This article has been written by Ms. Bhawna, a student studying B.A.LLB.(H.) from Teerthanker Mahaveer college of law and legal studies, Moradabad. The author is a 3rd year law student.
Under the Indian constitution, the concept of emergency has been borrowed from Germany Weimar Constitution. The emergency provisions under the Indian constitution enable the Central government to meet any abnormal situation effectively. The rationality behind the incorporation of these provisions in the Constitution is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system, and the Constitution.
LEGAL PROVISIONS OF EMERGENCY
The provisions about the emergency has been given under Part 18 from article 352 – 360 of the Indian constitution.
TYPES OF EMERGENCY
The Indian constitution provides 3 types of emergencies are as follow:
- Proclamation of emergency i.e. National emergency
- Failure of constitutional machinery in the state i.e. State emergency or constitutional emergency or president rule
- Financial emergency
PROCLAMATION OF EMERGENCY ( ARTICLE 352 )
- Grounds : If the president is satisfied that a grave emergency exist whereby the security of India or any part of territory is treated by reason of war, or external aggression or armed rebellion, he may make a declaration to that defect. There is no format to declare the national emergency. The president can proclaim the emergency by it’s own satisfaction. The word ‘satisfaction’ used in article 352 does not mean the personal satisfaction of the president, but, it is the satisfaction of the cabinet. In Minerva Mills Ltd. V. Union of India, Justice Bhagwati held that there is no bar to judicial review of the validity of a proclamation of emergency issued by the president under article 352(1).
The war is a contention between 2 or more states though their armed forces for the purpose of over powering each other and imposing such conditions of these as the victor pleases. The word external aggression cover acts which did not amount to war or work less than the war. The unilateral acts of force performed by one state against another state without previous declaration of war constitution external aggression, so long as they are not answered by similar hostible acts by another side. The expression Armed rebellion was introduced by 44th constitutional amendment replacing the original expression internal disturbance. The term Armed rebellion means an act which is likely to cause a threat to the security of the country or a part there of while internal disturbance would not cause a threat to the security of the country or any part of the country.
- Parliamentary approval : Firstly, it passes through cabinet i.e. cabinet of ministers and prime minister. If cabinet is satisfied with the ground of article 352 that this emergency should exists then he files a written advice to the president and that emergency should be issued. If the president is satisfied with the written application, he can proclaim the emergency, but, this emergency should be continued or not, it is decided by the parliament when both houses (Rajya Sabha and lok Sabha) gives the approval with the special majority. The Special majority means 50% of total strength of the house and 2/3rd members present & voting. The concept of special majority has been inserted by 44th amendment, before this, it was a simple majority. National emergency can exist for indefinite period but in every 6 months it have to take permission by the parliament.
- Duration : The proclamation of emergency must be approved by both the houses of parliament within one month from the date of issue. However, if the proclamation of emergency is issued at a time when the lok Sabha has been dissolved or the dissolution takes place during the period of one month without approving the proclamation, the proclamation survives until 30 days from the first sitting of the lok Sabha after it’s reconstitution, provided the Rajya Sabha has in the meantime approved it. If the lok Sabha and Rajya Sabha doesn’t take any action for the approval, it will continue only for 1 month.
- Revocation : After the 44th amendment, the approval of emergency was very tough but it is very easy to revoke it. If the president think that on the basis of which the emergency was approved, there are no more basis exists, then he can revoke the emergency. If the lok Sabha says that he disapproves this emergency, on the same day the emergency revokes.
STATE EMERGENCY (ARTICLE 356 )
Article 355 of Indian constitution imposes a duty on the centre to ensure that the government of every state is carried on in accordance with the provisions of the constitution. It is the duty in the performance of which the centre takes over the government of a state under article 356 in case of failure of constitutional machinery in a state. This is popularly known as the President rule.
- Ground : The state emergency can be proclaimed under article 356 on following 2 grounds :
- Article 356 empowers the president to issue a proclamation, if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the constitution or on receipt of a report from the governor of a state.
- Article 365 says that whenever a state fails to comply with or to give effect to any direction from the centre, it will be lawful for the president to hold that a situation has arisen in which the government of state cannot be carried on in accordance with the provisions of the constitution.
In the case of S.R. Bommai v. Union of India , a constitutional bench of nine judges of the supreme court held that the imposition of the president rule in Madhya Pradesh, Rajasthan, and Himachal Pradesh was valid and constitutional. The court also declare that we can’t compare the Indian federalism with other country. The satisfaction of president is subject to the judicial review. Secularism is a basic feature of the constitution and any state government which acts against the ideal can be dismissed by the president.
- Parliamentary approval and duration : A proclamation imposing state emergency must be approved by both houses (Rajya Sabha and lok Sabha) of parliament by simple majority within 2 months from the date of its issue. If the parliament approved the proclamation of emergency, it will be Valid for 6 months from the issue and if the parliament dies not approve, it will only for 2 months from the date of issue. A state emergency may be proclaimed only for maximum 3 years by in every 6 months, it should approved by the parliament. However, if the proclamation of state emergency is issued at a time when the lok Sabha has been dissolved or dissolution of lok Sabha takes place during the period of 2 months without approving the proclamation, the proclamation survives until 30 days from the first sitting of the lok Sabha after it’s reconstitution, provided that the Rajya Sabha approves it in the meantime.
- Revocation : The president can revoke the state emergency at any time without anyone’s approval by subsequent proclamation.
DIFFERENCE BETWEEN NATIONAL EMERGENCY (ARTICLE 352) AND STATE EMERGENCY (ARTICLE 356)
|Basic||National emergency||State emergency|
|Impact on the fundamental rights||All fundamental rights are suspended through articles 358 & 359 except article 20 & 21.||No impact on the fundamental rights|
|Ground||War + External aggression+ Armed rebellion (article 352)||External aggression+ internal disturbance+ state does not follow the order of centre or the constitution (article 356)|
|Approval system||Must Approved by the parliament’s both houses by special majority within one month from the date of issue.||Must Approved by the parliament’s both houses by simple majority within 2 months from the date of issue|
|Revocation||President+ lok Sabha||President only|
|Centre – state relation||No suspension of state executive and legislative but the power goes to the centre.||Suspend or dissolve both state legislature and state executive & president perform to those power and can delegate to the governor. The governor can perform it’s duties with the help of chief secretary.|
FINANCIAL EMERGENCY (ARTICLE 360)
- Ground : Article 360 empowers the president to proclaim a financial emergency, if he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of it’s territory is threatened.
- Parliamentary approval and duration : A proclamation declaring financial emergency must be approved by both the houses of parliament within 2 months from the date of its issue.
The way natural Federalism will respond to an emergency situation is a noteworthy aspect of the Constitution Of India. Consequently, declaring an emergency is a very critical topic that has a negative impact on people’s freedom. It must however only be released under extraordinary conditions. The president can declare the emergency under article 353, 356 & 360 of the Indian constitution. During the emergency, the fundamental rights are suspended except article 20&21.
- Minerva Mills Ltd. And Ors. V. Union Of India and Ors. AIR 1980 SC 1789
- S.R. Bommai v. Union of India 1994 AIR 1918
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