Comparative Analysis Of Constitutional Context For Emergency Conditions By- Shubham Ojha , Punyashree S. Biswal & Yash Pratap Singh Narwaria

Comparative Analysis Of Constitutional Context For Emergency Conditions

Authored By- Shubham Ojha[1], Punyashree S. Biswal[2] & Yash Pratap Singh Narwaria[3]

The declaration of a state of emergency by a government is not unprecedented, although it does happen only in extreme cases, notably in democracies. When a state declares a state of emergency, regular constitutional, legal, political, and economic processes are put on hold. According to Webster's, an emergency is "an unexpected confluence of events or the consequent situation that demands for quick action."[4]

In addition, the procedures for declaring an emergency and the implications of doing so differed from country to country. But, we have centred our study on national emergencies, therefore we will discuss the emergency plans of three different countries: India, the United States, and Germany.

EMERGENCY PROVISIONS IN INDIA

The President of India is conferred with the power to declare a "national emergency," "state emergency," or "financial emergency" under the terms of the Indian Constitution. The Weimar Constitution of Germany served as inspiration for India's emergency measures. The Indian Constitution foresees the following three varieties of emergencies:

· “Article 352- National Emergency”

· “Article 356 - Emergency in State” (President’s rule)

· Article 360- Financial Emergency

National Emergency - In accordance with “Article 352”, the President may declare a state of emergency if he believes that wars, foreign aggression, or armed insurgency stance a significant peril to the national security interests.

A state of emergency can be declared on the whole territory of India or on a part of it. The president can only declare a state of emergency on the written advice of his cabinet. It needs exceptional strength to pass emergency resolutions. If approved, the state of emergency is not expected to last longer than six months. The Lok Sabha has the right to refuse a national emergency exercise at any time. If at least one tenth of the members of the Lok Sabha write to the Speaker, if the House is in session, or to the Speaker, the Speaker or President, as the case may be, shall call a special session of the Lok Sabha If such  resolution is passed , the president will suspend the national emergency.

Effects of National Emergency

· Effect on Executive- The State Governments are not abolished, and their operations continue as usual; nevertheless, they are now effectively controlled by the federal government, which assumes the authority to issue directives to the State Governments, and the latter are required to comply.

· Effect on Financial relations- When an emergency is announced, the president has the authority to stop the normal flow of money between the federal government and the states and to deploy any mechanism at his disposal to address the situation.

· Effect on Fundamental Rights – “Article 359” concerns the postponement of other basic rights (apart from those guaranteed by Articles 20 and 21), whereas “Article 358” addresses the deferral of the "fundamental rights" protected by “Article 19”. When a national emergency is declared, the six basic constitutional rights mentioned in “Article 19” are postponed, under “Article 358”; however, this is only the case when the national emergency is declared as a result of war or foreign assault and not as a result of violent insurrection. During a National Emergency, the President may use the powers assigned to them by “Article 359”, including the power to petition any court for the execution of essential rights (with the exception of Articles 20 and 21).

Important Amendments:

1. “38th Constitutional Amendment Act 1975”: It conferred on the President the authority to declare a national emergency for additional reasons, notwithstanding the fact that an emergency had previously been declared and was in force.
2.  “42nd Constitutional Amendment Act 1976”: It enabled the President the authority to change or adjust the status of the national emergency. Under the terms of the original Constitution, the only two potential constitutional amendments were an imposition or a revocation. Given the terms of the Constitution as it was originally written, the President could have declared a state of national emergency only over the whole of India's territory. Because of this amendment, he was able to exert his authority over a portion of the nation.
3. “44th Constitutional Amendment 1978”: It was sanctioned in order to stop the executive branch from abusing the authority it has during times of emergency.

“President’s Rule (State Emergency)”: "Article 355" of the Constitution states that it is the duty of the Commonwealth to protect each State from external aggression and internal unrest, and to establish beyond reasonable doubt that the governments of all States shall abide by the rules set forth in this document. If the President is convinced, by the Governor's report or other evidence, that there is an emergency in which the normal functioning of the state's government cannot be maintained pursuant to the Constitution, "Article 356" permits any citizen to declare: Parliament adjourns and takes over the government of the government.

“Effects of President Rule (State Emergency)”

• On Executive- The State Government is overthrown, and the executive authority of the State is transferred to the central government.
• On Legislature- The legislative body of a state has been either suspended or disbanded, rendering it unable to enact new laws.
• On Financial Relations- The Center-State financial distribution remains unaffected.

Important Amendments

1.  “42nd Constitution Amendment Act, 1976”: The duration of the state of emergency was increased from six months to one year as a result.
2. “44th Constitution Amendment Act, 1978”: The state of emergency was extended back to its original duration of 6 months. It also split the maximum allowable operating length of 3 years into 1 year under standard conditions and 2 years under exceptional conditions, all of which must be met.

Financial Emergency: In accordance with Article 360, the President of India may issue a proclamation declaring that the financial stability or credit of India or of any portion of its territory is endangered if he is certain that such a scenario exists. Such a state of emergency has never been declared in India before.

EMERGENCY PROVISIONS IN THE USA

Historical Background

The federal government grants the President of the "United States of America" broad discretion to respond to any national emergency. The Presidents had a wide range of emergency resources at their disposal. The Chief Executives' acquiescent powers were limitless in terms of emergency measures. While the Supreme Court limited the powers of the President during times of emergency in Youngstown Sheet & Tube Co. v. Sawyer[5], this did not prevent the President from declaring crises as he saw proper. Certain restrictions on the President's ability to declare a national emergency were established in 1976 by the National Emergencies Act.[6]

National Emergencies Act

As mentioned above, Congress created the National Emergencies Act to limit the emergency declaration authority of the President of the United States. Consequently, Congress established the National Emergencies Act in 1976 to make sure that declaring an emergency for one reason wouldn't accidentally activate every other emergency-related presidential function. The President may announce a national emergency in accordance with Section 201 of the National Emergencies Act; however, he must inform Congress of the situation and circulate the proclamation of emergency in the Federal Register.[7]

Constitutional provisions vis-a-vis emergency

While the word "emergency" is not used anywhere in the United States Constitution, it is important to note that specific provisions were written in to address such situations. For example, “Article I”, “Section 8”, allows Congress the power to declare war, maintain the navy, raise and fund an army, and establish regulations to manage naval and land troops, among other military-related responsibilities.

To prevent invasions, enforce union rules, and put down any kind of rebellion, it's necessary to call out the militia.[8]

EMERGENCY PROVISIONS IN GERMANY

Historical Background

A review of German history will supply us with the required knowledge on the nation's emergency arrangements. Amid a crisis in Germany, it's vital to talk about the Weimar Republic's founding document, the Weimar Constitution. The era from 1918 to 1933 was often recognised as the Weimar Republic in Germany, even though the phrase was not frequently used until after 1933. Germany became a republic after the revolution of 1918, and the democratic Weimar Constitution was ratified the following year in 1919. For the most part, emergency declarations under “Article 48 of the Weimar Constitution” were used to euthanized insurgencies.[9]

German Emergency Acts and Constitutional provisions

Several amendments and new clauses to the German Constitution were enacted via the "Notstandsgezetse," or emergency laws. It granted the federal government the authority to take decisive action in the event of a national emergency, such as a natural catastrophe, war, or any other kind of uprising. The “Constitution of Germany” has emergency provisions that are both extensive and detailed, allowing for the essential democratic laws and regulations to continue to operate normally even during times of emergency.[10] In addition, the “Emergency Acts” provide that some vital and fundamental rights may be deferred during a state of defence.

Yet, the most crucial provision of the “German constitution is Part X (a),” which addresses the current situation in Germany, provides a clear definition of emergency law in Germany, and sets out detailed measures for how to handle emergencies in Germany. There are eleven articles in all, beginning with Article 115a and ending with Article 115l.[11]

There are three distinct kinds of catastrophes recognised by the German constitution: a "internal emergency" (inner not stand)[12], a "state of tension" (spanning fall)[13], and a "state of defence" (Verteidigungsfall).[14]

The “Constitution of India” was partially impelled by the German Constitution, which has extensive emergency measures.

COMPARATIVE ANALYSIS

There are numerous regulations and laws that are comparable amongst the three nations mentioned above, despite the fact that there are many that are distinct. The same is true for these nations' emergency supplies. Although India has adopted German emergency laws, the current emergency provisions in both Germany and the United States are responses to the widespread abuse and exploitation of their predecessors. Although countries like India and Germany have emergency laws, they are far more specific and comprehensive than those in the United States, where emergency provisions are more generalised.

Although the United States and Germany both face national and state crises, the United States and India share a national and financial emergency, as does the United States and the Indian Constitution.

CONCLUSION AND SUGGESTIONS

As has previously been mentioned, there are certain similarities between the emergency laws of India, the United States, and Germany, and there are also some key differences. While India has been using German emergency supplies, it has a lot more in common with the German system than the US. In the United States, judges have a significant role in deciding whether or not emergency measures are warranted, but in India and Germany, this is not the case. The case of A.K. Gopalan v. State of Madras[15] established that a court has no authority to rule on the legitimacy of the reasons for detention but only on whether or not they are legal and clear.

There is still room for misuse of such legislation, however, even after protections have been put in place. India, the United States, and Germany all have Constitutions that may benefit from borrowing parts of the others' emergency provisions. As an example, the United States judicial system has a significantly more robust capacity to determine the justiciability of emergency legislation than either the Indian or German judicial systems. Like India and Germany, the United States may benefit from clearer and more comprehensive emergency protections. The United States might learn much from both India and Germany by emulating their inclusion of emergency measures.

The three countries may also do a better job of protecting human rights by recognising and adhering to international norms and standards in times of crisis. Human rights are often abused, and inhabitants of a country suffer through a lot during a state of emergency due to misuse of such laws by the responsible authorities; it is crucial that atrocities are not perpetrated during this time. An option for doing so in a way that respects universally recognised standards of fundamental human rights. The only way for these nations to guarantee the safety of their people' lives and freedoms is to keep to the international agreements they've made to do so.

Bibliography

[1]. Constitution of India, 1949

[2]. Constitution of the United States of America, 1787

[3]. Constitution of the Federal Republic of Germany, 1949

[4]. Shivam Saxena, Emergency provisions: History, type, and duration in India, IPLEADERS,

[5]. Shylashri Shankar, The State of Emergency in India: Bockenforde's Model in a Sub-National Context, 19 German L.J. 197 (2018).

[6]. Patrick A. Thronson, Toward Comprehensive Reform of America's Emergency Law Regime, 46 Michigan L.J. 737 (2013).

[7]. William B. Fisch, Emergency In The Constitutional Law Of United States, 38 Am. J. Comp. L. Supp. 389(1990).

[1]Advocate, High Court of Madhya Pradesh. The Author can be reached at shubham.ojhaji1997@gmail.com.

[2]Research Scholar, Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra Pradesh. The Co Author can be reached at: suryansika01@gmail.com. 

[3]Assistant Professor of Law, Rai University, Ahmedabad, Gujurat. The Co – Author can be reached at pratapyash118@gmail.com.  

[4] Webster’s New Collegiate Dictionary (Springfield, MA: G & C Merriam, 1974), 372.

[5] 343 U.S. 579 (1952).

[6] Abhishek Kumar Khaund, National Emergency: A Comparative Analysis of Emergency Laws in India USA and Germany, 1, AIJACLA, 107, 107-124, (2021), See Available at: .

[7] Ibid.

[8] Supra note 6.

[9] Ibid.

[10]Anna Khakee, Securing Democracy? A Comparative Analysis of Emergency Powers in Europe, (Geneva Centre for the democratic control of armed forces, 2009).

[11] “Germany Constitution, Art.115a-115l”.

[12] “Germany Constitution Art. 91”.

[13] “Germany Constitution Art. 80a”.

[14] “Germany Constitution Part Xa.”

[15] AIR 1950 SC 27.