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EMEGENCY IN INDIA AND USA BY: DHOBALE SANKET NARAYAN
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EMEGENCY
IN INDIA AND USA
AUTHORED BY: DHOBALE SANKET NARAYAN
Roll no. 01
LL.M 1st year
Division:- A
PROGRESSIVE EDUCATION SOCIETY
MODERN LAW COLLEGE, PUNE
ABSTRACT
Emergency
can be defined as a situation where the Government of a country either alters
or suspends the normal functioning of a nation by holding in a state of
abeyance the Constitution and other organs of the Government. Different
conditions can be referred to as the reasons in light of which the Government
of a nation may pronounce a state of emergency, for example, civil unrest, calamity
or disaster, armed rebellion or conflict, war, etc. When the emergency is
proclaimed in a nation, the typical texture of its Constitution is upset, the
political, financial, and social climate of that nation is changed and the
privileges of the citizens are either curtailed or suspended. The power of
emergency thus can be described as both a curse and a gift as it can be used to
tackle sudden, unsuspecting threats, while on the other hand, it can become a
tool in the hands of a Government to carry out its agendas and suppress its
dissidents. In this study, we will look
at the various emergency laws and conditions of India, the U.S.A., and how each
of these countries differ and are similar in the implementation of their
emergency laws.
INTRODUCTION
Even though it is not uncommon for a country to declare a
state of emergency, it is still a very rare phenomenon that occurs only in
exceptional circumstances, especially in democratic regimes. An emergency is a
situation in which the Government of a state suspends the normality of
Constitutional, legal, political, and economic procedures. If we look at the
dictionary meaning of emergency, it means, “an unforeseen
combination of circumstances or the resulting state that calls for immediate
action.”[1]
Various circumstances can be cited as the reasons because of
which the Government of a country may declare the existence of a state of
emergency, such as, civil unrest, calamity or disaster, armed rebellion or
conflict, war, etc. Whatever may the reasons be, when an emergency is declared
in a country, the normal fabric of its Constitution is disturbed, the
political, economic, and social environment of that country is altered and the
rights of the citizens are affected? The power of emergency thus can be
described as both a curse and a gift as it can be used to tackle sudden,
unsuspecting threats, while on the other hand, it can become a tool in the
hands of a Government to carry out its agendas and suppress its dissidents.
Different countries have different procedures for declaring a
state of emergency and the consequent effects of such declaration vary from
country to country. However, in this study, the emergency provisions of India,
the U.S.A., and Germany have been dealt with, more specifically national emergencies.
As far as India is concerned, the President has the power to
declare emergencies of three kinds:
· National Emergency
· State Emergency
· Financial Emergency
The President can do so with the advice of the cabinet
ministers and because of the power vested in him by Part XVIII of the
Constitution of India which contains laws relating to Emergency provisions in
India.
When it comes to the U.S.A., the situation is somewhat
similar to India as the President of the U.S.A., being the Chief Executive of
the nation, has the power to declare an emergency in the country. Similarly, a
Governor or a Mayor has the power to declare a state of emergency within his
jurisdiction. Emergency at the federal level in the U.S.A. is regulated by the
National Emergency Act.
India, U.S.A., and Germany are three different examples of
federal states with different laws and procedures. They can also be described
as model examples of democratic states in their respective continents, Asia,
North America, and Europe. Since many consider emergency provisions as being
the antithesis of democracy, it is worthwhile to analyze how such laws find a
place within democratic principles.
This study will extensively deal with the National
Emergencies in these two countries and will try to make an analytical study
between them.
STATE OF EMERGENCY IN INDIA
Historical
Background
The inclusion of the
emergency provisions in the Constitution of India was greatly influenced by the
circumstances and the conditions prevalent at the time of framing the
Constitution. The communal tension between the Muslims and the Hindus at that
time was thought of as a great threat to the newly established democratic set
up of India. Moreover, casteism, regionalism communal disharmony was at a peak
at that time. Again, some states were hesitant to join the Union especially
Junagarh and Hyderabad. All of this led to the inclusion of Article 352 in the
Constitution. Communist activities taking place at that time also played a
major role in the inclusion of the emergency provisions especially Article 356.
The weak financial situation of the country at the time of independence due to
the partition and plummet of the foreign exchange reserves led to the inclusion
of Article 360.[2]
The emergency provisions in India are contained in Part XVIII
of the Constitution of India. It contains nine Articles in total, Article
352-360. Under Part XVIII of the Constitution, three kinds of emergencies are
envisaged, namely; national emergency, state emergency, and financial
emergency. Article 352 of the Constitution provides for national emergency,
Article 356 of the Constitution lays down “provisions in case of failure of
constitutional machinery in states” and Article 360 deals with financial
emergency.
Under Article 356, if the Governor of a state sends a report
to the President stating that “the Government of the State cannot be carried on
following the provisions of the Constitution” and the President, on the receipt
of such report, is satisfied that such a circumstance has arisen, he may after
proclaiming that effect assume all or any functions and powers of the concerned
State Government or the Governor of that state to himself. He may also give
such powers to any other body in the State other than the State Legislature. He
can also empower the Parliament to perform and exercise all the functions and
powers of the State Legislature.
Article 360(1) provides that:
“ If the President is Satisfied that a situation
has arisen whereby the financial stability or credit of India or any part of
the territory thereof is threatened, he may by a Proclamation make a
declaration to that effect.”
National Emergency (Article 352)
Besides state emergency and financial emergency, there is
another kind of emergency in India that is of great importance and is the main
focus of this study, i.e., national emergency. National emergency in India is
dealt with under Article 352 of the Constitution of India. It is perhaps the
most important provision relating to emergency in India.
Article 352 (1) of the Constitution of India provides that, “If
the President is satisfied that a grave emergency exists whereby the security
of India or any part of the territory thereof is threatened, whether, by war or
external aggression or armed rebellion, he may, by Proclamation, made a
declaration to that effect in respect of the whole of India or of such part of
the territory thereof as may be specified in the Proclamation.”
An
important aspect of this clause is that a proclamation of emergency need not
extend to the entire India. It can be limited to a specific part of the
territory of India.[3]
It is
worthwhile to note that the term “armed rebellion” was only brought in by the
44th Constitutional Amendment and before the amendment, the term “internal
disturbance” was used instead of armed rebellion. However, it was felt that the
expression internal disturbance was too vague and hence it was replaced. The
main objective was to limit the imposition of an emergency under Article 352
only to serious situations.
It
was held by the Supreme Court in Naga People’s Movement of Human Rights v.
Union of India[4]
that the term “internal disturbance” has a broader implication than
“armed rebellion” as the latter is more likely to pose a threat to the security
of India whereas the former though could be serious, might not pose a threat to
the security of India.
Under
Article 352(2), an emergency proclamation made under Article 352(1) may be
subsequently varied or revoked by another proclamation.
Article
352(3) was also a result of the 44th Amendment. It provides that, “The
President shall not issue a Proclamation under clause (I) or a Proclamation
varying such Proclamation unless the decision of the Union Cabinet (that is to
say, the Council consisting of the Prime Minister and other Ministers of
Cabinet rank under Article 75) that such a Proclamation may be issued has been
communicated to him in writing.”
Thus,
the President is not entitled to proclaim Article 352(1) unless the Cabinet
collectively writes to the President about its decision for the issuance of
such proclamation. The Prime minister also has to consult the Cabinet in this
regard and such a decision cannot be taken by the Prime Minister alone. In
1975, the Prime Minister without consulting with the Cabinet advised the
President to declare an emergency and the President obliged. The Council of
Ministers was only presented with a fait accompli[5] Therefore, to make
sure that such a situation doesn’t arise again, this clause was inserted.
Clause
4 of Article 352 lays down that, “every Proclamation issued under this article
shall be laid before each House of Parliament.” A proclamation will stop
affecting the expiry of a month if it is not approved by the Parliament (Lok
Sabha and Rajya Sabha). However, if the Lok Sabha is dissolved, at the time of
the issuance of the proclamation or thereafter, without approving it and consequently
the Rajya Sabha approves it, then it will cease to operate thirty days after
the Lok Sabha sits again. But if in the meantime, the Lok Sabha approves the
proclamation by a resolution then it will continue.[6]
After
the proclamation is approved, it remains in force for six months, unless it is
revoked earlier as provided under Article 352(5). For a proclamation to
continue beyond that period, it has to be approved by both the houses again.
Clause
6 of Article 352 states that “For clause (4) and (5), a resolution may be
passed by either House of Parliament only by a majority of the total membership
of that House and by a majority of not less than two-thirds of the members of
that House present and voting.” This is kind of like a safeguard that was
introduced by the 44th Amendment as before the amendment such a resolution
could be passed only by a simple majority in each House.
Clause 7 of Article 352 limits the power of the President in
the sense that he is under the obligation to revoke a proclamation of emergency
which is issued under Article 352(1) if the Lok Sabha disapproves it through a
resolution. A simple majority voting in this respect is enough by the members
who are present. This can be deemed as another safety measure that the 44th
amendment has introduced to ensure that there is no abuse or misuse of the
powers entrusted to the executive.
Article
352(9) empowers the President to declare an emergency on different grounds, “being
war or external aggression or armed rebellion or imminent danger of war or
external aggression or armed rebellion, whether or not there is a Proclamation
already issued by the President under clause (l) and such Proclamation is in
operation.”
The 38th Constitutional Amendment introduced this provision
in 1975 after the proclamation of emergency was issued on the ground of
internal disturbance. This provision was inserted to make sure that there
arises no problem when two proclamations are in operation despite them being on
two different grounds.
It is worthwhile to note that it is
the President’s “subjective satisfaction” which decides whether the security of
India is under threat or not, however he still has to act on the advice of the
Cabinet of the Union. In Bhut Nath v. State of West Bengal[7],it was held by the
Supreme Court that the continuance of emergency under Article 352 is not void
and that the question is “apolitical, not justiciable issue and the appeal
should be to the polls and not to the court.”
Emergency of 1975-77
One
of the most notorious and controversial incidents of invocation of Article 352
was the emergency of 1975-77 where gross violations of human and fundamental
rights took place, elections were suspended, democratic values were violated,
massive press censorship took place and dissidents and critics of the
Government were detained under preventive detention. A state of emergency was
declared by then President Fakhruddin Ali Ahmed on the advice of the then Prime
Minister Indira Gandhi, thus giving her wide discretionary power to do whatever
she wanted and to keep herself in power. The emergency was declared on the
ground of “internal disturbance” and the reasons thereof were given by the
Government on a white paper on 21st July, 1975. The emergency which became
effective on 25th June 1975 lasted for almost two years and finally came to an
end on 21st March 1977. This move of the then Government and Indira Gandhi was
highly criticized by the general public at that time. The people didn’t see any
genuine reason for the invocation of an emergency.
The result
was that when finally elections were held in 1977 for Lok Sabha after the
emergency had ceased, Congress lost and the Janata Party came to power. Another
consequence of the emergency of 1975-77 was the amendment made to Article 352
because of the 44th Amendment. The main aim was to introduce certain
restrictions on governmental power and to provide safeguards to the citizens
against abuse of power.
Besides
the emergency of 1975-77, a state of emergency under Article 352 has been
declared two times. It was done for the first time in 1962 during the
Indo-China conflict. It also continued through the Indo-Pakistan conflict
period in 1965 and was only revoked in 1968.[8]
Again,
the emergency was proclaimed during India’s conflict with Pakistan in 1971 on the
ground of external aggression. The emergency of 1975-77 was proclaimed while
this emergency was already subsisting.
Changes in Centre-State relations
When
an emergency is proclaimed under Article 352 certain changes take place in the
Centre-State relations of the country. The federal nature of the country goes
through a drastic change. One such change is that the Parliament gets the power
to legislate on any matter enumerated in the State List, however such a law
will continue to be in operation for six months after the proclamation of
emergency ceases.[9]
In
case of any inconsistency between a law made by a State Legislature and the
Parliament, the law made by the Parliament will prevail, even if such law
relates to any matter in the State List.[10]
Moreover,
under Article 353(a), the Centre becomes empowered to give directions to a
State with regard “to how the executive power thereof is to be exercised.” It
is also provided under this Article that, “the power of Parliament to make laws
under clause (b), shall extend to any State other than a State in which or in
any part of which the Proclamation of Emergency is in operation if and in so
far as the security of India or any part of the territory thereof is threatened
by activities in or concerning the part of the territory of India in which the
Proclamation of Emergency is in operation.”
Article
354(1) allows the President to direct by an order that any provision of
Articles 268-279, which deal with distribution of revenue between Centre and
States, shall take “effect subject to such exceptions or modifications as he
thinks fit.”
Moreover,
when an emergency is in place, the Parliament becomes empowered to levy taxes
that fall in the State List. [11]
Under Article 172, the life of the State Legislatures can be
extended by the Parliament by one year each time during an emergency, however,
only for six months after the emergency ceases to exist.
STATE OF EMERGENCY IN USA
Historical
Background
The
President of the U.S.A. has been bestowed with great powers when it comes to
emergency by the federal laws to meet any crisis, exigency, or emergency in the
nation. It is worthwhile to note that these powers are not restricted to just
situations or circumstances relating to war or the military. Some of these powers
are Constitutional or statutory and are always accessible to the President,
while certain other powers are “statutory delegations” of the congress and
remain silent and latent till the time a national emergency has been declared
by the President. Some of these powers empower the President to seize
properties and commodities, control production, impose martial law, consign
military forces outside the country, control travel laws, transport, and
communication among other things.
These
powers were used by the Presidents at their discretion until World War I. After
World War I, there was the availability of a great number of standby emergency
powers in the hands of the then Presidents. These powers would become active
when a national emergency was proclaimed on any condition thereof, sometimes
confining the subject of emergency to a specific field of policy, and sometimes
no restrictions were placed on the pronouncement by such proclamations. There
was very little restriction on the discretionary powers of the Chief Executives
as far as emergency provisions were concerned. In Youngstown Sheet &
Tube Co. v. Sawyer[12], although the
Supreme Court limited what a President could do in emergencies but did not
limit the power of the President to declare an emergency at his discretion.
Therefore, to impose certain checks and balances on the President concerning
his exercise of emergency powers the National Emergencies Act was passed in
1976.
When discussing the history of
emergency in the U.S., it is also important to discuss the U.S. reaction to the
9/11 terrorist attack and the consequences emanating from it. A state of
emergency was declared by the then-President George W. Bush at that time and a
joint declaration was issued by the Congress which authorized the President to
use all "necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001.” Following
this various other enactments and policy decisions were introduced, key among
them being the Patriots Act which Congress passed and was subsequently signed
by President George W. Bush on 26th October, 2011 as an immediate reaction
against the 9/11 attacks. The Act the concerned authorities to wiretap and to
use surveillance to deal with activities that may be related to terrorism. It
also permitted the Federal agents to acquire bank and business records and
details of certain suspects after attaining the permission to do so by the
Federal Court. The Act made it harder for immigrants to enter the U.S. as
border security was tightened. Although many were in support of the Act, many
people were against it because it violated their privacy and led to unnecessary
harassment of innocent immigrants. Thus, whether or not the Patriot Act was
successful in effectively dealing with terrorism might be a subjective issue,
however, it still can’t be denied that since the Act came into force, the
authorities and intelligence agencies have been successful in thwarting fifty
attempted terrorist attacks.
National
Emergencies Act
As already stated above, the
National Emergencies Act was passed to impose certain restrictions on the
powers of the President of the U.S. to invoke an emergency. In 1973, a Special Committee
was set up to look into the subject-matter of national emergency. However,
while investigating, it was found that there were already four national
emergencies in effect at that time, the emergency of 1933 relating to the
banking crisis, the Korean War emergency of 1950, the emergency of 1970
relating to a strike by postal workers, and the 1971 emergency due to
inflation. It was found that with the proclamation of just one emergency, all
other statutory provisions related to emergency were activated. The nation was
under emergency for forty-one years[13].
So to make sure that when an emergency was declared for a specific purpose, it
also incidentally didn’t trigger every other executive power related to
emergency, the National Emergencies Act was passed by Congress in 1976. The
President can declare a national emergency under Section 201of the National
Emergencies Act; however, he has to communicate the proclamation of emergency
to the congress and the publication of such emergency in a Federal Register is
necessary.
The
Act consists of five titles as enacted. By Title I, all the emergency powers
delegated by statutes that remained on standby and which were triggered by a
proclamation of emergency were returned to a dormant state. The second title
prescribed a new procedure to declare an emergency. Moreover, a proclamation of
emergency would cease to remain active after one year if the President did not
renew it. Congress also has the power to terminate an emergency through a
resolution. According to Title III, The President activating the emergency
provisions has to now specify the provisions activated by him and the Congress
has to be notified by him. Title IV lays down some provisions relating to the
President’s accountability while declaring an emergency whereas Title V deals
with repeal provisions.
Since
the passing of this Act, various national emergencies have been declared by the
U.S. Presidents in compliance with the provisions of this Act. Some of them
have been revoked while others are still in operation.
Constitutional
provisions relating to emergency
It is
worthwhile to note that the term “emergency” finds no mention in the U.S.
Constitution, however, certain provisions have been included in the
Constitution to deal with an emergency or any exigency. For instance, Section 8 of Article I empower Congress to take
necessary steps concerning war and military-related issues for the following
reasons:
v For
the declaration of war
v For
the maintenance of the navy, for raising and supporting an army, and for making
rules to regulate naval and land forces.
v For
calling the militia to ward off invasions, for the executions of union laws,
and the suppression of any kind of insurrections.
Section
2 of Article II provides that the President is the “Commander in Chief of the army and navy, as well as of the militia when
called into actual federal service.” The President is charged under Section 3
of Article III with the duty to ensure the proper implementation and execution
of laws.
Moreover, Section 4 of Article IV imposes a duty on the
federal government to protect every state from any kind of invasion or domestic
violence.[14]
Even though these provisions do not expressly provide for an
emergency, it can be seen that there are implied recognition emergency laws
within these provisions that seek to safeguard the nation and the states from
invasion, war, insurrection, domestic violence, and other kinds of threats. All
of the threats would generally result in the declaration of a state of
emergency in a state. However, certain safeguards have also been provided to
the citizens in this regard, for instance, the non-suspension of habeas corpus,
“unless when in Cases of Rebellion or Invasion the public Safety may require
it.[15]”
Another safeguard that is provided to the citizens is that unless a grand jury
indicts a person, that person cannot be charged with any capital crime, "except
in cases arising in the land or naval forces, or in the Militia, when in actual
service in time of war or public danger."[16]
Thirdly, a state cannot engage in war "unless invaded, or in
such imminent Danger as will not admit of delay."[17]
Fundamental Rights in the United
States and India
The modern trend of guaranteeing fundamental rights to the people may be
traced to the Constitution of the USA.
·
The original constitution as drafted in the year 1787
did not contain any fundamental right.
·
There was trenchant criticism of the US Constitution
on this point.
·
Following the spirit of the Magna Carta of the British
and the Declaration of the Rights of Man and the citizens of France, the
Americans incorporated the Bill of Rights in their Constitution in the year
1791 in the form of ten amendments and thus the Americans were the first to
give the Bill of Rights a constitutional status.
Coming to
India, a few good reasons made the enunciation of the fundamental rights in the
Constitution rather inevitable.
·
Firstly, the main political party, the Congress, had
for long been demanding these rights against the British rule.
·
During the British rule in India, human rights were
violated by the rulers on a very wide scale.
·
Therefore, the framers of the Constitution, many of
whom had suffered incarceration during the British regime, had a very positive
attitude towards these rights.
·
Secondly, Indian society is fragmented into many
religions, cultural and linguistic groups and it was necessary to declare
fundamental rights to give to the people a sense of security and confidence.
COMPARISON
·
Freedom of press is explicitly given under the First
Amendment while in India it is implicit in freedom of speech
and expression under Article 19(1)(a).
·
Petition to the Supreme Court is a fundamental right
in India, whereas in the US, it is the government that is petitioned (in case
of the US, the word “government” has a wider connotation and encompasses not
only the executive, but also the higher judiciary).
·
Under the Second Amendment of the US Constitution, the
right to bear arms is a fundamental right while in India the situation is
totally different because not only is there no such fundamental right, arms in
India is strictly regulated.
·
In the United States, no person’s life and liberty can
be deprived without following the due process of law, in India on the other
hand the life and personal liberty can be taken away only according to the
procedure established by law.
·
India did away with the Right of Property as a
fundamental right in the year 1978 but in the United States it still remains a
fundamental right as no property can be taken away without just compensation.
·
Further, the 8th Amendment to the US Constitution says
that bail shall
not be denied to an accused, the imposed fine should not be excessive and
inflicted punishment shall not be cruel. These rights are also made available
to Indian people because of well-established precedents pronounced by the
Supreme Court under Article 21.
·
Furthermore, the Ninth Amendment of the United States
Constitution provides that absence of certain rights from the Constitution or
statutes does not mean that people do not have these rights, this is in
consonance with Locke’s theory. In India, there is no such article which means
that Indians only enjoy the rights that are provided for in statute books, this
is in line with the theories propounded by Austin and Bentham.
CONCLUSION
It is elementary knowledge that many of the rights that are
present in the Indian Constitution have been borrowed from the Constitution of
the United States. In addition, some of the rights that were explicit in the US
Constitution were brought in by way of various Supreme Court judgments.
However, it must be noticed that the United States Constitution is very rigid
which is evident from the fact that it has been amended only 27 times in the
last 225 years while the number of amendments in the Indian Constitution in the
last 70 years is proof of its flexibility.
[1] Webster’s New Collegiate Dictionary (Springfield, MA: G &
C Merriam, 1974), 372.
[2] Shivam Saxena, Emergency
provisions: History, type and duration
in India, IPLADERS, (Nov. 2020, 28 10:10 AM),https://blog.ipleaders.in/emergency-provisions-history-types-duration-india/.
[3] Constitution of India 1950.
[4] Naga People’s Movement of Human Rights v. Union of India,AIR 1998
SC 431: (1998) 2 SCC 109.
[5] M.P. Jain, Indian Constitutional Law, 786-787 (5th edin.,
2003, Wadhwa and Company Nagpur).
[6] Ibid.
[7] Bhut
Nath v. State of West Bengal, AIR 1974 SC 806: (1974) 1 SCC 645.
[8] Shylashri Shankar, The State of Emergency in India:
Bockenforde's Model in a Sub-National Context, 19 German L.J. 197 (2018).
[10] Constitution of India 1950, Art. 251.
[11] Constitution of India 1950, Art. 250.
[12] Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
[13] Patrick A. Thronson, Toward Comprehensive Reform of America's
Emergency Law Regime, 46 Michigan L.J. 737 (2013).
[14] William B. Fisch, Emergency In The Constitutional Law Of
United States, 38 Am. J. Comp. L. Supp. 389(1990).
[15] U.S. Constitution, Art. I § 9, cl. 2.
[17] U.S. Constitution Article I § 10, para. 3.
Article Information
EMEGENCY IN INDIA AND USA BY: DHOBALE SANKET NARAYAN
Authors: DHOBALE SANKET NARAYAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/01
- Issue 7
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International Journal for Legal Research and Analysis
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