Impact of proclamation of emergency on the fundamental rights
The declaration of emergency is a severe concern since it disrupts the usual fabric of the Constitution and infringes on people’s rights. The Constitution’s emergency provisions allow the federal government to acquire the strength of a unitary system whenever the necessities of the situation require it.
There are times when events and forces seize a nation unexpectedly and suddenly, putting its security and the lives of its residents in grave jeopardy. In such circumstances, citizens’ individual liberties may need to be temporarily suspended in order to deal with the nation’s threats. Emergency situations put democratic governments in a difficult position by causing a contradiction between their primary responsibility to defend the state’s integrity and their equally essential responsibility to protect the human rights of its citizens and other people under their control. The state is obliged to choose between competing values, and one must be sacrificed for the other. That is the logic behind emergency provisions, which are found in many national constitutions and allow for the suspension of fundamental rights.
Federalism is a weak type of governance, according to Dicey, because it entails a separation of authority between the centre and the units. Every contemporary federation, on the other hand, has endeavoured to overcome this flaw by allowing the federal government to assume more powers whenever collective action is required due to internal or external exigencies.
The Indian Constitution’s emergency provision is a unique feature that empowers the Centre to take broad powers in order to deal with unusual crises. The Centre can seize full legislative and executive authority of any state in an emergency. The Centre can also restrict or suspend citizens’ freedoms under emergency provisions. The existence of an emergency provision in the Constitution is one of the main reasons why academics are wary of describing the Indian Constitution as totally federal.
The Indian Constitution recognises three types of extraordinary conditions that necessitate a break from the Constitution’s normal political machinery:
With the above-mentioned factors in mind, the framers of the Constitution incorporated three types of emergency.
Part XVIII of the Indian Constitution, from art. 352 to art. 360, contains emergency provisions.
- A state of National Emergency (Article 352 of the constitution of India)
- State of Emergency (Article 356 of the constitution of India)
- Financial Emergency (Article 360 of the constitution of India)
As the opening lines of the preceding header indicate, national emergency refers to constitutional measures that must be implemented whenever there is an imbalance in society throughout the country, rather than in a single region or state.
When one or more of the following situations exist, Article 352 of the Constitution allows for the imposition of an emergency.
- External aggression, or
- Internal rebellion.
Article 352 of the Constitution states that if the President is “certain” that a severe emergency exists in which the security of India or any part of it is threatened by outside aggression or armed revolt, he may issue a proclamation to that effect for the entire country or a portion of it. However, sub clause (3) states that the President can only make such a proclamation with the Union Cabinet’s formal approval. A proclamation of this nature must be presented to each house of parliament and must be accepted by each house within one month after its pronouncement, or it will expire.
It should be noted that, it has been stated in the explanation to Article 352 that foreign hostility or armed revolt is not required for the declaration of emergency. It can be declared even if there is a chance of external aggression or armed insurrection occurring.
The president of the country can issue a proclamation, but there are provisions for that as well. Only if the Cabinet recommends it in writing can the President declare an emergency. A declaration of emergency must be accepted by an absolute majority of the total membership of both Houses of Parliament, as well as a 2/3rd majority of members present and voting, within one month, or the proclamation will expire.
If the Lok Sabha is dissolved or not in session when the emergency is declared, the Rajya Sabha must approve it within one month, and the Lok Sabha must approve it within one month of the commencement of the following session. Once approved by Parliament, the state of emergency lasts for six months from the date of proclamation. If it is to be prolonged for more than six months, Parliament must first pass another resolution. In this manner, an emergency can last indefinitely.
The procedure for cancelling an emergency is as follows:
The President of India can withdraw the emergency by issuing a new proclamation if the situation improves. The 44th Amendment to the Constitution states that ten percent or more of the Lok Sabha members can request a meeting of the Lok Sabha, and that at that meeting, the Lok Sabha can approve or revoke the emergency with a simple majority. In that case, emergency will immediately become inoperative.
Article 356 of the Constitution authorises the President to issue a proclamation upon receipt of a report from a state’s governor, or if he believes the state’s government cannot be carried out in line with the Constitution’s provisions. The President’s declaration of emergency in such a circumstances is known as a “proclamation on account of the failure (or breakdown) of constitutional machinery.” In layman’s terms, it’s known as the President’s Rule.
What are the effects of State Emergency?
- With the exception of the High Court, the President can assume all or any of the powers of state administration.
- declare that the state legislature’s functions may be exercised by or under the authority of the Parliament, and
- Make arrangements necessary or desirable for carrying out the proclamation’s purposes.
Article 360 defines the third category of emergency as a financial emergency. If the President believes a situation has emerged that jeopardizes India’s financial stability or credit, he may declare it by proclamation.
This section has never been used.
A later Proclamation
(a) May revoke or vary a Proclamation issued under Art. 360.
(b) Is laid before each House of Parliament
(c) Shall cease to operate after two months unless it has been approved by resolutions of both Houses of Parliament prior to the expiration of that period.
Effects of an Emergency Proclamation on Fundamental Rights
- Federal laws will take precedence over state laws, and the Union would be able to govern areas that are traditionally devolved to the states (e.g., policing).
- The Union also has the authority to take over and fully oversee the taxing and revenue-gathering activities. The Union has the last word in the promulgation of financial legislation approved by the state legislature in times of financial crises.
- The Union may choose to suspend part or all of the fundamental rights provided by Part III of the constitution (Articles 12 through 35).
- In addition, the right to contest the suspension of the rights described above (the right to constitutional remedies) may be suspended. This clause, however, will not apply to the suspension of Articles 20 and 21, which control personal liberty, the right to silence, the avoidance of double jeopardy, and the avoidance of unlawful arrest and detention. Any individual who believes that his rights under these categories have been unlawfully suspended might bring a legal challenge to the suspensions.
- The Union may elect to suspend a state legislature’s legislative activities and impose federal law for a six-month term. This state of suspension may be renewed (indefinitely) at the conclusion of this term by a resolution of Parliament, until the Election Commission of India certifies the feasibility of holding free and fair elections in the state to reconstruct the legislature.
The declaration of an emergency is a severe concern since it disrupts the usual fabric of the constitution and affects people’s rights. Not only Parliament, but also the Union Executive and subordinate authority, have the jurisdiction to suspend the implementation of these fundamental rights. Furthermore, the President has the authority to suspend the right to petition any court for the enforcement of any of the fundamental rights, except those protected by Articles 20 and 21 of the Constitution. It means that, with the exception of Articles 20 and 21, the whole chapter on fundamental rights might be suspended during a state of emergency.
Author: Ankita Sharma,