

• Applies only during a national emergency declared on the grounds of war or external aggression (not armed rebellion).
• Automatically suspends the six fundamental rights under Article 19 for the duration of the emergency.
• Limitations: The state can make any law or take any executive action that would otherwise be inconsistent with Article 19, and such laws or actions cannot be challenged in court.

Article 359:

• Suspension of enforcement of Fundamental Rights.
• Emergency can apply to any declaration of war (war, external aggression, or armed rebellion).
• The President can issue an order stating that the right to move any court for enforcement of specified Fundamental Rights shall remain suspended for the duration of the emergency.
• Limitations: The rights themselves are not suspended, only the right to seek judicial enforcement is suspended.
• This means that laws infringing Fundamental Rights can be passed, but challenges to these laws are temporarily not permitted.