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Amidst mounting criticism even from the global media, there are reports that the central government is mulling imposition of a health emergency. The veracity of these reports is still under question. But, such speculation in the media raises fundamental questions on the constitutionality of such a measure.
The constitution of India certainly has provisions for the proclamation of emergency. The constitution envisages three types of emergencies. Emergency arising from a threat to the security of India, breakdown of constitutional machinery in the state, and financial emergency.
But, there is no such concept called health emergency in the constitution of India. 44th constitutional amendment, after the nightmarish experience of internal emergency of 1975 made it extremely difficult to impose emergency if not impossible. But, the proclamation of emergency should be only in exceptional circumstances that too based on conditions prescribed by the constitution of India.
Article 352 of the Constitution of India deals with the powers to proclaim an emergency. Prior to the 44th constitutional amendment, article 352 envisaged a declaration of emergency on three specific grounds, namely external aggression, war, and internal disturbance. The 44th constitutional amendment, brought in by the Janata Party government post-emergency replaced the word-internal disturbances by armed rebellion.
The word internal disturbance indeed has wider connotations. The Sarkaria commission stated that internal disturbance can also include conditions resulting from physical breakdown due to natural disasters like epidemics, floods, and cyclones. But, these recommendations were not incorporated into article 352 by any constitutional amendment.
An emergency is a far-reaching measure that severely curtails democratic freedoms and rights. Therefore, no civilized democracy can opt for it unless there are compelling and extraordinary circumstances prevailing.
Though the 44th amendment replaced the word internal disturbance, article 355 still retains it. Article 355 casts a duty on the union government to protect all states against external aggression and internal disturbance, and to ensure that the governance of every state is carried out in accordance with the provisions of the constitution.
Imposition of emergency will result in abrogation of rights of states and even suspension of fundamental rights as per article 353, 358, 359 of the constitution of India. Therefore, arbitrary use of emergency provisions is unwarranted.
As Supreme Court observed in Naga People’s Movement of Human Rights vs. Union of India 1998, the expression internal disturbance has a wider connotation than armed rebellion in the sense that armed rebellion is likely to pose a threat to the security of the country, while internal disturbance, though serious, would not pose a threat to the security of the country.
The intention underlying the substitution of the words internal disturbance by the word armed rebellion is to limit the invocation of Article 352 only to more serious situations where there is a threat to the security of the country.
Therefore, even if the government of India contemplates exercising powers under article 355 invoking the expansive definition of the expression ‘internal disturbance’, such actions would not envisage an emergency as enshrined in article 352.
-By Prof K Nageshwar
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