Explained: What is Emergency in Indian Constitution and how it is imposed?

The imposition of emergency by Indira Gandhi is considered a dark period in independent India’s history as fundamental rights were suspended and opposition leaders and civil rights activists were put in jail in large numbers and the freedom of the press was curtailed severely.

New Delhi:India is observing 48 years of imposition of emergency in the country by the government of then Prime Minister Indira Gandhi as she had decided to impose an emergency on the country rather than leave the office as was directed by the Allahabad High Court which found him guilty of misconduct and disqualified her from the Parliament and also barred her from the membership of the House for a period of six years.

The imposition of emergency by Indira Gandhi is considered a dark period in independent India’s history as fundamental rights were suspended and opposition leaders and civil rights activists were put in jail in large numbers and the freedom of the press was curtailed severely. Political parties opposed to the Congress have often used the imposition of emergency by Indira Gandhi in 1975 to question the democratic credentials of the party.

What are emergency provisions in Constitution?

Emergency provisions are discussed in Part XVIII of the Indian Constitution. Under Article 352, the President of India can make a declaration that a 'grave emergency' exists which threatens the security of India or any part of Indian Territory either due to war or external aggression or due to an armed rebellion.

In such a situation, if the President is satisfied, he can proclaim the existence of an emergency in respect of the whole of India or a part of the Indian Territory as may be specified in the Proclamation. An explanation of Article 352 makes it clear that not just the actual existence of a grave emergency due to external aggression, war or an armed rebellion may cause a declaration of emergency, the President of India can also proclaim the emergency before the actual occurrence of war or of any such aggression or rebellion if the President is satisfied that there is imminent danger of these threats.

Sub-clause 4[(2) of Article 352 makes it clear that a Proclamation of Emergency issued by the President may be varied or revoked by a subsequent Proclamation.

How President proclaims Emergency?

Though the proclamation of emergency situation is issued by the President of India but in effect President is a titular head under the constitutional scheme of things and he does not exercise his powers on his own but only on the aid and advice of the council of ministers.

Clause 3 of Article 352 requires that President will not issue a Proclamation or a Proclamation varying such Proclamation unless the decision of the Union Cabinet, that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under Article 75 of the Constitution, has been communicated to him in writing.

President can issue different Proclamations under different grounds

Article 352 empowers the President to issue different Proclamations of the existence of an emergency situation on different grounds: war, external aggression, armed rebellion, or imminent danger of these threats. It means that if the President has Proclaimed emergency due to imminent danger of war or external aggression or armed rebellion then it can issue another Proclamation of emergency even if the earlier Proclamation of Emergency is in operation.

Parliament’s power to approve, disapprove or revoke emergency

Clause (4) of Article 352 requires that every Proclamation issued will be laid before each House of Parliament and it will cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.

Constitution says such a resolution may be passed by either House of India’s bicameral Parliament, Lok Sabha and Rajya Sabha, only by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting.

Constitution says President will revoke a Proclamation of Emergency if the Lok Sabha passes a resolution disapproving or disapproving the continuation of such Proclamation.

Executive decision alone not enough for Proclamation of Emergency

Emergency provisions are well laid out in the Constitution as it is a situation dealing with ‘grave emergency’ to the State of India due to external aggression or armed rebellion. That is why it requires Parliament’s ratification by a majority of the members of the house and two-third majority of the members of that house who are present and voting.

It means that the executive decision to impose penalty, which is carried out by the President of India, alone is not enough to keep the country under emergency provisions if the Parliament does not ratify the decision.

Notice for revoking Proclamation of Emergency

If the Government does not enjoy the confidence of the Lok Sabha with regard to the imposition of emergency then the House can disapprove of such a Proclamation by President.

For example, not less than one-tenth of the total number of members of the Lok Sabha can give notice in writing of their intention to move a resolution for disapproving, or for disapproving the continuation of Emergency or a Proclamation for making changes in the Proclamation of Emergency then a special sitting of the Lok Sabha will be called within 14 days of receipt of such notice by the Speaker or the President.

Lok Sabha members may give such notice to Speaker if the Parliament is in session and they will give such notice to President if the Parliament is not in session.