Constitutional provisions on National Emergency

• Federal law provides a variety of powers for the President to use in response to crisis, exigency, or emergency circumstances threatening the nation.
• They are not limited to military or war situations. Some of these authorities, deriving from the Constitution or statutory law, are continuously available to the President with little or no qualification.
• Others—statutory delegations from Congress—exist on a standby basis and remain dormant until the President formally declares a national emergency. Congress may modify, rescind, or render dormant such delegated emergency authority.
• Until the crisis of World War I, Presidents utilized emergency powers at their own discretion.
• Proclamations announced the exercise of exigency authority. During World War I and thereafter, Chief Executives had available to them a growing body of standby emergency authority that became operative upon the issuance of a proclamation declaring a condition of national emergency.
• Sometimes such proclamations confined the matter of crisis to a specific policy sphere, and sometimes they placed no limitation whatsoever on the pronouncement.
• National emergency has been declared in our country three times so far. For the first time, emergency was declared on 26^th oct. 1962 after china attacked our borders in the North East. This National Emergency lasted till 10^th January 1968, long after the hostilities ceased. For the second time, it was declared on 3^rd December 1971 in the wake of second India-Pakistan War lifted on 21^st March 1977.
• While the second emergency on the basis of external aggression was in operation, third National Emergency called internal emergency was imposed on 25^th June 1975. This emergency was declared on the ground of ‘internal disturbances’. Internal disturbances justified imposition of the emergency despite the fact that the government was already armed with the powers provided during the second National Emergency of 1971 which was still in operation.
• The basic need for an emergency occurs whenever there is imbalance within the country, whether wholly or partly.
• The ultimate aim and object of every government or political party is to secure good life and safe life to its citizen and the time we say citizen it means the public of country at large.
• Whether we talk about the first emergency caused by china attack or the second or third emergency in all cases the social equilibrium of the country was imbalanced and security of citizen was on the stack.
• Emergency though suspend the fundamental rights excluding those conferred in art.20 and art.21it does transfer the powers from the hand of state government to the hand of central government. But this all phenomenon took place just to secure its citizen. This is what the concept and policy of “welfare state” greatest happiness to greatest number.
• Fundamental rights are given to individual and the only reason they are suspended during an emergency is to secure the people of country at large. Social interest is always upper then that of individual interest.
• The constitution provides for three different kinds of abnormal situations which call for a departure from the normal governmental machinery set up by the constitution:-
• An emergency due to war, external aggression or armed rebellion {art. 352}. It is also known as National Emergency.
• Failure of constitutional machinery in states Art. 356
• Financial emergency Art. 360

Fudamental Rights and Emergency:-

• Fundamental rights are enrished in part III of the constitution. They are part of those rights which are necessary for the survival of human being with dignity.
• These rights have been incorporated in the ‘fundamental law of land’ i.e. the constitution of India and one can approach courts in case of violation of these rights. These rights reflect a desire of the founding fathers of Indian Constitution to build a new social order.
• For example, these are rights declaring practice of untouchability an offence.

Emergency provisions under the Indian constitution-

• Part XVIII of the constitution permits the state to suspend various civil liberties and the application of certain federal principles during presidential proclaimed states of emergency.
• The constitution for three categories of emergencies: a threat by, war of external aggression or by internal disturbances; a failure of constitutional machinery in the country or in a state; a threat to the financial security or credit of the nation or a part of it.
• Under the first two categories, the fundamental rights with the exception of protection of life and liberty may be suspended and federal principles may be rendered inoperative.

National Emergency Article 352, 353, 354, 355, 358 and 359-

• It is caused by war, external aggression or armed rebellion in the whole of India or a part of its territory. Such an emergency was declared in India in 1962(Indo-China war), 1965(Indo-pak war), 1971 and 1975(declared by Indira Gandhi to maintain law and order in the country).
• The president can declare such an emergency only on the basis of written request by the Council of Ministers headed by the PM. Such a proclamation must be approved by the parliament within one month. Such an emergency can be imposed for six months. It can be extended by six months by repeated parliamentary approval.
• In such an emergency, fundamental rights of the Indian citizens can be suspended. The six freedoms under right to freedom are automatically suspended. However, the right of life and personal liberty cannot be suspended. It modifies the formal system of government to the unitary one.
• The parliament can make laws on 66 subjects of state list. Also all money bills are referred to the parliament for its approval. The term of Lok Sabha can be extended by the period of one year but not more than six months from the date when emergency has ceased to exist.

Effect of national emergency on the fundamental rights-

• These are some cases where the fundamental right infringes during national emergency.

Makhan Singh vs State of Punjab, 1964

• Emergency was declared on an earlier occasion during the Indo-China war. At the time the right to move any court for the enforcement of articles 14, 21 and 22 was suspended under Article 359 only for the persons detained under the defence of India Rules(DIR), the preventive detention law at that time. It was partial suspension. SC interpreted it to mean that rights were suspended only for legally detained persons. So if a person was legally detained under DIR, he could maintain the Habeus Corpus petition. It was for the first time during emergency imposed on 26^th June 1975, that articles 14,19,21 and 22 were suspended the entirety, without any reference to any law. This time when detenues filed habeus corpus petition, a question was raised take article 21 being sole respository of liberty has been suspended in it’s totally, no writ of Habeus Corpus is maintainable. The government also sought to distinguish the earlier case of Makhan Singh on the different phraseology of the notification suspending the rights. Almost all the HC decided this question against the government. On that issue the matter was taken in appeal to the SC.
• The SC held that it was impossible to accept that only right that can be suspended by an order made under article 359(1) was right guaranteed under Article 32(1) to move to the SC for the enforcement of fundamental rights and a citizen would be free to seek relief from HC under art. 226, art. 32(3) which enable parliament to empower any other court to exercise all or any of the power exercisable by the SC.
• The SC pointing on that a citizen would not be deprived of his right to move the appropriate court for a writ of habeus corpus if his detention had been malafide.

Judicial Review-

• Marking the black day of Indian legal history, the SC rejected the arguments of the respondents and held that art. 21 of the constitution was the sole repository of right to life and liberty.
• Therefore, the suspension of it implied that all the remedies protecting this right under any other law shall also be suspended. The court while construing art.21 as the sole repository of life and personal liberty denied all available remedies to the detenus on any ground that any challenge to the detention order for the enforcement of the right to personal liberty under art. 21 could not be so done on account of the presidential order suspending it being in force.
• The majority further held that even the order of detention could not be challenged even on any other ground, even if the detention order was passed malafide, rendering the detenu without any remedy even against an illegal detention.
• Therefore, the court declared, ”in view of the Presidential order dated June 27^th, 1975 no person has any locus standi to move any writ petition under ART. 226 before a HC for Habeus Corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act.

The 44^th Amendment act, 1978-

It has made two important changes in art. 358:

• Article 19 will suspend only when a proclamation of emergency is declared on the ground of war or external aggression and not when the emergency declared on the ground of armed rebellion.
• It has inserted a new clause(2) in art. 358 which says that nothing in clause(1) shall apply to (a) any law which does not contain a recital to the effect that such a law is in relation to the proclamation of emergency,
  (b) To any executive action taken otherwise than under a law containing such a rectal. This clause make it clear the art. 358 will only protect emergency laws from being challenged in court of law and not other laws which are not related to the emergency laws from being challenged in court of law and not other laws which are not related to the emergency. Prior to this, the validity of even other laws, which were not related to emergency, could not be challenged under art. 358.
• The 59^th amendment has amended art. 358 and has inserted the word “or by armed rebellion or that the integrity of India is threatened by internal disturbance in the whole or any part of the territory of Punjab”. This means that, in case of Punjab, the right guaranted by art. 19 will be suspended also when emergency is declared on the ground of armed rebellion or internal disturbance.
• The proclamation of emergency however does not invalidate a law which was valid before the proclamation of emergency.