Emergency Provisions in the Constitution of India - Indian Polity Series

Part of the constitution in which it is incorporated Part XVIII Range of the articles which constitute emergency provisions From Article 352 to Article 360. Reasons for incorporating emergency provisions ·         To meet any exceptional or threat full situation ·         To protect the sovereignty, unity, integrity and security of the country. ·         It has been incorporated to change the Indian political system from federal to unitary as per the situation & requirements of the country. General effects of proclamation of emergencies in India ·         Indian Federal character (i.e. distribution of powers between centre and state) gets affected. ·         Federal character of India turns into unitary one i.e. the centre becomes all powerful & supreme than the state. Types of Emergency Article No. Emergency Commonly called as 1 352 National Emergency 2 356 State Emergency / President’s Rule / Constitutional Emergency 3 360 Financial Emergency NATIONAL EMERGENCY Some Facts about National Emergency Question Answer 1 Declared under Article 352 2 Who declares it President 3 Ground for declaration Security of India or a part of it is threatened by war/external aggression or armed rebellion. 4 Can President issue more than one proclamation for National Emergency ? Yes. He can issue different proclamations at the same time i.e. if he has issued proclamation for Maharashtra State of national emergency on the ground of armed rebellion in Maharashtra, He can at the same time also issue proclamation of national emergency on the ground of external aggression in Gujrat. In short, he can issue different proclamation of National emergency for different part of the country at the same time. (this provision was added by the 38th Constitutional Amendment Act, 1975. 5 Are there any subtypes in the National Emergency ? ·         It is called External Emergency: If the ground of declaration is due to war or external aggression. ·         It is called Internal Emergency: If the ground of declaration is due to armed rebellion. 6 Is National Emergency applicable to whole India No. It can also be limited to any part of India. (This provision was added by 42nd Constitutional Amendment Act, 1976). 7 Difference between Internal disturbance and armed rebellion Before 42nd Amendment Act, it was possible to use national emergency on the grounds of internal disturbance. But not those words have been changed to armed rebellion. In short, today we can proclaim national emergency only on the ground of armed rebellion & not because of the internal disturbance. 8 Is there any condition binding on President for proclaiming the national emergency? Yes. President can only proclaim national emergency on the written recommendation of the Cabinet i.e. the permission of only the Prime Minister is not sufficient for proclaiming emergency. 9 Is judicial review available ? If Yes then on what grounds ? Judicial review is available. It can be asked for only on the grounds that the decision was malafide or the decision for proclamation seemed irrelevant & had no supporting evidence. National Emergency Approval & Duration Question Answer 1 Is approval needed for proclamation Yes. Both the houses of Parliament must pass such a resolution within one month from the date its issue. 2 What if Lok Sabha is dissolved at the time of proclamation need ? (Note: Rajya Sabha is a Permanent house of the Parliament & hence question of it being dissolved never comes) National emergency is proclaimed in such a case. But Rajya Sabha needs to approve it first. Then whenever Lok Sabha constitutes, it has to pass the resolution for the same within 30 days from its first meeting. 3 For How much time does national emergency remains in force? 6 months 4 Is extension possible for national emergency Yes. It can be extended to a indefinite period (infinite) but it requires Parliamentary approval every 6 months. 5 What kind of majority is needed to pass a resolution of National Emergency? It requires special majority. (Note: Special majority means a majority of the total membership of that house & a majority of not less than two-thirds of the members of that house present and voting. 6 Then how to end national emergency ? President has to again pass a resolution for ending national emergency. 7 Is permission required to be taken by the President from both the houses of Parliament to end national emergency ? No. 8 Can Lok Sabha end National Emergency? Yes. It can pass a resolution to that effect & ask President to end the National Emergency. (Note: Such a sitting could be arranged in the Lok Sabha if 1/10th of the Members of the house give a written notice to the Speaker of the Lok Sabha) (Note:Rajya Sabha has no power in this case) 9 Difference between continuation & cancelling of running national emergency ? ·         For continuation, resolution has to be passed by special majority. For cancelling running national emergency, simple majority is required. ·         For continuation, permission of both the houses of Parliament is required. For cancelling running national emergency, permission of only Lok Sabha is required. Effects of National Emergency Effects Description 1 Effect on Federal Character ·         Political structure converts from federal to unitary. ·         State governments come directly under the control of central government but the state governments are not suspended in this case. ·         Parliament can now make legislations even on subjects mentioned in the state list. States can also make laws on state subject but the central law will prevail in this case. (Note: Any law made during National Emergency ceases to operate after 6 months from the expiry of National Emergency.) (Note: President can issue ordinances on state subject is the Parliament is not in session). ·         Parliament can increase the power & impose duties on the Centre for carrying out any the matters outside the Union List ·         President can either reduce or increase the flow of funds to a particular state. But such a resolution before it’s effect has to be tabled before the both the houses of Parliament. 2 Effects on Lok Sabha & State Legislative Assemblies ·         During its operation, life of Lok Sabha can be extended to one year at a time for indefinite period. ·         But this extension cannot continue beyond six months after the expiry of emergency ·         Similarly Parliament can extend the life of state legislative assembly to one year at a time for indefinite period. But this extension cannot continue beyond six months after the expiry of emergency 3 Effects on Fundamental Rights ·         Fundamental rights present under Article 19 of the constitution cease to operate. Parliament/state can make laws which are against Article 19. No remedy is available against any executive action taken during this period. ·         Conditions: i) Fundamental rights under Article 19 cease to operate only when the National Emergency is declared on the ground of war or external aggression & not on the ground of armed rebellion. II) Only those laws can be challenged which are not related to emergency. Iii) Executive action taken under only the laws related to emergency is protected. ·         President can suspend the right to move to ay court for enforcement of Fundamental Rights. ·         Fundamental Rights under Article 20 & 21 remains effective even under National Emergency i.e. they can’t be taken away. (Note: Article 20 – right to protection in respect of conviction for offences. Article 21 –right to life and personal liberty) Difference between Article 358 &359 Article 358 Article 359 1 It is limited to provisions for national emergency for Article 19 only. It extends to provisions for national emergency for all the fundamental rights whose enforcement is suspended by Presidential Order. 2 It automatically suspends the fundamental rights under Article 19 once national emergency is declared. Fundamental rights are not automatically suspended. It just gives the power to President to suspend the enforcement of certain or all fundamental rights as he dims fit. 3 It operates in case of external national emergency only & not in the case of internal national emergency It operates in case of both the external & internal national emergency. 4 Fundamental rights of Article 19 are suspended for the entire duration of Emergency. Fundamental rights are suspended only for that period which is decided by the President 5 It extends to whole India. It can be made to cover whole India or a part of it. 6 Article 358 suspends Article 19 completely. Article 359 can’t suspend Articles 20 & 21. National Emergencies declared so far Parameter Description 1 How many times it has been declared 3 times 2 Years of declaration 1962, 1971 and 1975 3 Reasons for 1962 Chinese Aggression 4 Reasons for 1971 Attack by Pakistan 5 Reasons for 1975 Internal Disturbance (Note: Now national emergency can’t be declared on the ground of internal disturbance) PRESIDENT’S RULE Some Facts about President’s Rule Question Answer 1 Article used 356 2 Declared by President 3 On Which ground If President is of the opinion that government of a particular state can’t function according to constitution i.e. there is constitutional machinery breakdown in the state. (Note: It can be done on the basis of Governor’s report or even without it) 4 Is Judicial Review available on such declaration? Yes. Judicial review is available in such a case. President’s Rule Approval & Duration Question Answer 1 Is approval needed for proclamation Yes. Both the houses of Parliament must pass such a resolution within two month from the date its issue. 2 What if Lok Sabha is dissolved at the time of proclamation need ? (Note: Rajya Sabha is a Permanent house of the Parliament & hence question of it being dissolved never comes) President’s rule is proclaimed in such a case. But Rajya Sabha needs to approve it first. Then whenever Lok Sabha constitutes, it has to pass the resolution for the same within 30 days from its first meeting. 3 For How much time does President’s rule remains in force? 6 months 4 Is extension possible for President’s rule Yes. It can be extended to a maximum period of 3 years but it requires Parliamentary approval every 6 months. 5 What kind of majority is needed to pass a resolution of National Emergency? It requires simple majority. (Note: Simple majority means that the majority number of members (i.e. more than 50%) present in the house should vote in favour of resolution for proclamation of financial emergency.) Effects of President’s Rule ·         President’s takes over all the power vested in the state government. ·         He can even give the state powers to Parliament to exercise according to their discretion. ·         State government of the state under President’s rule is suspended. Also, President either suspends or dissolves the state legislative assembly. ·         President does not assume the powers of the High Court of that particular state. ·         A law made by the Parliament or President or any other specified authority continues to be operative even after the President’s rule. This means that the period for which such a law remains in force is not co-terminus with the duration of the proclamation. But it can be repealed or alerted or re-enacted by the state legislature. Difference between National Emergency & President’s Rule National Emergency President’s Rule 1 Declared under Article 352. Declared under Article 356. 2 During its operation, state executive & state legislature continue to function. During its operation, state executive is dismissed & state legislature can be either suspended or dissolved. 3 No maximum period for its operation. It just needs to be approved every six months. Maximum period for its operation is three years. 4 Under this, the relation of centre with all the states undergoes modification. Under this, the relation of centre & only the state in which President’s rule has been proclaimed undergoes modification. 5 Every resolution for its proclamation or continuance must be passed by Parliament with Special Majority. Every resolution for its proclamation or continuance must be passed by Parliament with Simple Majority. 6 It affects Fundamental rights of the citizens. It does not affect Fundamental Rights of the citizens. 7 Lok Sabha can pass a resolution for its revocation. There is no such provision. It can be revoked by the President only on his own. 8 Parliament can make laws on the subjects enumerated in the State List only by itself that is, it cannot delegate the same to any other body or authority. Parliament can delegate the power to make laws for the state to the President or any other authority specified by him. FINANCIAL EMERGENCY Some facts about financial emergency Question Answer 1 Declared under article? 360 2 Declared By? President 3 On which ground? If President thinks that there has arisen certain circumstances by which financial stability of India or a part of it is threatened 4 Is Judicial Review available on such declaration? Yes. Judicial review is available in such a case. 5 Has it been declared so far? No. It has not been declared so far. Financial Emergency Approval & Duration Question Answer 1 Is approval needed for proclamation of financial emergency ? Yes. Both the houses of Parliament must pass a resolution for the same before it can be proclaimed within two months from the date of issue. 2 What kind of majority is needed to pass such a proclamation in both the houses of Parliament ? Simple Majority (Note: Simple majority means that the majority number of members (i.e. more than 50%) present in the house should vote in favour of resolution for proclamation of financial emergency. ) 3 What if Lok Sabha is dissolved at the time of proclamation need ? (Note: Rajya Sabha is a Permanent house of the Parliament & hence question of it being dissolved never comes) Financial emergency is proclaimed in such a case. But Rajya Sabha needs to approve it first. Then whenever Lok Sabha constitutes, it has to pass the resolution for the same within 30 days from its first meeting. 4 Duration of Financial Emergency Once approved, it remains in effect indefinitely i.e. there is no limit to the duration of financial emergency. 5 Then how to end financial emergency ? President has to again pass a resolution for ending financial emergency. 6 Is permission required to be taken by the President from both the houses of Parliament to end financial emergency ? No. Effects of Financial Emergency ·         Centre directs state government to observe cuts in the financial matter as the centre thinks fit. ·         President can also suggest centre areas where financial cuts can be made to save money. ·         Provisions for the state: A) Centre can reduce the salaries of any of the class serving in the state. B) President can ask the governor to reserve all the money/financial bill passed by a state legislature for his assent. ·         Provisions for the centre: A) President can reduce the salaries of any class serving the centre. B) President can reduce the salaries even of the judges of the High Court & Supreme Court. Criticism of Financial Emergency: ·         It reduces the financial autonomy of the state. ·         It gives undue financial power  to centre once it is proclaimed. Ambedkar’s View of Financial Emergency ·         Ambedkar thought that the provision for financial emergency is very important. ·         It has been added in the constitution for tackling any grave economic or financial power that comes before India because for such a threat centralized financial power is the need which is provided by this provision. Criticism of the Emergency Provisions: ·         Emergency provisions in the constitution are strongly criticized on the ground that once they are opted for, federal character of the constitution cease to exist & the centre becomes most powerful. ·         Powers of the state are severely curtailed. ·         Even the fundamental provisions are taken away in the emergencies. Then what is the use of the freedom we have got. ·         It is possible that a central dictatorship may arise paving way to totalitarian state. ·         Emergency provision makes centre powerful & equip it with tools that can be used against any A) Government Body/State and B)person. In Favour of Emergency Provisions: ·         Experts have considered emergency provisions as the “life-breath” of the constitution. ·         It is the most effective measure against any dangerous threat that comes in front of India. ·         It acts as a safety valve & actually helps in the maintenance of the constitution.

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