Author: Ms. Simran
*This article has been written by the author while pursuing a Certificate Course on Research Methodology with us.
The liberal democratic regime is the basic structure of our constitution upon whom the Indian sits. Constitution, even before the independence we had gone through with many constitutional amendments which were done by the British through various acts such as Regulating Act 1773, Pitts India Act 1784, The Government of India Act, 1858, 1919 and 1935 was defined and enrolled to manage the affairs of Indian Colony.
Back until the Constitution of India, 1949 came about, there were such prevailing situations arising like law and order and migration of population on large scale from here and there and towards Pakistan. In order to curb that situation, our constitution itself incorporated with an independent structure of “EMERGENCY PROVISIONS” to the Government to cope with exceptional situations and circumstances. Thus, Part XIII of the Constitution titled “Emergency Provisions” strengthens the President with enormous emergency powers arising out of the war, armed rebellion, breakdown, and financial crisis.
A “National emergency” is a stage where the government or President authorizes with power to perform and impose such policies that it would be difficult, to begin with, a particular step and distinguishes from a normal situation. A government announces such an emergency when the President thinks that there is the situation emerges of such kinds of imminent danger of war, external aggression or war rebellion.
Prior to the 44th Amendment, the security might be threatened by-
- External aggression
- Internal disturbance
Internal disturbance has substituted by ‘armed rebellion” and prior to it,
On 25 June 1975- President had to proclaim an emergency on the words of Prime Minister, the Indra Gandhi who had written an application to President and took leave of the Council of Ministers.
Another an unexpected live example which we all are facing right now is “Corona Virus” during which U.S’s President Trump signed a declaration on a national emergency due to such internal disturbance turn out upon the heads of people but it is now compiled into an “armed rebellion” so, it could become under the internal disturbance if it is not amended.
PROCLAMATION OF NATIONAL EMERGENCY:
A proclamation is an official declaration issued by a person of authority to make certain announcements known within the framework of some nations in the name of the head of state.
Thus, the President could make a proclamation declaring a national emergency.
After the 44th Amendment, Proclamation of emergency may be issued on any of the following grounds-
- War- Merriam-Webster Dictionary describes war as “a state of usually open and declared armed hostile conflict between states or nations.”
Thus, it is a conflict between two nations involves the use of weapons, a military organization and soldiers. Remarkably, such an emergencies was declared in India-
- Sino-Indian War, 1962– India was attacked by China in 1962, the Indian army even though not prepared with such war and therefore the deadlock happened as loss of 10,000-20,000 Indian troops and 80,000 Chinese troops.
- The India- Pakistan War, 1965- When India gained its independence in 1947 from the British Colony, India was partitioned into two separate countries, first, the Profane nation of India and second, the Muslim Nation of Pakistan.
- External Aggression-The President could announce proclaim of emergency if he concludes that the situations arise as to where the security of India is threatened by external aggression. In the case of law, Sarbananda Sonowal v Union of India, there was a big rush of illegal migrants from Bangladesh resulting in periodical clashes between the citizens of India resulting in loss of life and property held to be external aggression.
- Armed Rebellion- In case of law, State of Karnataka v Union of India, an armed rebellion is generally directed against the government and it is supported by the decisions of the highest Court in the land-that government is the agent of the State, the machinery by which the will of the State if formulated, expressed and executed is an essential condition of the stability of the State.
Article 352(1) thus provides that a proclamation may be issued by the President even before the actual occurrence of such above circumstances or event contemplated.
Article 352(3) gives us an exception to the above article where a President could not declare a proclamation unless the emergency has to be proven by the Union of Ministers or has been communicated to President in writing by the Union of Ministers. In Minerva Mills Ltd. V Union of India, the “satisfaction” that is the security of India used in this, does not mean the personal satisfaction of the President, there must be the satisfaction of Union of Ministers too.
DURATION OF PROCLAMATION OF EMERGENCY:
Article 352(4) -Without approval of House of Parliament-
When the House of Parliament has not been in the parliament as the reasons of dissolved or dissolution, the proclamation of emergency could be continued in force for a period of one month (prior to the 44th amendment of two months) from the date of issuance without being approved by the House of Parliament.
Article 352(5) –With approval of House of Parliament-
A proclamation of emergency which had made under this Article 352(5) could be continued in force for a period of six months from the date of that approval which has taken by the House of Parliament and such approval has been passed by a resolution of the special majority of not less than two-thirds of the members of the House present and voting.
REVOCATION OF PROCLAMATION OF EMERGENCY:
- It may be revoked by the President by making a consecutive proclamation. [Article 352(2)].
- Proclamation shall be ceased on the expiration of six months period unless the continuance of such proclamation has been further approved by the House of Parliament. [Proviso- 352(2)].
- The Lok Sabha shall revoke the proclamation of emergency, if passes a resolution disapproving the continuance in force of such proclamation. [Article 352(7)].
- The proclamation shall also revoke on the ground where a notice in writing signed by the members of the House of Parliament of not less than 1/10th of the total number of members have been given to move a resolution of disapproving the continuance of such proclamation of emergency. [Article 352(8)].
EFFECTS OF PROCLAMATION OF EMERGENCY:
The proclamation has such of the consequences mentioned below:
- The 42nd Amendment [Article 353]-It states the executive power of the Union of any State shall also extend to any other State where the proclamation of emergency is in operation.
- Parliament empowered to legislate on State Subjects [Article 353(b)]-The State has the right to make laws during an emergency and the Union of Parliament has also the right to make laws mentioned in the State list.
- Extension of the life of Lok Sabha [Article 83(2)]- While the proclamation of emergency is in operation, the normal life of the Lok Sabha may extent by a year not exceeding beyond six months after proclamation ceases to operate.
SUSPENSION OF FUNDAMENTAL RIGHTS:
As soon as, the emergency is proclaimed on any of the grounds mentioned above, all the freedoms guaranteed by Fundamental Rights are automatically suspended.
- Suspension of fundamental rights guaranteed under Article 19- Article 358 provides for the suspension of the six freedoms guaranteed under this and nothing in this article shall restrict the power of the State to make any law or taking away the rights guaranteed under Article 19.
The Constitution (44th Amendment) Act, 1978 made two major changes-
- Article 19 will be put up as soon as the proclamation of emergency is declared.
- The mentioned Article will only cover the emergency laws from being challenged in a court of law.
The Constitution (59th Amendment) Act, amended Article 358 and inserted that “the rights guaranteed under Article 19 would be suspended also on the ground of “armed rebellion”.
M.M. Pathak v Union of India, the Supreme Court held that the provisions came under the proclamation of emergency on Fundamental rights are not a string but only their operation is stringed.
Put up the right of fundamental rights [Article 359]- Article 359 states that the right to move to any court for fundamental rights except Article 20 and 21 shall remain suspended for the period during which the proclamation of emergency is in force.
The Constitution (38th Amendment) Act, 1975 inserted a new clause (1-A) that prescribes that the State are provided with such power to make laws upon any of the executive action.
The Constitution (44th Amendment) Act, inserted that President shall not provide with any such power to suspend the Article 20 and 21 of the constitution and the laws which do not come under the ambit of Emergency Provision” can be challenged in a court of law.
In, Makhan Singh v State of Punjab, Article 359 uses the words “any court”, which does itself provide that any courts of competent jurisdiction shall also have the right to seek such matters.
Hence, a very substantial innovation held under “National Emergency”. History repeated itself back to back in many cases as an example of A.D.M. Jabalpur v. S. Shukla; the Supreme Court stated that under Article 226, not even a single person has a right to proceed or does not have any legal right to proceed with the writ petition for any given remedies as also for Habeas Corpus. Henceforth, it is thus clear that the existence of such particular law made during the period of emergency under Article 352 is not coetaneous with the provisions of the proclamation of emergency and therefore, the proclamation of the given emergency has not revoked as soon as the law comes to an end and vice-versa.
 AIR 2005 SC 2920
 AIR (1977) 4 SCC 608
 AIR 1980 SC 1789
 AIR 1978 SC 803
 AIR 1964 SC 381
 AIR 1976 SC 1207