A COMPARATIVE ANALYSIS OF EMERGENCY PROVISIONS: PERSPECTIVE FROM INDIA, USA AND GERMANY BY:- ADV JANHVI TAKALKAR

A COMPARATIVE ANALYSIS OF EMERGENCY PROVISIONS: PERSPECTIVE FROM INDIA, USA AND GERMANY.

AUTHORED BY:- ADV JANHVI TAKALKAR

ABSTRACT-

Emergency can be defined as a situation where the Government of a country either alters or suspends the normal functioning of a nation by holding in a state of abeyance the Constitution and other organs of the Government. Different conditions can be referred to as the reasons in light of which the Government of a nation may pronounce a state of emergency, for example, civil unrest, calamity or disaster, armed rebellion or conflict, war, etc. When the emergency is proclaimed in a nation, the typical texture of its Constitution is upset, the political, financial, and social climate of that nation is changed and the privileges of the citizens are either curtailed or suspended. The power of emergency thus can be described as both a curse and a gift as it can be used to tackle sudden, unsuspecting threats, while on the other hand, it can become a tool in the hands of a Government to carry out its agendas and suppress its dissidents. In this study, we will look at the various emergency laws and conditions of India, the U.S.A., and Germany and how each of these countries differ and are similar in the implementation of their emergency laws.

KEYWORDS- Constitution, Emergency, India, USA & Germany.

INTRODUCTION-

In times of crisis, the efficacy and legality of emergency provisions come under intense scrutiny, revealing the delicate balance between state authority and individual liberties. As global dynamics continue to evolve, the need for robust emergency frameworks becomes increasingly imperative. In this comparative study, we delve into the emergency provisions of three diverse nations: India, the United States of America, and Germany.

India, with its rich tapestry of cultures and complexities, has grappled with numerous emergencies throughout its history. From internal conflicts to natural disasters, the Indian state has wielded emergency powers to maintain order and stability. However, the exercise of such powers often raises questions about democracy and civil liberties.

In contrast, the United States boasts a constitutional framework that enshrines principles of liberty and limited government intervention. Yet, even the world's oldest democracy is not immune to emergencies, as evidenced by events like the September 11 attacks and the ongoing COVID-19 pandemic. The American approach to emergencies reflects a delicate interplay between federal and state authority, balancing the need for swift action with the protection of individual rights.

Meanwhile, Germany's post-war constitution embodies a strong commitment to democratic values and the rule of law. The German experience with emergencies, particularly during the Cold War era, offers insights into how a federal system navigates threats to national security while upholding fundamental freedoms.

This comparative analysis aims to explore the legal, political, and social dimensions of emergency provisions in these three nations. By examining their respective historical contexts, constitutional frameworks, and responses to crises, we seek to identify commonalities, differences, and best practices. Ultimately, this study contributes to a deeper understanding of how nations reconcile the exigencies of emergency governance with the imperatives of democracy and human rights.

HISTORICAL BACKGROUND OF EMERGENCY IN INDIA

The inclusion of the emergency provisions in the Constitution of India was greatly influenced by the circumstances and the conditions prevalent at the time of framing the Constitution. The communal tension between the Muslims and the Hindus at that time was thought of as a great threat to the newly established democratic set up of India. Moreover, casteism, regionalism communal disharmony was at a peak at that time. Again, some states were hesitant to join the Union especially Junagarh and Hyderabad. All of this led to the inclusion of Article 352 in the Constitution. Communist activities taking place at that time also played a major role in the inclusion of the emergency provisions especially Article 356. The weak financial situation of the country at the time of independence due to the partition and plummet of the foreign exchange reserves led to the inclusion of Article 360[1].

The emergency provisions in India are contained in Part XVIII of the Constitution of India. It contains nine Articles in total, Article 352-360. Under Part XVIII of the Constitution, three kinds of emergencies are envisaged, namely; national emergency, state emergency, and financial emergency. Article 352 of the Constitution provides for national emergency, Article 356 of the Constitution lays down “provisions in case of failure of constitutional machinery in states” and Article 360 deals with financial emergency. Under Article 356, if the Governor of a state sends a report to the President stating that “the Government of the State cannot be carried on following the provisions of the Constitution” and the President, on the receipt of such report, is satisfied that such a circumstance has arisen, he may after proclaiming that effect assume all or any functions and powers of the concerned State Government or the Governor of that state to himself. He may also give such powers to any other body in the State other than the State Legislature. He can also empower the Parliament to perform and exercise all the functions and powers of the State Legislature. Article 360(1) provides that: If the President is Satisfied that a situation has arisen whereby the financial stability or credit of India or any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.”

National Emergency (Article 352)

Besides state emergency and financial emergency, there is another kind of emergency in India that is of great importance and is the main focus of this study, i.e., national emergency. National emergency in India is dealt with under Article 352 of the Constitution of India. It is perhaps the most important provision relating to emergency in India. Article 352 (1) of the Constitution of India provides that, “If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether, by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.” An important aspect of this clause is that a proclamation of emergency need not extend to the entire India. It can be limited to a specific part of the territory of India.[2] It is worthwhile to note that the term “armed rebellion” was only brought in by the 44th Constitutional Amendment and before the amendment, the term “internal disturbance” was used instead of armed rebellion. However, it was felt that the expression internal disturbance was too vague and hence it was replaced. The main objective was to limit the imposition of an emergency under Article 352 only to serious situations. It was held by the Supreme Court in Naga People’s Movement of Human Rights v. Union of India[3]that the term “internal disturbance” has a broader implication than “armed rebellion” as the latter is more likely to pose a threat to the security of India whereas the former though could be serious, might not pose a threat to the security of India

Emergency of 1975-77

One of the most notorious and controversial incidents of invocation of Article 352 was the emergency of 1975-77 where gross violations of human and fundamental rights took place, elections were suspended, democratic values were violated, massive press censorship took place and dissidents and critics of the Government were detained under preventive detention. A state of emergency was declared by then President Fakhruddin Ali Ahmed on the advice of the then Prime Minister Indira Gandhi, thus giving her wide discretionary power to do whatever she wanted and to keep herself in power. The emergency was declared on the ground of “internal disturbance” and the reasons thereof were given by the Government on a white paper on 21st July, 1975. The emergency which became effective on 25th June 1975 lasted for almost two years and finally came to an end on 21st March 1977. This move of the then Government and Indira Gandhi was highly criticized by the general public at that time. The people didn’t see any genuine reason for the invocation of an emergency. The result was that when finally elections were held in 1977 for Lok Sabha after the emergency had ceased, Congress lost and the Janata Party came to power. Another consequence of the emergency of 1975-77 was the amendment made to Article 352 because of the 44th Amendment. The main aim was to introduce certain restrictions on governmental power and to provide safeguards to the citizens against abuse of power. Besides the emergency of 1975-77, a state of emergency under Article 352 has been declared two times. It was done for the first time in 1962 during the Indo-China conflict. It also continued through the Indo-Pakistan conflict period in 1965 and was only revoked in 1968[4]. Again, the emergency was proclaimed during India’s conflict with Pakistan in 1971 on the ground of external aggression. The emergency of 1975-77 was proclaimed while this emergency was already subsisting.

HISTORICAL BACKGROUND OF EMERGENCY IN USA

The President of the U.S.A. has been bestowed with great powers when it comes to emergency by the federal laws to meet any crisis, exigency, or emergency in the nation. It is worthwhile to note that these powers are not restricted to just situations or circumstances relating to war or the military. Some of these powers are Constitutional or statutory and are always accessible to the President, while certain other powers are “statutory delegations” of the congress and remain silent and latent till the time a national emergency has been declared by the President. Some of these powers empower the President to seize properties and commodities, control production, impose martial law, consign military forces outside the country, control travel laws, transport, and communication among other things. These powers were used by the Presidents at their discretion until World War I. After World War I, there was the availability of a great number of standby emergency powers in the hands of the then Presidents. These powers would become active when a national emergency was proclaimed on any condition thereof, sometimes confining the subject of emergency to a specific field of policy, and sometimes no restrictions were placed on the pronouncement by such proclamations. There was very little restriction on the discretionary powers of the Chief Executives as far as emergency provisions were concerned. In Youngstown Sheet & Tube Co. v. Sawyer,[5] although the Supreme Court limited what a President could do in emergencies but did not limit the power of the President to declare an emergency at his discretion. Therefore, to impose certain checks and balances on the President concerning his exercise of emergency powers the National Emergencies Act was passed in 1976.

NATIONAL EMERGENCY ACT

The National Emergency Act (NEA) is a United States federal law passed in 1976 to regulate the President's powers during a state of national emergency. It provides a framework for the declaration and termination of national emergencies, as well as procedures for congressional oversight.

1. Declaration of National Emergency: The President has the authority to declare a national emergency, allowing him to access a range of special powers to address the crisis. These powers can include the ability to redirect funds, control transportation, and regulate commerce.

2. Congressional Oversight: The NEA requires the President to formally notify Congress upon declaring a national emergency. Congress has the power to terminate the emergency declaration through a joint resolution, which requires passage by both the House of Representatives and the Senate, and is subject to presidential veto.

3. Termination Procedures: National emergencies automatically terminate after one year unless the President renews the declaration. Congress can also terminate a national emergency through legislative action.

4. Reporting Requirements: The President is required to submit periodic reports to Congress detailing the actions taken under the declared national emergency and justifying the continued need for emergency powers.

The NEA was passed in response to concerns about the expansive powers granted to the President during times of emergency. Prior to the NEA, there was no formal process for declaring or terminating national emergencies, leading to situations where emergency powers were prolonged indefinitely.

Constitutional provisions relating to emergency

It is worthwhile to note that the term “emergency” finds no mention in the U.S. Constitution, however, certain provisions have been included in the Constitution to deal with an emergency or any exigency. For instance, Section 8 of Article I empower Congress to take necessary steps concerning war and military-related issues for the following reasons: v For the declaration of war v For the maintenance of the navy, for raising and supporting an army, and for making rules to regulate naval and land forces. v For calling the militia to ward off invasions, for the executions of union laws, and the suppression of any kind of insurrections. Section 2 of Article II provides that the President is the “Commander in Chief of the army and navy, as well as of the militia when called into actual federal service.” The President is charged under Section 3 of Article III with the duty to ensure the proper implementation and execution of laws. Moreover, Section 4 of Article IV imposes a duty on the federal government to protect every state from any kind of invasion or domestic violence[6]. Even though these provisions do not expressly provide for an emergency, it can be seen that there are implied recognition emergency laws within these provisions that seek to safeguard the nation and the states from invasion, war, insurrection, domestic violence, and other kinds of threats. All of the threats would generally result in the declaration of a state of emergency in a state. However, certain safeguards have also been provided to the citizens in this regard, for instance, the non-suspension of habeas corpus, “unless when in Cases of Rebellion or Invasion the public Safety may require it.[7] Another safeguard that is provided to the citizens is that unless a grand jury indicts a person, that person cannot be charged with any capital crime, "except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger.[8]" Thirdly, a state cannot engage in war "unless invaded, or in such imminent Danger as will not admit of delay[9]."

Historical Background of Emergency in Germany

Germany has a complex history with states of emergency, often intertwined with periods of political turmoil, war, and transition. Here's an overview of the historical background:

- Prussian and Imperial Germany: Before the establishment of the modern German state, various German territories, particularly Prussia, utilized states of emergency to deal with internal unrest and external threats.

- Bismarck's Era: Otto von Bismarck, the architect of German unification, employed states of emergency to suppress dissent and maintain order during the formation of the German Empire in the late 19th century.

- Weimar Republic: The Weimar Republic, established after World War I, faced numerous political and economic challenges. The government frequently resorted to emergency decrees, including Article 48 of the Weimar Constitution, to govern by presidential decree during times of crisis.

- Rise of the Nazis: The Weimar Republic's inability to effectively manage the economic crisis and political instability paved the way for the rise of Adolf Hitler and the Nazi Party. The Reichstag Fire Decree in 1933 suspended civil liberties and laid the groundwork for Nazi dictatorship, marking a significant escalation in the use of emergency powers.

- Third Reich: Under Nazi rule, emergency measures were institutionalized, leading to the total subversion of democratic institutions and the establishment of a totalitarian regime. The Enabling Act of 1933 granted Hitler dictatorial powers, effectively nullifying the Weimar Constitution.

- Division of Germany: After World War II, Germany was divided into East and West, with East Germany (German Democratic Republic) under Soviet control and West Germany (Federal Republic of Germany) as a democratic state allied with the Western powers.

- Cold War Era: Both East and West Germany maintained states of emergency during the Cold War period, with East Germany using emergency measures to suppress dissent and maintain control over its population, while West Germany focused on defence and security concerns within the NATO framework.

GERMAN EMERGENCY ACT AND CONSTITUITIONAL PROVISIONS

In Germany, emergency powers are governed by constitutional provisions outlined in the Basic Law and regulated by the Emergency Act which provides a legal framework for managing various types of emergencies. Here's an overview of the relevant constitutional provisions and the Emergency Act:

Constitutional Provisions:

1. Article 35 of the Basic Law: This article grants the federal government and state governments the authority to declare a state of defence, a state of tension, or an internal state of emergency in the event of an external threat or disruption to public order. These states of emergency are subject to specific legal regulations and safeguards.

2. Article 87a of the Basic Law: This article establishes the federal government's responsibility for civil protection and emergency management. It outlines the federal government's authority to legislate on civil defence and disaster relief matters and to provide assistance to the states in emergencies.

3. Emergency Act

1. Purpose and Scope: The Emergency Act, passed in 1997, aims to protect the population and infrastructure in the event of emergencies such as natural disasters, technological accidents, and acts of war. It outlines measures for civil defence, disaster relief, and emergency management.

2. Declaration of Emergencies: The Emergency Act provides procedures for declaring states of emergency, including states of defence, states of tension, and internal states of emergency. These declarations can be made by the federal government, state governments, or competent authorities designated by them.

3. Powers and Measures: During a state of emergency, the Emergency Act grants authorities various powers to maintain public order, protect critical infrastructure, and ensure the provision of essential services. These powers may include restrictions on movement, requisitioning of resources, and deployment of emergency personnel.

4. Coordination and Cooperation: The Emergency Act establishes mechanisms for coordinating federal and state emergency measures and facilitating cooperation between different levels of government, as well as with non- governmental organizations and the private sector.

5. Duration and Termination: States of emergency declared under the Emergency Act are limited in duration and require periodic review. Once the emergency situation has been resolved, the state of emergency is terminated, and normal legal and administrative procedures resume. It provides the legal basis for the Emergency Act.

Emergency powers are essential tools for governments to manage crises and maintain order during times of national emergency. Here's a comparative analysis of emergency provisions in India, the United States, and Germany:

India:

1. Constitutional Provisions: India's Constitution grants the President the power to declare three types of emergencies under Articles 352, 356, and 360: national emergency, state emergency (President's Rule), and financial emergency, respectively.

2. Scope and Duration: A national emergency can be declared in the event of war, external aggression, or armed rebellion, while a state emergency can be declared when a state government cannot be carried on in accordance with the Constitution. Financial emergencies are declared due to a threat to the financial stability of India. These emergencies have specific criteria and are subject to parliamentary approval.

3. Executive Authority: During a national emergency, the President can suspend fundamental rights, and the central government gains significant powers over the states. State emergencies involve the imposition of direct central rule over a state government.

United States:

1. National Emergency Act: The United States has the National Emergency Act of 1976, which regulates the President's powers during a state of emergency. The President can declare a national emergency under various statutes, granting access to specific powers.

2. Congressional Oversight: The Act requires the President to notify Congress upon declaring a national emergency, and Congress has the authority to terminate the emergency declaration through legislative action.

3. Limited Duration: National emergencies automatically terminate after one year unless renewed by the President, ensuring periodic review by Congress.

Germany:

1. Constitutional Provisions: Germany's Basic Law contains provisions for declaring states of emergency under Article 35, including states of defence, states of tension, and internal states of emergency. Article 87a outlines federal responsibility for civil protection and emergency management.

2. Emergency Act: The Emergency Act of 1997 provides a legal framework for managing emergencies, including procedures for declaring and managing states of emergency, powers granted to authorities, and coordination between federal and state levels.

3. Balanced Approach: Germany's emergency provisions emphasize coordination between federal and state governments, with clear limitations on emergency powers and safeguards to protect civil liberties.

Comparative Analysis:

- Scope and Criteria: India's emergency provisions are broad and encompass various scenarios, including armed rebellion and financial instability. The USA and Germany have more specific criteria for declaring emergencies, focusing on specific threats such as war or natural disasters.

- Executive Authority and Oversight: While India grants significant powers to the executive during emergencies, the USA and Germany emphasize checks and balances, with congressional oversight and judicial review ensuring accountability.

- Duration and Termination: In all three countries, there are mechanisms for terminating emergencies, either through parliamentary action (India), automatic termination (USA), or periodic review (Germany).

CONCLUSION & SUGGESTIONS

As already discussed, the emergency provisions of India, the U.S.A., and Germany are similar on certain points and different on others. As India has borrowed its emergency provisions from Germany, it has a lot more in common with the German system than the American. While in the U.S.A. the courts play a crucial role in determining whether the emergency provisions are justified or not, it is not so in the case of India and Germany. In A.K. Gopalan v. State of Madras,[10] it was held that a judge cannot determine whether the grounds of detention were justifiable or not, it can only pronounce whether the grounds are invalid or vague. However, it is not to be confused with the complete incompetence of the judiciary when it comes to an emergency. In Minerva Mills v. Union of India[11],Justice Bhagawati held that “whether the President while proclaiming the emergency had applied his mind or whether he had acted outside his powers could not be excluded from the scope of judicial review.” Where the U.S. Constitution does not explicitly mention the term “emergency”, very elaborate provisions have been laid down in the Constitutions of both India and Germany concerning emergency. It is also worthwhile to note that various safeguards have been provided in all three Constitutions to ensure that there’s no abuse of such laws. All three countries have learned from their past experiences and subsequently have made certain amendments to prevent the misuse of emergency powers. While India learned from the horrors of the 1975-77 emergency period and brought in the 44th Constitutional Amendment Act thereby replacing the term “internal disturbance” with “armed rebellion”, U.S.A. passed the National Emergencies Act to impose restrictions on the earlier unchecked emergency powers of the President and Germany took a similar step after the failures of the Weimar Constitution in preventing the abuse of emergency laws in the country and enacted the However, even after ensuring the safeguards, there is still scope of abuse of such laws. The Constitutions of India, the U.S.A., and Germany can still adopt certain provisions from each other to improve their situations especially when it comes to national emergency. For instance, both India and Germany can perhaps strengthen their judiciary in matters relating to emergencies like the U.S. where courts are in a much stronger position to decide the justiciability of emergency laws. Similarly, the U.S. can perhaps make its emergency provisions a bit more unambiguous and detailed like that of India and Germany. The inclusion of explicit provisions dealing with emergencies is another feature that the U.S. can borrow from India and Germany. Another improvement that can be made by the three states is the recognition and observance of international norms and standards of non-violation of human rights during emergency periods. It is often seen that during a state of emergency, many human rights are violated and citizens of a nation have to go through a lot mainly because of abuse of such laws by the concerned authorities, and hence, it is important that such atrocities are not committed. One of how it can be done in observance of standard international norms of basic human rights. By adhering to their international commitments concerning preserving basic human rights, each of these countries can ensure the protection and safeguard of the life and liberty of their citizens.

[1] Shivam Saxena, Emergency provisions: History, type and duration in India, IPLEADERS, (Nov. 2020, 28 10:10 AM), https://blog.ipleaders.in/emergency-provisions-history-types-duration-india/.

[2] Constitution of India 1950.

[3] Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 431: (1998) 2 SCC 109.

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

[5] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

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

[7] U.S. Constitution, Art. I § 9, cl. 2.

[8] U.S. Constitution Amend. V, cl 1

[9] U.S. Constitution Article I § 10, para. 3.

[10] A.K. Gopalan v. State of Madras, A.I.R 1950 SC 27: 1950 SCR 88 : 1950 SCJ 174.

[11] Minnerva Mills v.Union of India, A.I.R 1980 SC 1789: 1981 SCR (1) 206: 2 SCC 591.

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