This article on ‘Emergency provisions in India and its misuse’ is written by an intern at Legal Upanishad.
This article talks about the Emergency Provisions in India and their misuse. An emergency can be described as an unexpected situation which is a threat to the citizens. As India is a Federal Union and possesses a unitary personality. It is mentioned under the Indian Constitution under Articles 352 to 360 which contains all the emergency provisions in India and types. Usually, an emergency is deployed in an unexpected situation, But under certain scenarios, this power can be misused under bad authority where the executive can act as legislature or control of executive over the judiciary which is always bad for everyone. We are in real need of proper authority which can handle and execute proper judgments.
What is an Emergency?
According to the Black Law Dictionary, an emergency necessitates immediate involvement and warning since the situation poses a threat to people and liberty in the region. The socioeconomic structure is battling to attain equitable working conditions. The concept of an emergency has turned into a political issue. The main goal of establishing clear legislative preparations for crises was to prevent the unintentional emergence of autocracy in the face of domestic disorder, foreign aggression, or war. The emergency is defined under articles 352 to 360 which describe all Emergency provisions in India and situations where an emergency can be deployed. It also defines the types of emergencies.
The Emergency Provisions in India
The national emergency is defined in Article 352 of the Constitution. There is a national emergency. The declaration of a national emergency corresponds to statutory standards that must be followed when an extraordinary circumstance threatens or affects the nation’s harmony, defence, prosperity, or administration. In compliance with Article 352 of the Constitution, emergency implementation when conditions preceding were also present- Attack, External intrusion or Internal rebellion. Article 352 stipulates that if the President is “satisfied” that a perilous situation exists that jeopardizes the security of India or any portion of it as a result of outside invasion or armed insurrection, he will issue a statement in that regard with or for almost all of India.
However, such a proclamation can only be issued with the Cabinet of the Nation’s authorized advice (clause 3). A declaration like this must be presented to the legislative house and accepted by both chambers, or it will expire after a month.
The job of the Union Government is to ensure that the administration of a State acts in conformity with the Constitution’s provisions. Article 356 specifies that if the President is pleased that a state government is unable to function smoothly, whether on receipt of a report from the Governor of the State or otherwise, a state emergency proclamation may be made by that Leader. The President’s declaration of emergency is described as an “announcement due to the breakdown (or collapse) of legislative mechanisms” in this situation.
A situation like this could have the following consequences, With the exception of the High Court, the President may assume all or any of the responsibilities of state governments; declare that state legislative powers should be exercised by, or under the control of, Parliament; and make the declaration subject matter that is necessary or appropriate for its execution.
The third type of emergency is the financial emergency, which is covered by Article 360. It states that the President may declare a financial emergency if he is concerned that India’s economic stability or credibility is in jeopardy. In such a situation, executive and legislative powers would take centre stage. It, like the other two emergencies, must be approved by Parliament. It must be approved by both members of Parliament within two months. The financial catastrophe can continue for as long as the procedure necessitates it, and it may even be lifted with a similar declaration.
Proclamation of Emergency
According to Article 352(1) of the Indian constitution, if the President is satisfied that a grave emergency exists in which the country’s or any other region’s security is threatened, whether by war, external aggression, or armed insurrection, he may declare it by proclamation.
A proclamation like this could be made for the entire country or for a specific region. The Supreme Court rejected to continue the emergency in the case of Bhut Nath v State of West Bengal, stating that the issue is more political in nature and that the appeal should be made to voting booths rather than the court.
Criticism of Presidential Rule
The method in which President’s Rule was implemented on various grounds has raised a slew of questions. It was frequently a necessity. However, on several occasions, President’s Rule was compelled on strictly political reasons to overthrow the service framed by an opposition party that differed from the one at the centre, regardless of whether that particular political party enjoyed a full majority in the Legislative Assembly.
Suspension or dissolution of assemblies, as well as refusal to allow other political organizations to form administrations in states, have all been the result of the Union Government’s hardliner thinking, for which Article 356 has clearly been abused. Article 356 has become extremely dubious in light of the foregoing facts. Despite the safeguards provided by the 44th Amendment Act, the Union Government has been shown to be abusing this structure. That is why there is a desire to have it repealed or to make provisions in the Constitution to limit the abuse of this Article.
Conclusion and Situation
After wrestling with all procedural requirements, it is evident that the goal was to construct such specifications that could be used first and foremost in the Constitution. Although we conducted our analysis for the same reason, we did notice that, while the laws governing national security and citizen welfare are addressed in these areas, the rules alone provide the Executive with a wide range of dramatic powers.
It largely affects the nation’s territorial system, making it majoritarian and so attempting to protect communal and individual demands. While we recognize the need for it, we also agree that, unlike the 1975 emergency, a check-and-balance mechanism can be put in place to ensure that the ruling party and the administration do not misuse their power.
- Emergency Provisions in India. (n.d.). Retrieved from InsightsIAS: https://www.insightsonindia.com/polity/indian-constitution/significant-provisions/emergency-provisions/
- Emergency provisions in India – a critical analysis. (2021, July 26). Retrieved from ipleaders: https://blog.ipleaders.in/emergency-provisions-india-critical-analysis-2/
- KAPIL, S. (n.d.). Critical Analysis Of Proclaimed Emergency provisions In India. Retrieved from legalservicesindia: https://www.legalserviceindia.com/legal/article-4033-critical-analysis-of-proclaimed-emergencies-in-india.html
- Constitution of India (1950).