Volume II Issue I IJLLR | Indian Journal of Law and Legal Research May 2021 ISSN: 2582-887 www.ijllr.com | [email protected] | [email protected]
NATIONAL EMERGENCY AND THE GLOBAL PANDEMIC
Nishita Kirty, GITAM School of Law, GITAM University
ABSTRACT
India is the largest democracy in the world and has one of the finest written Constitutions as a guiding light to such democracy. While the Constitutional framers were making the Constitution they foresighted a lot of situations that may occur in our country and made provisions in the Constitution to deal with such situations. One of the best examples of this is the presence of Emergency provisions in our Constitution. Part XVIII of the Constitution provides provisions regarding Emergency at the time of war, external aggression or armed rebellion. The part discusses about three types of Emergencies that may occur in the country that is National Emergency, State Emergency and Financial Emergency. In the current time the world is going through a rough phase due to the outbreak of the COVID 19 Pandemic. The Constitution which is way ahead of its time did not talk anything regarding a situation like this and it is well stated that the current scenario is an unprecedented one. This paper will focus and discuss the following:
1. Could the situation like this was foreseeable while framing of the Indian Constitution? 2. Does the Pandemic bring a situation of National Emergency and the requirement Medical Emergency as a new type of Emergency? 3. Need of provisions in the Constitution regarding the Pandemic to guide us in future.
This paper will also look into the role of judiciary at the time of Emergency through case laws such as State of Uttar Pradesh v. Raj Narain, Indira Nehru Gandhi v. Shri Raj Narain & Anr, ADM Jabalpur v. Shivkant Shula, Minerva Mills v. Union of India, Kesavanada Bharati v. State of Kerela and many more and the suo moto actions taken by it during the Pandemic.
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I. Introduction
According to the Black’s Law Dictionary, “Emergency is a situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation. It is a failure of the social system to deliver reasonable conditions of life”.1 Emergency provisions are inserted under Part VIII of the Indian Constitution from Articles 352 to 360. Art 352 is about National Emergency which states that whenever the President of India is satisfied that a grave emergency exists that threatens the security of India or any part thereof by way of war, external aggression or armed rebellion the President can declare Emergency for the whole of India or for any such part thereof by way of proclamation. The President shall take such decision in concurrence with the Union Cabinet in writing. The proclamation shall cease to operate on expiration of six months from the date of such passing unless it is revoked earlier. Emergency can be revoked by the President through another Proclamation.
Art 353 discusses the effect of proclamation of Emergency where the Union can make laws regarding the matters not enlisted in the Union list. Art 354 states the application of provisions relating to distribution of revenues while a proclamation of Emergency is in operation. Art 355 provides the duty of the Union to protect States against external aggression and internal disturbances and to ensure that the Government of every State carried on in accordance with the provisions of this Constitution.
Art 356 is the provision for State Emergency. It is provided when the constitutional machinery fails in the States. When the President receives a report from the Governor and is satisfied that the Government of that State is not carrying on with accordance of this Constitution he can by proclamation assume himself or declare the powers of the State Legislature shall be exercised by the Parliament or make incidental or consequential provisions thereof to resolve the matter. This Art was inspired by sec 93 of the Government of India Act, 1935. Art 357 discusses the exercise of legislative powers under Proclamation issues u/A 356 and the full procedure required thereof.2
1 Henry Campbell Black, Law Dictionary, 1990. 2 Justice Shri B. P. Jeevan Reddy, Article 256 of the Constitution, National Commission to Review the Working of the Constitution.
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Art 358 deals with suspension of provisions of Art 19 during Emergencies. This Article states that when Proclamation of Emergency is in operation nothing in Art 19 shall restrict in making any law for the State and will cease to have effect when Proclamation ceases. This Art is only applicable when the Proclamation of Emergency is caused due to war or external aggression.
While Art 358 only deals with suspension of provisions of Art 19, Art 359 deals with suspension of enforcement of the rights conferred by Part III that is Fundamental Rights during Emergencies. By virtue of Art 359 the President may by order declare the suspension of rights to move the court for the enforcement of part III of the Indian Constitution except for Art 20 and 21 during the Proclamation of Emergency or for such shorter period as may be specified in the order.
Art 360 talks about another type of Emergency that is Financial Emergency and states that if the President is satisfied that a situation has arisen where the financial stability or credit of India or of any part thereof is threatened he may proclaim Financial Emergency.3
II. History of Emergency in India
National Emergency has been imposed thrice in our country. First time it was imposed in the year 1962 during the Indo-China war and the second time it was imposed in the year 1971 when India went to war with Pakistan. In both the instances it was due to external aggression. There is a difference between war and external aggression and that is in external aggression one country attacks on the other country without any formal declaration of war.4
Third Emergency was imposed during the reign of Congress on advice of the then President Fakhruddin Ali Ahmad from 26th June, 1975 to 21st March 1977. It was done on the basis of internal disturbances which was one of the reasons behind Emergency given u/A 352. Earlier the reasons for emergency used to be war, external aggression and internal disturbances but with the 44th amendment the term armed rebellion was substituted in the place of internal disturbances. It was of the view that the then Prime Minister imposed Emergency due to the political motives of herself and her party because her position was endangered through the judgment given by
3 The Constitution of India, Universal Lexis Nexis, 2020. 4 Pathik Choudhury, “Impact of Emergencies on Fundamental Rights”, International Journal of Legal Developments and Allied Issues, Pg 82-87.
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Allahabad High Court in case of State of Uttar Pradesh v. Raj Narain5. In this case Raj Narain filed a petition in Allahabad High Court challenging the elections and also there was massive poverty in the country which led to agitations and people were demanding the Prime Minister to resign.6 The High Court decided in the favor of Raj Narain and the decision came on June 12, 1975 and stated that Mrs. Indira Nehru Gandhi held herself out as the candidate in the election and also was involved in corrupt malpractices. Later in the case of Indira Nehru Gandhi v. Shri Raj Narain & Anr7, the constitutional validity of 39th amendment through which Art 329A was inserted was challenged. Art 329A states the special provisions as to elections to Parliament in the case of Prime Minister and Speaker. The apex court held it unconstitutional and it was repealed by 44th amendment act. 1978.
Later on, the case of ADM Jabalpur v. Shivkant Shukla8 was filed in the year 1976 challenging the arrest and detention of various leaders during Emergency on the basis of Maintenance of Internal Security Act, 1971 and the Fundamental Rights were suspended including Art 14 and 21. The High Court decided in the favor of people who were arrested but the Hon’ble Supreme Court overturned the decision deciding in favor of the then Congress Government. The Apex court held that the persons filing petition had no locus standi u/A 359 of the India Constitution as the Fundamental Rights remain suspended during the Proclamation of Emergency.
In the case of Minerva Mills v. Union of India9 in which the Constitutional validity of 42nd amendment was challenged and it was stated by Justice Bhagawati that political complexion adduced to the issue does not take away the right of judiciary to review the matter. It will continue to exist until the Constitutional question is involved and is reinforcing the basic structure if India Constitution which was laid down in the case of Kesavananda Bharati v. State of Kerela10. It was also stated that all the organs are at equal stature when it comes to the protection of Constitution.11
5 State of Uttar Pradesh v. Raj Narain, AIR 1975 865. 6 Prakhand Srivastava and Mukund Sarda, International Journal of Current Advanced Research, Available at: https://journalijcar.org/sites/default/files/issue-files/7600-A-2018.pdf, Last Accessed: May 23rd, 2021. 7 Indira Nehru Gandhi v. Raj Narain & Anr, AIR 1975 SC 2299. 8 ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207. 9 Minerva Mills v. Union of India, AIR 1980 SC 1789. 10 Kesavananda Bharati v. State of Kerela, AIR 1973 SC 1461 11 Vidushi Sanghadia, NALSAR Student Law Review, Vol. 12, “Justiciability of a Presidential Proclamation of Emergency under Article 352(1) of the Constitution”, Available at: https://nslr.in/wp-content/uploads/2019/03/NSLR- Vol-12-No-5.pdf, Last Accessed: May 23rd, 2021.
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III. Impact on the World During Pandemics
Over the period of time various diseases came and shook the world. It is also a known fact that every hundred years the world suffers a pandemic. To understand further we must know the difference between an Epidemic and a Pandemic. Epidemic is the spread of a disease in a particular area but Pandemic is the outbreak of the disease in the whole world. The world has seen various pandemic situations through the spread of variety of diseases such as Leprosy, Black Death, Cholera, Plague, Spanish Flu and currently the Corona Virus Disease 2019. The last pandemic that we suffered was Spanish Flu before the COVID 19.
It was the time of the World War II when the outbreak Spanish Flu took place and the over- crowding and conditions of the war helped it spread over the world. Influenza was the disease which spread in the name of Spanish Flu. It did not originate from Spain but the first reported case was from Spain therefore the flu is called as Spanish Flu. It is reported that over 500 million people were affected by it and 50 million died of the disease worldwide.12 In those times the health facilities was not that good and the preparation of vaccine took too long. The Flu spread in three waves starting from early 1918 to summer of 1918, second wave which was the deadliest was from August 1918 to the end of the year and third wave took place in the year 1919.13 The situation led to various socio-economic problems such as unemployment, poverty, illiteracy and many more. Due to the World War I the world economy was already facing the downfall and the disease worsened the situation. The labor market also got affected due to the increase of unemployment.14
Corona Virus Disease or COVID 19 was first reported in December 2019. In the beginning the spread was not so vast but by the month of March the World Health Organization has to declare it a Pandemic. Countries declared a nationwide lockdown and started dealing with this deadly virus. We have suffused two waves of the COVID 19 and it is expected that we may suffer the third wave
12 Centers for Disease Control and Prevention, “1918 Pandemic Influenza Historic Timeline”, Available at: https://www.cdc.gov/flu/pandemic-resources/1918-commemoration/pandemic-timeline-1918.htm, Last Accessed: May 26th, 2021. 13 Laura Spinney, World Economic Forum, “How the Spanish Flu Changed the World”, Available at: https://www.weforum.org/agenda/2020/04/covid-19-how-spanish-flu-changed-world/, Last Accessed: May 26th 2021. 14 James Bishop, Reserve Bank of Australia, “Economic Effects of the Spanish Flu”, Available at: https://www.rba.gov.au/publications/bulletin/2020/jun/economic-effects-of-the-spanish- flu.html#:~:text=More%20recent%20studies%20released%20since,over%20the%20period%201918%E2%80%932 1, Last Accessed: May 26th, 2021.
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by the end of the year 2021. According to the report of WHO there are 168 million confirmed cases of COVID 19 across the globe and 27 million confirmed cases in India itself.15 We are all in a very devastating state and went through a lot of unprecedented issues. India is a developing country and we do not have the required medical facilities in our country to deal with such a situation. The Pandemic adversely affected the economy of the country too. Workers who were working in other parts of the territory started migrating back to their home towns. Due to the closure of workplaces many lost their jobs. This havoc like situation created a chaos in the society leading to increase in poverty and unemployment.16 The education system got a hit from it too. Online classes became the new normal but children who could not afford a day’s meal cannot be expected to have the required resources to adopt the new normal. The lack of work and closing down of educational institution has also forced children towards child labour.17 This also took a toll on the judiciary and the justice seeking system. Court proceedings were also done online but in a country like India people do not have enough resources to access courts online. It was also declared by the Hon’ble Supreme Court that urgent matters will only be heard through this process.18 This led to the sacking cases to an already overburdened judiciary and also somewhere denying the right to seek justice to the citizens of India. There are various other issues also which are arising day by day and the country has to face it and find an effective and efficient solution to it.
IV. The Pandemic and The Law: What We Have and What We Need
The Constitution of India came to force on January 26th, 1950 which means it has only been 71 years since we have got our own Constitution. While forming the Indian Constitution the Constituent Assembly debated on various aspects and then decided what is required to be adopted
15 World Health Organization, “Novel Coronavirus Disease (COVID 19) Situation Update Report- 69”, May 26th, 2021 Available at: https://cdn.who.int/media/docs/default-source/wrindia/situation-report/india-situation-report- 69.pdf?sfvrsn=9bbf5985_6, Last Accessed: May 28th, 2021. 16 European Journal of Molecular & Clinical Medicine, “Pros and Cons on the Measures taken by the Indian Government to Curb the Menace of COVID 19- A Review”, Available at: https://ejmcm.com/pdf_2195_b0f9232dd45f4d02f7a35bf3f105b9bc.html, Last Accessed: May 28th, 2021. 17 Centre for Budget and Governance Accountability, “Impact of COVID-19 on School Education in India: What are the Budgetary Implications?”, Available at: https://www.cbgaindia.org/wp-content/uploads/2020/09/Impact-of- COVID-19-on-School-Education-in-India.pdf, Last Accessed: May 28th, 2021. 18 Bar and Bench, “From the Bubonic Plague to COVID-19: Impact of Pandemics on the Legal Professions in India”, June 21st, 2020, Available at: https://www.barandbench.com/columns/from-the-bubonic-plague-to-covid-19-impact- on-the-legal-profession-in-india, Last Accessed: May 28th, 2021.
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or not. In the same manner they debated whether or not we need the Emergency provisions from the Government of India Act, 1935. As stated earlier the Emergency provisions were adopted under part XVIII of the Indian Constitution. While going through the Constitution it is clearly visible that the framers of the Indian Constitution were having insights way ahead of their time. Indian Constitution is celebrated as one of the well written Constitutions of the world. It gave us the right of equality, constitutional remedies, equal justice and many more. Emergency is also one such example where we can see the farsightedness of the members of the Constituent Assembly. Now the question that appears from the above discussion is that whether situations like the COVID-19 Pandemic was foreseeable at the time of making of the Constitution.
COVID-19 Pandemic is an unprecedented situation but we have had suffered some kind Pandemics in the past time also like plague, black deaths, Spanish flu etc. US Constitution came into force in the year 1789 and they also have the Emergency provision in the country. It has been 232 years since their constitution was made and they have come up with National Emergency Act, 1974. The provision regarding the emergency in the US Constitution talks about proclamation of it on the ground of crisis unlike India where the proclamation can only be done on the basis of war, external aggression or armed rebellion.19 We only have three types of emergency that national, state or financial emergency. The control of COVID-19 cases in the US show a clear picture of the effectiveness of laws present in their country. While making of the Constitution if they world have foreseen the situation like this or atleast similar to this we would have had certain provisions in our Constitution regarding an alarming and emergency like situation as the COVID-19 Pandemic.
When the lockdown was imposed and we did not have any constitutional machinery talking about this we relied on various other statutes such as the Disaster Management Act, 2005 which was invoked for the first time in India and the Indian Penal Code, 1860. Since the act was formulated after the 2004 Tsunami and was invoked for the first time in India it was not very effective and had various drawbacks in it regarding the funding and delegation of authority.20
19 Congressional Research Service, “National Emergency Powers”, April 8th, 2021, Available at: https://fas.org/sgp/crs/natsec/98-505.pdf, Last Accessed: May 28th, 2021. 20 THE HINDU Centre for Politics and Public Policy, “Pandemic Exposes Weakness in India’s Disaster Management Response”, September 22nd, 2020, Available at: https://www.thehinducentre.com/the-arena/current- issues/article32502100.ece, Last Accessed: May 28th, 2021.
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The Indian judiciary also played an important role in dealing with the COVID situations. It took suo moto cognizance of COVID situation and asked the central government to present report regarding their plans and preparedness in dealing with the issue. They were looking into matters such as vaccination, availability of oxygen supply, hospital beds etc. It stated that India is facing an emergency-like situation.21 The plan was to be furnished to the High Courts within 24 hours and it also went ahead by calling the situation as “National Health Emergency”. It asked the central government to setup a body for equal distribution of resources in the country.22 With the coining of this new word the judiciary has given a hint to the people of this country to make provisions regarding situations like these.
Conclusion and Suggestions
With all the discussions earlier we observed how Emergency came into picture in India. The concept was taken from the Government of India Act, 1935 and was incorporated under Part XVIII of the Indian Constitution. We have three types of emergency enshrined in our Constitution that is National emergency, State emergency and Financial emergency. The President proclaimed National Emergency three times. The first two times was on the basis of external aggression when India went to war with China in 1962 and Pakistan in 1971. Third time it was on the ground of internal disturbances and it is one of the most controversial period of Indian Emergency. State emergency is also imposed several times but Financial emergency was never proclaimed in India. With the problems that started arising with this Pandemic which was unforeseeable at the time of framing of Indian Constitution the upholders should start thinking about a new type of emergency that is National Health Emergency so that the Constitution of India can stands vigorously when a situation like this arises after hundred or two hundred years. It will guide the citizens to fight with the enemy in an efficient manner. The legislature with the help of other two organs also can make new provisions for the health emergency to deal with the pandemic as well as to protect the interest of its people in such hard times.
21 INDIA TODAY, “National-Emergency like Situation: SC takes Suo Moto Cognizance of COVID Situation”, April 22nd, 2021, Available at: https://www.indiatoday.in/coronavirus-outbreak/story/supreme-court-on-oxygen-medicines- lockdown-hc-hearings-1793799-2021-04-22, Last Accessed: May 28th, 2021. 22 THE TIMES OF INDIA, “National Health Emergency: Supreme Court asks Centre for plant today”, April 2rd, 2021, Available at: https://timesofindia.indiatimes.com/india/national-health-emergency-supreme-court-asks-centre- for-plan-today/articleshow/82204237.cms, Last Accessed: May 28th, 2021.
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BIBLIOGRAPHY
BOOKS:
• Dr. J.N. Pandey, Constitutional Law of India, Central Law Agency (37th Edition). • V.N.Shukla, Constitution of India, Eastern Book Company (9th Edition).
ARTICLES:
• Justice Shri B. P. Jeevan Reddy, Article 256 of the Constitution, National Commission to Review the Working of the Constitution. • Laura Spinney, How the Spanish Flu Changed the World, World Economic Forum, 2020. • James Bishop, Economic Effects of the Spanish Flu, Reserve Bank of Australia, 2020.
JOURNALS:
• Pathik Choudhury, Impact of Emergencies on Fundamental Rights, International Journal of Legal Developments and Allied Issues, Pg 82-87. • Prakhar Srivastava and Mukund Sharda, A Study of the Emergency Provisions in the Indian Constitution, The Emergency of 1975 and the Possibility of Recurrence Thereof, International Journal of Current Advanced Research, 2018. • Vidushi Sanghadia, Justiciability of Presidential Proclamation of Emergency under Article 352 (1) of the Constitution, NALSAR Student Law Review, 2019. • S. Padmaja and Smiline Girija AS, Pros and Cons on the Measures taken by the Indian Government to Curb the Menace of COVID 19- A Review, European Journal of Molecular and Clinical Medicine, 2020.
REPORTS AND POLICIES:
• Centre for Disease Control and Prevention, 1918 Pandemic Influenza Historic Timeline, March 20th, 2018. • World Health Organization, Novel Coronavirus Disease (COVID-19) Situation Update Report-69, May 26th, 2021.
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INDIAN JOURNAL OF LAW AND LEGAL RESEARCH Volume II Issue I IJLLR | Indian Journal of Law and Legal Research May 2021 ISSN: 2582-887 www.ijllr.com | [email protected] | [email protected]
• Centre for Budget and Government Accountability, Impact of COVID-19 on School Education in India: What are the Budgetary Implications?, 2020. • Congressional Research Service, National Emergency Powers, April 8th, 2021.
NEWSPAPERS:
• Rusy Kohli, From the Bubonic Plague to COVID-19: Impact of Pandemics on the Legal Professions of India, Bar and Bench, June 21st, 2020. • Sumit Chaturvedi, Pandemic Exposes Weakness in India’s Disaster Management Response, THE HINDU Centre for Politics and Public Policy, September 22nd, 2020. • Aneesha Mathur, ‘National Emergency-like Situation’: SC takes Suo Moto Cognizance of COVID Situation, INDIA TODAY, April 22nd, 2021. • Dhananjay Mahapatra, ‘National Health Emergency’: Supreme Court ask Centre for Plan Today, THE TIMES OF INDIA, April 23rd, 2021.
THE CONSTITUTION OF INDIA
WEBSITES:
• www.scconline.com • www.thehindu.com • www.who.int • www.indiatoday.in • www.barandbench.com • www.timesofindia.indiatimes.com
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