Before discussing about health emergency first I would like to take you to 1948, when constitution of India was being drafted. At that time India was going through a lot of stress because of many reasons like partition of country, Kashmir issue, riots etc. So the makers of the constitution thought to give central government an authority to declare emergency so that “when the stability and security of country is threatened by internal or external threats the Central government can take over the control and would be able to stabilize the situation”. So some emergency provisions were made in constitution to protect the integrity and stability of the country namely National Emergency(Article 352), State Emergency (Article 356) and Financial Emergency (Article 360). As it is very clear by the headings that State emergency deals with emergency in a state and financial emergency deals with finance so let’s have a look on National Emergency-
In Constitution the provision of
National Emergency is given under article 352 as Proclamation of Emergency- If
the president is satisfied that a grave emergency exists whereby the security
of India or of any part of the territory thereof is threatened, whether by war
or external aggression or armed rebellion, he may, by proclamation, make a
declaration to that effect.
At first the word "armed rebellion" was not there it was substituted by the 44th amendment act, 1978 by the word "internal disturbance", it means if the word "internal disturbance would have been there in Article 352, it would be a lot easier for government to have a scope of medical emergency on the ground of internal disturbance under article 352.
At first the word "armed rebellion" was not there it was substituted by the 44th amendment act, 1978 by the word "internal disturbance", it means if the word "internal disturbance would have been there in Article 352, it would be a lot easier for government to have a scope of medical emergency on the ground of internal disturbance under article 352.
Now it is very clear that the emergency provision is made in the constitution for dealing with the situation that may
threaten peace, security and instability of country. If we take a look at U.S.
despite of being educated they are on the road protesting lockdown and
eventually violating the social distancing, which is causing the spread of the
virus more rapidly. This situation has arisen because some way or other their
government was not able to control the situation. And this is a clear fact that
whole US population is not lunatic or unaware of this epidemic, they are just
panicked to be witnessed the large number of deaths and infection in their
country. Seeing the present situation and the effect of this epidemic on our
country we can perceive that may be we are not much far from the situation of
U.S. so why not to be prepare for the worst. We should see Japan as how they
have dealt with this epidemic with the help of National Medical Emergency, UK
government too has changed the definition of emergency, seeing the risk they
may face in 21st Century, by The Civil Contingencies Act, 2004, it
defines an emergency as- “An event or situation which threatens serious damage
to human welfare, An event or situation which threatens serious damage to the
environment or war or terrorism which threatens serious damage to security”.
Effect of Emergency under Article 352
In the emergency mainly the
federal structure changes into unitary and the authority of the centre
increases and parliament has the power to make laws for the whole country even
in the subject of state list and not to forget that public health is given in
the state list in 7th Schedule. And where the matter of Fundamental
right is concerned under article 353 and 359 amid emergency emerging out of
instability, article 19 is suspended which means freedom of movement, freedom
of association, freedom of union etc. are suspended, further if during
emergency there is any case of encroachment of fundamental right under article
20 (Protection in conviction of offences) and under Article 21 (Right to life
and personal liberty, human dignity, privacy etc.) then the individual can
approach the courts even in the emergency. So here it means individuals can
have their major rights and personal liberty in the period of emergency. Here
after reading above statements it seems pretty clear that the one of the objective
of the constitution framers behind the emergency was to control the instability
of the country and to restore the peace. Keeping in mind what is the situation
of the country now a days and what situation may emerge out of this pandemic
there is one thing which is quite clear that the stability of country and peace
among people doesn’t seem wholly secure. And after the 44th Amendment
in which “internal disturbance” was substituted by the ground of “Armed
Rebellion”, there does not seem to be a single provision in the constitution
which could cover the medical/Health emergency in its ambit. There is a saying
that “Modern problems require modern solution”, so should India take
inspiration from Japan and UK and follow the same footsteps to tackle this
pandemic?, still remains a question for the legislature.
I donot think following the same footing will be an easy option for India given our polpulation and structure of government is quiet different from them. While Japan and UK are more into monarch system of governance and India is a democracy. For anything to work out exactly as expected you need a centralization of power or if not then complete cooperation from even your opposition i suppose. When it comes to Monarchies like Japan and UK it is easier to bring a reform , for India it is a far cry. Though it is the need of hour but i suppose it will go a long way to bring these reforms into the Constitution.
ReplyDeleteP.S- Please let me know if I'm wrong.
See, that is why the the structure of government in India is a " Quasi Federal" that combines the features of a federal government and the features of a unitary government, and it's not that emergency would curtail the core of Indian politics i.e. Democracy, even in emergency we will have our basic fundamental rights, and if we talk about population then population density of India is 464 per km square which is not excessively more than Japan's 335 per km square. You are right that it is not going to be a easy task for India and for Government but as you said it is the need of the hour so why not to see every possibilities that we have to solve this situation.
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