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EXPRESS EMERGENCY PROVISION UNDER FEDERAL CONSTITUTION
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EXPRESS
EMERGENCY PROVISION UNDER FEDERAL CONSTITUTION
AUTHORED BY - RADHA ANIL KONDE
ABSTRACT
The word emergency can be described as an unexpectedly
occurring situation that causes public authorities to act instantly within
their particular powers. The
emergency is a disturbance from which a human’s civil rights, except perhaps in Article
20 and 21, are removed. An emergency is due to the breakdown of the
administrative machinery that triggers or allows the government to urgently
respond. “Emergency, according to the
Black Law Dictionary, demands urgent intervention and imminent warning because
such a circumstance poses a danger to people and liberty within the region. The
socioeconomic structure struggles to achieve fair working standards. The
definition of emergency has become a political phenomenon. The key idea of
creating clear legislative arrangements for crises was to safeguard against the
accidental advent of autocracy in conjunction with domestic chaos, foreign
assault, or war. This article is deal with Emergency Provisions of India,
Germany and USA and how laws of emergency is differed and similar in these
countries.
INTRODUCTION
The
Indian constitution was drafted in the mid-twentieth century which gave an
advantage to constitutional makers, in so far as they could take cognisance of
the various constitutional processes operating in different countries of the
world and thus draw upon a rich fund of human experience, wisdom, heritage, and
traditions. The emergency provisions are taken from the Weimar Constitution of
Germany. After the second world war, the allied forces to safeguard their
troops still stationed in Germany asked for the formation of emergency
provisions.
As emergency provision concern Dr. B.R.
Ambedkar observe in Constituent assembly that, “All federal systems are placed
within a tight mould of federalism consisting America. No matter what are the
consequences, it cannot change its form and shape. On the other hand, the
Constitution of India can be both Unitary as well as Federal as per the
situation. In normal times, it is framed to work as a federal system but in
times of emergency the unitary system prevails”[1]
In
India 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. When we talk about
National emergency in India, it is important to also look at the German model
of emergency as India has borrowed its emergency provisions from Germany. In
Germany, Article 48 of the Constitution of the Weimar Republic permitted
declaration of emergencies mainly to suppress rebellions and opposition. In
modern Germany however, the Emergency Acts also known as “Notstandsgezetse”
basically deal with emergency provisions. The German Emergency Acts state that
when it comes to a state of defence, a state of tension, internal states of
emergency or disaster, certain constitutional rights may be limited. Whenever
an emergency is declared by the Government, the normal procedures of a nation
are drastically altered and the rights of the people are affected, adversely in
most cases. Hence, most nations refrain from taking such a drastic step and
only do so under exceptional circumstances. 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
analyse how such laws find a place within democratic principles.[2]
EMERGENCY
PROVISIONS IN INDIA
NATIONAL EMERGENCY[3]
Article 352 of the
Constitution stipulates national emergency. National emergency. The national
emergency coincides with statutory requirements to be enforced when an unusual
situation affects or threatens part of the nation’s harmony, defence,
prosperity, and administration. In compliance with Article 352 of the
Constitution, emergency implementation when conditions preceding were also
present-
(i) Attack,
(ii) External
intrusion or
iii) Internal
rebellion.
Article 352 states
that if, because of outside aggression or armed revolt, the President is
‘comfortable’ that a dangerous situation occurs which endangers the protection
of India or indeed any portion of it, he will make a declaration in that
respect with or for almost all of India. Such a declaration, though, may only
be made through authorized advice of the cabinet of the Nation in clause 3.
Such a declaration must be put before the legislative house and accepted from
each chamber, or it will lapse after a month from the declaration.
It must be remembered
that it has been accounted for in the clarification of Article 352 that neither
the foreign invasion nor violent revolution has really taken place in the event
of an emergency declaration. It may be declared even though foreign violence or
military revolt is likely.
National emergencies
in India
During the War with China, the first emergency was proclaimed and lasted
for six years between October 1962 and January 1968. The battle against China
concluded on 21 October 1962, but another war against Pakistan only began after
the emergency. In the end, the Tashkent deal was reached after international
pressure and in January the then government dropped the emergency.
The second emergency declaration was due to the war between India and
Pakistan. Three acts were performed during that time. Maintenance of SA, Coffee
POS Act, and In order to avoid arrest it was decided to retain the Govt
Protection of the Rule. However, these three actions were extensively grossly
overused, and numerous convictions, jail shootings, and gatherings were
observed this time. The war with Pakistan came to an end, but the emergency
persisted, and before the second emergency was revoked 3rd emergency was
declared.
The third emergency has been proclaimed due to internal unrest and this
is India’s most contentious emergency. The polls at which the court considered
Smt. Indira Gandhi was barred from public service for six years to be engaged
in unethical practices it was held in the Allahabad High Court.
She had brought the judgment to the Supreme court, but the court
had been on holiday at that moment. On 25 June 1975, the Historical day,
Smt. Indira Gandhi wrote to then-Honourable President Fakhruddin Ali
Ahmed a message to declare an emergency, despite the approval of the members of
the cabinet. The much more stringent and compressed emergency was this
emergency. On 23 March 1977, it was withdrawn.
In the case of Minerva Mills vs the
Indian Union[4],
the legitimacy of the president’s motivation and determination through Article
351 is not impeded by judicial review. However, the jurisdiction of the Court
is confined to investigating is not whether the restrictions of the
Constitution were met. It will decide whether or not the President’s happiness
is true. It is not at all happiness, where fulfillment is founded on mistrust,
irony, or irrelevance.
PARLIAMENTARY PROVISIONS AND DURATION:
Prior to the 44th Amendment Act of
1978, a proclamation of emergency could remain in force for 2 months in the
first instance, but once approved by parliament the emergency could remain in
force for indefinite period of time as long as the executive wanted it to
continue. The 44th Amendment has curtailed the power of the executive to extend
the operation of emergency unnecessarily.
After the 44th Amendment a proclamation of emergency could remain in force in the first instance for 1 month, such a proclamation if approved shall remain in force for the period of six months unless revoked earlier. The resolution approving the proclamation must be passed by both the houses of parliament by special majority, that is by majority of the total members of each house and also by a majority of not less than 2/3 of the members present and voting in each house.
After the 44th Amendment a proclamation of emergency could remain in force in the first instance for 1 month, such a proclamation if approved shall remain in force for the period of six months unless revoked earlier. The resolution approving the proclamation must be passed by both the houses of parliament by special majority, that is by majority of the total members of each house and also by a majority of not less than 2/3 of the members present and voting in each house.
For the further continuance of
emergency beyond the period of six months approval by parliament would be
required every six months. If the proclamation is issued at the time when the
Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes places
during the period of six months without approving the proclamation, then the
proclamation remains until 30 days from the first sitting of the Lok Sabha
after its reconstruction.[5]
REVOCATION OF NATIONAL EMERGENCY
A proclamation of emergency may be
revoked by the president any time by a subsequent proclamation, that
proclamation does not require any parliamentary approval. The president shall
revoke a proclamation if the Lok Sabha passes a resolution disapproving it or
disapproving its continuance, where a notice in writing signed by not less than
1/10th of the total number of members of the Lok Sabha. The notice should be
given:
- to the speaker, if the lower
house is in session, or
- to the president, if the house
is not in session; a special sitting of the Lok Sabha shall be held within
14 days from the date on which such notice is received by the speaker or
by the president for the purpose of considering the resolution.
STATE EMERGENCY
STATE
EMERGENCY
The Union Government’s
responsibility is to ensure that perhaps the administration of a State takes
action in accordance with the Constitution’s requirements. Article 356 states
that, whether, on the reception of a briefing from the Governor of the State,
and otherwise, the President is pleased that a state government is unable to
carry on in a smooth manner; a state emergency declaration may be issued by
that Leader.
In this case, the President’s
declaration of emergency is labelled ‘announcement because of the breakdown (or
collapse) of legislative mechanisms.’
An emergency of this kind may have
the following effects:
- the President, with the exception of
the High Court, may assume all or any of the responsibilities of state
governments;
- Announce that state legislative powers
should be exercised by, or under, Parliament’s responsibility;
- make the declaration subject matter
necessary or suitable for its execution.
Nevertheless, the President is not
allowed to presume or terminate any statutory obligation relating to the High
Court. The President of India has instituted a 126-fold rule in India
until 2018. The presidential rule has been used for a record of 35 occasions
under Indira Gandhi’s rule.
PARLIAMENTARY
APPROVAL AND DURATION:
A proclamation shall laid before
each house of parliament for approval and shall remain operational for two
months, after the expiry of this period the proclamation ceases to operate.
If the proclamation is issued at the time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes places during this period of 2 months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstruction.
If the proclamation is issued at the time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes places during this period of 2 months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstruction.
If the proclamation is approved by the parliament it will remain in operation for six months. Parliament may extend the duration of proclamation for 6 months at a time. No proclamation shall remain in force more than 3 years, after the expiry of the maximum period of 3 years neither the parliament nor the president shall have power to continue a proclamation and the constitutional machinery must be restored to the state
FINANCIAL
EMERGENCY
The financial emergency provided for
in Article 360, is the third kind of emergency. It stipulates that even if the
President is convinced that India or any of its economic stability or
credibility is at risk, he may declare a financial emergency. The executive and
legislative competencies would take centre stage in such a circumstance. It
must also be accepted by Parliament, as some of the other 2 emergencies. Both
Members of Parliament must approve it within two months. As long as the process
requires, the financial catastrophe can exist and might even be lifted with a
corresponding declaration.
This Article has never been used.
A declaration is given pursuant to
Art. 360—
·
a corresponding proclamation may be
withheld or varied
·
every House of Parliament shall be
placed before it
·
ceases to exist at the completion of
two months, except as authorized in resolutions of the two Houses of Parliament
even before the expiration of that time.
EMERGENCY PROVISIONS UNDR FEDERAL COUNTRIES
EMERGENCY PROVISION
IN USA:
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.[6] 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.[7]
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.”[8]
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."[9]
Thirdly, a state cannot engage in war "unless invaded, or in such imminent
Danger as will not admit of delay."[10]
EMERGENCY
PROVISIONS IN GERMANY
The German Emergency Acts known as
“Notstandsgezetse” introduced various changes to the German Constitution and
led to the incorporation of certain emergency provisions in the Constitution.
It gave the federal government tooth to act in a situation of crisis such as a
natural disaster, war, or any kind of rebellion. The Constitution of Germany
has very comprehensive and thorough provisions concerning emergency that permit
the proper functioning of the basic democratic rules and regulations even
during the period of an emergency.[11] Moreover, in a state of defence,[12] the
Emergency Acts provide that certain essential and fundamental rights can be
suspended.
For instance, Article 10 states
that “the privacy of correspondence, posts and telecommunications shall be
inviolable” but certain restrictions may be imposed to safeguard the democratic
order and to protect the federal state. Similarly, under Articles 11 and 12
restrictions may be imposed on the freedom of movement and freedom of
occupation on similar grounds. Article 12a provides for compulsory military
service at the time of a state of defines.
For instance, Article 10 states
that “the privacy of correspondence, posts and telecommunications shall be
inviolable” but certain restrictions may be imposed to safeguard the democratic
order and to protect the federal state. Similarly, under Articles 11 and 12
restrictions may be imposed on the freedom of movement and freedom of
occupation on similar grounds. Article 12a provides for compulsory military
service at the time of a state of defines.
The most important part of the
German Constitution is however Part X (a), which deals with the state of,
defines, and lays down explicit provisions regarding German emergency
legislations. It contains eleven articles, from Article 115a to Article 115l.
Article 115a provides that a
determination of an attack on the German federation by armed forces has to be
made by the German Parliament(Bundestag) with the Council’s (Bundesrat) consent
on an application made by the federal government with a majority of two-thirds
votes. However, if a situation arises due to which the Parliament cannot
convene then its functions are to be performed by the Joint Committee. Such
determination shall then be proclaimed by the President. Moreover, a
determination will automatically come into effect, if the federation is under
attack by armed forces and a determination cannot be made, at the time of the
attack.
Article 115 (b) provides that when
a state of defense is declared the Federal Chancellor assumes control over the
armed forces.
Article 115 (c) lays down that the
Federation can legislate concerning matters falling within the legislative
powers of the Länder (states). However, the Bundesrat must consent to that.
Article 115 (d) deals with
legislation concerning urgent bills. It states that federal bills that are
considered to be urgent are to be submitted to the Bundesrat and the Bundestag
at the same time and both have to discuss and debate the bill in a joint
session without any kind of delay.
Article 115 (e) provides that if it
is determined by the Joint Committee by a two-thirds majority that because of
insuperable problems or obstacles, the Bundestag cannot be convened or cannot
amass its quorum, then the functions and powers of both the Bundestag and
Bundestrat are to be performed by the Joint Committee as a single body. However
Joint Committee cannot suspend, amend or abrogate the basic law in part or
whole.
Article 115 (f) deals with the
power of the Federal Government concerning the employment of the federal border
police and the issuance of instructions by the Federal Government to the
administrative authorities, land governments, and the delegation of this power
by it to the land governments.
Article 115 (g) provides some
safeguards to the Federal Constitutional Court by providing it with immunity
from any kind of impairment concerning its Constitutional status and its powers
and functions. The legislative provisions that govern the Federal
Constitutional Court can only be amended with the Court’s consent insofar as it
is agreed by the Court that it is necessary for ensuring its smooth
functioning.
Article 115 (h) states that the
electoral terms of the Bundestag or the state parliaments shall come to an end
only after six months after the termination of the state of defense. The same
applies to the term of a member of the Federal Constitutional Court. As far as
the term of the President is concerned, it shall come to an end after the
expiry of nine months after the termination of the state of defense. It is also
provided that the Bundestag shall not dissolve during the period of a state of
defense.
Article 115 (i) empowers the State
Governments or their representatives to exercise the powers mentioned in
Article 115 (f) if the Federal Government is not being successful in averting
the threat and if the circumstances are such that immediate independent action
is required.
According to Article 115 (k), laws
that are enacted as a result of Articles 115 (c), 115 (e), and 115 (g) will
suspend any other law that is inconsistent with such laws for as long as they
are in effect. Moreover, the laws enacted by the Joint Committee will cease to
be in effect six months after the state of defense comes to an end.
Article 115 (l) deals with the
repeal of the measures taken as a result of an emergency. It provides that any
law enacted by the Joint Committee can be repealed by the Bundestag after it
takes the consent of the Bundestrat. Moreover, any methods adopted by the
Federal Government or the Joint Committee to deal with a threat to the
Federation can be rescinded by the Bundestag and the Bundestrat. It is further
provided that the Bundestag with the consent of the Bundestrat can terminate a
state of defense provided a decision is promulgated by the President.
The German Constitution differentiates
between the three types of emergencies; “internal emergency” (innerer not
stand),[13] a
“state of tension” (spanning fall)[14], and a “state of defense”
(Verteidigungsfall).[15] As
stated in Article 91(1), an internal emergency occurs when it is important “to
avert an imminent danger to the existence of free democratic basic order of the
Federation or of a Land”. As already discussed above a state of defense can be
proclaimed when “the federal territory is under attack by armed force or
imminently threatened by such an attack” as provided under Article 115(a).
However, what amounts to a state of tension has not been provided in the German
Constitution. But similar to a state of defense, before declaring a state of
tension, two-thirds majority votes of both the Bundestag and Bundestrat are
necessary and the Federal President must then promulgate the decision.
The German Constitution has very
detailed provisions to deal with emergencies and hence it inspired the makers
of the Constitution of India to borrow some provisions and apply them in our
nation.
COMPARATIVE
ANALYSIS
Even
though all three of the countries discussed above have different provisions and
legislations that differ from each other, there are, however, various laws and
provisions that are similar. The same goes for the emergency provisions of
these countries. While India borrowed its emergency laws from Germany, the
modern emergency provisions in Germany and the U.S.A. are reactions against
years of abuse and misuse of the older laws. The type of emergency laws that
are present in India and Germany are very detailed and meticulously dealt with
and are not to be found in the U.S. as the provisions relating to emergency
there are somewhat vague.
CONCLUSION
As
already discussed, the emergency provisions of India, the U.S.A., and Germany
are similar on certain points and different on others. As India has borrowed
its emergency provisions from Germany, it has a lot more in common with the
German system than the American. While in the U.S.A. the courts play a crucial
role in determining whether the emergency provisions are justified or not, it
is not so in the case of India and Germany. In A.K. Gopalan v. State of
Madras, it was held that a judge cannot determine whether the
grounds of detention were justifiable or not, it can only pronounce whether the
grounds are invalid or vague. However, it is not to be confused with the
complete incompetence of the judiciary when it comes to an emergency. In Minerva Mills v. Union of India, Justice Bhagawati held
that “whether the President while proclaiming the emergency had applied his
mind or whether he had acted outside his powers could not be excluded from the
scope of judicial review.” Where the U.S. Constitution does not explicitly
mention the term “emergency”, very elaborate provisions have been laid down in
the Constitutions of both India and Germany concerning emergency.
[1] https://www.legalserviceindia.com/legal/article-5287-emergency-provisions.html
[2] https://www.aequivic.in/post/aijacla-national-emergency-a-comparative-analysis-of-emergency-laws-in-india-u-s-a-and-germany-3
[3]
Article 352 of Indian Constitution
[6] Patrick
A. Thronson, Toward Comprehensive Reform of America’s Emergency Law Regime, 46
Michgan L.J 737 (2013).
[7] William
B. Fisch, Emergency In The Constitutional Law Of United States, 38 Am. J. Comp.
L. Supp. 389(1990).
[8] U.S.
Constitution, Art. I § 9, cl. 2.
[9] U.S.
Constitution Amend. V, cl 1.
[10] U.S.
Constitution Article I § 10, para. 3.
[11] Anna
Khakee, Securing Democracy? A Comparative Anaylysis of Emergency Powers in
Europe (Geneva Center for the democratic control of armed forces, 2009).
[12] Germany
Constitution Art. 115a-115.
[14] Germany
Constitution Art. 80a.
[15] Germany
Constitution Part Xa.
Article Information
EXPRESS EMERGENCY PROVISION UNDER FEDERAL CONSTITUTION
Authors: RADHA ANIL KONDE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/29
- Issue 7
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International Journal for Legal Research and Analysis
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