Emergency Provisions

Introduction:
India i.e. Bharat is an “own kind” federal republic. During an emergency, it
possesses unitary functionality. That’s why Dr. B. R Ambedkar declared the
Indian Federal structure special because throughout an emergency it becomes
fully unitary. In an emergency, the mechanism becomes a unitary trait as the
constitutional apparatus fails.

National Emergency
 
·         Under Article 352, the president can declare a national
emergency when the security of India or a part of it is
  threatened by war or external aggression or armed rebellion.
  ·         The President can declare a national emergency even
  before the actual occurrence of war or armed rebellion or
  external aggression
  ·         When a national emergency is declared on the grounds
  of ‘war’ or ‘external aggression’, it is known as ‘External
  Emergency’. On the other hand, when it is declared on the
  grounds of ‘armed rebellion’, it is known as ‘Internal
  Emergency’.
   
  Changes:
  ·         This emergency can be imposed either for the whole of
  India or could be restricted to certain territories (42nd amendment
Grounds of declaration act)
  ·         Originally, the constitution had internal disturbance as
one of the grounds for imposing national emergency, however,
this was dropped since the ground was ambiguous and open to
misuse. It was replaced by armed rebellion through the
 44th amendment act, 1978
·         This emergency can be imposed by the President
after receiving a written recommendation from the cabinet.
This provision was introduced through the 44th amendment
act
·         The 44th amendment act also deleted the provision
which barred courts from examining the imposition of
emergency by the executive
 
In Minerva Mills case, the Supreme Court held that the
proclamation of a national emergency can be challenged in a
court on the ground of malafide or that declaration was based on
wholly extraneous and irrelevant facts
 
 
·         Must be approved by both the houses of
parliament within one month from the date of its issue (
 
·         If the Lok Sabha is not in session or has been dissolved
 
then the proclamation has to be approved within 30 days since
 
the new LS is constituted
 
·         Once approved the proclamation continues to be in force
Parliamentary approval
for six months.
and duration of this
·         Such proclamations can be extended indefinitely,
emergency
however, each extension should be approved by the
 
Parliament through a special majority (44th amendment act,
 
1978)
 
 
   
  • Emergency can be revoked at any time by the President by
Revocation of passing a subsequent proclamation to this effect.
proclamation • The emergency must be revoked if the Lok Sabha passes a
  resolution by a simple majority disapproving its continuation.
   

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Effects of National Emergency:
A proclamation of emergency has drastic and wide-ranging effects on the
political system of the government.
The consequences can be grouped into three categories:
• Effect on the Centre – State relations,
• Effect on the life of Lok Sabha and State Assembly, and
• Effect on the Fundamental Rights.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Effect on the Centre – State relations
   
Executive:
· During a national emergency, the executive power of the centre extends
to directing any state regarding the way in which its executive power is to
exercised.
· In normal times, the union can give executive directions to a state only
on certain specified matters.
· Thus, the state government are brought under the complete control of
the centre, though they are not suspended.
Legislative:
· During a national emergency, the parliament is empowered to make
laws on any subject-matter mentioned in the state list.
· Though the legislative power of a state legislature is not suspended, it
becomes subject to the overriding power of the parliament.
· The laws made by the parliament on the state matters will not be
functioning after the emergency ceases to operate.
Financial:
· While a proclamation of national emergency is in process, the president
can either reduce or cancel the transfer of finances from centre to the state.
· Every such order of the president has to be laid before the both houses
of parliament.
   
 
Effects on the life of the Lok Sabha and State Assembly
   
· The life of LS and state assembly could be extended by one year at a
time.
· However, this extension cannot continue beyond a period of six
months after the emergency has to ceased to operate.
   
 
 
 
 
 
 
 
 
 
 
 
 
Effect on the fundamental rights
 
 
   
Articles 358 and 359 sets out the effect of a national emergency on the
fundamental rights. Article 358 deals with suspension of the elemental rights
guaranteed by Article 19. While Article 359 deals with the suspension of other
fundamental rights except guaranteed by Article 20 and 21.
 
Suspension of fundamental rights:
· According to Article 358, when a proclamation of national emergency is
formed the six fundamental rights under Article 19 are automatically
suspended. No separate order for their suspension is required.
· The 44th Amendment Act of 1978 restricted the scope of Art.
358 providing that the six fundamental rights under Art. 19 will be
suspended only if the National emergency is asserted on the ground of war or
external aggression and not on the ground of armed rebellion.
Suspension of other fundamental rights:
· As per Article 359, the president is authorised to suspend the right to
move any court for the enforcement of fundamental rights during the National
emergency. In other words, the fundamental rights are not suspended as such,
but only their enforcement.
· The suspension of enforcement relates to only those fundamental rights
that are as per the presidential order
 

President’s rule
 
Article 355 imposes a duty on the centre to ensure that the government of
every state is carried out in accordance with the provisions of the
constitution. It is to fulfil this duty that centre takes over the administration
of a state under article 356 in case of failure of constitutional machinery in
state
 
The president’s ruler can be proclaimed under Article 356 on two
grounds:
 
• Article 356 empowers the President to issue a proclamation
 
if he is satisfied that a situation has arisen in which the
 
government of a state cannot be carried on in accordance
 
with the provisions of the constitution.
 
• Article 365 says that whenever a state fails to comply with
 
or to give effect to any direction from the centre, it will be
Grounds of imposition
lawful for the President to hold that a situation has arisen
 
in which the government of the state cannot be carried on
in accordance with the provisions of the constitution.
 
   
 ·         A proclamation imposing president’s rule must
be approved by both the houses of parliament within two
  months from the date of its issue.
  ·         However, if the proclamation of President’s rule is issued
Parliamentary approval at a time when the Lok Sabha has been dissolved or the
and duration dissolution of the Lok Sabha takes place during the period of
  two months without approving the proclamation, then the
  proclamation survives until 30 days from the first sitting of the
Lok Sabha after its reconstitution, provided that the Rajya
Sabha approves it in the meantime.
 
The 38th Amendment act of 1975 made the satisfaction of the
 
President in invoking Article 356 final and conclusive which
 
would not be challenged in any court on any ground.
Scope of judicial review
But this provision was subsequently deleted by the
 
44th Amendment Act of 1978 implying that the satisfaction of
 
the President is not beyond judicial review.
 

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R. Bommai v. Union of India
R. Bommai v. Union of India is a landmark decision of the Supreme Court of
India, where the Court discussed at length provisions of Article 356 of the
Constitution of India and related issues. This case had huge impact on Centre-
State Relations.

Financial emergency
 
Article 360 empowers the president to proclaim a financial emergency if he is
satisfied that a situation has arisen due to which the financial stability or
credit of India or any part of its territory is threatened
Parliamentary approval and duration:
• A proclamation approving the financial emergency should be approved by the
Parliament through a simple majority within two months. If the LS is not in
session or has been dissolved then the proclamation continues until 30 days
from the first sitting of the LS after its reconstitution, provided RS has
approved it in the meantime
• Once approved by the parliament, the financial emergency continues
indefinitely till it is revoked. Implying, there is no maximum prescribed
maximum period for its operation and there is no repeated need for
parliamentary approval for its continuation
• President can discontinue this emergency by passing another proclamation to
this effect. Such a proclamation does not require the parliamentary approval.