Providing for emergency provisions in the constitution is not an undemocratic something. Because the security of the state as a whole is of greater importance than the liberty of some individuals. The state itself is destroyed or in great peril the liberties of the individual citizens stands annihilated. As Shukia V.N. says—

“Events may take place threatening the very existence of the state, and if there are no safeguards, against such eventualities, the state together with all that is desired to remain basic and immutable, will be swept away.”

It was also held in R. V. 1-lailiday,—

‘However precious the personal liberty of the subject may be, there is something for which it may well be, to some extent, sacrificed by legal enactment, namely national success in the war, or escape from national plunder or enslavement.”

The idea of suspension of some fundamental rights in time of erthrgency is common to all legal systems. Somewhere the constitution itself and somewhere a special law makes provisions in legal terms for situations of crisis when states of emergency may be invoked.

The necessity for suspension of certain rights in times of emergency is internationally recognised. Almost all regional and international instruments of human rights make provisions for suspension of rights in cases of emergency. Article 4(1) of the International Covenant on Civil and Political Rights, 1966, article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and article 27 of the American Convention on Human Rights, 1969 make, more or less, the same provision to the effect that in time of war, public danger, or other emergency that threatens the independence or security of a state party, it may take measures derogating from its obligation under the convention.

Thus providing for emergency measures suspending sonic fundamental rights is allowed both nationally and internationally. But the problem is that there is a danger in investing such discretionary power with the executive authority. Because such a provision carries with it the risk of abuse of power if stern safeguards against its abuse are not provided for specifically. Most governments in developing countries abuse emergency power for political purpose; they use it as a necessary weapon to suppress the opposition and to perpetuate power; they thereby destroy the democratic institutions. The Secretary General of the International Commission of Jurists in his introduction on an ICJ report on States of Emergency opined that the most serious human rights violations tend to occur in situations of tension when those in power are or think they are threatened by forces which challenge their authority if not the established order of the society. This is why he thinks that there is an understandable link between cas of grave violations of human rights and state of emergency.

Classification of Emergencies

From the view point of territorial extent emergency may be of two types: National Emergency ; and Partial or State Emergency.

When emergency is declared, whatever may be the reason behind the declaration, throughout the whole territory of the state, it is called national emergency. On the other hand, when emergency is declared in a particular area of a unitary state or in a state of a federation, it is partial or state emergency. For example, article 352 of the Indian Constitution provides that emergency may be declared throughout India or any part thereof. Likewise, article 356 provides state emergency. The Constitution of Pakistan also provides the same provisions.2

On the basis of its nature emergency may be of following three types:

  1. Emergency of War,
  2. Emergency of Subversion: and
  3. Economic Emergency.

1.Emergency of War

When emergency is declared as a result of war or external aggression, it is called emergency of war. For example, emergency of war was declared in British India during the Second World War. This emergency was declared by the British Government under the authority of the Emergency Power (Defence) Act. 1939. In independent India emergency of war was declared for two times. First in October, 1962 when China launched a massive attack on India’s North-Eastern border. Emergency was declared under article 352 on account of external aggression. Second in December, 1971 when Pakistan attacked India.

2.Emergency of Subversion

When emergency is declared due to internal disturbances within the state i.g. to suppress civil war or any anti-government movement or a riot in any particular area of the country or to face any natural disaster, it is called emergency of subversion. For example, in Bangladesh emergency ‘was declared four times due to internal disturbance.

3.Economic or Financial Emergency

When emergency is declared with a view to overcoming a situation in which the economy of the state is about to breakdown or has broken down, it is called economic emergency. It is worthy of notice here that from the broader point of view economic emergency should be included in emergency of subversion but constitutions and laws of some countries provide specifically, in addition to emergency of subversion, for economic or financial emergency. For example, article 360 of the Indian constitution specifically provides that if the president of India is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of it is threatened, he may declare emergency. Similar provision is provided for in article 235 of the Pakistan constitution. The constitution of Pakistan of 1956 also provided for such provisions (article 194). In USA economic emergency was declared by President Roosevelt under the authority of the National Industrial Recovery Act, 1930. By declaring emergency Roosevelt adopted New Deal Policy to overcome world wide financial depression.