Indian Constitution KeyPoint

 

Emergency Provisions in Indian Constitution

 

The Indian Constitution gives President the authority to declare three types of emergencies: National Emergency, State Emergency and Financial Emergency. Emergency provisions in India are borrowed from Weimar Constitution of Germany. Constitution of India envisages emergency of following three types:

Article 352- National Emergency

Article 356-Emergency in state ( president’s rule)

Article 360- Financial Emergency

National Emergency

Under article 352, if the president is satisfied that there exists a grave situation, wherein the security of the country is threatened on the grounds of wars, external aggression or armed rebellion, he can proclaim emergency to that effect.

Emergency can be declared over the complete territory of India or any part thereof.

President can declare emergency only on the written advice of the cabinet

A special majority is required to approve an emergency resolution.

Once approved, emergency shall operate for a maximum period of not more than six months.

Lok Sabha has the power to disapprove the operation of national emergency at any time, if not less than 1/10th members of Lok Sabha in writing to the speaker, if house is in session, or to the president, then speaker or president as the case may be, shall convene a special session of Lok Sabha within 14 days and if such a resolution is passed, president shall revoke national emergency.

Amendments

38th Constitutional Amendment Act 1975: It empowered president to proclaim national emergency on different grounds even though an emergency is already under operation

42nd Constitutional Amendment Act 1976:

(i)It empowered president to modify or vary national emergency. Under the original constitution, only the imposition or revocations were possible.

(ii) Under the original constitution, president could have imposed national emergency only over complete territory of India. This amendment enabled him over a part of the country.

44th Constitutional Amendment 1978: It was enacted to prevent the misuse of emergency power by the executive.

Effects of National Emergency

On Executive- State governments are not dismissed, they continue to operate, but are brought under the effective control of the centre, which assumes the power to give instructions to state government, which shall abide by such directions.

On Legislature- State legislatures continue to operate and legislate, but parliament assumes concurrent legislative power on state subjects and a law such enacted by parliament, shall cease to operate at the expiry of six months after the revocation of national emergency, to the extent of incompetency.

On Financial relations- President can suspend the distribution of financial resources between centre and states and centre can make use of any national resource to fight the cost on the basis of which, emergency is declared.

On Fundamental Rights- Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19, while Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21).

As per Article 358, when a proclamation of national emergency is made, the six fundamental rights under article 19 are suspended only when National Emergency is declared on the ground of ware or external aggression and not on the grounds of armed rebellion

Article 359 authorises the president to suspend the right to move any court for the enforcement of fundamental rights during a National Emergency except for article 20 and article 21

President’s Rule (State Emergency)

As per Article 355, it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.

Under article 356, if president is satisfied on the report of governor or otherwise that there exist a great emergency where the administration of the state cannot be continued in accordance with the provisions of constitution, by invoking article 355, any person can dismiss state government and take over the state administration on to himself and declare that parliament will enact law on behalf of state legislature.

Effects of President Rule (State Emergency)

On Executive- State government is dismissed and the executive power of the state is exercised by the centre.

On Legislature- State legislature does not function to legislate; state legislative assembly is either suspended or dissolved.

On Financial relation- There is no impact on the distribution of financial resources between centre and the state.

Amendments

1.42nd Constitution Amendment Act, 1976 extended the period of state emergency from 6 months to 1 year.

2. 44th Constitution Amendment Act, 1978 reverted back the operation of state emergency to 6 months. Further it divided the maximum period of 3 years of operation into 1 year under ordinary circumstances and 2 years under extra ordinary circumstances, for which the stipulated conditions shall have to be satisfied.

Financial Emergency

Under article 360- 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. This emergency is never imposed in India.