HOW HAVE EMERGENCY PROVISIONS EVOLVED IN INDIA?

The word emergency means the state of urgency in any unknown situation “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.

Dr. BR Ambedkar said that India would be a federal nation but in the times of emergency the system would be fully unitary which means during an emergency the state government loses its power and the whole system is under the central government. Part XVIII of the Constitution talks about which article 352 to 360 are mentioned.


Emergency in India:

Declaring an emergency in any country and India is a crucial task as the people's rights are hammered and the economy of the country is disturbed. The emergency is declared due to disturbance in the administrative system and the government has to take immediate action to stop the worst to have happened in the state.

Talking a bit about the history of emergency, the constitution knew that the state of emergency would come as they saw a lot of protests taking over the provinces of Hyderabad and Junagarh as a part of India. At the time of independence and partition the riots of Hindus and Muslims which crucial and disturbed the whole system of the country, India has always faced riots on the basis of religion, caste, and language.

As the protest of Telangana workers and farmers disturbed the peace of the state of Andhra Pradesh was an extreme situation of emergency. In the course of watching the protest in the state of Andhra Pradesh itself article 356 was adopted which mentions the situation of state emergency.

Talking about the types of emergencies there are mainly three types of emergencies in India

● A national emergency is mentioned in article 352 which talks about the nation being declared in a state of emergency when there is an attack from external aggression or internal rebels. An emergency is declared by the president in the cases of external aggression or attack as it could hamper the peace of the nation. Clause 3 of the article says that the president cannot declare an emergency without consulting the cabin of ministers.

In some cases where a national emergency was declared the first emergency was declared in 1962 during the indo-china war and the emergency continued in the war of India- Pakistan on 19th 68 when the war ended then in January 1968 the emergency was removed. The effect of a national emergency is that the federal system turns into a unitary system and article 19 of the constitution is revoked at this time. The central government will give orders on how accordingly the country will run in the time of emergency.

● State emergency mentioned in article 356 the emergency is initiated by the president on the report of the governor that the state is in the state of emergency but the president can act without the report of the governor. The state government is removed at the time of emergency in the state and the president's rule is applied all over the state


● A financial emergency is mentioned in the article 360according to this article if the president feels that the country's economy is at risk and can deteriorate he can declare an emergency the parliament shall accept the request within 2 months. The president at the time of the financial emergency suggests reducing the wages of the state employees.



Emergency and fundamental rights

The state of emergency under war emergency and constitutional emergency ( the President is pleased by the receiving of a letter from the Gouverneur and that therefore the Government of a State is not permitted to show an emergency in compliance with the constitutional provisions) the fundamental rights are given under part III of the constitution are suspended which are guaranteed in article 19 of the constitution.


In the case of ADM Jabalpur v. Shivkant Shukla under article 359(1) fundamental right to move around and article 14,19,21 and 22 were suspended during the emergency and hundreds of people were arrested during this time under maintenance of the internal security act 1961, many people filed cases for habeas corpus. The supreme gave the judgement in favour of the government but an exception was made under human rights and article 4 of the constitution that the right to life is a human right and is followed worldwide

In the case of Bommai v, the union of India the judgement giving that secularism is the base of the country and it was also held that removing the sta government was constitutional as the state government of Madhya Pradesh, Himachal Pradesh, and Rajasthan were suspended and president rule was applied. It was also held that in the matter of religion the state has no place.

44th Amendment

As Indira Gandhi misused the provision of emergency that is why under the 44th amendment some changes were mentioned

● In article 352 the word armed rebellion was changed to internal disturbance

● The declaration and acceptance of emergency shall be in written form by the cabin of ministers

● The resident shall be re arrive after 6 months of the emergency

● A simple majority can impose the emergency

● The houses would have one month to decide


Conclusion

Sometimes in India, there have been some situations where an emergency was declared and India was formed into a unitary system. It is important that in the state of emergency the decision-making powers shall be in the hand of the central government only. The fundamental right of the people is restricted at the time of emergency but the article 20 and 21 would never be suspended even at the time of emergency as they are the basic human rights. The state of emergency in India has faced a lot of problems but many amendments and case laws came into focus.


References

Sneha Mahawar, “Emergency provisions in India” - a critical analysis, iPleader

(June 20, 2022, 9:00 am)

:https://blog.ipleaders.in/emergency-provisions-india-critical-analysis-2/


Nidhi Yadav “Emergency Provisions”, Legal Service India

(June 18, 2022 10:00pm)

https://www.legalserviceindia.com/legal/article-5287-emergency-provisions.html



This article is written by Kriti Joshi of Trinity institute of professional studies.

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