Emergency Provision in Indian Constitution


Emergency Provision in Indian Constitution

The emergency provisions are laid down in Part XVIII of the Constitution. Articles from 352 to 360 deal with the emergency provisions.

These provisions allow the Central Government to effectively cope with any abnormal situation.

Provisions have been made in the Constitution to deal with exceptional circumstances that may endanger the country’s or a part of the country’s peace, protection, stability, and governance.

The Central Government becomes all-powerful during an emergency and the states go into complete control of the Centre.

It transforms the federal system into a unitary structure without a formal Constitutional amendment.

[1] National Emergency (Article 352)- An emergency due to war, external aggression, or armed rebellion. The constitution uses the term ‘proclamation of emergency’ to denote such an emergency.

[2] Presidents Rule (Article 356)- When there is a failure of constitutional machinery in the state. Also known as state emergency or constitutional emergency.

[3] Financial Emergency (Article 360)-  Due to the threat of financial disability or credit in India.

 

National Emergency

Under Article 352, the President may declare a national emergency when war or external invasion or armed rebellion threatens the security of India or a part thereof.

Even before the actual occurrence of war or external aggression or armed rebellion, the president can declare a national emergency if he is satisfied there is an impending danger.

It is known as ‘External Emergency’ when a national emergency is declared on the ground of ‘war’ or ‘external aggression.’

When a national emergency is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’.

The 42nd Amendment Act of 1976 allowed the President to limit the implementation of a National Emergency to a limited part of India.

The 44th Amendment Act of 1978 replaced the words ‘armed rebellion’ with ‘internal disturbance.’

The President can declare a national emergency after receiving a written recommendation from the cabinet.

Declaration of National Emergency was free from Judicial Review by the 38th Amendment act of 1975.  But, the 44th Amendment Act of 1978 subsequently deleted the clause.

Parliamentary Approval and Duration

Both the houses of Parliament must approve the proclamation of Emergency within one month from the date of issue.

Originally, Parliament’s approval period was two months but reduced by the 44th Amendment Act of 1978.

If approved by both houses, the emergency continues for six months and can be extended to an indefinite period with Parliament ‘s approval for every six months.

Every resolution supporting or continuing the declaration of an emergency must be adopted by the either House of Parliament by a special majority.

This provision was added by the 44th amendment act of 1978.

Previously, a simple majority of the Parliament may adopt such a resolution.

Revocation of Proclamation

The President can revoke proclamation of emergency at any time by subsequent proclamation.

Such a proclamation does not require parliamentary approval.

The President must revoke a proclamation if the Lok Sabha passes a resolution disapproving of its continuation.

This provision was introduced by the 44th Amendment Act of 1978

The President could revoke a proclamation on his own before the amendment and Lok Sabha had no control in this regard.

 

What are the Effects of National Emergency?

During a national emergency

The Centre may direct any state regarding the manner how to exercise its executive power.

The state governments are placed under the Centre’s full control, though they are not suspended.

The Parliament can make laws on any subject mentioned in the State List.

The President may also issue ordinances on the subjects included in State List if parliament is not in session.

The president may either decrease or cancel the transfer of finances from the Centre. Such modification continues until the end of the financial year in which the Emergency ceases to operate.

Tenure of the Lok Sabha can be extended by a period of one year at a time. However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate.

The tenure of State Assemblies can also be extended in the same manner.

Articles 358 and 359 describe the effect of a National Emergency on the Fundamental Rights.

According to Article 358, the Fundamental Rights under Article 19 are automatically suspended and this suspension continues till the end of the emergency.

According to the 44th Amendment Act, the freedoms listed in Article 19 can only be suspended if an emergency is declared on the ground of war or outside aggression.

Under Article 359, the President can suspend the right to move any court for the enforcement of Fundamental Right during a National Emergency.

Under Article 359, Fundamental Rights do not get suspended automatically.

Article 359 empowers the president to suspend the enforcement of the specified Fundamental Rights.

This type of emergency was declared in 1962, 1971, and 1975.

The first National Emergency was declared in October 1962 due to Chinese aggression in the NEFA (North-East Frontier Agency—now Arunachal Pradesh) and was in effect until January 1968.

Therefore, a fresh declaration was not required in the 1965 war against Pakistan.

The second proclamation of national emergency was made in December 1971 in the wake of an attack by Pakistan.

Even when this Emergency was in operation, the third proclamation of National Emergency was made in June 1975.

Both the second and third proclamations were revoked in March 1977.

The first two proclamations (1962 and 1971) were made on the ground of ‘external aggression’, while the third proclamation (1975) was made on the ground of ‘internal disturbance’.

 

President’s Rule or State Emergency

The Union Government’s responsibility is to ensure that a State’s governance is carried out in accordance with the constitutional provisions.

Under Article 356, a proclamation to impose emergency in a state is issued by the President-

if he is satisfied upon receiving a report from the Governor of the state,

if the Government of the state cannot be carried on smoothly,

Under such a case, the President’s declaration of emergency is called ‘proclamation on account of the failure of constitutional machinery.

It is called the President’s Rule, in popular language.

Parliamentary Approval and Duration:

Such a proclamation must be approved by both the Houses of Parliament.

Approval must be given within two months; otherwise, the proclamation ceases to operate.

The proclamation of President’s Rule or its continuation can be approved by either House of Parliament only by a simple majority.

(Simple majority- a majority of the members of that House present and voting)

The proclamation remains valid for six months at a time after the Parliament’s approval.

It can be extended for another six months but not beyond one year.

However, emergency in a State can be extended beyond one year if-

[1] a National Emergency is already in operation; or if [2] the Election Commission certifies that the election to the State Assembly cannot be held.

This type of emergency was imposed for the first time in the Punjab State, in 1951.

There have been many cases of misuse of ‘constitutional breakdown’. For example, in 1977 when the Janata Party came into power at the Centre, the Congress Party was almost wiped out in the North Indian States.

On this excuse, Desai Government at the Centre dismissed nine State governments where Congress was still in power.

This action of Morarji Desai’s Janata Government was strongly criticized by Congress and others.

In 1980, (after Janata Government had lost power) Congress came back to power at the Centre and dismissed all the then Janata Party State Governments.

In both cases, there was no failure of Constitutional machinery, but actions were taken only on political grounds.

After 1995 the use of this provision has rarely been made.

 

Effects of Imposition of President’s Rule in a State:

The President can assume to himself all or any of the functions of the State Government or he may vest all or any of those functions with the Governor or any other executive authority.

The President may dissolve or suspend the Legislative Assembly of the State.

On behalf of the State Legislature, he can empower the Parliament to make laws.

According to the 38th amendment Act 1975, the President’s satisfaction in invoking Article 356 was made final and conclusive which could not be challenged on any ground in any court.

However, this provision was subsequently deleted by the 1978 44th Amendment Act which implied that the President’s satisfaction is not beyond judicial review.

44th Amendment Act of 1978 subsequently deleted this provision which implied that the President’s satisfaction is not beyond judicial review.

To review the Centre-State relations the Sarkaria Commission was appointed.

Recommendation of the commission-

-Article 356 should be used only as a last resort.

-The Legislative Assembly of the State should not be dissolved unless the proclamation is approved by Parliament.

In the ‘Bommai case,’ the Supreme Court ruled that the Assembly cannot be dissolved until Parliament approves the Proclamation.

 

Financial Emergency

Financial Emergency is provided under Article 360.

If the President is convinced that India or its parts financial stability or credit is at risk; he may declare a state of Financial Emergency.

The proclamation of Financial Emergency must be approved by both Houses of Parliament within two months.

The maximum time limit for its operation is not prescribed.

For its continuation, repeated parliamentary approval is not required.

A resolution approving the proclamation of the emergency can be passed by either House of Parliament only by a simple majority, that is, a majority of the members of that house present and voting.

The President can revoke a proclamation of Financial Emergency at any time by a subsequent proclamation.

Such a proclamation does not require parliamentary approval.

 

Effects of Financial Emergency:

The Union Government may give financial direction to any State.

The President may ask States to reduce the salaries and allowances of all or any class of persons serving in government.

The President could ask States to reserve all money bills for Parliament’s consideration after being passed by the State Legislature.

The President may also give directions for the reduction of salaries and allowances of the Central Government employees including the Judges of the Supreme Court and the High Courts.

So far, fortunately, the financial emergency has never been proclaimed.

 

Indian Polity Quiz

 

Learn More about Emergency Provision:

https://unacademy.com/lesson/emergency-provisions/OQ9YQSJX

 

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