Emergency Provisions
Basics
- In Part 18 from Article 353 to 360
- To meet abnormal conditions effectively
- To safeguard sovereignty, unity and integrity of country
- Federal Structure almost becomes Unitary Structure
Types
- National Emergency
- Due to war, external aggression or armed rebellion
- State Emergency or President’s Rule
- Due to failure of Constitutional machinery
- Financial Emergency
- Due to threat to Financial stability
National Emergency
- Under Article 352
- President can declare National emergency when the security of India or part of it is threatened by war or external aggression or armed rebellion
- President can declare National emergency even before the actual occurrence of war & external aggression or armed rebellion
- Grounds of Declaration
- External emergency
- War or External aggression
- Internal emergency
- Armed rebellion
- Internal Disturbance
- Added as 3rd category in 42nd CAA
- Deleted as internal disturbance and given as armed rebellion in 44th CAA
- President can declare National emergency only after receiving a written recommendation from Cabinet
- Brought in 44th CAA, 1978
- 38th CAA, 1975 says No Judicial review
- Minerva mill case in 1980 retained Judicial review
- Parliamentary Approval
- Must be approved by both the Houses within one month from date of issue
- However if Lok Sabha gets dissolved before approval then survive until 30 days from 1st sitting of Lok Sabha meanwhile approved by Rajya Sabha
- If approved by both the houses, continues for 6 months and can be extended for the indefinite period with approval every 6 months (44th CAA)
- By Special Majority
- Initially Simple majority (changed in 44th CAA)
- Revocation of Proclamation
- By the President at ay time, does not require Parliamentary approval
- Further if Lok Sabha passes a resolution disapproving its continuation then President must Revoke
- Brought in 44th CAA
- Before this President can revoke without any control from Lok Sabha
- 1/10th of total members of Lok Sabha should give written notice to Speaker or President if house is not in the session
- House should be held in 14 days of consideration
- For disapproving requires to be passed by Lok Sabha only by Simple Majority
- For approving needs to be passed by both houses by Special Majority
- Effects of National Emergency
- Effect on Centre-State Relation
- Executive
- Centre extend to directing any state
- Centre can give executive direction to any state
- State Government is bought under complete control of centre, don’t suspend
- Legislative
- Parliament is empowered to make laws on State list
- Such laws are inoperative 6 months after emergency
- President can issue ordinance on State list
- Financial
- President can modify the constitutional distribution of revenue between Centre-State
- Such modification continues till the end of Financial year
- Effects on Life of Lok Sabha and State Assembly
- Life of Lok Sabha and State Assembly can be extended beyond its normal term (5 years) by a law of parliament for one year at a time (any number of times)
- 5th Lok Sabha extended 2 times
- This extension can’t continue beyond a period of 6 months after emergency has ceased to operate
- Effects on Fundamental Rights
- Article 358 says suspension of Article 19
- Automatically suspend Article 19 for entire duration of emergency
- Only External emergency.
- 44th CAA : Article 19 can be suspended only when National emergency is declared on grounds of war or external aggression and NOT on grounds of Armed rebellion
- Article 359 says suspension of FR except Articles 20 and 21
- Authorizes President to suspend the right to move to any court for the enforcement of any FR during National Emergency
- Suspended he enforcement after Presidential order for a specified period
- FR are not suspended but only their enforcement
- Only those which are specified in Presidential order
- To whole or any part of India
- President can’t suspend Article 20, 21 (44th CAA)
- Only those law related to emergency are suspended
- Both External and Internal emergency
State Emergency or Presidential Rule or Constitutional Emergency
- Article 355
- Impose a duty on Centre to ensure that the government of every state is carried on in accordance with the Provision of the Constitution
- Grounds of Imposition
- Under Article 356 on 2 grounds
- Empowers the President to issue a proclamation, situation can’t be carried out according to constitution
- Article 365
- Whenever a state fails to comply with or give effect to any direction from the centre, President can impose rule
- Parliamentary Approval and Duration
- Must be approved by both houses within 2 months
- If Lok Sabha dissolve before approving (during 2 months), then the Proclamation survives until 30 days from the first sitting of Lok Sabha provided Rajya Sabha approves it
- Approved then continues for 6 months, can be extended for a period of 6 months for 3 years
- If Lok Sabha dissolve during this period then the Proclamation survives until 30 days from first sitting of Lok Sabha provided Rajya Sabha approves it.
- Simple Majority is required
- 44th CAA
- Beyond 1 year President’s rule can be extended by 6 months at a time only when
- Proclamation of National emergency should be in operation in the whole or in part of state or in the country
- Election commission must clarify that the General elections to the Legislative assembly of the concerned state can’t be held on account of difficulties
- President can revoke it without approval of Lok Sabha
- Consequences
- He can take functions of State government and power vested in the Governor or any other executive authority
- He can declare that the powers of State Legislature are to be exercised by the Parliament
- When State Legislature is suspended
- Parliament delegate power to make laws to the President
- President can authorise when Lok Sabha is not in session, expenditure from State Consolidate Fund pending its sanctions by Parliament
- President can promulgate ordinance when Parliament is not in session
- Law made by the President remains operative even after President’s rule
- High courts operates as per their normal rules
- Scope of Judicial Review
- 38th CAA, 1975 : No Judicial Review
- 44th CAA, 1978 : Judicial Review
- President’s rule is subject to Judicial review
- Satisfaction of President should be based on relevant material
- Burden lies on Centre to prove relevance
- The court can’t go into correctness of material
- If court holds President’s rule invalid, it can restore State Legislature which is suspended
- Cases of Proper Use
- If no party secures Majority : Hung Assembly & No alternative
- When party having majority declines to form a Ministry
- Where Ministry resigns and no alternative
- Constitutional direction of the centre is disregarded by the State
- State Government deliberately acting against the Constitution
- Physical breakdown : Government wilfully refuse to discharge obligations
- Cases of Improper Use
- If no party secures Majority : Hung Assembly & Alternative available
- Governor don’t allow to prove the majority on floor
- Maladministration
- Where state government is not given prior warning
- Power is used to sort out intra-party problems
Financial Emergency
- Grounds of declaration
- Article 360
- Empowers President to proclaim Financial emergency if he thinks financial stability of India or any part of its territory is threatened
- Financial Emergency is same as National recovery Act in US
- Scope of Judicial Review
- 38th CAA, 1975 : No Judicial Review
- 44th CAA, 1978 : Judicial Review
- Parliamentary Approval and Duration
- Must be approved by both the houses within 2 months
- If Lok Sabha dissolve before approving (during 2 months), then the Proclamation survives until 30 days from the first sitting of Lok Sabha provided Rajya Sabha approves it
- Once approved continues for indefinite period
- Repeated Parliamentary approval is not required
- Simple majority is required
- President can revoke it without approval of Lok Sabha
- Effects
- Executive authority of centre extends
- Directing state to observe such canons of Financial Property
- To directions as the President may deem necessary and adequate for the purpose
- Any such direction may include a provision requiring
- Reduction of salaries and allowance of all classes serving in the State
- Reservation of all Money bill and Finance bill passed by Legislature
- President may issue direction for the reduction of Salaries & Allowance of
- All or any class of a person serving the Union
- The Judges of Supreme Court and High Court
- Centre acquires full control over the state in Financial matter
Criticism of Emergency
- Federal Character is destroyed, Union becomes strong
- President will become Dictator
- Financial Autonomy of State will be Nullified
- Fundamental Rights will become meaningless
- Democratic foundation will be destroyed