President Yoon Suk Yeol’s recent surprise declaration of martial law in South Korea, which was quickly rejected by Parliament, has raised important questions globally about the use of emergency powers in democratic countries. South Korea’s experience serves as a cautionary tale about the potential abuse of such powers and the importance of parliamentary oversight in ensuring democracy is not undermined during crises. This situation prompts a comparative inquiry about the ease with which such powers can be invoked in India and whether India’s Parliament can repeal such measures with the same speed and authority as South Korea’s. How does India's approach differ, and what safeguards are in place to prevent arbitrary executive actions?
India, unlike South Korea, does not have a specific constitutional provision for martial law, but it does have a provision for a National Emergency, which allows for the suspension of key democratic rights and liberties during times of national crisis. The Constitution does not explicitly mention “martial law,” but it does reference it in a historical context. For instance, Article 34 of the Indian Constitution empowers Parliament to make laws related to actions taken under martial law, largely referring to events during the British colonial era, such as the imposition of martial law in Amritsar during the Jallianwala Bagh massacre in 1919. However, scholars argue that India’s constitutional framework does not allow for the direct application of martial law as seen in other countries, including South Korea. Instead, India’s emergency provisions, especially the National Emergency, provide a more structured and accountable system for handling national crises.
India’s Constitution outlines three distinct types of emergencies: National Emergency, State Emergency (also known as President’s Rule), and Financial Emergency. While the Financial Emergency provision addresses situations that threaten the country’s financial stability, and President’s Rule pertains to governance in states where the elected government is unable to function, the National Emergency is the most relevant in this context. The National Emergency allows for the suspension of certain rights and gives the central government sweeping powers to deal with threats to national security, such as war, external aggression, or armed rebellion.
The most infamous instance of a National Emergency in India occurred in 1975 when Prime Minister Indira Gandhi invoked it under Article 352. Citing widespread protests against her government and calling the situation an “internal disturbance,” she imposed the Emergency, which lasted for 21 months and led to the suspension of civil liberties, political oppression, and the centralization of power in her hands. The Emergency of 1975 became a defining moment in Indian politics, as it led to the mass imprisonment of opposition leaders, censorship of the press, and various undemocratic measures that greatly impacted the functioning of Indian democracy.
In response to the abuses of power during the 1975 Emergency, the Indian Constitution was amended in 1978 through the 44th Amendment Act. This amendment significantly curtailed the executive’s power to unilaterally declare a National Emergency. The term "internal disturbance," which had been used to justify the 1975 Emergency, was replaced with the more specific and stringent term “armed rebellion.” This change aimed to prevent any future misuse of emergency powers for vague or politically motivated reasons. Additionally, the amendment introduced greater parliamentary oversight to ensure that any emergency declaration had the approval of the legislature. The 44th Amendment also provided for judicial review of emergency declarations, something that had been suspended during Indira Gandhi’s Emergency.
Unlike in South Korea, where martial law was imposed unilaterally by the President, India’s National Emergency process requires a written recommendation from the Cabinet, headed by the Prime Minister. Once the Cabinet advises the President to declare a National Emergency, the proclamation must be laid before both Houses of Parliament and approved within one month. If the Lok Sabha (the lower house) is dissolved during this period, the approval deadline is extended until 30 days after the house is reconstituted. This system ensures that the emergency declaration cannot be imposed without parliamentary scrutiny.
The role of Parliament is crucial in India’s emergency framework. After the 1978 amendments, any declaration of National Emergency must be approved by a special majority in both Houses of Parliament. A special majority requires two-thirds of those present and voting, which means that a large consensus is needed for the declaration to pass. If Parliament fails to approve the National Emergency, it automatically expires, and the emergency measures are revoked. This ensures that the executive cannot unilaterally extend the emergency without a broad consensus in the legislature.
In addition to the need for parliamentary approval, India’s system also includes provisions that allow Parliament to review and scrutinize the continuation of the National Emergency. A National Emergency can be extended for a period of up to six months at a time, but each extension must be approved by both Houses of Parliament. This provision allows for continuous oversight by the legislature and ensures that the emergency powers granted to the executive do not become permanent.
Moreover, even during a National Emergency, some fundamental rights in India remain protected. For instance, the Right to Life and Personal Liberty (Article 21) and the Right to Equality Before the Law (Article 14) cannot be suspended, although other rights may be temporarily restricted. The judiciary retains the power to review emergency declarations, ensuring that they comply with constitutional provisions. This was a significant addition made by the 44th Amendment, which sought to reverse the provisions of the 42nd Amendment (1976), which had made emergency declarations immune to judicial review. The ability of the judiciary to review emergency powers adds an important layer of accountability to the system, ensuring that the executive cannot misuse emergency provisions for political gain.
While India’s National Emergency provisions grant the government considerable powers during times of national crisis, the system includes important safeguards that prevent the arbitrary use of these powers. The need for parliamentary approval, judicial review, and the limited duration of emergency powers are key checks on the potential abuse of power. In contrast to South Korea’s recent experience, where martial law was imposed and then swiftly rejected by Parliament, India’s system requires a more deliberative and consensus-driven approach, making it harder for any single leader or the executive branch to act without parliamentary approval.
The comparison between India and South Korea highlights the strength of India’s constitutional safeguards in preventing the arbitrary imposition of emergency measures. In India, the role of Parliament ensures that any emergency declaration must have broad political support, making it less likely that such powers could be used for undemocratic purposes. India’s system also includes robust provisions for judicial review, which further ensures that emergency powers cannot be used to undermine fundamental rights.
Former civil servant Jacob Antony’s reflection on South Korea’s recent experience with martial law highlights the importance of parliamentary involvement in safeguarding democracy. In his view, South Korea’s Parliament was able to “salvage their democracy” by rejecting the martial law declaration, reinforcing the principle that a declaration of emergency should be endorsed by Parliament. In India, this principle is enshrined in the Constitution, ensuring that emergency powers cannot be imposed without careful consideration and broad political consensus.
In conclusion, while India has provisions for a National Emergency that allow for the centralization of power during times of national crisis, these powers are accompanied by stringent safeguards designed to prevent abuse. The requirement for parliamentary approval, judicial review, and the limited duration of emergency powers create a system that is more accountable and transparent than the one in South Korea. Unlike South Korea’s recent experience with martial law, where emergency powers were imposed unilaterally and swiftly, India’s system ensures that any such declaration must undergo a thorough and rigorous process, with built-in checks and balances to protect the democratic rights of its citizens. These constitutional safeguards, introduced after the traumatic experience of the 1975 Emergency, ensure that India is unlikely to face a repeat of such an undemocratic phase.
