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6-10-2015, 23:00

The “Emergency” Articles

India’s Constitution identifies three types of emergencies that may justify the suspension of fundamental rights. The first is a “National Security Emergency” (Article 352), under which the president, acting on the advice of the prime minister, may proclaim a state of emergency if the “security of India, or any part of its territory is threatened by war, external aggression or armed rebellion.” When Article 352 is invoked, Articles 353 and 354 then go into operation. They allow the central government to suspend the federal provisions of the Constitution, thereby giving it direct control over the states and over all revenue. In effect, the central government may impose a unitary system of government. The second is a “Constitutional Emergency in the States” (Article 356) under which the president, acting on the advice of the governor of a state and the prime minister, may proclaim a state of emergency in that state if he is satisfied that the normal process of government cannot be carried out in accordance with the Constitution. The third type of emergency identified by the constitution is a “Financial Emergency” (Article 360), which may be declared by the president, acting on the the advice of the prime minister, if the financial or monetary stability or the credit of the country is threatened.

All of the above proclamations must be approved by Parliament. Article 352, on external threats to national security, was invoked by the Congress Party government of Indira Gandhi during the yearlong Bangladesh separatist movement in 1971, which culminated in the war with Pakistan in December of that year. The same article was invoked, in the name of threats to internal security, by the Indira Gandhi government when it declared a state of “National Emergency” throughout the country between June 1975 and March 1977. Article 356, “Emergency in the States,” has been invoked on different occasions in various Indian states, including Kerala, Assam, Punjab, and Kashmir. Article 360, “Financial Emergency,” has never been used, although drastic economic measures, such as the banning of all industrial strikes, were adopted during the National Emergency between 1975 and 1977.

The government of India under various prime ministers, from Jawaharlal Nehru to P. V. Narasimha Rao, have resorted to Article 356, “Emergency in the States.” This article has frequently been invoked when the ruling government of a state was no longer able to muster the required parliamentary majority in the state legislature. This has led to “President’s Rule,” in which the state government is taken over directly by the central government until new elections can be held and a new state government put in place. More controversial, however, has been the resort to Article 356 in some Indian states where the state government is unable to cope with the crisis, irrespective of whether a parliamentary majority is retained by the state-based political party. This has been problematic in states such as Nagaland, Punjab, and Kashmir, where separatist movements, which have included armed insurgencies and acts of terrorism, have occurred. Similarly, widespread religious, linguistic, or ethnic rioting in a state has also led to the suspension of the state government, as has occurred in Assam. However, the suspension of the democratic process under conditions of internal security and instability has been ad hoc, regional, and temporary. After the crisis is over, the democratic process is restored.

The provisions of the Emergency Articles 352 and 356 are supplemented by the provisions of two other articles— Articles 358 and 359—which enable the president, acting on the advice of the prime minister, to suspend fundamental rights and protection clauses as guaranteed under Articles 13 to 32 of India’s Constitution. Such suspensions must also be approved by Parliament within six months. The suspension of the rights and protection clauses, especially Article 19, which embodies the “Seven Freedoms,” is accompanied by the right of the central government to resort to preventive detention, that is, to arrest and detain persons to prevent them from indulging in acts, as yet uncommitted, that may be detrimental to national security and to the maintenance of law and order. Under the subtitle “Right to Freedom,” Article 19 of India’s Constitution states: “Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations of unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of territory; and (g) to practise any profession, or to carry on any occupation, trade or business.” However, once the emergency is declared and approved by Parliament, the Constitution empowers the government to prevent citizens from appealing to the courts for the protection of their fundamental rights. Not even Article 32, which incorporates the “right to constitutional remedies” and the “writ of habeas corpus,” can overcome central government powers, made possible under Articles 352 to 360, that relate to national emergency.

The imperial-type powers lodged in India’s Constitution are a legacy of British rule, which, ironically, also provided India with the basic structure of a democratic system. The Indian president’s ability to proclaim a state of emergency when the country’s security is threatened was a power held by the British viceroy under the Government of India Act of 1935. The British had exercised these emergency powers between 1940 and 1945, when they were at war with Germany and Japan and simultaneously had to deal with the Indian struggle for independence and with Hindu-Muslim violence. Such viceregal powers were reinforced by the British through the Defence of India Act of 1939; under its terms the British Indian government could resort to “preventive” detention of those who were deemed threats to internal law and order for political reasons, even though they were not charged with committing illegal acts. The nature of these problems has not changed fundamentally since India obtained independence in 1947, nor have the far-reaching powers that were assumed by the newly independent Indian government.