Author: Khushi Agarwal

ABSTRACT

Emergency powers are important for any country because they gave power to deal with serious situations like war, natural disasters, international unrest. But there are the question that how much power can be used? If there is no such demarcation between the power and obligation then the misused of power can be began. In present article we examine the judicial
reviews, case laws, past situations and also some reference from other countries like U.K. and US that how this power can be misused if not having a proper control over it. Article 352 gave a wide power for deal with emergency situations. This article includes how by suggesting way to establish a balance between national security and protecting people’s life.

INTRODUCTION

Every country needs special powers to face emergencies like war, natural disasters, rebellion, pandemic etc. Emergency can be come from outside country or inside the country. To deal with such situations the normal laws were not sufficient so government takes some extra ordinary steps to deal with such situations. But these steps are should be taken by following
the constitution. In India, the constitution gave emergency power to the central government through Article 352 to 360. These powers are used to protect the nation and state but also effect to the federalism and fundamental rights of its citizens. For instance, during the Emergency from 1975 to 1977, the citizens can not practice their basic rights which they can practice during
their ordinary life.

WHAT ARE EMERGENCY POWERS

Emergency powers gave the extreme rights to the government to take quick action in the time where nation is in danger. Under the constitution they were allowed to give more control to the executive and allow to suspend some fundamental and constitutional right during emergency for ensuring the public safety and national security.

According to Indian Constitution, Part XVIII, Article 352-360 deals with emergencies which gave wider power to the government. While declaring emergency the centre took control over the states also and centre having more powers then the stats where they can make laws and also the fundamental rights of the citizen’s also got violated. The constitution gave this power to the centre to prevent its citizens to practice their rights given by the constitution whether fundamental or constitutional.

EMERGENCY POWER IN THE CONTITUTION OF INDIA

According to the Constitution of India there are three type of emergencies:

A. National Emergency (Article 352)

This emergency can be declared when India faces war, external aggression or armed rebellion. It effects the whole country. When this emergency declared there are some following changes happened in the country:
 Centre gets more control over states, by this the federalism got effected.
 All fundament Rights under Article 19 automatically suspended and no one can claim the right or sue the centre for failure of practicing the Fundamental Right.
 Parliament can make laws for whole territory, even on those subject which is mentioned in List II of Schedule 7 of Indian Constitution that is State List and only state have right to make laws on it. So by this power it effect state also.

After 3rd National Emergency 1995-1997, the 44th Constitution Amendment Act, 1978 made some important changes:
 Replaced the term “internal disturbance” to “armed rebellion”.
 Required the written recommendation from the Cabinet to declare the emergency so no one can declare emergency for own benefit.
 Also added that Article 20 and 21 fundamental right can not be suspended even during emergency also.
In India there are only three times National Emergency be declared 1962- Indo China War, 1971- India Pakistan war, 1975- Internal Disturbance.

B. President’s Rule (Article 356)

This rule is also known as Presidential Rule where the President took control over the state. This power refers a situation where the state government can not function effectively due to failure of constitutional machinery like political instability, internal disturbance and other disturbance. The President’s Rule can only be imposed by proclamation, which must be approved by the parliament (both house – House of People and Council of States) within a specific time limit. Without approval the proclamation ceased to be effective. This rule can be effect for the specific time period approved by the parliament and if there is any need in
extension in time limit the renewal beyond one year can be possible under certain conditions with the approval of parliament. Till date the President’s Rule imposed Infinite times in different states according to their need. This power is misused in past many times for the political reasons. The Supreme Court gave clear guidelines in the case of S.R. Bommai v. Union of India (1994) to prevent the misuse of this power.

C. Financial Emergency (Article 360)

This has never been used in India. This emergency can be declared when the financial stability of the country is threatened. The centre can control over the state finances and reduced the salaries of government employees and also ask stats to follow certain economic measures by which the finances can be control and the financial crisis can be handled.

Role of Judiciary

ADM Jabalpur v. Shivkant Shukla (1976), this case happened during the third national emergency 1975. The Supreme Court held that citizens don’t have right to file a writ petition of Habeas Corpus which is Fundamental Right (protect from illegal detention). This judgement was criticized by everyone because by this judgement government have unchecked power to rule during emergency.
Later on, this judgement was overruled by the Supreme Court in Justice K.S. Puttaswamy v. Union of India (2017), which ruled that Right to Privacy is Fundamental Right and part of Article 21 right to life and personal liberty.

S.R. Bhommai v. Union of India (1994), This is the most important case which deal with Article 360. The Supreme Court held that the court and review the President’s Rule, and this rule can not be used for any political benefits. The court also stated that a floor test in the Assembly is best way to check majority for declaring such emergency.

Minerva Mills Ltd. V. Union of India (1980), by this case the Supreme Court held that the Parliament can not destroy the basic structure of the constitution even during the emergency also. The emergency did not give this power to parliament for changing the basic structure of the Constitution. This also includes the features like rule of law, judicial review, and protection fundamental right in the time of emergency.

Emergency Powers in Other Countries

A. United States
In U.S., the President can declared the emergency, but this is checked by the congress and courts before declaring emergency. After the 9/11 attacks, the Patriot Act, 2001 gave wide powers to intelligence agencies that they can raised concern about their citizen’s privacy. In Youngstown Sheet & Tube Co. v. Sawyer (1952), the U.S. Supreme court stopped the President Truman for taking control of steel factories during the Korean war and also court held that the President can not act without legal backing from Congress by its own.

B. United Kingdom
The UK uses the Civil Contingencies Act,2004 for declaring the emergencies. In UK minister takes steps for declaring emergencies but this steps must be approved by the Parliament within a specified time limit. The law of UK also allows judiciary for review the emergencies.

C. France
Article 16 of French Constitution deals with Emergency Power. This power is given to the president who declare emergency for extreme situations. But the Parliament and Council keep their eyes on it and how the President use his power.

The COVID-19 Experience: A Different Kind of Emergency

During the COVID -19 pandemic where every country faces crisis, India did not declare it as
a constitutional emergency. Instead, it used some ordinary laws to deal with such situation.
There are:
 Disaster Management Act, 2005
 Epidemic Diseases Act, 1897

During COVD-19, India imposed Lockdowns, Curfews and movement restriction. Which also violates fundamental right and Article 19 ( right to freedom of movement). But these steps are useful in controlling the virus, but there were some concerns about:
 Lack of Parliamentary discussion, during COVID-19 imposing such activities under less discussion in parliament.
 For controlling the pandemic excessive powers given to the police officers and they misused this power.
 For the purpose of COVID-19 check, collects the personal health data of citizens without their consent with violates their fundamental right, Right to Privacy.
By the above mentioned points we can easily understand that government can use this power even without declaring formal emergency. Government have power to use ordinary laws in extraordinary situations. Therefore, the checks and balance for using this power are always necessary for not misusing this power.

How to Balance Power and Rights

Emergency powers are necessary to deals with crisis, serious situation for the nation but this power should not become a way to rule without limits. There are some following suggestions to maintain the balance between this exclusive Power and Rights:

1. Time Limit: Emergency should be reviewed by the Parliament every few months after declaring the emergency. So that, no government can mis use this emergency power for its own profit and also the works of such government as reviewed by the Parliament.
2. Core Rights can not be Suspended: Article 21 deals with Right to life and personal liberty, which must not be suspended even during the emergency for the benefit of the citizens.
3. Independent Oversight: Special committees and human right bodies should monitor emergency actions taken by the government during emergency. They have to check the actions of government that they do not take such actions which can violate the right of a citizen.
4. Judicial Review: Courts must have to open for hear the cases even during the emergencies also. So that if anyone have any problem relating to the emergency and if any one’s fundamental right was infringed while emergency so that person having power to approach the court regarding the violation of their fundamental right and court can review over the emergencies.
5. Transparency: All the decisions taken by the government during the emergencies must be recorded, and the reasons behind taken such actions must be shared with the public. So that people can also understand the intention of government for taking such actions and also this can be maintain the balance between nation and their citizens.
   By following these above mentioned suggestions a nation can maintain the balance between the power of government for declaring emergency and rights of citizen’s provided by the constitution. The power of emergency should be practice under the balance because it can effect the basic structure of the constitution and this power must not be destroy the basic structure of the constitution.

Conclusion

Emergency powers are like double-edged swords. This power can save the nation for the crisis but can also destroy its democratic importance if misused. After third emergency constitution being improved to include more checks and protect basic rights. No one can declare emergency for its own benefit and increasing parliamentary and judiciary involvement under this. In a true democracy, the constitution must guide every action- even during the worst situations also. So, even during the emergency constitution must be followed it can nit be set aside.

References

1. Constitution of India, 1950.
2. ADM Jabalpur v. Shivkant Shukla,(1976) 2 SCC 521
3. S.R. Bommai v. Union of India,(1994) 3 SCC 1
4. Minerva Mills Ltd. v. Union of India,(1980) 3 SCC 625
5. Justice K.S. Puttaswamy v. Union of India,(2017) 10 SCC 1
6. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
7. USA PATRIOT Act,2001
8. Disaster Management Act,2005 (India)
9. Civil Contingencies Act,2004 (UK)
10. Constitution of France, Article 16
11. Basu, D.D., Introduction to the Constitution of India, LexisNexis,2021
12. Seervai, H.M., Constitutional Law of India, Universal Law Publishing,2013