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NATIONAL EMERGENCY: A COMPARATIVE ANALYSIS OF EMERGENCY LAWS IN INDIA, U.S.A. AND GERMANY

Section: A

Category: Research Paper

Paper Code: RP-AK-02

Page Number: 107 - 124

Date of Publication: February 10, 2021

Citation: Abhishek Kumar Khaund, National Emergency: A Comparative Analysis of Emergency Laws in India USA and Germany, 1, AIJACLA, 107, 107-124, (2021).

Details Of Author(s):

Abhishek Kumar Khaund, Advocate, Gauhati High Court


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, Germany, India, and USA


INTRODUCTION Even though it is not uncommon for a country to declare a state of emergency, it is still a very rare phenomenon that occurs only in exceptional circumstances, especially in democratic regimes. An emergency is a situation in which the Government of a state suspends the normality of Constitutional, legal, political, and economic procedures. If we look at the dictionary meaning of emergency, it means, “an unforeseen combination of circumstances or the resulting state that calls for immediate action.”[1] Various circumstances can be cited as the reasons because of which the Government of a country may declare the existence of a state of emergency, such as, civil unrest, calamity or disaster, armed rebellion or conflict, war, etc. Whatever may the reasons be, when an emergency is declared in a country, the normal fabric of its Constitution is disturbed, the political, economic, and social environment of that country is altered and the rights of the citizens are affected. 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. Different countries have different procedures for declaring a state of emergency and the consequent effects of such declaration vary from country to country. However, in this study, the emergency provisions of India, the U.S.A., and Germany have been dealt with, more specifically national emergencies. As far as India is concerned, the President has the power to declare emergencies of three kinds: · National Emergency · State Emergency · Financial Emergency The President can do so with the advice of the cabinet ministers and because of the power vested in him by Part XVIII of the Constitution of India which contains laws relating to Emergency provisions in India. When it comes to the U.S.A., the situation is somewhat similar to India as the President of the U.S.A., being the Chief Executive of the nation, has the power to declare an emergency in the country. Similarly, a Governor or a Mayor has the power to declare a state of emergency within his jurisdiction. Emergency at the federal level in the U.S.A. is regulated by the National Emergency Act. When we talk about National emergency in India, it is important to also look at the German model of emergency as India has borrowed its emergency provisions from Germany. In Germany, Article 48 of the Constitution of the Weimar Republic permitted declaration of emergencies mainly to suppress rebellions and opposition. In modern Germany however, the Emergency Acts also known as “Notstandsgezetse” basically deal with emergency provisions. The German Emergency Acts state that when it comes to a state of defense, a state of tension, internal states of emergency or disaster, certain constitutional rights may be limited. Whenever an emergency is declared by the Government, the normal procedures of a nation are drastically altered and the rights of the people are affected, adversely in most cases. Hence, most nations refrain from taking such a drastic step and only do so under exceptional circumstances. India, U.S.A., and Germany are three different examples of federal states with different laws and procedures. They can also be described as model examples of democratic states in their respective continents, Asia, North America, and Europe. Since many consider emergency provisions as being the antithesis of democracy, it is worthwhile to analyze how such laws find a place within democratic principles. This study will extensively deal with the National Emergencies in these three countries and will try to make an analytical study between them.

STATE OF EMERGENCY IN INDIA Historical Background 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.[2] 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.[3] 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[4]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. Under Article 352(2), an emergency proclamation made under Article 352(1) may be subsequently varied or revoked by another proclamation. Article 352(3) was also a result of the 44th Amendment. It provides that, “The President shall not issue a Proclamation under clause (I) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank under Article 75) that such a Proclamation may be issued has been communicated to him in writing.” Thus, the President is not entitled to proclaim Article 352(1) unless the Cabinet collectively writes to the President about its decision for the issuance of such proclamation. The Prime minister also has to consult the Cabinet in this regard and such a decision cannot be taken by the Prime Minister alone. In 1975, the Prime Minister without consulting with the Cabinet advised the President to declare an emergency and the President obliged. The Council of Ministers was only presented with a fait accompli.[5]Therefore, to make sure that such a situation doesn’t arise again, this clause was inserted. Clause 4 of Article 352 lays down that, “every Proclamation issued under this article shall be laid before each House of Parliament.” A proclamation will stop affecting the expiry of a month if it is not approved by the Parliament (Lok Sabha and Rajya Sabha). However, if the Lok Sabha is dissolved, at the time of the issuance of the proclamation or thereafter, without approving it and consequently the Rajya Sabha approves it, then it will cease to operate thirty days after the Lok Sabha sits again. But if in the meantime, the Lok Sabha approves the proclamation by a resolution then it will continue.[6] After the proclamation is approved, it remains in force for six months, unless it is revoked earlier as provided under Article 352(5). For a proclamation to continue beyond that period, it has to be approved by both the houses again. Clause 6 of Article 352 states that “For clause (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.” This is kind of like a safeguard that was introduced by the 44th Amendment as before the amendment such a resolution could be passed only by a simple majority in each House. Clause 7 of Article 352 limits the power of the President in the sense that he is under the obligation to revoke a proclamation of emergency which is issued under Article 352(1) if the Lok Sabha disapproves it through a resolution. A simple majority voting in this respect is enough by the members who are present. This can be deemed as another safety measure that the 44th amendment has introduced to ensure that there is no abuse or misuse of the powers entrusted to the executive. Article 352(9) empowers the President to declare an emergency on different grounds, “being war or external aggression or armed rebellion or imminent danger of war or external aggression or armed rebellion, whether or not there is a Proclamation already issued by the President under clause (l) and such Proclamation is in operation. The 38th Constitutional Amendment introduced this provision in 1975 after the proclamation of emergency was issued on the ground of internal disturbance. This provision was inserted to make sure that there arises no problem when two proclamations are in operation despite them being on two different grounds. It is worthwhile to note that it is the President’s “subjective satisfaction” which decides whether the security of India is under threat or not, however he still has to act on the advice of the Cabinet of the Union. In Bhut Nath v. State of West Bengal,[7]it was held by the Supreme Court that the continuance of emergency under Article 352 is not void and that the question is “apolitical, not justiciable issue and the appeal should be to the polls and not to the court.”

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.[8] 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.

Changes in Centre-State relations When an emergency is proclaimed under Article 352 certain changes take place in the Centre-State relations of the country. The federal nature of the country goes through a drastic change. One such change is that the Parliament gets the power to legislate on any matter enumerated in the State List, however such a law will continue to be in operation for six months after the proclamation of emergency ceases.[9] In case of any inconsistency between a law made by a State Legislature and the Parliament, the law made by the Parliament will prevail, even if such law relates to any matter in the State List.[10] Moreover, under Article 353(a), the Centre becomes empowered to give directions to a State with regard “to how the executive power thereof is to be exercised.” It is also provided under this Article that, “the power of Parliament to make laws under clause (b), shall extend to any State other than a State in which or in any part of which the Proclamation of Emergency is in operation if and in so far as the security of India or any part of the territory thereof is threatened by activities in or concerning the part of the territory of India in which the Proclamation of Emergency is in operation.” Article 354(1) allows the President to direct by an order that any provision of Articles 268-279, which deal with distribution of revenue between Centre and States, shall take “effect subject to such exceptions or modifications as he thinks fit. Moreover, when an emergency is in place, the Parliament becomes empowered to levy taxes that fall in the State List.[11] Under Article 172, the life of the State Legislatures can be extended by the Parliament by one year each time during an emergency, however, only for six months after the emergency ceases to exist.

STATE OF EMERGENCY IN USA Historical Background 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,[12]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. When discussing the history of emergency in the U.S., it is also important to discuss the U.S. reaction to the 9/11 terrorist attack and the consequences emanating from it. A state of emergency was declared by the then-President George W. Bush at that time and a joint declaration was issued by the Congress which authorized the President to use all "necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” Following this various other enactments and policy decisions were introduced, key among them being the Patriots Act which Congress passed and was subsequently signed by President George W. Bush on 26th October, 2011 as an immediate reaction against the 9/11 attacks. The Act the concerned authorities to wiretap and to use surveillance to deal with activities that may be related to terrorism. It also permitted the Federal agents to acquire bank and business records and details of certain suspects after attaining the permission to do so by the Federal Court. The Act made it harder for immigrants to enter the U.S. as border security was tightened. Although many were in support of the Act, many people were against it because it violated their privacy and led to unnecessary harassment of innocent immigrants. Thus, whether or not the Patriot Act was successful in effectively dealing with terrorism might be a subjective issue, however, it still can’t be denied that since the Act came into force, the authorities and intelligence agencies have been successful in thwarting fifty attempted terrorist attacks.

National Emergencies Act As already stated above, the National Emergencies Act was passed to impose certain restrictions on the powers of the President of the U.S. to invoke an emergency. In 1973, a Special Committee was set up to look into the subject-matter of national emergency. However, while investigating, it was found that there were already four national emergencies in effect at that time, the emergency of 1933 relating to the banking crisis, the Korean War emergency of 1950, the emergency of 1970 relating to a strike by postal workers, and the 1971 emergency due to inflation. It was found that with the proclamation of just one emergency, all other statutory provisions related to emergency were activated. The nation was under emergency for forty-one years.[13] So to make sure that when an emergency was declared for a specific purpose, it also incidentally didn’t trigger every other executive power related to emergency, the National Emergencies Act was passed by Congress in 1976. The President can declare a national emergency under Section 201of the National Emergencies Act; however, he has to communicate the proclamation of emergency to the congress and the publication of such emergency in a Federal Register is necessary. The Act consists of five titles as enacted. By Title I, all the emergency powers delegated by statutes that remained on standby and which were triggered by a proclamation of emergency were returned to a dormant state. The second title prescribed a new procedure to declare an emergency. Moreover, a proclamation of emergency would cease to remain active after one year if the President did not renew it. Congress also has the power to terminate an emergency through a resolution. According to Title III, The President activating the emergency provisions has to now specify the provisions activated by him and the Congress has to be notified by him. Title IV lays down some provisions relating to the President’s accountability while declaring an emergency whereas Title V deals with repeal provisions. Since the passing of this Act, various national emergencies have been declared by the U.S. Presidents in compliance with the provisions of this Act. Some of them have been revoked while others are still in operation.

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.[14] 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.”[15] 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."[16] Thirdly, a state cannot engage in war "unless invaded, or in such imminent Danger as will not admit of delay."[17]

STATE OF EMERGENCY IN GERMANY Historical Background A look back at the history of Germany will provide us with the necessary information concerning the emergency provisions in the nation. While discussing emergency in Germany, it is important to discuss the Constitution of the Weimar Republic. Germany was unofficially termed the Weimar Republic from the period of 1918 to 1933, however, the term only became widely known after 1933. When the German revolution began, Germany was acknowledged and declared as a Republic in 1918, and soon after that the Weimar Constitution was adopted which was democratic, in 1919. Article 48 of the Weimar Constitution permitted the declaration of an emergency mainly to suppress rebellions. Article 48 stated that: If a state does not fulfill the obligations laid upon it by the Reich Constitution or the Reich laws, the Reich President may use armed force to cause it to apply. In case public safety is seriously threatened or disturbed, the Reich President may take the measures necessary to reestablish law and order, if necessary using armed force. In pursuit of this aim, he may suspend the civil rights described in articles 114, 115, 117, 118, 123, 124, and 154 partially or entirely. The Reich President has to inform the Reichstag immediately about all measures undertaken which are based on paragraphs 1 and 2 of this article. The measures have to be suspended immediately if the Reichstag demands so. If danger is imminent, the state government may, for their specific territory, implement steps as described in paragraph 2. These steps have to be suspended if so demanded by the Reich President of the Reichstag. Further details are provided by the Reich law.” In 1932 however, the Adolf Hitler-led Nazi Party was successful in winning the Special Federal Election, and soon after Hitler was appointed as Germany’s Chancellor by the then President Hindenburg. But only one month after Hitler’s appointment, an arson was committed on the Parliament, the “Reichstag Building” on 27 February 1933, which is now popularly known as the “Reichstag fire” as a protest against Hitler’s appointment. As a result, a state of emergency was immediately declared by Hitler under article 48. The then President Von Hindenburg signed the “Reichstag Fire Decree” which indefinitely suspended the Weimar Constitution and then essentially ushered in the beginning of “Nazi Germany”. After World War II, the German Emergency Acts, which were also known as “Notstandsgezetse” were passed on May 30th, 1968 as a pre-condition imposed by the Allied countries before transferring the sovereignty over to the Federal Republic of Germany. Due to the very unpleasant emergency experience of Germany during the time of the Weimar Constitution which granted almost absolute powers to the President to impose emergency within the state and the 1933 emergency declared by Hitler, the post-war legislators of Germany were very reluctant in including any emergency provisions in the Constitution. This was the 17th Amendment to the “Grundgesetz”, the Constitution of Germany. It is also known as the “basic law for the Federal Republic of Germany”, however, initially the proposition to include emergency provisions was highly criticized by various groups.

German Emergency Acts and Constitutional provisions The German Emergency Acts known as “Notstandsgezetse” introduced various changes to the German Constitution and led to the incorporation of certain emergency provisions in the Constitution. It gave the federal government tooth to act in a situation of crisis such as a natural disaster, war, or any kind of rebellion. The Constitution of Germany has very comprehensive and thorough provisions concerning emergency that permit the proper functioning of the basic democratic rules and regulations even during the period of an emergency.[18] Moreover, in a state of defense,[19] the Emergency Acts provide that certain essential and fundamental rights can be suspended. For instance, Article 10 states that “the privacy of correspondence, posts and telecommunications shall be inviolable” but certain restrictions may be imposed to safeguard the democratic order and to protect the federal state. Similarly, under Articles 11 and 12 restrictions may be imposed on the freedom of movement and freedom of occupation on similar grounds. Article 12a provides for compulsory military service at the time of a state of defines. The most important part of the German Constitution is however Part X (a), which deals with the state of, defines, and lays down explicit provisions regarding German emergency legislations. It contains eleven articles, from Article 115a to Article 115l. Article 115a provides that a determination of an attack on the German federation by armed forces has to be made by the German Parliament(Bundestag) with the Council’s (Bundesrat) consent on an application made by the federal government with a majority of two-thirds votes. However, if a situation arises due to which the Parliament cannot convene then its functions are to be performed by the Joint Committee. Such determination shall then be proclaimed by the President. Moreover, a determination will automatically come into effect, if the federation is under attack by armed forces and a determination cannot be made, at the time of the attack. Article 115 (b) provides that when a state of defense is declared the Federal Chancellor assumes control over the armed forces. Article 115 (c) lays down that the Federation can legislate concerning matters falling within the legislative powers of the Länder (states). However, the Bundesrat must consent to that. Article 115 (d) deals with legislation concerning urgent bills. It states that federal bills that are considered to be urgent are to be submitted to the Bundesrat and the Bundestag at the same time and both have to discuss and debate the bill in a joint session without any kind of delay. Article 115 (e) provides that if it is determined by the Joint Committee by a two-thirds majority that because of insuperable problems or obstacles, the Bundestag cannot be convened or cannot amass its quorum, then the functions and powers of both the Bundestag and Bundestrat are to be performed by the Joint Committee as a single body. However Joint Committee cannot suspend, amend or abrogate the basic law in part or whole. Article 115 (f) deals with the power of the Federal Government concerning the employment of the federal border police and the issuance of instructions by the Federal Government to the administrative authorities, land governments, and the delegation of this power by it to the land governments. Article 115 (g) provides some safeguards to the Federal Constitutional Court by providing it with immunity from any kind of impairment concerning its Constitutional status and its powers and functions. The legislative provisions that govern the Federal Constitutional Court can only be amended with the Court’s consent insofar as it is agreed by the Court that it is necessary for ensuring its smooth functioning. Article 115 (h) states that the electoral terms of the Bundestag or the state parliaments shall come to an end only after six months after the termination of the state of defense. The same applies to the term of a member of the Federal Constitutional Court. As far as the term of the President is concerned, it shall come to an end after the expiry of nine months after the termination of the state of defense. It is also provided that the Bundestag shall not dissolve during the period of a state of defense. Article 115 (i) empowers the State Governments or their representatives to exercise the powers mentioned in Article 115 (f) if the Federal Government is not being successful in averting the threat and if the circumstances are such that immediate independent action is required. According to Article 115 (k), laws that are enacted as a result of Articles 115 (c), 115 (e), and 115 (g) will suspend any other law that is inconsistent with such laws for as long as they are in effect. Moreover, the laws enacted by the Joint Committee will cease to be in effect six months after the state of defense comes to an end. Article 115 (l) deals with the repeal of the measures taken as a result of an emergency. It provides that any law enacted by the Joint Committee can be repealed by the Bundestag after it takes the consent of the Bundestrat. Moreover, any methods adopted by the Federal Government or the Joint Committee to deal with a threat to the Federation can be rescinded by the Bundestag and the Bundestrat. It is further provided that the Bundestag with the consent of the Bundestrat can terminate a state of defense provided a decision is promulgated by the President. The German Constitution differentiates between the three types of emergencies; “internal emergency” (innerer not stand),[20] a “state of tension” (spanning fall)[21], and a “state of defense” (Verteidigungsfall).[22] As stated in Article 91(1), an internal emergency occurs when it is important “to avert an imminent danger to the existence of free democratic basic order of the Federation or of a Land”. As already discussed above a state of defense can be proclaimed when “the federal territory is under attack by armed force or imminently threatened by such an attack” as provided under Article 115(a). However, what amounts to a state of tension has not been provided in the German Constitution. But similar to a state of defense, before declaring a state of tension, two-thirds majority votes of both the Bundestag and Bundestrat are necessary and the Federal President must then promulgate the decision. The German Constitution has very detailed provisions to deal with emergencies and hence it inspired the makers of the Constitution of India to borrow some provisions and apply them in our nation.

COMPARATIVE ANALYSIS Even though all three of the countries discussed above have different provisions and legislations that differ from each other, there are, however, various laws and provisions that are similar. The same goes for the emergency provisions of these countries. While India borrowed its emergency laws from Germany, the modern emergency provisions in Germany and the U.S.A. are reactions against years of abuse and misuse of the older laws. The type of emergency laws that are present in India and Germany are very detailed and meticulously dealt with and are not to be found in the U.S. as the provisions relating to emergency there are somewhat vague. In U.S.A, the courts decide whether a specific act of the Central Government is justifiable or not as far as the emergency laws are concerned. The courts have the power to decide whether an emergency law is justified or not even during the time of war. For instance, in the case of Hirabayashi v. United States,[23] certain regulations were upheld by the court that imposed certain restrictions on people of Japanese origin in the U.S. by requiring them to stay in their residences during specific hours to prevent any activities relating to espionage or sabotage. As a result, this has resulted in an uncertain process because it becomes difficult to be sure of the court’s decision and which way it will go. Moreover, the courts decide the operational area of the Centre as far as emergency laws are concerned. It is also important to note that the U.S.A. has faced situations of emergency during the first and second world wars and during these periods a very expansive and liberal interpretation of the terms ‘war’ or ‘defense’ concerning the center’s power to declare them were given and this is how the emergency was dealt with in the U.S. during the two world wars. This gives the center a wider scope and area of operation to allow it to take all the necessary steps to defend and protect the country from any kind of threat or for the efficient execution of war.[24] In India and Germany however, the emergency provisions are dealt with more overtly and directly and are a lot simpler as it depends on the central executive who has proclaimed emergency. The consequences of such emergencies are dealt with by the Constitution itself and there is no dependence on the judiciary or its interpretation.[25] Moreover, if we look at the U.S. Constitution, there is no mention of the term “emergency” in it, and the laws and provisions to deal with a crisis there are provided implicitly in the Constitution such as in Articles I, II, and IV. Whereas, the Constitutions of India and Germany explicitly lay down provisions relating to emergency. Both Germany and India have two houses and for declaring a national emergency both houses must vote by two-thirds majority which then must be promulgated by the Presidents of the respective countries. Both Germany and India have national and state emergencies whereas the U.S.A. has national and financial emergencies, the latter of which it has in common with the Indian Constitution. Another important element that is present in the Constitutions of all these three countries is the swift change from being federal states to unitary states during the period of a national emergency. A national emergency is generally declared whenever there is a threat that is likely to affect the entire nation and even though in a true federal state, both the center and the states are considered to be equal when it comes to the distribution of powers and functions, in the case of a national emergency, the center assumes the majority of powers and functions as the center is usually entrusted with the duty or responsibility to protect the country in a crisis. This is why we in India only have the ‘Indian army’ and not any ‘state’ army. Similar is the case with the United States of America and the Federal Republic of Germany. Another important thing that is common between all three countries is that during a national emergency, even though the Central Government assumes more powers and functions, they still have to be within the limit prescribed by their respective Constitutions. During a national emergency, even though certain basic rights of the citizens are taken away from them, there can still be no violation of the constitutional safeguards provided to them. For instance, in India, Articles 20 and 21 which provide for “protection in respect of conviction for offenses” and “protection of life and personal liberty” cannot be suspended even if there is a national emergency. Similarly in Germany, Article I makes certain basic human rights to be inviolable and alienable. Therefore, even though the Constitutions of these countries allow for some discourse from regular law procedures in their respective countries, the governments of these countries during a national emergency cannot go beyond the Constitution.

CONCLUSION AND 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,[26] 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,[27]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] Webster’s New Collegiate Dictionary (Springfield, MA: G & C Merriam, 1974), 372. [2] 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/. [3] Constitution of India 1950. [4] Naga People’s Movement of Human Rights v. Union of India,AIR 1998 SC 431: (1998) 2 SCC 109. [5] M.P. Jain, Indian Constitutional Law, 786-787 (5th edin., 2003, Wadhwa and Company Nagpur). [6]Ibid. [7] Bhut Nath v. State of West Bengal, AIR 1974 SC 806: (1974) 1 SCC 645. [8] Shylashri Shankar, The State of Emergency in India: Bockenforde's Model in a Sub-National Context, 19 German L.J. 197 (2018). [9] Constitution of India 1950, Art. 250. [10] Constitution of India 1950, Art. 251. [11] Constitution of India 1950, Art. 250. [12]Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). [13] Patrick A. Thronson, Toward Comprehensive Reform of America's Emergency Law Regime, 46 Michigan L.J. 737 (2013). [14] William B. Fisch, Emergency In The Constitutional Law Of United States, 38 Am. J. Comp. L. Supp. 389(1990). [15] U.S. Constitution, Art. I § 9, cl. 2. [16] U.S. Constitution Amend. V, cl 1. [17] U.S. Constitution Article I § 10, para. 3. [18] Anna Khakee, Securing Democracy? A Comparative Analysis Of Emergency Powers In Europe, ( Geneva Centre for the democratic control of armed forces, 2009). [19] Germany Constitution, Art.115a-115l. [20] Germany Constitution Art. 91. [21] Germany Constitution Art. 80a. [22] Germany Constitution Part Xa. [23] Hirabayashi v. United States, 320 U.S. 81 (1943). [24] M.P. Jain, Indian Constitutional Law, 791- 792 (5th edin., 2003, Wadhwa and Company Nagpur). [25] Ibid. [26] A.K. Gopalan v. State of Madras, A.I.R 1950 SC 27: 1950 SCR 88 : 1950 SCJ 174. [27] Minnerva Mills v.Union of India, A.I.R 1980 SC 1789: 1981 SCR (1) 206: 2 SCC 591.

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VINEETA SHARMA V. RAKESH SHARMA

Section: D Category: Case Commentary Paper Code: CC-NC-01 Page Number: 458 - 460 Date of Publication: February 10, 2021 Citation: Namrata Chakrabarty, Vineeta Sharma v. Rakesh Sharma, 1, AIJACLA, 458

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