State of Emergency in India - Definition and Overview

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 advise of the cabinet of ministers and using the powers vested in him largely by the 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 27 March, 1977 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")

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.

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"