Emergency Provisions Under Indian Constitution

KEY TAKEAWAYS

  • Part XVIII of the Constitution titled as “Emergency Provisions” arms the President with enormous emergency powers to deal with the situations at time of crisis.
  • It is the unique feature of the Indian Constitution that allows the Centre to take full legislative and executive control of the State.
  • It is a situation which arises due to the failure of the government machinery.

INTRODUCTION

According to the Black Law’s Dictionary, “Emergency is a situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation. It is a failure of the social system to deliver reasonable conditions of life”. At the time of framing of the Constitution while the country was celebrating the independence and was looking for liberal democratic regime, abnormal situations like law and order problems were also prevailing due to large scale migration of population from and towards Pakistan. Framers of constitution gave an opinion that “in hour of grave emergency when the security or stability of the country or any part thereof was threatened, the central government should not be a mere helpless observer but armed with necessary authority to deal with it”.

The constitution of India makes provisions for three types of emergencies-
1) Proclamation of Emergency i.e National Emergency (Article 352)
2) Failure of Constitutional machinery in States i.e President’s Rule (Article 356)
3) Financial Emergency (Article 360).

NATIONAL EMERGENCY

Article 352(1) says that if the President is satisfied that a grave emergency exists whereby the security of India or any part of it is threatened .Article 352(3) [amended by 44th Amendment Act, 1978] provides that the President can issue a proclamation of Emergency only when the decision of the Union Cabinet is conveyed to him in written form.

GROUNDS FOR PROCLAMATION OF NATIONAL EMERGENCY

Under Article 352 President could make a proclamation of emergency on the grounds of-
1) War
2) External aggression
3) Internal disturbance

The word “internal disturbance” was substituted by the expression “armed rebellion” (44th Amendment Act, 1978)

Thus after the amendment Proclamation of Emergency on any of the grounds- a) War b) External Aggression c) Armed Rebellion


STATE EMERGENCY

Article 356 talks about State Emergency or President’s Rule. If the President on receipt of report from the Governor of a State is satisfied that a situation has arisen in which the state government cannot be carried on according to the provisions of the Constitution then the president by proclamation-
a) Can assume to himself or any other functions of the State Government other than the State Legislature.
b) Can declare that the powers of the State Legislature shall be exercised under the authority of the parliament.
c) Can make incidental provisions that may appear to him necessary for giving effect to the objects of the Proclamation.

However, the president is not authorised to assume the powers of the High Court or to suspend any constitutional provision pertaining to it.

S.R Bommai v. Union of India is the landmark case regarding the imposition of President’s Rule in any State. It laid down the power of the union government in relation to the State emergency and also the judicial review of President’s rule was made possible by this case.

A view was expressed in the case of State of Rajasthan v. Union of India that proclamation is valid if issued under article 356(1) and without the approval by the houses of Parliament the Centre can dissolve the State Legislature. But in SR Bommai case the court disagreed with this view. The proclamation lapses after two months if it is not approved by the Parliament.

DIFFERENCE BETWEEN ARTICLE 352 AND ARTICLE 356

Article 352 Article 356
It applies to a situation of war, external aggression or armed rebellion It applies to a situation of failure of constitutional machinery in a State.
State executive and legislature exercise their power as mentioned in the Constitution. The Centre gets the power of Concurrent List. State executive powers get vested in the Central. State legislature ceases to function, it is dissolved or suspended.
It affects the fundamental rights (except article 21 and article 20) It does not affect the fundamental rights.
Centre’s relation with all the states undergoes a change. The relationship of only one state with the Centre is affected.
Proclamation must be approved by parliament within a month and renew every six months. No maximum period is prescribed for the operation of proclamation Proclamation is to be approved by parliament within two months and thereafter every six months. Emergency can remain in force for three years after which it will cease.

FINANCIAL EMERGENCY

Article 360 empowers the President to declare financial emergency on account of a threat to financial stability of India or any part of the country. The proclamation must be approved by both the houses of the Parliament within two months from the date of its issue. Financial emergency continues until it is revoked by the President of India.

Consequences of Financial Emergency

  • Union government may give directions to the State over the financial matters.
  • The President is competent for reduction of salaries and allowances of all or any class of persons including the Judges of the Supreme Court and High Courts.
  • The union government may ask the States to lower the salaries and allowances of persons serving in the State.
  • All money bills or other financial bills may be reserved for the consideration of the President after they are passed by the State Legislatures.

Criticism of emergency provision

  • The union will become more powerful and the federal character of the constitution will be destroyed.
  • The president will become a dictator
  • Financial autonomy of the state will be nullified.
  • The foundation of the constitution will be affected as the fundamental rights will become meaningless.

CONCLUSION

The emergency provisions are provided for the security of the state however they give an immense discretionary power at the hands of the executive. It affects the federal structure of the country as it turns into a unitary one. A system of checks and balances must prevail in order to prevent the misuse of powers by the ruling party or executive. While defending the emergency provisions in the Constituent Assembly, Dr Ambedkar accepted the possibility of their misuse. He observed, ‘I do not altogether deny that there is a possibility of the Articles being abused or employed for political purposes.’

 

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