Articles

EMERGENCY PROVISIONS: ARTICLES 352- 360

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This Article is written by Meena P, a student at Government Law College Trivandrum


INTRODUCTION

A state of emergency India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when the consultant group perceives and warns against grave threats to the nation from internal and external sources or from financial situations of crisis. Part XVIII of the constitution contains the emergency provisions which was adopted from the Weimer Constitution of Germany. These emergency provisions authorize the center to have power on the state. There are three types of emergency provisions;

a. National emergency
b. State emergency
c. Financial emergency

ARTICLE 352 – NATIONAL EMERGENCY

Background

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Article 352 in The Constitution of India 1949 states that “If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation”. The president has the power to proclaim National Emergency where the security of India or any part of the territory is threatened on the grounds of war, external aggression or internal rebellion. It is essential that a grave situation must occur in order to declare an emergency. National emergency in India was declared 3 times in the following cases 1962 China war,1971 Pakistan war and Internal disturbances during Indira Gandhi’s tenure.

When an emergency is proclaimed ?

The union is given the power to direct and the parliament is allowed to legislate any state. The president is allowed to suspend Article 19(freedom of speech which is the right to express one’s opinion freely without any fear). The president is authorized to restrict the citizen’s right to move to the courts for the enforcement of fundamental rights except Article 20 and 21.

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Revocation of National Emergency

The President can revoke the implementation of emergency anytime without the approval of the parliament. The president can revoke the emergency when he is confirmed that the threat has passed. If the Lok Sabha disapproves the continuance of the emergency, then the president can revoke the emergency The implementations of these powers during the proclamation of emergencies have certain limitations

  1. The president is not provided with the power to alter or issue the proclamation unless it is directed by the union in writing to do so
  2. The proclamation shall not extend one month unless it is passed by both the Houses of Parliament, by the majorities of total membership each house and two-thirds of those present and voting. This proclamation must be confirmed on a six-month gap following the same procedure aforementioned
  3. A special session of Lok Sabha must be called within a span of 14 days if 1/10th of the members of the Lok Sabha submits in writing their disproval of invoking the emergency
  4. The laws that restrict the rights mentioned in Part III of the constitution must contain a ‘recital ‘stating clearly that they are in relation to the proclamation of emergency
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AMENDMENTS

✓ 38th amendment 1975- This allowed the president to proclaim the emergency on different grounds despite an emergency is already under operation

✓ 42nd amendment 1976- The 42nd amendment allows the president to modify the national emergency. Earlier only imposition or revocation was possible

✓ 44th amendment 1978:

I. The term internal disturbance was replaced by the armed rebellion by the 44th amendment.
II. The period of proclamation was reduced from 2 months to 1 month
III. This amendment helped to prevent the misuse of emergency by the executive

NATIONAL EMERGENCY AND ITS EFFECTS

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The suspension of fundamental rights mentioned in Article 19 as provided in the Article 358 of the Constitution and Article 359 deals with the suspension of other Articles except Article 20 and 21. The president is also given the authority to suspend the distribution of revenues and resources between the state and center. The state governments are brought under the control of the center which gives power to the center to direct the instructions. The parliament assumes concurrent state legislative power on state subjects and the laws enacted by the parliament shall end after the expiry of six months. In Minerva Mills case (1980), the Supreme Court held that National Emergency can be challenged in the court
on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts.


ARTICLE 356 – STATE EMERGENCY ( Failure of Constitutional Machinery)

If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution. India borrowed this provision from Section 93 of Government of India Act. This is also known as President’s rule. This provision was added in the constitution to preserve the democracy and federalism even though it faced many challenges and the British government was forced to suspend it. Pakistan has also borrowed this provision from the Government of India Act 1935. Every state in India except two states, Chhattisgarh and Telangana has been under a state of emergency at some point of time or the other Recently in 2018 Chief Minister Mehbooba Mufti resigned following withdrawal of support by coalition
partner BJP.

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The state was under President’s rule from June 19 to October 30. On October 31, J&K was split into two Union Territories — Jammu and Kashmir, and Ladakh — and that ended the President’s rule by default. Sarkaria Commission prepared report to upgrade the center-state relations and recommended that the state emergency shall only be used in the rarest of rarest cases. The commission stated that when the state fails to rectify all the constitutional machinery in the state then only Article 356 shall be imposed

AMENDMENTS

✓ 42nd Constitution Amendment Act, 1976 extended the period of state emergency from 6 months to 1 year.

✓ 44th Constitution Amendment Act, 1978 reverted back the operation of state emergency to 6 months

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STATE EMERGENCY AND ITS EFFECTS

The state government is dismissed and the center is given the authority to the rule the state. State assembly legislature is dissolved. As in the case of National emergency where the distribution of revenue between the state and the center is impacted, there is no effect on the same when it comes to state emergency The case of SR Bommai V Union of India dealt with the imposition of Presidents rule in the state by reviewing the reports submitted by the Sarkaria Commission, report. This case dealt with the powers of the center or the Union government at times of the state emergency.

ARTICLE 360 -FINANCIAL EMERGENCY

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. The proclamation of financial emergency must be passed by both the houses of parliament within two months from the date of issue.

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The financial emergency was never declared in our country. The center shall have control over the financial matters of the state. The salaries and allowances of the persons serving under the union, judges of supreme court and high court will be subjected to reduction in their salaries. Reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the State. By the proclamation of Financial Emergency, the powers of the state and the union will be under the control of the center and the center will become powerful. The financial independency of the state shall undergo curtailment and the President will become the ruler or the dictator. The fundamental rights would be infringed which invalidates the constitutional structure of our economy

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