• LAWGIC STRATUM

EMERGENCY PROVISIONS UNDER INDIAN CONSTITUTION

Author: Kohina Jain



INTRODUCTION:


The Constitution of India provides 3 types of emergency provisions. The President of India has the power to announce the emergency when required

  • National Emergency

  • State Emergency or Presidential Rule

  • Financial Emergency

The emergency provisions are given under Part XVIII of the Constitution of India, from Article 352 to 360. Through this provision, Central Government handles the abnormal situation effectively in the country. The reason behind proclaiming this emergency is to protect the sovereignty, unity, integrity and security of the Country.


EMERGENCY PROVISION:


1. Article 352: Proclamation of Emergency.

2. Article 353: Effect of Proclamation of Emergency.

3. Article 354: Application of provisions relating to the distribution of revenues while a proclamation of emergency is in operation.

4. Article 355: Duty of the Union to protect States against external aggression and internal disturbance.

5. Article 356: Provisions in case of failure of constitutional machinery in State.

6. Article 357: Exercise of legislative powers under Proclamation issued under Article 356.

7. Article 358: Suspension of provisions of Article 19 during Emergencies.

8. Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies.

9. Article 360: Provisions as to Financial Emergency.


NATIONAL EMERGENCY:


Under Article 352[i], President of India can proclaim a national emergency when the security of India or a part of it threatened by war, external aggression, or an armed rebellion. There is no maximum period prescribed for its operation under the Constitution. With the approval of both the houses in every six months, national emergency can be continued for an indefinite period[ii]. The 38th Amendment Act of 1975 made the declaration of “The Emergency” final and conclusive. This Amendment barred judicial review of proclamation of national emergency but, these provisions were later deleted by the 44th Amendment Act of 1978. In Minerva Mills v. Union of India,[iii] the Supreme Court held that there is no bar to judicial review to challenge the validity of declaring the national emergency under Article 352 on the grounds of malafide intention. In the case Raj Narain v. State of Uttar Pradesh[iv] Supreme Court observed that Indira Gandhi was guilty, as she misuses Government machinery under section 123(7) of Representation of Peoples Act, 1951.

During the national emergency the following changes may be made:

  • The Centre has the executive power to give direction to a state or any matter

  • The parliament becomes entitled to make any laws on any subject mentioned in the state list.

  • The Fundamental Rights, except article 20 and 21 got suspended.

  • The President can modify the distribution of revenues between the centre and the state.

  • The Lok Sabah and the State Assemblies tenure extended.

President can revoke a national emergency at any time by a subsequent proclamation and it does not require parliament approval. If the Lok Sabha passes a resolution with a simple majority for the disapproving of emergency continuation then emergency must be revoked.


STATE EMERGENCY OR PRESIDENT’S RULE


Under article 355[v], the Central Government has to ensure that every state has been carried in accordance with the provisions of the Constitution. When the state government does not function accordingly, the Center can take over the State Government on the ground of failure of Constitutional machinery in the state under article 356[vi]. This is known as State Emergency or President’s Rule.


Only on two grounds, State Emergency can be proclaimed by the President

  • On the breakdown of Constitutional Machinery

  • Non- compliance with centre’s direction

In India, till 2016, 124 times State emergency has been proclaimed. S.R Bommai v. Union of India[vii] defines the power of Centre-State relation under article 356 that deals with State Emergency. From this case Judicial Review of the Presidential Rule made possible.

The State Emergency can be continued for a maximum of 3 years after which it can be extended after the Constitutional Amendment.

  • Some of the effects of imposing State emergency

  • The state legislature is either suspended or dissolved and the state executive is suspended during the State emergency

  • Parliament took charge of the making of laws related to the State list

  • There’s no effect on State’s High Court functions

  • Fundamental Rights do not get affected by the State emergency

An Emergency can be revoked by the President at his discretion by passing a resolution of revocation.


FINANCIAL EMERGENCY:


Article 360[viii] of Constitution of India deals with Financial Emergency. President can declare a financial emergency whenever the president is satisfied that the Nation’s financial stability or financial credibility or any part of its territory is threatened. The proclamation of financial emergency should be approved by both the parliament houses within 2 months with a simple majority. It can be continued for an indefinite period. Till now financial emergency has never been declared though there was a financial crisis in 1991.

  • Some effects of imposing Financial Emergency are:

  • Salaries and allowances of people working under the Union and the State Government may be altered.

  • The Centre’s executive authority expands as now it can give financial orders to any state

  • Financial bills and money bills passed by the state legislature sent to the President of India for his consideration.

  • President can revoke the financial emergency whenever he feels the situation is stable without the approval of parliament.


CONCLUSION:


Under Indian Constitution, to protect the security, integrity and stability of the Country the President has been given extraordinary powers to tackle abnormal situations. For this purpose, the President of India can proclaim three types of emergency on the written advice of the Union Cabinet. These are National Emergency, State Emergency and Financial Emergency. Under Article 352 National Emergency has been declared three times so far. State Emergency or presidential rule on account of Constitutional machinery has been announced in most of the States. But Financial Emergency has never been imposed so far. Any misuse of this power can easily lead to the overturning of democracy. But our constitution has been working for more than five decades and this demonstrated that emergency powers were generally used to safeguard the interest of the country except for few times where an emergency was imposed on political ground.


REFERENCES:

[i] Article 352, Constitution of India, 1950 [ii] Hemant Singh, Comparison between the National Emergency (352) and President’s Rule (356), Nov 21, 2016 15:22 IST, https://www.jagranjosh.com/general-knowledge/comparison-between-the-national-emergency-352-and-presidents-rule-356-1479721936-1 [iii] AIR 1980 SC 1789 [iv] AIR 1975 SC 865 [v] Article 355, Constitution of India, 1950 [vi] Article 356, Constitution of India, 1950 [vii] AIR 1994 SC 1918 [viii] Article 360, Constitution of India, 1950

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