EMERGENCY PROVISIONS AND PANDEMIC CRISIS

NATIONAL EMERGENCY

Article 352 provides that if the President is satisfied that a grave emergency exists whereby security of India or any part thereof is threatened by war or external aggression or armed rebellion, he may by proclamation make a declaration to that effect in respect of whole of India or such part of the territory thereof as may be specified in the proclamation. Actual occurrence of War, external aggression or armed rebellion is not necessary for proclamation of such emergency; it can be made even before the actual occurrence of it if the President is satisfied of imminent danger of aforesaid conditions.

Change to the nature of Article 352 appears to have curtailed the ability of the State to act directly through the Constitutional Framework to remedy a situation such as the COVID pandemic. The Sarkaria Commission, set up in the year 1983 to study and suggest improvements in the Centre-State relationship, had an occasion to study the contours of Article 352. In dealing with the concept of ‘internal disturbance’ and the amendment thereof to the words ‘armed rebellion’, the Commission opined, that

‘The scope of the term ‘internal disturbance’ is wider than ‘domestic violence’. It conveys the sense of ‘domestic chaos’, which takes the colour of a security threat from its associate expression, ‘external aggression’. Such a chaos could be due to various causes. Large-scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State, is ordinarily, one such cause.

Such an internal disturbance is normally man-made. But it can be Naturemade, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy.’

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Therefore, it appears that the word ‘internal disturbance’ had been knowingly left open ended by the framers of the Constitution to ensure that it covers within its sweep, various disturbances of varying degrees and scope, including, both man made and natural disasters, as also epidemics. Due to the fear of possible misuse (which the Supreme Court has repeatedly held would not be a ground to strike down a law), the Government of the day, curtailed its own powers in an Emergency situation, which curtailment has come to haunt us today. The breadth of the powers of Article 352, as it stands today, do not allow for declaring the COVID pandemic an ‘Emergency’ and this is the reason that the Central Government could not have invoked it. There is in this country today, no war, no external aggression or armed rebellion.

STATE EMERGENCY

Article 356: Failure of Constitutional machinery of State or State Emergency; According to this article, the President Rule may be declared by President by issuing a proclamation if he is satisfied on the receipt of report from Governor or otherwise that a situation has arisen in which Government of State cannot be carried on in accordance with Constitution.

Interestingly, the Sarkaria Commission notes in its report, that the ‘breakdown’ of Constitutional machinery in a State, can include a ‘physical breakdown’, and states that Article 356 can be imposed – “Where a natural calamity such as an earthquake, cyclone, epidemic, flood, etc. of unprecedented magnitude and severity, completely paralyses the administration and endangers the security of the State and the State Government is unwilling or unable to exercise its governmental power to relieve it. The caveat, however, is that the pandemic, as referred to by the Commission, must be of such magnitude that the State Government is unable or unwilling to exercise its governmental power. This kind of situation has not arisen in our Country.

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FINANCIAL EMERGENCY AND PANDEMIC.

Article 360 : According to this article, if President is satisfied that a situation has arisen whereby financial stability or credit of India or any part of territory is threatened, he may by a proclamation make a declaration to that effect. Art. 360(2): Such Proclamation must be approved by both the houses of Parliament within 2 months by Simple majority else it shall cease to operate after expiry of 2 months. If such proclamation is issued at a time when Lok Sabha is dissolved or dissolution takes place within two months of proclamation without approving it but proclamation has been approved by Rajya Sabha then it will have to be approved within 30 days from date of first sitting of newly constituted Lok Sabha else it will cease to operate.

A Public Interest Litigation has come to be filled before the Supreme Court by a think tank – Centre for Accountability and Systemic Change (CASC), asking for the declaration of finnancial emergency under Article 360. The thrust of the plea appears to be towards unification of efforts by the Centre and the State in an effort to fight the ‘global epidemic’, particularly in view of divergent and arbitrary steps being taken by States in exercise of powers under Section 144 of the Code of Criminal Procedure, 1973; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005. The question that begs to be answered is whether the declaration of a financial emergency, will in fact effectively address the aforesaid issues. Article 360, or draft Article 280A came to be introduced by Dr. B.R. Ambedkar quite belatedly on the 16th of October, 1949. Dr. Ambedkar explained that draft Article 280A drew inspiration from the National Recovery Act of the United States, 1933 to combat the aftereffects of the great depression. It could never be effectively used, since it was struck down by the United States Supreme Court, soon after its enactment. To prevent such a situation from befalling upon any prospective Indian legislation, the framers of the Constitution deemed it fit to introduce financial emergency provisions in the Constitution itself.

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Author: Aditya Singh,
Amity Law School / BBA-LLB(H)

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