State of Emergency in India

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See also Indian Emergency (1975 - 77)

A state of emergency in India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when he/she perceives grave threats to the nation from internal and external sources or from financial situations of crisis. Under the advice of the cabinet of ministers and using the powers vested in him/her largely by Part XVIII of the Constitution of India, the President can overrule many provisions of the constitution, which guarantee fundamental rights to the citizens of India and acts governing devolution of powers to the states which form the federation. In the history of independent India, there were three periods during which a state of emergency was deemed to have existed.

1. Between 26 October 1962 to 10 January 1968 during the India-China war. ("the security of India" - declared as being "threatened by external aggression")
2. Between 3 December 1971 to ? originally proclaimed during the Indo Pakistan war, and later extended along with the third proclamation. ("the security of India" - declared as being "threatened by external aggression")
3. Between 26 June 1975 to 21 March 1977 under controversial circumstances of political instability under the Indira Gandhi's prime ministership ("the security of India" - declared as being "threatened by internal disturbances").

Main article: Indian Emergency (1975 - 77)

The President can declare three types of emergencies:

• National emergency
• State emergency
• Financial emergency

National emergency

National emergency 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 - Pakistan 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 a written request by the Council of Ministers headed by the Prime Minister. 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 Indian citizens can be suspended. The six freedoms under Right to Freedom are automatically suspended. However, the Right to Life and Personal Liberty cannot be suspended. It modifies the federal system of government to a unitary one.

The Parliament can make laws on the 66 subjects of the State List (which contains subjects on which the state governments can make laws). Also, all money bills are referred to the Parliament for its approval. The term of the Lok Sabha can be extended by a period of one year but not more than six months from the date when the emergency has ceased to exist.

State emergency

State emergency is declared due to failure of constitutional machinery in a state. Almost all states have undergone this type of an emergency. This emergency is also known as President's rule.

If the President is satisfied, on the basis of the report of the Governor of the concerned state or from other sources that the governance in a state cannot be carried out according to the provisions in the Constitution, he can declare emergency in the state. Such an emergency must be approved by the Parliament within a period of six months.

It is imposed for six months and can last for a maximum period of three years with repeated parlaimentary approval every six months. If the emergency need to be extended for more than three years, it can be done by a constitutional amendment, as has happened in Punjab and Jammu and Kashmir.

During such an emergency, the President can take over the entire work of the executive, and the Governor adminsters the state in the name of the President. the Legislative Assembly can be dissolved or amy remain in suspended animation. The Parliament makes laws on the 66 subjects of the state list (see National emergency for explanation. All money bills have to be referred to the Parliament for approval.

Financial emergency

If the President is satisfied that there is an economic situation in which the financial stability or credit of India is threatened, he or she can declare financial emergency. Such an emergency must be approved by the Parliament within two months. It has never been declared. Such a situation had arisen but was avoided by selling off of the gold assets of India

It remains enforced till the President revokes it.

In case of a financial emergency, the President can reduce the salaries of all government officials, including judges of the Supreme Court and High Courts. All money bills passed by the State legislatures are submitted to the President for his approval. He can direct the state to observe certain principles (economy measures) relating to financial matters.

The phrase Emergency period used loosely, when referring to the political history of India, often refers to the third and the most controversial of the three occasions.

[edit] Constitutional provisions

Part XVIII of the Constitution of India (Articles 352 through 360) are dedicated to the interpretation of circumstances befitting proclamation of a state of emergency and the consequences of such proclamations.

• The articles 352, 353, 354, 358 and 359 deal with circumstances necessitating a state of emergency at the national level.
• The articles 355, 356 and 357 deal with the imposition of federal rule in the states (dissolving the legislative functions at the state level).
• Article 360 deals with the imposition of financial emergency.

The following is a summary of what may be considered "ground rules" for a proclamation of emergency.

• The President may proclaim a state of emergency or repeal an existing state only under the written advice of the cabinet of ministers.
• The proclamation would automatically cease to operate after the lapse of a month's period unless passed by both houses of the Parliament (Lok Sabha and Rajya Sabha) with a two-thirds majority, within that period. The president may invoke a parliamentary session, if the house is not already in session to decide on the proclamation.
• The proclamation would cease to operate, unless renewed at the end of every six-month period.
• The proclamation may be challenged at all other times, by a written notice from a group of members of the Parliament, numbering not less than a tenth of the total strength, in which case the Proclamation can be referred to the Parliament for an interim vote.
• The proclamation under one set of reasons (eg. internal disturbances) will empower the President to proclaim parallel states of emergency for other reasons (eg. external aggression)

The following can be the effects of an emergency proclamation:

• Federal laws will overrule state legislation, and the Union is empowered to govern areas (eg. Policing) that are normally devolved to the states.
• The Union is also empowered to take over and completely control the taxation and budgetary revenue processes. Under financial emergency, the Union is empowered to have the final say in the promulgation of financial acts approved by the state legislature.
• The Union may decide to suspend some or all of the fundamental rights guaranteed by Part III (Articles 12 through 35)of the constitution - which include:
  • freedom of equality before law
  • freedom of speech and expression
  • freedom to assemble peacefully
  • freedom for movement across Indian territory
  • freedom to practice any profession, occupation, trade or business.
  • freedom to practice or propagate religion.
• Further, the right to challenge the suspension of the above mentioned rights (the right to constitutional remedies) may also be suspended. However, this provision will not cover the suspension of articles 20 and 21 which govern rights to personal liberty, Right to silence, freedom from double jeopardy and freedom from unlawful arrest and detention. Any individual who deems that his rights under these categories have been suspended unlawfully, can challenge the suspensions under a court of law.
• The Union may decide to dismiss the legislative functions of a state legislature and impose federal law for a period of six months. This state of suspension may be renewed at the end of this period under the vote of Parliament (indefinite number of times) until such a time when the Election Commission of India can certify the feasibility of holding free and fair elections in the state to reconstitute the legislature.
• Any order to the above effects however, should be passed by the House of Parliament "as soon may be after it is made"