Author- Nivedita Kori, Student at Hidayatullah National Law University
TO THE POINT
The intention of the Emergency Provision imbedded in the Indian Constitution was safeguarding the national security but still its implementation led to suspension of fundamental rights and various debates are spotted relating to the misuse of executive powers. This article emphasis on how situations like Proclamation of Emergency challenge the balance between the freedoms of the individual and the authority of the state.
The article further dwells into the judiciary’s stance on accountability of the executive, and focused on how legal precedents, rulings and reforms have strengthened the democratic safeguards. This analysis emphasizes the importance of judicial review, legislative vigilance and procedural transparency in upholding the Rule of Law and ensuring that the Constitution remains supreme even in the situation of Emergency.
USE OF LEGAL JARGONS
- Emergency Provisions – Part XVIII (Article 352-360) of the Indian Constitution deals with the Emergency Provisions in India. Under these provisions the President has the power to proclaim an emergency if the situation demands, and in extreme cases, the federal structure could also be converted into a unitary government, where the president and executive power of the central government takes control over the powers. There are three types of emergencies ( discussed below)
- Fundamental Rights – Part III of the Indian Constitution guarantees every individual certain kind of civil liberties like, right to life, liberty, equality and freedoms such as freedom of expression and speech , to reside and travel in any part of the country , etc. These rights are known as Fundamental Rights and citizens must not be deprived of it.
- Proclamation of Emergency – It is the formal declaration of emergency made by the President in accordance with Article 352, 356, and 360.
- Habeas Corpus – It is a type of writ under Article 32 which means that, “you shall have the body” which is used to challenge unlawful detention.
- Executive Power – According to Ram Jawaya Kapoor and others Vs State of Punjab “ the residue of governmental functions remaining after the legislative and the judicial functions are defined is known as Executive Power”.
- Judicial Oversight – It is basically the responsibility and powers of the judiciary to review the actions of legislature and executives. Judiciary plays a vital role during emergency situation as it needs to maintain the balance between the rights of the individual and authority of state.
- Executive overreach – It is when the Executive misuses their powers and act beyond the constitutional authority.
- Judicial Review – Judiciary examining the governmental actions and legislation whether it complies with the Constitution of India.
- DPSP (Directive Principles of State Policy) – Part IV of the Constitution deal with some non-justiciable principles which helps in guidance to the policies of the state.
- Non-derogable Rights – The rights which cannot be suspended in any situation , for example Article 20 & 21 post 44th Constitutional Amendment.
THE PROOF
Part III of the Constitution deals fundamental rights of the citizens of India. These are basic rights which ensures liberty, equality and dignity for the citizen of India and are enforceable in nature. These rights ensure the basic minimum standards of living and freedom for all and protect them from the arbitrary state actions.
These rights are not absolute comes with restrictions. These rights can be suspended during Emergency. Part XVIII states about the provisions of Emergency (Article352-360). There are three kinds of Emergencies:
1.National Emergency (Article352)
2.State Emergency (Article356)
3.Financial Emergency (Article360)
On conditions like war, armed rebellions, external aggression, or failure in constitutional machinery, the President can declare an emergency. In emergency situations the central government acquires exclusive authority to govern states through both legislative and executive functions.
1.NATIONAL EMERGENCY
President has the power to declare a National Emergency under Article352 , due to armed rebellion, external aggression or threat to India’s security. It can even be imposed prior to the actual threat that could occur. As per the mandates of 44th Constitutional Amendment, the president could impose National Emergency only on a written recommendation from the cabinet.
Procedure for proclamation:
- A proclamation requires parliamentary approval through both houses during a period not exceeding one month after which it becomes void.
- Upon Lok Sabha’s dissolution, the Rajya Sabha needs to approve it within a month followed by Lok Sabha’s approval within one month of its next session.
- The emergency becomes effective upon approval with six months of continuous operation that needs Parliamentary endorsement for continuation beyond this period.
2. STATE EMERGENCY
An obligation has been imposed on the union under Article 355 to protect the states from internal disturbance and external aggression.
If state government fails to perform its function in accordance to the Indian Constitution, President’s Rule can be imposed under Article 360.
Within the time period of two months the proclamation must be ratified by the Parliament or else it will not be effective.
Effects of Proclamation:
- All specific functions of the state government can be taken up by the President.
- Parliament has the powers to perform the functions assigned to the state legislatures.
3. FINANCIAL EMERGENCY
- Article 360 deal with the Financial Emergency which can be imposed by the president , if he is satisfied that the credit or financial stability of India or any part of the country is at risk or is unstable.
- Approval by both Lok Sabha and Rajya Sabha Parliament is mandatory. A financial emergency enables the Union Government to instruct states to follow particular financial rules and implement vital measures which preserve economic stability.
- Under conditions of financial emergency the President holds the power to order salary reductions for government employees including Supreme Court and High Court judges.
- Article 360 has never been invoked in the history of India.
Under Article 359 of the Indian Constitution, an individual’s right to move to the court could be suspended by the President during the period of emergency. However, this was curtailed by the 44th Constitutional Amendment (1978) which restored the power of judicial review and also stated that Article 20 & 21 cannot not be suspended during the emergency.
ABSTRACT
The Indian Constitution upholds Fundamental Rights as guarantees of liberty, equality and dignity but these rights become temporarily suspended when emergency situations arise. Emergency provisions were established for protecting the national security yet the concerns are raised about excessive use of the executive power and its abuse. The research looks into emergency provisions alongside their rights effects together with legal mechanisms that protect both judicial oversight and parliamentary accountability and democratic integrity.
CASE LAWS
- ADM Jabalpur Vs Shivkant Shukla
The case determined that the fundamental rights can be suspended during emergency and also upheld the suspension of the writ Habeas Corpus. This judgement was criticized for suspending the fundamental rights and its enforcement. Further it was overruled by 44th Constitutional Amendment which stated that Article 20 21 are non-derogable rights which cannot be suspended during the period of emergency.
- S.R. Bommai Vs Union of India
The following are the takeaways from this case:
- Article 356 must be used to preserve federalism.
- President’s Rule under Article356 is not absolute and is conditional, and an objective analysis is required.
- President’s Rule is upheld by judicial review, where the Union government bears the burden of proof.
- Makhan Singh Vs State of Punjab
The case determined that individuals under Defence of India Rules during the Indo-China War became ineligible to file court petitions concerning Articles 14, 21, and 22 according to Article 359.
- Arjun Singh v. State of Rajasthan
The suspension under Article 359 is only applicable to the rights which are explicitly mentioned, suspension of Article 14 was taken as valid whereas enforcement of Article 16 was held up. This judgement created chaos and confusion among the citizens itself.
- Ghulam Sarwar Vs Union of India
The case determined that the orders passed by the President under Article 359(1) cannot be challenged on the grounds of discrimination.
- M.M. Pathak Vs Union of India
This is a critical case decision which emerged after the emergency. It determined that the suspended rights during the period of emergency must be restored upon the conclusion of the emergency period.
CONCLUSION
There should be a balanced maintained between the National security and individual freedoms when there is execution of emergency provisions relating to the enforcement of fundamental rights. The Indian Constitution ushers in government powers to restrict certain rights during emergencies yet the 1975-77 Emergency serves as evidence of why such executive powers must be handled cautiously. Judicial Interpretations has played a major role in interpreting the impact of the emergency provisions on the Part-III of the Indian Constitution. Initially, in ADM Jabalpur v. Shivkant Shukla, suspending Fundamental Rights was upheld. But further, the 44th Constitutional Amendment upheld the enforceability of Article 20 and 21 during the emergency period and also supported the concept of judicial oversight.
The post-emergency era came up with judicial and legislative reforms which strike the balance between the individual liberties and state authorities. Through the 44th Constitutional Amendment the government established alterations to emergency provisions that protected Articles 20 and 21 from suspension and improved judicial review functions while strengthening legislative oversight roles. The reforms established new framework adjustments for the 1975-77 Emergency period to establish India’s dedication to democratic rule and constitutional law enforcement.
Judicial ruling came up with certain restrictions on imposition of the emergency provisions. As seen in the case of M.M. Pathak vs Union of India , the court stated that the Fundamental Rights should be entirely restored upon the conclusion of emergency period. The scope of PIL(Public Interest Litigation) has been expanded through Bandhua Mukti Morcha vs. Union of India. The Supreme Court of India in this case alongside other judicial decisions empowered courts to play a stronger role in protecting socio-economic rights while watching for emergency provision abuses. To prevent the misuse of emergency and safeguard the constitutional integrity, upholding the judicial oversight, accountability of legislative actions and transparency in administrative procedures are necessary.
FAQs
Q1. Define non-derogable rights?
Ans – The rights which cannot be suspended in any situation (even in emergency). For example, Article 20 & 21 in India are non-derogable rights.
Q2. When was 44th Constitutional Amendment was introduced and why did it overruled the ADM Jabalpur case law?
Ans – 44th Constitutional Amendment was introduced in 1978 and it has overruled the controversial case of ADM Jabalpur Vs Shivkant Shukla by stating that Article 20 & 21 cannot be suspended even during the period of emergency. This aimed to prevent the misuse of the power that happened during the emergency period of 1975-77
Q3. Does judiciary have the authority to examine and review the declaration of emergency?
Ans – Yes, judiciary has the power to review the proclamation of emergency and can also strike down any detention that has been made illegally or any abuse of power or any misconduct.
Q4. State the significance of the case of S.R. Bommai?
Ans – It upheld judicial review and federalism and has imposed restrictions on the powers of President under Article 356.
Q5. What are the provisions related to Financial Emergency and whether India has made declaration regarding such emergency?
Ans – Article 360 of the Indian Constitution deals with the Financial Emergency . Financial Emergency has never been invoked in the history of India.
Q6. Whether the orders issued by the President under Article 359(1) can be questionned?
Ans – The orders passed by the President under Article 359(1) cannot be challenged on the grounds of discrimination. This was help in the case of Ghulam Sarwar Vs Union of India.
Q7. What power does Article 359 gives to the President?
Ans – Article 359 empowers the President to suspend the right of the individuals to approach the courts for the enforcement of their fundamental rights during the period of emergency.
Q8. Under what circumstances a National Emergency can be declared?
Ans – Article 352 of the Indian Constitution deals with the declaration of a National Emergency in India. This can be declared in situation of External Aggression, Armed Rebellion , any threat to security of the country or in a situation of war.
