Emergency Provisions of US and India: A Comparison

EMERGENCY PROVISION OF US AND INDIA

Author: Akshat Tripathi, NMIMS, School Law, Mumbai.

What is emergency?

An emergency is a condition that occurs because of the breakdown of the government machinery that triggers or requires the authority to take urgent action. An emergency is a condition that needs urgent intervention and timely warning when such a situation poses a danger to the nation’s life and property. In India, the emergency provisions are such that the constitution itself requires the federal government to gain the power of a unitary government if the crisis demands. With respect to the United States of America The National Emergencies Act 1255, adopted on September 14, 1976, is codified as a constitutional statute passed by the United States to terminate any existing national emergencies and to formalize the President’s emergency powers. At the heart of President Lincoln’s revocation of habeas corpus without Congressional permission in 1861 was an assertion of emergency powers. Lincoln believed that an emergency was created by the Confederate revolt that gave him the unprecedented power of arbitrarily suspending the writ.

The Act empowers the President during a crisis to invoke emergency powers, but before using those powers, it imposes such constitutional formalities. The alleged need for the legislation emerged from the breadth and number of laws in times of national emergency giving extraordinary authority to the president. In a joint resolution signed into law, Congress will revoke an emergency declaration. Powers available under this Act are limited to the 136 law-defined emergency powers that Congress has.

Emergency provisions In India

The Indian Constitution grants the President the right to designate three forms of emergencies: national emergencies, local emergencies, and financial emergencies. In India, emergency laws are copied from Germany’s Weimar Constitution. Part-XVIII of the Indian Constitution deals with the provisions of the Emergency, i.e. 352 to 360 Posts. In the Constitution, there are three forms of emergencies listed. The President of India is vested with the authority to enforce all three forms of emergencies. So basically there are 3 types of emergency provisions

1. National Emergency – Article 352 of the Indian Constitution.

2. Failure of constitutional machinery – Article 356 of the Indian Constitution.

3. Financial Emergency – Article 360 of the Indian Constitution.

National Emergency

In the Indian Constitution, Article 352 speaks of a national emergency. The imposition of a national emergency entails a significant danger to the security of India or all of its territories as a result of the invasion, foreign violence, or violent revolt. Such an emergency shall be declared by the President at the written request of the Council of Ministers chaired by the Prime Minister. The adoption of an emergency resolution shall be subject to a special majority. Once authorized, the service of the emergency shall be for a maximum duration not exceeding six months. In the basis of ‘war’ or ‘external invasion’ when a national emergency is declared, it is known as ‘external emergency’. On the other hand, as it is proclaimed on the basis of ‘armed rebellion’ it is referred to as ‘Internal Emergency’ by the Forty-fourth Constitution Amendment Act, 1978, the term ‘Armed Rebellion’ was substituted for Internal Unrest. The first National Emergency Proclamation was issued in October 1962 as a result of Chinese violence against the NEFA and was in effect until January 1968. The second declaration of the National Emergency was made in the aftermath of the Pakistan  attack in December 1971. The third National Emergency proclamation was made in June 1975, back though the emergency was in effect. In March 1977, both the second and the third proclamations were repealed. Under Article 358, the six constitutional rights referred to in Article 19 are immediately revoked when a declaration of national emergency is issued. After the expiry of the emergency, Article 19 is automatically resurrected. Under Article 359, during a national emergency, the President is allowed to revoke, by decree, the power to transfer every court to impose Constitutional Rights. The remedial actions, and not human rights, are then revoked.

The 44th Amendment Act established that Article 19 could be repealed only if, on the basis of war or external invasion, the National Emergency is laid down and not in the case of armed insurrection. It mandated that the President could not revoke the power to transfer the tribunal and impose the constitutional rights secured by the terms of Articles 20 and 21.

Failure of Constitutional Machinery

Article 356 states that if, on receipt of a report from the Governor of a State or otherwise, the President is convinced that a situation has occurred in which it is not practicable for the Government of the State to function in compliance with the provisions of that Constitution, it may give rise to a state of emergency. Either the Governor’s report will announce an emergency, or the President himself is convinced that the situation is such that the emergency needs to be enforced. The State Emergency Proclamation shall be deposited before each House of Parliament until accepted by both chambers, and the emergency shall cease to have effect after the expiry of a term of two months. Furthermore, the length of the declaration can be extended to 6 months each time the resolution approving its extension is adopted by both Houses of Parliament. The case of S.R Bommai v. Union of India is a seminal case with regard to the imposition of the Law of the President in every State. In compliance with Article 356 of the Indian Constitution, the case lays down the authority of the Union Government in relation to the State of Emergency. This case made the Judicial Review of the President’s Law necessary. The Rule of the President was enforced on the State of Jammu and Kashmir for six years and 264 days, from 19 January 1990 to 9 October 1996. For 4 years and 259 days, from 11 June 1987 to 25 February 1992, Punjab was subject to the Rule of the President.

Financial Emergency

Article 360 states that if the President is convinced that a situation has arisen in which the financial security or credit of India or any part of its territory is jeopardized, he may make a declaration to that effect by means of a decree. Under Article 360 of the Constitution, the President is empowered to declare a financial emergency if he is convinced that there is a danger to the financial security or credit of India or some portion of its territories. It shall be laid before all the Houses of Parliament and shall cease to act at the expiry of two months unless accepted in the meantime by the House’s resolution. However, if the Financial Emergency Declaration is released at a time when the Lok Sabha has been dissolved or the Lok Sabha has been dissolved for a period of two months without the proclamation being accepted, the proclamation shall last until 30 days after the first session of the Lok Sabha after its reconstitution.

Emergency Provisions In US

Woodrow Wilson, who on February 5, 1917, was the first president to make an emergency proclamation.  In 1976, Congress passed the National Emergency Act, Act requires the President, with an emergency declaration, to trigger the emergency provisions of the law on condition that the President outlines the provisions so triggered and notifies Congress. An activation would expire if the President had specifically ended the emergency, or had not periodically extended the emergency, or if a resolution terminating the emergency had been passed by each house of Congress. A joint resolution passed by both bodies requires a presidential signature, granting the president veto power on the termination (requiring a two-thirds vote in the case of a contested termination of both houses).[17] The Act also requires the president and executive agencies to maintain track of all orders and legislation that proceed with the use of the emergency authority and to report annually, the act is codified in 50 U.S.C. 1601-51, in reaction to the continuing presence of four declared national emergencies, the oldest of which had been in effect for forty years. The Act did not cancel the pending states of emergency, but set expiry date, barring further intervention, for current proclaimed emergencies. It also called for a range of methods of termination, including the permanent termination every year of a national emergency on its anniversary, unless the President acts to extend it. The financial crisis of 1933, in which President Roosevelt renewed the national emergency declaration of the Act of 9 March 1933, Executive Order 6102, and banned the hoarding of gold, is some of the emergencies enforced by the United States of America. The Korean War of 1950, in which President Truman proclaimed a national emergency by Proclamation 2914, terrified communism. The 1970 postal workers’ strike, in which President Nixon, through Proclamation 3972, proclaimed a national emergency and threatened to use the National Guard to send mail to New York. The 1971 inflation emergency, in which President Nixon, by Proclamation 4074, proclaimed a national emergency and levied a temporary surcharge on imports to “reinforce the United States ‘ foreign economic role.

National Emergency Act 1976

Section 50 of the U.S section code enshrines the national emergency act of 1976. The National Emergencies Act imposes procedural requirements on the President’s exercise of emergency powers. It has governed the declaration of multiple emergencies. Congress has assigned to the President at least 136 different constitutional emergency powers, each available upon the declaration of an emergency. Just 13 of these require a Legislative declaration; the other 123 are considered to have no additional Congressional input on an executive declaration. Some of them which are still in force are:

1. Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela by Barrack Obama on 8^th March 2015.

2. Blocking Property of Persons Who Threaten International Stabilization Efforts in the Western Balka By George Bush on 26^th June 2001.

3. Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism By George Bush on 23^rd September 2001.

4. Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities By Barrack Obama on 1^st April , 2015.

5. Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption By the current president Donald Trump on 20^th December 2017.

6. Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak By the current president Donald Trump on 13^th March 2020

Conclusion

During the time of emergency for the implementation of power, a breach of the constitutional rights of individuals granted judicially by the Constitution of India may occur. To deter electoral benefits and giving way to political objectives, the legitimacy of acts must be checked. Despite the misuse of powers, emergency laws do have a significant role to play in India’s prevalent circumstances, although this remains a contentious problem for the government. The creation, exercise, and control, from the days of the emergency forces,

To the present day, the Continental Congress represents at least one highly discernible trend: since the time of the Lincoln Administration, those powers applicable to the executive in times of national crisis or demand have been gradually entrenched in statutory legislation. The Senate Special Committee on National Emergencies report of 1976 indicated that the possibility remained that more changes and reforms could be made in this policy area.

References

1. Malika Chhikara , study: Three types of emergencies under the Indian Constitution , Indian legal services , available at http://www.legalservicesindia.com/article/1834/Three-types-of-emergencies-under-the-Indian-Constitution.html.

2. Study : Emergency provision and special provisions of the Indian Constitution, available at https://www.toppr.com/guides/legal-aptitude/indian-constitution/emergency-provision-and-special-provisions-of-the-indian-constitution/

3. Study: Emergency Powers , Cornell Law School, available at https://www.law.cornell.edu/wex/emergency_powers

4. Study: Emergency Provisions in Indian Constitution, Jagran Josh, available at https://www.jagranjosh.com/general-knowledge/emergency-provisions-in-indian-constitution-1437625665-1

5. Elizabeth Goitein , study : The Alarming Scope of the presidents’s Emergency Powers, The Atlantic , available at https://www.theatlantic.com/magazine/archive/2019/01/presidential-emergency-powers/576418/

6. Benjamin Salvatore  Di Fabbio , study: The rule that proves the exception: A Constituional state of emergency in the United States , Bard Digital Commons , available at file:///C:/Users/Akshat%20Tripathi/Downloads/The%20Rule%20that%20Proves%20the%20Exception-%20%20A%20Constitutional%20State%20of%20Em.pdf