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The Emergency - India

Updated: Jul 15, 2021


There are three types of Emergencies contemplated under the Constitution. These are :

National Emergency Art.352

(i) Proclamation : The President, if he is satisfied that a grave emergency exists, or there is an imminent danger thereof, whereby the Security of India (or any part) is threatened by war, external aggression or armed rebellion, may issue a proclamation of National Emergency. This may extend to the whole or any part of India. The President may vary or revoke by a subsequent proclamation.

(ii) Conditions : (a) The President should not issue the proclamation unless the Union Cabinet communicates its decision to him in writing. (Union Cabinet includes the Prime Minister and other Cabinet Ministers.)

(b) The proclamation has one month's duration. It must be placed before each House of Parliament and must be approved by both Houses: otherwise, it ceases to operate on the expiry of one month. The proclamation must be approved by the Rajya Sabha and Lok Sabha within one month (by the Lok Sabha within one month of its reconstitution, if it had been dissolved).

(iii) Special Majority : The proclamation must be approved by the Houses with at least 50% of total membership and 2/3 majority in both the Houses (as in the case of Amendment).

(iv) Duration :Such an approved proclamation would be in force for 6 months. It may be continued for 6 months at a time (no maximum duration is fixed).

(v) Revocation:

(a) The President may revoke the proclamation which he has issued under Art. 352(1).

(b) He may revoke, if the Lok Sabha disapproves the proclamation or of its continuation.

(vi) Initiation for Revocation : A special provision is made

(a) At least l/10th of the total members of the Lok Sabha, may give notice in writing to the Speaker (if the House is in Session) or to the President (if the House is not in Session).

(b) The notice must express the intention to move a resolution, disapproving the proclamation or of its continuation.

(c) A special sitting of the House must be held within 14 days of such notice.

(d) This enables the House, to make an appraisal of the circumstances, and to pass a resolution to continue or dis continue the Emergency.

(vii) Amendments : 42nd and 44th Amendments have ultimately given Art. 352, a final shape. These changes were largely due to the experience we had during the emergencies, especially the National emergency declared on 25-6-1975.

(viii) Proclamations issued :(a) Chinese aggression, 1962; (b) Pakistani aggression, 1971; (c) Internal disturbance, 1975.

(ix) Effect of Proclamation: (a) Extension of Executive Power :The Executive Power of the Union extends to the giving of directions to the States, as to the manner of exercise of the executive power.

(b) Extension of Parliament's Power :The power of the Parliament extends to make laws conferring powers and imposing duties, in any matter including those in State list.

(c) Suspension of Art. 19 : Art. 358 When the proclamation is in regard to War or external aggression only, Art. 19 is suspended and not with respect to Armed rebellion.

Parliament may make law and the Executive may operate, uncontrolled by Art. 19, but there must be a recital (reference) to the Emergency.

(d) Suspension of Remedy: Art. 359 The President may by order suspend the remedy for any of the Fundamental Rights stated therein in Part HI except Arts. 20 and 21. The order is operative only during the pendency of the Emergency.

(c) Habeas Corpus :44th Amendment prohibits the suspension of Habeas Corpus and Arts. 20 and 21 (Life and Personal Liberty). Hence, the evils of the Habeas Corpus Case (A.D.M. Jabbalpur V. Shukla) cannot be repeated (34,630 persons had been detained in the 1975 Emergency without a remedy).

(x) Leading Cases :(a) Makhan Singh V. State of Punjab; (b) The Habeas Corpus Case; (c) Bennett Coleman V. Union of India.

State Emergency :

Failure of Constitutional Machinery : Art. 356 :

(i) Duty : One of the duties fixed on the Union by the Constitution (under Art.355) is to protect the States against internal disturbance and to ensure that the government is carried on according to the Constitution.

(ii) Proclamation : The President may issue a Proclamation of State Emergency on the report of the Governor of the State or otherwise. In order to issue such a proclamation a situation must have arisen, in which the government of that state may not be in a position to run according to the Constitution.

(iii) Nature :

(a) The President assumes to himself all or any of the functions of the State Government and the powers vested in the Governor or any other authority.

(b) He declares that the power of the legislature become vested in the Parliament.

(c) He may make any incidental or consequential provi sions as he deems necessary.

Exception : The President has no powers to assume to himself any powers vested in the High Court or to suspend them.

(iv) Duration :

(a) The President may revoke the proclamation at any time.

(b) If not so revoked, it must be passed by the two Houses of Parliament within 2 months. Otherwise it lapses. (If the Lok Sabha had been dissolved, the proclamation must be approved by it within 30 days of its reconstitution).

(c) The duration is 6 months from the date of proclamation.

(d) The duration may be extended, 6 months at a time by the Parliament, but the maximum duration is 3 years.

(v) Limits on Duration: The Parliament should not extend the proclamation beyond one year from the date of issue,If it is to be extended

a) there must be the National emergency in the whole of India. or in the State. and

b) the Election Commission should certify that on account of difficulties conducting election to that State Assembly,is not possible.

Effect of Proclamation

i) The Parliament may confer on the President the power of the State Legislature to make Laws.

ii) It amy authorize him to delegate such powerson any other authority.

iii)The Parliament or the President may by law confer powers on other officers

iv)If the Lok Sabha isa not in session , the President may authorize the expenditure on the Consolidated Fund of the State pending sanction of the Parliament. Operation of State Emergency Law: Any law made during State Emergency continues until it is amended by acompetent legislature.

(viii) Instances : There are scores of instances when Art. 356 has been pressed into service. State Emergency was proclaimed in Punjab (1951), Pepsu (1952), Andhra (1954), Travancore-Cochin (1956), Orissa (1961) etc.

(ix) Courts Interpretation : In Rao Virendra Singh V.India (1968), the Supreme Court held that the power given to the President is not discretionary but he must act according to the advice of the Cabinet. This was approved in Jyotirmoy Basu V India (1971).

Financial Emergency :

(i) Introduction :The framers of the Constitution visualised a possibility of financial depression requiring Central Government's intervention. The experience of U.S. in 1930's depression was recalled by some members. Suitable provisions were made in Art. 360, to meet such situations.

(ii) Proclamation : If the President is satisfied, that a situation has arisen whereby the financial stability, or credit of India is threatened,he may issue a proclamation of financial emergency.

(iii) Satisfaction : The President's satisfaction cannot be questioned in any Court (31st Amendment.)

(iv) Duration :

(a) The President may revoke the proclamation at any time.

(b) It operates for two months from the date of procla mation. But, within this period, it must be placed before each House of Parliament and duly approved. (If the Lok Sabha is dissolved, it must be approved within 30 days of its recon- stitution).

(c) Maximum duration is not fixed by the Constitution,

(v) Effect : Union Executive power becomes may give direction to the States to follow rules of financial may give other necessary directions. These directions include :

(a) The reduction of salaries and allowances of the Civil servants of the State.

(b) A proviso to reserve for consideration of the President all Money Bills after they are passed by legislatures of the States.

(c) The President may give directions for the reduction of salaries of Union Civil servants, and, also the Judges of the Supreme Court and the High Courts. This article has not been pressed into serve at any time so far.

The Emergency - India


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