National‌ ‌emergency‌ ‌and‌ ‌its‌ ‌effects:‌ ‌human‌ ‌rights‌ ‌perspective‌ ‌

Nov 19, 2020

Emergency provisions are contained in Part XVIII of the Indian Constitution from Articles 352 to 360. These provisions are only invoked when India is in a state of emergency or grave national peril, meaning that it is a period of governance under an altered constitutional setup that can be proclaimed by the Indian President if he perceives grave threats to the nation from internal or external sources from a financial crisis. It allows the centre to assume wide powers and take over legislative and executive control of any or all states. The federal structure of the constitution becomes a unitary structure under emergency, and the centre is the ultimate power. The centre is also free to curtail or suspend the Fundamental Rights of the citizens from Article 12-35. These situations also place the government in a dilemma. There is a constant conflict on whether their primary obligation is towards the state and protection of its integrity or the protection of its citizen's human rights and that of other people within its jurisdiction. 

There are three types of emergency provisions, namely, national, state and financial emergency. The national emergency comes under Article 352 of the constitution and is imposed when situations of war, external aggression or armed rebellion. Before the 44th Amendment Act, the armed rebellion was known as an internal disturbance. However, these situations don't have to have happened to declare a state of emergency. It can also be declared in anticipation of these happenings shortly. The proclamation can further apply to the whole country or just a part of it. The 44th Amendment Act of 1978 limited the powers of the state during an emergency the property right was further omitted as a fundamental right and was instead made a legal right. The Right to Life and Personal Liberty under Article 21 and Article 22 was strengthened to state that preventative detention for more than two months should have a reasonable cause in law. Article 356 was amended, thereby bringing down the period of emergency from 1 year to 6 months. The Amendment of Article 359 provided that a presidential order cannot suspend the enforcement of the Right to Life and Personal Liberty and that citizens could move the court for enforcement of the same in case of violation. Lastly, the Act said that the President could proclaim emergency only with the advice of the cabinet. The proclamation has to be approved by both the Houses of Parliament within one month of its issue. If approved, the proclamation can extend indefinitely with the approval of the parliament every six months. 

When the national emergency is declared, it affects both the autonomy of the states and the rights of individuals. The President has the power to direct the states as to the manner of exercising executive power in the states. The Lok Sabha can be extended to a maximum of 1 year during an emergency. It cannot extend for more than six months after the proclamation is revoked. The President is also allowed to modify the provisions regarding revenue distribution between the Union and the States.

Further, the parliament becomes empowered to make laws on any subject mentioned in the State list, although the state legislature isn't suspended. According to Article 358, the six fundamental rights under Article 19 are automatically suspended on the declaration of national emergency and will resume operating when the presidential order is revoked. The 44th Amendment, however, modified this article such that the rights under Article 19 can only be suspended in case of the proclamation on the grounds of external aggression or war and not internal armed rebellion. Under the national emergency, the Union is allowed to regulate processes like taxation and budgetary revenue as well as govern areas under a state’s jurisdiction. It can further suspend all fundamental rights guaranteed by Part III of the Constitution. Article 359 of the Constitution authorises the President to suspend the right to move any court for the enforcement of fundamental rights, that is, the right to constitutional remedies. This essentially means that under this article, the fundamental rights are not suspended but rather only their enforcement is. This suspension is not automatic either and solely depends on the discretion of the President. He can only suspend the enforcement of fundamental rights for a specific period and not for the entire duration of the emergency. It is also to be noted that Articles 20 & 21 will still be enforceable in court during the entire duration of national emergency. 

In Indira Nehru Gandhi v. Shri Raj Narain & Anr, Indira Gandhi was accused of having won the election through corrupt practices, and the bench said that she could no longer serve as prime minister and wouldn't be allowed to contest in elections for the next six years. In retaliation to this, she declared a strategic emergency with the approval of the President. This led to a political and constitutional crisis. The freedom of the press was suspended, and stringent censorship laws were imposed. Fundamental rights of citizens were suspended, and major opposition leaders were arrested and kept under preventative detention for long periods. 

Although the constitution has provisions in place to ensure that the right to life and personal liberty isn’t violated, it is at times of national emergency that we see the gravest violations of basic human rights of the people and the emergency of 1975 is a brilliant example of this. During which, despite the amendments of the 44th Amendment, there were unjust violations of fundamental rights. Consequent to these violations, recommendations were made that the judiciary also is given some amount of control over the situation in the sense that they should have the power to agree on the extent to which the centre can extend its powers. This was also done to act as a direct mechanism to check the arbitrary use of the immense discretionary powers granted to the legislature and executive.