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. | 1 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] 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. | 2 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] 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. | 3 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] 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.