Can Government Of India Declare Emergency
Without First Consulting The Supreme Court Of India
DEVNA Menon*
The first national emergency was declared in 1962 after the
Chinese invasion and this state of emergency was also used by the government to
remedy the situation caused by the IndoPak war of 1965. The last state of
emergency was lifted in January 1968. A second national state of emergency was
declared in December 1971 during the Bangladesh War and was in effect until
March 1977. The third state of national emergency was declared in June 1975 due
to internal unrest and was revoked in March. in 1977. An emergency is a
difficult situation that requires special actions on the part of public
authorities using special powers provided for by the constitution. However,
after the 44th amendment of the constitution, it was no longer possible to
declare a national emergency due to internal unrest. Instead, it could be
declared in the name of an armed uprising. The emergency provisions are
described in Section XVIII of our constitution in Articles 352 to 360. We all
know that India is a federation, but in case of emergency, the federal nature
of the country is cancelled and the country becomes unitary.
Section 352 of the Constitution of India, provides that if
the President is satisfied that there is a serious emergency where the security
of India or any part of the Indian territory is threatened by war, an invasion
foreign strategy or an armed uprising, a state of emergency may be declared.
This state of emergency may affect all or part of India. The declaration of a
state of emergency must be approved by both houses of Parliament within one
month of its announcement. However, if an emergency declaration is made at the
time of the Lok Sabha's dissolution, or if the dissolution has taken place
within a month without passing a declaration, the declaration will last
overnight for up to 30 days since the first meeting. of the Lok Sabha after its
restoration, on condition that Rajya Sabha approves it in the meantime.
Declaration of emergency doesn’t need to be consulted with the Supreme court but after declaring a state of national emergency, the Supreme Court can declare a state of emergency unconstitutional if the state of emergency is detrimental to citizens or has been declared because of certain ulterior motives of the executive or has been issued with malafide intentions. Such an emergency if found unconstitutional can be declared ultra vires by the hon’ble Supreme court. Thus, the judiciary takes on the role of the watchdog as the nature of such situations could jeopardize the cause of national defence and unification. Even
though the 38th Amendment of 1975 removed the declaration of
a national emergency from judicial scrutiny. But this provision was later
removed by the 44th Amendment of 1978.
After the former prime minister Indira Gandhi imposed a state
of emergency in 1975, the High Court of Allahabad found Indira Gandhi guilty of
electoral inequality. Civil rights and liberties were suspended, the media
severely restricted, and many opposition leaders were jailed until 1977. Though
this infamous judgement of the Allahabad high court was overruled by the
Hon’ble Supreme court.
So, a national emergency can be declared by the president
with the approval of both houses and does not require the consultation of the
supreme court of India. This is because the role of judiciary is merely to
interpret the law whereas declaration of emergency is an act of the executive.
Hence is satisfies of principle of separation of power.
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