Features And Effect Of Emergency Provision

Features And Effect Of Emergency Provision

 

 

They are included in part XVIII from articles 352 to 360 Borrowed from GOI Act 1935 & Wiemer constitution of Germany.

 

Art. 352 – National Emergency

 

  • When can it be imposed?

 

3 conditions – War, External Aggression, Armed Rebellion

Note1: Armed Rebellion was changed from Internal Disturbance on the recommendation of the Shah Commission. Internal Disturbance was a vague term prone to misuse.

The Constitution of India originally provided for imposition of emergency in the event of war, external aggression or internal disturbance but by the 44th Amendment Act the

expression “internal disturbance” was replaced by the term “armed rebellion”.

 

Q1: What’s the difference between War and External Aggression?

 

No technical difference! The President makes a “Proclamation of Emergency”. If it says its a war, its a war likewise of external aggression.

 

  • Features

 

Flashback : Lets go back to the time of the Emergency. All it took then was an oral instruction by the then PM Indira Gandhi to President Fakhruddin Ali Ahmed (who received a lot of criticism).

To understand National Emergency, we need to examine the 44th Amendment Provisions whose sole purpose was to put a check on such powers of the President.

 

  • Can only be proclaimed on the written advice of the Union Cabinet (not the PM). Perhaps, this is the only place where Union Cabinet has a role.

 

  • Expires in 1 month from its issue unless approved by a Special Majority (of the second kind*) – Not less than 2/3rd of the Members present and voting + Absolute Majority – in both the houses of the Parliament.

 

  • If the LS is dissolved, then RS shall approve it within 1 month and the re-constituted LS shall ratify within 30 days.

 

  • Once approved, the proclamation is extended for 6 months, which can be extended again for 6 more months.

 

  • Not less than 1/10th of the Members of the LS(this can only be initiated in the LS) may give notice in writing to the Speaker or President (when LS is not in session). If there is no session, a special sitting of the LS shall be held within 14 days. If the resolution, the President has to revoke the Emergency.

 

  • Effects

 

  • Executive : State Govt. is not suspended. Union Govt. can issue orders to the State Govt. on subjects on the State List (something that it can’t normally do).

 

  • Legislature : State Legislature is not suspended. However, Parliament can make laws on the State subjects. Such laws remain valid for 6 months after the Emergency ceases to be.

 

  • Financial : Distribution as per the President’s will subject to approval by the Parliament.

 

Effect on Fundamental Rights (2 clauses here)

 

  • Art. 19 automatically suspended (only in case of War and External Aggression)

 

  • President by a further order can specify other FRs that wont be operative, excepting Art. 20 and 21.

 

  • Art. 20 and 21 are fundamental of the FRs and cannot be suspended.

 

 

So far, National Emergency has been declared in our country three times

 

  • The first emergency was declared on 26 October 1962 after Chinaattacked our borders in the North and East. This National Emergency lasted till 10 January 1968.
  • The second emergency was declared on 3 December 1971in the wake of the second India-Pakistan Warand was lifted on 21 March 1977.
  • The third National Emergency (called internal emergency) was imposed on 25 June 1975. This emergency was declared on the ground of ‘internal disturbances’.

 

 

 

Art. 356 – President’s Rule

 

  • When can it be imposed?

 

If the President is satisfied that there exists a situation where the State Admin. cannot be carried in accordance with the provisions of the Constitution, he can make a Proclamation of Failure of Constitutional Machinery in a State.

Ambedkar had envisaged Art. 356 to remain a dead letter in the Constitution. Much to his surprise it has been used not less than 119 times during the first 63 years.

 

  • Features

 

Such a proclamation lapses after 2 months, unless approved by the Parliament by a simple majority. Once approved, it lasts for 6 months which can again be extended for 6 more months subjected to maximum of 3 years.

 

To extend it beyond 1 year, 2 conditions must be fulfilled

 

  • National Emergency should be in operation (in whole of India or whole or any part of the State).

 

  • ECI certifies that elections cannot be conducted in the state.

 

  • Effect

 

The President can

 

  • declare Executive powers of the State rest with him. He can also delegate the same to any other authority (like the Governor) as per his liking.

 

  • dissolve or suspend the State Legislature. If suspended, the Parliament can exercise its legislative powers. (or delegate it to any other authority)

 

Effect on Fundamental Rights : No Effect

 

 Art. 360 – Financial Emergency (Never imposed till date)

 

  • When can it be imposed?

 

If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.

 

  • Features

 

It will ordinarily remain in force for 2 months, unless its is approved by both the houses. If LS is dissolved in this period, similar clause as that of the National Emergency applies.

 

  • Effect

 

The financial autonomy of the states is transferred. The President can

 

  • suspend distribution of financial resources.

 

  • issue directions to follow canons of finance.
  • direct the State Govt. to reduce the Salaries of their employees.

 

  • direct the governors to reserve all financial and money bills for his consideration.

 

Effect on FR : No Effect