The Emergency powers vested in the President under Article 352 to Article 360 of the Constitution are subject to severe criticisms. These have been criticized as ‘unfederal’ and undemocratic.
Critics were even vociferous in the Constituent Assembly. H.V. Kamath, a member of the Constituent Assembly, described the enactment of the Emergency Provision as a day of “sorrow and shame”.
He said in the Constituent Assembly, “I fear that by this single chapter we are seeking to lay the foundation of a totalitarian State, a Police State, a State completely opposedto all the ideals and principles that we have held during the last few decades, a State where the Right and Liberties of millions of innocent men and women will be in continuous jeopardy, a State where if there be peace, it will be the peace of the grave and void of the desert”.
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Another member in the Constituent Assembly complained that these powers would make the President “a new Frankenstein”.
It is further argued that the Emergency powers are inconsistent with the State autonomy in a federal set-up and they arm the Centre with superior powers against the State. Article 356 limits the State authority and it is feared the Article may be misused by the President.
Article 356 is an unfederal feature. It is also undemocratic because it makes the Centre finally responsible for the good Government of the State. By placing the responsibilities for the good Government on the Centre, it further tends to make the State Ministry feel “irresponsible”.
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The whole chapter of Emergency militates the spirit of democracy and vests the Government with dictatorial powers.
There is no time limit for the National and Financial Emergencies. Once they are approved by the Parliament, they have endless duration, unless the President himself revokes it. Further, the language of Article 352 and Article 360 is vague and ambiguous.
The phrase “any part thereof’ sometimes leads to the conclusion that if there is threat in any particular area of the country emergency may be proclaimed throughout the State. Suspension of Fundamental Rights is another retrograde step. Ordinarily this feature is not found in any other democratic Constitution of the world.
Viewed from all these angles, the emergency provisions of the Constitution of India seem to show scant respect for the popular Government and people’s liberty. It may be added here that the framers of the Constitution were much apprehended by the disruptive forces of the Indian Union.
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The story of the communal riots and the scheme of partition were vivid in their minds. Thus they provided the scheme of emergency in the Constitution to check such disruptive forces. These provisions have to be tolerated as “necessary evil”.
As V.N. Sukla writes, “These provisions may appear to be harsh, particularly in a Constitution which professes to be built upon an edifice of Fundamental Rights and democracy. But the provisions must be studied in the light of India’s past history. India has had her inglorious day whenever the Central Power was weak. It is well that the Constitution guards against the forces of disintegration.
Events may take place threatening the very existence of the State and if there are 110 safeguards against such eventualities, the State, together with all that is desired to remain basic and immovable, will be swept away”. National emergencies are like loaded gun which can be used both to protect and to destroy the liberty of the citizens. The gun must be used, therefore, with extreme caution.