Emergency provisions in India

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  Emergency provisions in India

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• Introduction: A state of emergency in India refers to a period of governance that can be proclaimed by the President of India during certain crisis situations. Under the advice of the Cabinet of Ministers, the President can overrule many provisions of the Constitution, which guarantees Fundamental Rights to the citizens of India.
• Constitutional structure: The emergency provisions are contained in Part XVIII of the Constitution of India, from Article 352 to 360. These provisions enable the Central government to meet any abnormal situation effectively. The rationale behind the incorporation is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution. 
• Three types: The Constitution stipulates three types of emergencies - National Emergency, Constitutional Emergency and Financial Emergency
• National Emergency - It can be declared on the basis of war, external aggression or armed rebellion. The Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type. 
1. Grounds of declaration - Under Article 352, the president can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. The President can declare a national emergency even before the actual occurrence of war or armed rebellion or external aggression When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’. This term ‘armed rebellion’ is inserted from the 44th amendment. Before this term it was known as internal disturbance. Example: If India and Pakistan openly accept that they will use armed forces against each other is simply war. If there is no formal declaration that there will be armed forces used against a country is external aggression. And if because of these two grounds an emergency is proclaimed as an external emergency.
2. Facts - The 38th Amendment Act of 1975 made the declaration of National Emergency immune to judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of 1978. In Minerva Mills case (1980), the Supreme Court held that National Emergency can be challenged in the court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts.  
3. Parliamentary approval and duration - The proclamation of emergency must be approved by both the houses of parliament within one month from the date of its issue. If the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution takes place during the period of one month without approving the proclamation, then the proclamation survives until 30 days from the first sitting of Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. If approved by both the houses, the Emergency continues for 6 months and can be extended to an indefinite period with an approval of the Parliament for every six months. Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority. 
4. Revocation of proclamation - A proclamation of Emergency may be revoked by the President at any time by a subsequent proclamation. Such proclamation does not require parliamentary approval. The emergency must be revoked if the Lok Sabha passes a resolution by a simple majority disapproving its continuation. 
5. Declarations made so far: This type of emergency has been proclaimed three times so far- in 1962, 1971 and 1975. The first proclamation of National Emergency was issued in October 1962 on account of Chinese aggression in the NEFA and was in force till January 1968. The second proclamation of National Emergency was made in December 1971 in the wake of the attack by Pakistan. Even when the emergency was in operation, the third proclamation of National Emergency was made in June 1975. Both the second and the third proclamations were revoked in March 1977.
• President’s Rule: Article 355 imposes a duty on the centre to ensure that the government of every state is carried on in accordance with the provisions of the constitution. It is this duty in the performance of which the centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in a state. This is popularly known as ‘President’s Rule’. 
1. Grounds of imposition: the president’s ruler can be proclaimed under Article 356 on two grounds: Article 356 empowers the President to issue a proclamation if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the constitution. Article 365 says that whenever a state fails to comply with or to give effect to any direction from the centre, it will be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution. 
2. Parliamentary approval and duration: A proclamation imposing president’s rule must be approved by both the houses of parliament within two months from the date of its issue. But if the proclamation of President’s rule is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided that the Rajya Sabha approves it in the meantime.
3. Consequences of President’s rule: The President acquires the following extraordinary powers when the President’s rule is imposed in a state: He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state. He can declare that the powers of the state legislature are to be exercised by the parliament. He can take all other necessary steps including the suspension of the constitutional provisions relating to any body or authority in the state. Scope of judicial review: The 38th Amendment act of 1975 made the satisfaction of the President in invoking Article 356 final and conclusive which would not be challenged in any court on any ground. But, this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the President is not beyond judicial review.
• Financial Emergency: 

1. Grounds of declaration: Article 360 empowers the president to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened.
2. Parliamentary approval and duration: A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue. But if the proclamation of Financial Emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. Once approved by both the houses of Parliament, the Financial Emergency continues indefinitely till it is revoked.
3. Effects of Financial Emergency: Extension of the executive authority of the Union over the financial matters of the States. Reduction of salaries and allowances of all or any class of persons serving in the State. Reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the State. Direction from the President for the reduction of salaries and allowances of all or any class of persons serving the Union; and the judges of the Supreme Court and the High Courts.

• Criticism of the emergency provision: Some members of the Constituent Assembly criticised the incorporation of emergency provisions in the constitution on the following grounds:

1. The federal character of the constitution will be destroyed and the union will become all-powerful 
2. The powers of the State- both the Union and the Units- will entirely be concentrated in the hands of the union executive. 
3. The president will become a dictator
4. The financial autonomy of the state will be nullified
5. Fundamental rights will become meaningless and, as a result, the democratic foundation of the constitution will be destroyed.’ 
6. While defending the emergency provisions in the Constituent Assembly, Dr Ambedkar accepted the possibility of their misuse. He observed, ‘I do not altogether deny that there is a possibility of the Articles being abused or employed for political purposes.’

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• HISTORICAL TIMELINE OF EVENTS DURING 1975-77 EMERGENCY
• 1. The socio-economic condition of India was in bad shape between 1972-1975. Two major wars and the influx of 8 million refugees from Bangladesh had strained the economy. There was a sharp increase in oil prices and prices of commodities.
  2. Some important parallel developments at the same time include the Nav Nirman movement led by Akhil Bhartiya Vidyarthi Parishad in Gujarat, Sampoorna Kranti (total revolution) agitation led by Jayaprakash Narayan (JP), & national strike by the Railway workers union. 
  3. The slogan ‘Indira Hatao’ (Remove Indira) gained momentum and voices seeking the resignation of Indira Gandhi on moral grounds were at their peak. As a reaction, the Congress coined ‘India is Indira and Indira is India’.
  4. They circulated another poem to attract public confidence in Indira Gandhi: ‘Indira tere subah ki jai, Indira tere sham ki jai, Indira tere kaam ki jai, Indira tere naam ki jai’.
  5. What attracted people was a different poem. On the evening of the judgment by Justice Krishna Iyer, JP recited Ramdhari Singh Dinkar’s  “सिंहासन खाली करो कि जनता आती है” (Deboard your throne as public is coming) in Delhi’s Ramlila ground.
  6. At 9:30 pm, on June 25, 1975, the Proclamation of Emergency was sent to President Fakhruddin Ali Ahmed. At midnight, Indira Gandhi invoked Article 352 of the Constitution for ‘internal disturbance’, and imposed a National Emergency.
  7. At 8:00 am, Indira Gandhi made an unscheduled radio broadcast to tell the nation about the Emergency. Many newspapers in Delhi had their power supply cut off the previous night, and had not reached readers. They reported the news on June 27.
  8. The entire Congress Parliamentary Party, barring five dissidents, supported the Emergency. All five were suspended from the party. The Communist Party of India also wholeheartedly supported the Emergency.
  9. This was the third instance of declaration of Emergency, the other two being in 1962-1968 (Indo-China war) and 1971 (Indo-Pak war). Technically, the 1971 Emergency was not revoked and was still running at the time of issuing the 1975 Emergency.
  10. The Indian Express held a silent protest against this and carried a blank page instead of an editorial. The Financial Express carried Rabindranath Tagore’s poem, “Where the mind is without fear, and the head is held high”.
  11. Gulzar’s famous movie "Aandhi" (1975) was banned, because the film was supposedly based on Indira Gandhi. The film "Kissa Kursi Ka" (1977) - a bold spoof on the Emergency - where Shabana Azmi played 'Janata' (the public), a mute, dumb protagonist, was banned.
  12. Constitution was amended in an autocratic manner through 5 constitutional amendments starting from  38th amendment till the 42nd amendment, which is also called the mini Constitution. Barring a few, many amendments were later nullified by next government and by Supreme Court.
  13. The 39th Amendment placed MISA in 9th Schedule, making it totally immune from judicial review even on the grounds of breaching fundamental rights. It was later repealed in 1977 by the successor government, through the 44th Constitutional amendment.
  14. Other coercive legislations like the Armed Forces (Special Powers) Act, 1958 (AFSPA), the Essential Services Management Act (ESMA), 1968 and the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 are still enforced.
  15. The naxal movement, which started from Naxalbari in West Bengal, gained pace during this period. A routine mode of operations of Naxalites in Kerala was attacks on police stations in rural areas. The police acted with vengeance upon citizens.
  16. In September 1976, Indira’s son Sanjay Gandhi initiated a widespread compulsory sterilisation program. This was not only hard paternalism, but was forceful and brutal. Many instances of forceful sterilisations were reported. 
  17. Almost all High Courts held that even during Emergency, a citizen could approach them under Article 226 of the Constitution for appropriate remedy through writ jurisdiction. This was overturned by the Supreme Court in ADM Jabalpur’s case by a majority of 4:1. The lone dissenter in ADM Jabaplur, Justice HR Khanna, was deprived of the post of Chief Justice of India due to his decision. ADM Jabalpur is no longer good law and has been overruled by the Supreme Court in KS Puttaswamy case (Right to Privacy verdict 2017).
  18. After imposition of Emergency, Nani Palkhivala refused to appear for Indira Gandhi. Fali Nariman, who was the Additional Solicitor General, resigned from the post. Ram Jethmalani was the then Chairman of the Bar Council of India.
  19. The military chose to remain apolitical during the Emergency. In fact, the Army refused to help with water requirements of the INC Party for a massive rally at India Gate and made its stance very clear that it will do nothing to uphold the Emergency.
  20. On January 18, 1977, Indira Gandhi called fresh elections and released all political prisoners, though the Emergency officially ended on March 23, 1977. In the Lok Sabha elections held in March 1977, Indira Gandhi and Sanjay Gandhi both lost their seats.

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