No part of the Indian Constitution has been the subject of more bitter attack by the critics than the one that deals with the Emergency Provisions (Part XVIII of the Constitution).
The Constituent Assembly witnessed one of its most agitated scenes during the discussions of these provisions.
Many prominent members of the Constituent Assembly opposed the inclusion of these provisions in the Constitution as they thought that these were consistent with the democratic provisions embodied elsewhere.
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However, the majority of the members favoured the inclusion of these provisions, although unwillingly, as a precautionary measure, against possible disruptive forces destroying the newly established Union.
The Constitution provides for three different types of Emergency and in each case the President of India is empowered to declare the emergency.
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National Emergency:
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If the President is satisfied that a grave emergency exists whereby the security of India or any part of its territory is threatened by war, external aggression or armed rebellion, he may proclaim a state of emergency under Article 352.
It may be proclaimed even before the actual occurrence when external aggression is apprehended. But no such proclamation can be made by the President unless the Union Ministers of Cabinet rank, headed by the Prime Minister, recommend to the President, in writing, that such a proclamation should be issued.
The proclamation may be revoked subsequently; if not, it shall be laid before both Houses of Parliament. If Parliament does not approve of it within one month, it will become invalid.
No sooner is the emergency proclaimed, than the federal provisions of the Constitution cease to function in the area affected by the proclamation. Consequently, there is a two-fold expansion of the authority of the Union. First, the executive power of the Union will extend to the giving of any direction to any State executive in the emergency area.
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Secondly, Parliament’s law-making power will extend to the subjects enumerated in the State List. Further, the President is empowered to prohibit by order the distribution of revenues that are normally to be assigned to the State under the financial provisions of the Constitution.
However, all such orders have to be placed before each House of Parliament for its approval. The combined effect of the operation of these provisions is the emergence of full-fledged unitary Government.
So far, there have been three occasions when emergency of the first category was proclaimed by the President: 1962 (Chinese aggression), 1971 (Indo-Pakistan war before the formation of Bangladesh) and 1975 (internal emergency).
Constitutional Emergency in the States:
If the President is satisfied on receipt of a report from the Governor or otherwise that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution, he is empowered to proclaim an emergency under Article 356 and 365.
As a result, (i) he may assume to himself all or any of the functions of the State or he may vest all or any of those functions in the Governor or any other executive authority; (ii) he may declare that the powers of the State legislature shall be exercisable by Parliament; and (iii) he may make any other incidental or consequential Provisions necessary to give effect to the objects of the Proclamation. The President, however, cannot assume himself any of the powers vested in a High Court.
The proclamation may be revoked subsequently; if not, it shall be laid before both Houses of Parliament, if Parliament does not approve of it within two months, it will become ineffective.
Since the inauguration of the Constitution, this type of emergency has been declared almost 100 times. For the first time, constitutional emergency was declared in Punjab in 1952. The states which came under President’s rule for the maximum number of times were Kerala (9 times), followed by Punjab (8 times).
SUSPENSION OF FUNDAMENTAL RIGHTS
During the period of emergency, as declared under either of the two categories discussed above, the State is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Indian Constitution.
The term ‘State’ is used here in the same sense in which it has been used in the Part III on Fundamental Rights. It means that the power to suspend the operations of these Fundamental Rights is vested not only in Parliament but also in the Union Executive and even in a subordinate authority.
Further, the Constitution empowers the President to suspend the right to move any court of law for the enforcement of any of the Fundamental Rights. It means that virtually the whole Part on Fundamental Rights can be suspended during the operation of the emergency. However, such orders are to be placed before Parliament as soon as possible for its approval.
Financial Emergency:
If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of it is threatened, he may declare a financial emergency under Article 360. The proclamation in this case also should be approved by Parliament as in the other two cases of emergency.
During a financial emergency, “the executive authority of the Union shall extend to the giving of directions to any State, to observe such canons of financial propriety as may be specified in the direction, or any other directions which the President may deem necessary for the purpose.”
Such directions may include those requiring the reduction of salaries and allowances of Government servants and even those of Judges of the Supreme Court and the High Courts.
So far, there have been three occasions when National emergency of the first category was proclaimed by the President. Moreover, there have been about 100 times when constitutional emergency was proclaimed.
An analysis of these instances would indicate the purpose and the manner in which, in actual practice, a proclamation of emergency in the States will be made by the President. These may be summed up in the following terms:
(1) The essential condition for the intervention by the Centre is the Political instability of the State, that is, the virtual breakdown of the Parliamentary System of the Government.
(2) The Union will watch the situation of instability with utmost caution and provide every opportunity for the formation of an alternative ministry.
(3) The proclamation of emergency will only be the last resort when (i) the existing ministry does not have the confidence of the legislature; and (ii) no alternative ministry can be formed.
(4) During the period of emergency the legislative work of the State will be transferred to the Parliament. Delegation of such work to any administrative body will be reduced to the minimum.
(5) As soon as the political situation within the State becomes conducive to a responsible Government, it will be restored.
Generally speaking, in practice, the emergency provisions for Central intervention in case of a breakdown of Constitution machinery in the State have proved to be not only a protective device for responsible government in politically unstable States but also a blessing to political parties who were unwilling and incapable to shoulder responsibility for a time, on account of group rivalries or any other unfavourable circumstances.
During a period of emergency, it is natural that the Executive becomes unusually powerful. This is a tendency of governments all over the world, federal or unitary the experience of parliamentary democracies indicates that a Parliament is vigilant and through the members of the Opposition particularly, it manages to compel the Executive to account for all its actions. Thus, Parliament has the power to check the Executive whenever the latter goes beyond reasonable limits-
Emergency provisions do not, in any way, cut Parliament out of the picture and Parliament has always the right to call the Executive to order; and if they find that the Executive has exceeded its powers in regard to the operation of any of the provisions enacted under the emergency laws, they can always pull it up, even dismiss the ministry and replace it.
How effectively Parliament would and could function during a period of national emergency was a subject of speculation until 1962 when the President proclaimed emergency under Article 352. But the manner in which Parliament has dealt with the emergency shows that instead of the Executive arrogating to itself the powers of Parliament in the name of emergency, Parliament has subjected the Executive to greater control and scrutiny in all its actions vitally affecting the nation. In fact, the debates in Parliament demonstrated the eagerness with which the Executive sought the approval of Parliament not only with regard to the action already taken by the Government but also that proposed for the future.
The only exception to this practice was the internal emergency period of 1975-77. There was widespread abuse of executive power in many parts of the country in many forms during this period. The extent of abuse became clear only after the lifting of emergency in 1977. Naturally, the new Parliament which came into being after the general elections of March 1977 was interested in preventing the repetition of such a situation in future and hence initiated steps to amend the Constitution suitably to limit the powers of the Government to proclaim internal emergency.
The 44th Constitutional Amendment adopted by Parliament in December 1978 ensures that the proclamation of emergency can be made only on the basis of written advice tendered to the President by the Cabinet. Internal disturbance not amounting to armed rebellion will no longer be a ground for declaration of emergency. Emergency can be proclaimed only when the security of the country is threatened by war, external aggression or armed rebellion. As an additional safeguard, proclamation of emergency will require approval within a month by a resolution of Parliament, by a majority of the total membership and not less than two-thirds of the members present and voting.
The provisions for financial emergency, again, show how the framers of the Constitution have drawn upon the experience of the working of federalism elsewhere.
Finally, one may consider the provision for the suspension of Fundamental Rights. Apparently, this is by far the most unwholesome provision in the Constitution.
The provision for the suspension of Constitutional rights does not mean, however, that with the proclamation of emergency, there will be an automatic suspension of Fundamental Rights. It may be quite possible to keep the enforcement of the Fundamental Rights intact and there need not be a universal suspension throughout the country merely by reason of the proclamation.
Further, the order of suspension should be placed before Parliament and it will be free to take whatever action it deems fit.
The working of the Constitution, so far, shows that the suspension of Fundamental Rights took place rarely-
That happened as a result of the proclamation of national emergency in 1962, 1971 and 1975.
In contrast to the national emergencies mentioned above, Fundamental Rights were never suspended during any of the emergencies proclaimed in the States. That remains a good precedent. Even during the national emergency, suspension of Fundamental Rights should be restricted to the absolute minimum.
There have been only few instances so far of the Union Executive behaving high-handedly towards the States or ignoring Parliament in the name of emergency. The apprehension that the President may act as a dictator is not one of the acute discomforts of our political thinking. On the other hand, the emergency provisions have been, on the whole, justified when viewed from the experiences of the past.
Special Provisions Relating to Certain Classes:
A special feature of the political life in India under the British was the existence of communal electorates. Nationalist opinion was always opposed to it. Yet it continued and in course of time, it established a pattern of communal politics unknown in any other country.
According to this, almost every religious minority in India, the Muslims, the Sikhs, the Indian Christians and others, had a certain number of seats reserved for them in the isolators. This privilege was extended to the Anglo- Indians and the Europeans also.
Under the Government of India Act of 1935, the Scheduled Castes were also too treated as a separate community and given separate representation. But the historic fast of Gandhiji at Poona (now Pune) in 1933 prevented it and the Scheduled Castes were given reservation in constituencies based upon joint electorates with other Hindus. In 1947, when India became independent, this was the situation.
Although the country was divided into India and Pakistan on religious basis, the partition of the country did not by itself solve the problem of religious minorities. Pakistan became a Muslim State, but all the Muslims of undivided India did not migrate to that State. Some forty- million Muslims still remained in India. Besides, there were large groups of other religious minorities such as Christians, Sikhs, Jains, Parsees and others. The Scheduled Castes and Scheduled Tribes were still treated at par with other religious minorities deserving special consideration.
When the Constituent Assembly took up this question in 1947, there was nothing fundamentally different from the old ideas on the subject. The Assembly formed a Committee, the Advisory Committee on Fundamental Rights and Minorities, with Sardar Vallabhbhai Patel as its Chairman.
The Committee was asked to study the different aspects of the problem and make recommendations to the Assembly so that these recommendations could be given due recognition in the provisions of the new Constitution.
The decision of the Constituent Assembly arising out of the discussions on the recommendations of the Advisory Committee opened a new trend in Indian politics. The main features of this new trend were: 1) abolition of separate electorates, (2) abolition of reservation of seats in the legislatures, and (3) abolition of separate safeguards to minorities.
The only exceptions made were with regard to the three communities, Scheduled Castes, Scheduled Tribes and Anglo-Indians, each of which had a special case. But even in these cases the special provisions were to exist only for a limited period of ten years from the commencement of the Constitution. These provisions are embodied in a separate Part (Part XVI) of the Constitution.
The Scheduled Castes and Scheduled Tribes have been specified by 15 Presidential Orders issued under the provisions of Articles 341 and 342 of the Constitution.
According to the 2001 Census, about 24.40 per cent of the country’s population comprised the Scheduled Castes and Scheduled Tribes. In addition, some State Governments have also specified other categories of people known as “Other Backward Classes” and denitrified nomadic and semi-nomadic communities.
According to the 2001 Census, there were over 250 million Scheduled Caste and Scheduled Tribe people who were entitled to benefits provided under the special provisions of the Constitution. Of these, the Scheduled Castes alone number some 166 million. They are divided into several groups and are spread all over the country. The Scheduled Tribes number some 84 million.
Most of them are in the States of Madhya Pradesh (12.2. million), Maharashtra (8.5 million), Orissa (8.1 million), Gujarat (7.4 million), Rajashan (7 million), Jharkhand (7 million), Chhattisgarh (6.6 million) and Andhra Pradesh (5 million). The Backward Classes, which include the criminal tribes, have not been precisely defined yet.
Constitutional Safeguards:
The Constitution prescribes protection and safeguards for the Scheduled Castes and Scheduled Tribes, and other weaker sections either specifically or by way of insisting on their general rights as citizens with the objective of promoting their educational and economic interests and removing the social disabilities. The main safeguards are:
(1) Abolition of ‘untouchability’ and forbidding of its practice in any form.
(2) Promotion of their educational and economic interests and their protection from social injustice and all forms of exploitation.
(3) Throwing open Hindu religious institutions to all classes and sections of Hindus.
(4) Removal of any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places of public entertainment or the use of wells, tanks, bathing ghats, roads and places of public resort, maintained wholly or partially out of State funds or dedicated to the use of the general public.
(5) Curtailment by law, in the interest of any Scheduled Tribe, of the general rights of all citizens to move freely, settles in and acquires property.
(6) Forbidding of any denial of admission to educational institutions maintained by the States or receiving aid out of State funds.
(7) Permitting the States to make reservation for the Backward Classes in public services in case of
adequate representations and requiring the State to consider the claims of the Scheduled Castes and Scheduled Tribes in making of appointments to public services.
(8) Special representation in the House of the people and the State Legislative Assemblies to Scheduled Castes and Scheduled Tribes. (9) Setting up of Tribal Advisory Councils and separate departments in the States and the appointment of a special officer at the Centre to promote their welfare and safeguard their interests.