Emergency Laws: History, Effect, International Comparison & Important Precedents

Coverage of this Article

1. Introduction
2. Why does a country need emergency provisions?
3. Why does India need emergency provisions?
4. Indian History of declaring National emergency
5. Laws related to emergency in other country
6. State of emergency in U.S.A
7. State of emergency in Germany
8. Borrowing of Emergency feature
9. Laws related to emergency in India
10. Types of emergencies in India
11. National emergency
12. State emergency (Presidential Rule)
13. Financial emergency
14. Emergency provisions brought by the said amendment
15. Effects of Emergency
16. President's order
17. Conclusion

Introduction

In around ninety percent countries emergency provisions have been constitutionalized till now. About more than two-third countries (i.e.,138 countries) have declared emergency once and out of which approximately fifty percent of them failed to implement or take load of emergency properly.

Emergency as per Cambridge dictionary means, "something dangerous or serious, such as an accident, that happens suddenly or unexpectedly and needs fast action in order to avoid harmful results."1

According to Black law dictionary, "it is a situation requiring immediate attention and remedial action. Involves injury, loss of life, damage to the property, or catastrophic interference with the normal activities. A sudden, unexpected, or impending situation."2

By importing the word "EMERGENCY" into "STATE EMERGENCY" it means when a country is expecting or already going through situation like external aggression, war, armed rebellion or financial crisis then there is need of an action that is to be taken by the government of a country in order to save its integrity and its existence.

Reaction of a country to an emergency situation totally depends upon the strength and form of government within the country. However, there are extraordinary circumstances when a country should opt for declaring a state of emergency.

The step of declaration of state of emergency is upon the discretion of the country which is facing it but over a period of time it has captured political sensation and debated globally.

Why a country needs emergency provisions?

During the times of unexpected and sudden overtakes of events and forces on a nation, lives of the citizens and their entire security system gets put in great danger. In order to cope with dangers any confronting nation requires that the individual rights and liberties of the citizens be temporarily suspended. Any democratic government has obligations primarily to protect the integrity of the state and then with equal efficacy protect human rights of its citizens and all other subjects which come under its jurisdiction. Many national constitutions which condone the suspensions of rights guaranteed, have the principle of choosing between competing values and the sacrifice of one to another behind emergency provisions.

Why India needs emergency provisions?

A lot of events occurred before as well as after the pre independence period which made arrangements being made for the imposition of the clauses of emergency by the drafters of the constitution relevant.

Religious disturbances had put the democratic preservation and foundation of India under eminent danger prevailing between the Hindus and the Mohammedans. Dissonance gave birth to powers which could destroy casteism, regionalism, communitarianism and the unity of the nation integrated with peace and languish get shattered. Kashmir's dilemma had emerged due to the monarchs defeat while the constitution was being created and then subsequently Pakistan had threatened the country.

One of the unique features the allows assumption of wide powers to the Centre in special situations to the constitution of India is the emergency provision. The Centre is allowed to suspend or curtail freedom of citizens through emergency provisions. A big reason behind educationists hesitating to identify the constitution of India as fully federal is the esse subsistence of the emergency provisions in the constitution.

Towards the membership of the union of India certain states like Junagadh and Hyderabad (indigenous) were unenthusiastically disinclined, which lead to a greater challenge being faced by the government of India as the government had no acceptance towards such separatist actions which were demanded by geographical necessity in Junagadh and Hyderabad. Hence article 352 was required.

Communist activities amongst Telangana workers and farmers had started to spread during the post-independence period. The country's civil order and peace was under possible threat because of the socialist regime prevalent which led to the adoption of extreme clauses by the constitution.

Drafters of the constitution were concerned about the systematic, effective, efficient, and constant operation of the state and the local governments. Hence article 356 was instilled so as to keep a state without legislative processes from collapsing.

The factors which played a big role towards the decline of the foreign currency reserves and branches, also played a role in the drastic downfall of the country's financial position, because of which article 360 was introduced in the constitution of India to prevent legal complications from arising by Dr. B. R Ambedkar.

Indian History of declaring National emergency

Post-independence, there were three-time span when national emergency declared.

1. Between 1962-1968: At the time of Indo- China war, when because of external aggression of China, national security of India was threatened.34

2. In 1971 during the war of Indo-Pakistan under the leadership of Indira Gandhi when the security of India was threatened by Pakistan.

3. Between 1975-1977: Internal disturbance was the reason behind declaration of emergency and again it was proclaimed under the government of Indira Gandhi. The political instability is one of the reasons which led to controversial circumstances and resulted in the proclamation.

Laws related to emergency in other country

State of emergency in U.S.A

To meet crisis, exigency or emergency great powers are bestowed upon the president by the federal laws. These powers are not under restriction of any general sorts and have a wide range of jurisdiction from the military, war to any situation or circumstances. Powers that come under the purview of statutory delegations remain latent and silent until and unless national emergency has been declared by the president while certain other constitutional as well as statutory powers were always within the scope of powers granted to the president.

Powers such as, seizure of commodities, properties, imposition of martial laws, controlling production, travel, laws etc.

Above mentioned overview of the power's era need to the president were exercised at the discretion of the president till World War 1.

There were times when no restrictions were placed upon the announcement of such proclamation and vice versa there were times when the subjects of such proclamation were confined to certain specific files of the policies, such powers were activated with the proclamation of national emergency which might have been declared on any condition or circumstance.

The Supreme Court put certain limitations on the powers of the president with the help of a case quite important to understand the provisions and scope of emergency in U.S.A (Youngstown sheet &tube co. v. Sawyer) but didn't limit the president's power to declare such proclamation at his discretion.

The national emergencies act was introduced in order to impose restrictions on the president for the declaration of emergency. To look at the subject matter of national emergency with close scrutiny a committee was set up specially in 1973.

National emergency act passed by congress in 1976 was to make sure that a specific purpose should be there in order to declare a state of emergency which would not trigger other executive powers related to such declarations subsequently.

State of emergency in Germany

The constitution of Weimar republic is extremely important to understand the provisions of emergency in Germany. During the period of 1918 to 1933 Germany unofficially was termed as Weimar Republic, which came into a broader light in the year 1933. Acknowledgement was given to Germany in 1918 through it being declared as a republic. Subsequently the democratic Weimar constitution was adopted in 1919. To suppress rebellions mainly the Weimar constitution permitted provisions for the declaration of emergency under article 48. It is stated in article 48 "if a state doesn't fulfil obligations laid upon by the Reich constitution/Reich laws the Reich president may use armed forces through military actions in order to force the application to be caused upon such state.

However, when Adolf Hitler successfully won the special federal elections in 1932, he was appointed as the chancellor of Germany by then presiding president Hindenburg. A month later a protest against Hitler's appointment was carried out which is now famously known as the "Reichstag fire", the arson was committed on the parliament on the 27th of February 1933, "Reichstag building".

The commencement of the "Nazi Germany" was ushered via the indefinite suspension of the Weimar constitution, signed by then president Von Hindenburg essentially known as the "Reichstag fire decree".

"Notstandsgezetse" was the German emergency act and constitutional provisions introduced to make certain amendments and to incorporate provisions relating to emergency in the constitution.

Provisions concerning the proper functioning of the basic democratic rules and regulations during a state of emergency were installed very comprehensively in the constitution of Germany. The act provides for certain essential fundamental rights which are to be suspended.

Borrowing of Emergency feature

Articles enumerated in the Constitution of India are not originally invented by the Constituent assembly. Constitution of India is basically known as borrowed constitution because each aspect is borrowed from the constitution of other country. Similarly Emergency provisions were borrowed from Germany. It is not like that provisions were exactly copied and pasted to form our constitution. It is only the conceptual idea that was borrowed and framing was done by drafting committee under Dr. B R Ambedkar who was heading the drafting committee. And rest is the history when the Constitution was finalized in 2 years, 11 months and 18 days.

Laws related to emergency in India

Types of emergencies in India

Federal standards under Part XVIII of the constitution enforced in the presidential state of emergency which the state may override concerning the freedom of individuals

Article 352 to article 360 of the Indian constitution contains provisions relating to emergency:

• National emergency - Article 352
• State emergency - Article 362
• Financial emergency - Article 360

National emergency

"Meaning: According to Article 352, when security of India or part of the territory is threatened by reason of war or external aggression or armed rebellion and to the satisfaction of the President there exists grave emergency then National emergency may be declared by way of proclamation in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.

Furthermore, it should be noted that National emergency can be imposed even before actual occurrence of such events.

Procedure for declaration of National emergency: National emergency can be proclaimed only when Union Cabinet communicate to president in writing of decision to issue a proclamation. Proclamation is valid for one month unless revoked and shall cease to operate at the expiration of one month unless approved by resolutions of both Houses of parliament [ Majority of total house + two-third present and voting.

Time span: Once National emergency is approved then it will be valid for 6 Months. And if further approved by the same procedure, then it will continue for 6 Months more.

Procedure for revocation of National emergency: National emergency may be revoked or varied by the President by a subsequent proclamation. Where a notice in writing signed by not less than one tenth of the total number of members of the House of the People has been given of, their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (l) or a Proclamation varying such Proclamation, (a) to the Speaker, if the House is in session; or (b) to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or as the case may be, by the President, for the purpose of considering such resolution."5

Duty of Union during National emergency: Article 355 lays down the duty of union towards the appropriate function of state machinery so as to prevent the breakdown of the country. It states as, "It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution."6

State emergency (Presidential Rule)

Meaning: Union government has a responsibility to make sure that the state takes action according to the constitution's requirement to ensure proper administration. It is stated in the article 356 that when the president is of the view that a state government is inefficient and ineffective, and is failing to carry out operations smoothly due to the state's constitutional machinery not working as it should, via a briefing and a report by the governor of the state, president then constitutes a meeting with members of the council, after which a state emergency may be issued.

The first state in India to proclaim a state of emergency was Punjab.

In such cases the president's declaration of emergency is known as "announcement due to the breakdown of the legislative mechanism".

Effects of the state emergency: The president may assume all or any of the responsibility of the state government, but he in himself cannot assume any power of the high court and further cannot suspend any article relating to high court.

Announce that state legislative duties and powers to be exercised by or under parliament's jurisdiction.

The subject matter which is necessary and suitable for the execution is supposed to be declared. Any which way, president isn't allowed to presume or terminate statutory obligations relating to the jurisdiction of high court. 126-fold rule was instituted in India by the president until 2018.

Under Indira Gandhi's rule, the presidential rule has been used on 35 different occasions.

Procedure for declaration of state emergency: An announcement which is concerning the national emergency is supposed to be sent for ratification before each of the Houses of Parliament, and the method of declaring a state emergency is pretty identical to the procedure used for national emergency. Within a period of two months, permission is supposed to be granted in situations such as these, after which the declaration shall cease to exist.

Time span: Once approved the it will be valid for 6 Months and further can be extended for 6 more months.

Procedure for revocation of state emergency: The time frame of proclamations and revocations in emergencies such as these are specified by the constitution of India along with the procedure, but when a proclamation is supposed to cancel a proclamation made prior, proclamation is supposed to be delivered to each of the houses of the parliament, Lok Sabha as well as Rajya Sabha.

Times when the Lok Sabha is under dissolution or when a proclamation is issued during times of dissolution, and when the ministers of council have issued a resolution proclaiming a state emergency, and also if there is no such resolution."7

Financial emergency

Meaning: As per Article 360 of the constitution when there is a threat to the financial stability or credit of India or any part of India then president to the satisfaction of the same may proclaim Financial emergency.

Procedure for declaration of Financial emergency: Proclamation is valid for 2 Months unless revoked and shall cease to operate at the expiration of 1 month unless proclamation is approved by the resolutions of both Houses of Parliament.

Time Span: Once it is approved the it is continued to be in force till it is revoked by the president.

Directions during Financial emergency: When proclamation is issued then executive power of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety and may further provide for the measures that needs to be followed so as to proper implementation of the directions within state.

Further, during financial emergency it shall be competent for the President to issue directions for the reduction of salaries and allowances of all or any class of persons serving the union, including Judges of the Supreme court and High courts. Furthermore, under such direction President may reserve all money and other bills for the consideration after passing the same by the legislature.

Procedure for revocation of Financial emergency: President may vary or revoke it at any time by issuing a subsequent proclamation.

"8 Noteworthy that there has never been a situation when Financial emergency has executed.

Perception of Judicial review upon Emergency Provisions

All three emergencies and specifically National emergency which come under the Article 352 are valid constitutionally. But however, Internal disturbances being loosely and not effectively explained, drafted with such nonchalance under the above-mentioned article, gave rise to issues such as, the integrity of the services which are to be carried out by politicians being exploited, similarly the integrity of their tenure, office and services being exploited just the same. When the emergency ceases, after being dismissed, its validity, measures taken to safeguard, as provided by the judiciary as well as the legislature are often put under carefully carried out scrutiny.

Amendment of 1978 have been made to incorporate even more safeguards, in the grounds of proclamation, courts have made their positions stronger and have enhanced their functions, using their powers such as judicial intervention wherever possible.

In the case of Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr.9 it was held that Judicial review is the basic structure of the Constitution of India.

Article 352 is not out of the preview of Judicial review. In the case reported as Minarva Mills Ltd. Vs. Union of India10, it was held that there is no bar to judicial review of the validity of Proclamation of emergency by President under article 352.

Regarding Article 356 there are three cases that should be discussed over here. One is State of Rajasthan vs Union of India11, it was held that the court could exercise "minimal" judicial review if the power was abuse by the executive. It was made specific that the court could interfere with overtly mala fide exercise of power or exercise on irrelevant consideration. Further it was held that the word "satisfaction" in Article 356(1) does not mean the personal satisfaction of President, but it is the satisfaction of the cabinet. Second one is S.R. Bommai vs Union of India12, it was held that federalism is the basic structure of the constitution and exercise of power under article 356 is subject to judicial review. It was held that the satisfaction of the president must be formed on relevant materials. It could be struck down by the court if it is based on wholly irrelevant or extraneous grounds or if it is mala fide. The court cannot go into the correctness of the material or its adequacy, but it could see whether it was relevant to the action. "For this purpose, the court strictly relied on Justice Sarkaria report on centre-state relationship for the purpose of determining the circumstance and conditions subject to which President could act under Article 356. The Sarkaria commission in its report broadly classified the instances of failure of constitutional machinery into:

1. Political crisis, where it is not possible to form a government in the state.
2. Internal subversion, where for example a government is deliberately acting against the Constitution and the law, or is fomenting a violent revolt or revolution.
3. Physical breakdown, where the government willfully refuses to discharge its constitutional obligations endangering the security of the state; and
4. Non-compliance with constitutional directions of the Union government, for example, under Article 256, 257, 339(2) or 353."131415

Thirdly, in the case reported as Rameshwar Prasad vs Union of India16, the President rule was imposed on the ground that no political party or combination of parties was capable of forming the government and horse trading is apprehended. It was held that it would be wholly irrelevant for a constitutional authority on the ground that majority has been obtained by allurements and bribes, which deals have taken place on the cover of darkness, but has undisclosed sources have confirmed such deals. Thus, the judgment in this case has severely restricted the use pf Article 356. Changes brought by the 44th Amendment17 In order to prevent misuse of power by the executive as in 1975 during the term of Indira Gandhi, the Constitution was amended. Following are some important amendments in the

Emergency provisions brought by the said amendment

• Under Article 352, "Internal disturbance" was replaced with "armed rebellion".
• The decision of proclamation of emergency must be communicated in writing by the Cabinet.
• The proclamation must be approved by both the houses within one month.
• Re approval by both houses is to be done after every six months.
• Revocation of emergency can be done by simple majority of the house, present and voting.
• Under Article 359, suspension of right to move to Court for violation of Fundamental rights will not include violation of Article 20 & 21 during operation of emergency.

Effects of Emergency

Whenever an emergency is imposed, it has grave and serious effects in the lives of people. The aftereffects of proclamation of emergency can be divided into three sub heads which are given below:

I. Executive Effect

Upon the proclamation of emergency the Union becomes empowered to use under its ambit the executive power to give directions to the state relating to the manner in which the executive powers shall be exercised by the State. The 42 Amended extended such powers of the Union by amending Article 353 in 1976 and laid that the Union can give directions not only to the state in which emergency has been proclaimed but to other states as well in the cases where the territory or any part of the territory's security is compromised or threatened. This power must be used sparingly and not casually.

II. Legislative Effect

Parliament becomes empowered to make laws on any subject in List II (State List) and when the Parliament is not in session then the President can issue Ordinance on state list too. However, these laws which the parliament make on state subjects during the proclamation of emergency die / become inoperative six months after the emergency ceased to be in force.

III. Financial Effect

While a Proclamation of Emergency is in operation, the President may, by order define the financial arrangement between the State and the Union as under Articles 268 to 279. Such order shall be laid before both the House of Parliament and when the Proclamation of Emergency ceases to operate, such order shall too come to an end.

IV. Effects on the life of Lok Sabha and State Assembly

When emergency is in operation, the life of Lok Sabha may be extend by one year at a time and this extension limited to a period of six months and cannot continue post that period after the emergency has ceased to operate.

V. Effect on Fundamental Rights

The Indian constitution under Article 358 & 359 lays down the effects of a national emergency. Firstly, Article 358 provides that Article 19 stands suspended when an emergency is proclaimed along with the six fundamental rights which are enshrined under it and Article 19 is revived on its own right after the emergency ceases to operate. It was brought in by the 44th amendment to the constitution that Article 19 will stand suspended only then when the emergency has been laid due to war or external aggression and not when it has been laid on the grounds of armed rebellion. Secondly, Article 359 suspends other fundamental rights except right to move to the Court for enforcement of Article 20 and 21, as added by the 44th Amendment to the Constitution. Under Article 359, the President may, by order suspend the right to move to Court for violation of fundamental rights during proclamation of emergency. This order is laid before both Lok Sabha and Rajya Sabha for their approval, after the approval is achieved then it is passed as a

President's order

Thus, the remedial measures against the violation of fundamental rights are suspended. It must be noted that only those fundamental rights are suspended which are mentioned in the President's order and not any other. This suspension can be for the entire tern of proclamation of emergency or they could be suspended for a shorter term too.

In the case of Makhan Singh vs. State of Punjab18, the Hon'ble Supreme Court distinguished between Article 358 and 359.

1. Under Article 358 suspension of Article 19 is completed during the period of emergency and legislative and executive actions which contravenes Article 19 cannot be questioned even after the emergency. Article 359 on the other hand, does not suspend the Fundamental Rights, but merely authorises it President to issue an order declaring that the right to move any court for the enforcement of Fundamental Rights shall remain suspended. Thus only right to seek remedy is suspended.
2. Article 358 is effective all over the country, whereas Article 359 may be confined to an area.
3. Freedoms given given by Article 19 are suspended by the virtue of Article 358. However, under Article 359 Fundamental rights are not suspended, only the right to move to the Court for enforcement of Fundamental right is suspended.
4. Article 358 suspends Article 19 for the entire period of emergency, whereas under Article 359, the right to move to Courts is suspended for the period of emergency or until the proclamation of the President to remove suspension before the emergency ceases to be in operation, i.e., for a shorter period.

Conclusion

Significant long studies, comprehensive researches of the constitution have led to it being drafted with such deliberations arduously. Emergency provisions are to be placed with precision, caution and care keeping its importance and results at an extreme level of consideration which presents itself at the most critical and vital pedestal.

Transformation of the federal system of India into a unitary one takes place with the exercise of such executive powers. A continuous belief regarding the third national emergency of 1975 not being in check and accordance with the balance of the system exists making us inclined towards the reinstatement of such check with precision in the present and any unforeseen future event, so that the parties ruling at the time and the executive machinery do not exploit their powers rather use then wisely.

Powers are included in the constitution of India which allows infringement of individual rights and liberties during the times of emergency.