ABSTRACT
Extraordinary circumstances that hindera state’s abilityto function under its constitutional framework demand emergency provisions. During these times, an adapted constitutional framework is implemented, resulting in substantial changes to the normal functioning of the government and the separation of powers between the union and state governments.Different circumstances may lead a government to announce a state of emergency, such as armed conflicts, warfare, civil disturbances, and disasters. Once an emergency is declared, the normal constitutional order is disrupted, altering the country’s political, social, and economic conditions and resulting in the restriction or suspension of individual rights. This article analyzes emergency provisions found in India and the US, focusing on their origins, constitutional structures, and practical implications. In India, the emergency provisions are encapsulated in part XVIII of the constitution from articles 352 to 360. The Constitution of India categorizes emergencies into three types: The National Emergency, State Emergency, and Financial Emergency, each associated with specific circumstances. In the USA, in contrast, emergency powers are based on statutory laws, with the National Emergency Act of 1976 establishing a framework for presidential declarations,which is subject to oversight by Congress and judicial review. This research will delveinto emergencies in both countries and aim to establish a comparative analysis of the two.
INTRODUCTION
The democratic constitutions worldwide include emergency provisions enabling the executive branch to respond swiftly at times of crisis. In today’s scenario, nations are grappling with various urgent threats, such as terrorism, immigration, insurgencies, wars, severe threats to national stability, and pandemics that endanger numerous lives, which jeopardize the stability and security of the country. As a result, the instinct to invoke emergency power, enabling the government to exercise extraordinary authority beyond its constitutional roles, has become tremendously common. There is a common notion that these laws should be employed only during exceptional situations and should only be applied as extensively as the situation demands.[1] Moreover, emergency powers can also be referredto as measures introduced expeditiously in response to crises, which are expected to be temporary and will be rescinded once the crisis abates.
Emergency provisions are essential for the state to respond effectively during the crisis, ensuring that these powers adhere to legal standards. These powers act as guardians of democracy, provided they are used wisely and not capriciously, enhancing democratic resilience by granting the necessary authority to tackle significant challenges within the constitutional framework. Without emergency provisions in a state, the state would be left with two unfavorable scenarios: it could become powerless, unable to take essential actions in hazardous situations or resort toactions that exceed legal limits. Both of these scenarios could hurt society as a whole.Emergency powers are enacted to guarantee that a state can persist and uphold its legal obligations in the future. The declaration of emergency carries significant consequences. Historically, emergency powers have often led to violation of individual human rights, and while they protect the state’s existence, they can also threaten the very essence of democracy. Emergency poses two significant issues. Firstly, they disturb the separation of powers between the government and its branches. Secondly, shieldinghuman rights and the rules of governance is greatly compromised.
Emergency powers encompass a wide scope, enabling the executive to limit or suspend specific constitutional rights to consolidate decision-making authority and, in certain cases, postpone elections. However, such powers are typically subject to scrutiny and oversight to prevent potential abuses and upholddemocratic principles even in times of emergency. Thus, extraordinary measures may be necessary during emergencies as they also demonstrate the strength and flexibility of democratic governance in challenging situations.
The United Statesof America and India exemplify federal states with distinct legal systems. Yet, they both serve as prominent representations of democratic governance, focusing on principles of representation and federalism. In both India and the United States of America, emergency powers are incorporated within the legal systems, empowering governments to take necessary actions in times of emergency. Nonetheless, these powers’ nature, effects, and application significantly differ between the two countries, reflecting each nation’s distinct historical circumstances, constitutional provisions, and political cultures.
[1]Anna Chakee, Securing Democracy A Comparative Analysis Of Emergency Powers In Europe Centre For The Democratic Control Of Armed Forces, Policy Paper- No 30, 2009, 5.