Emergency Provisions

Article 352 to Article 360 in Part XVIII of the Constitution deals with Emergency provisions. In the context of Emergency, Dr. B.R Ambedkar has observed in the Constituent Assembly that:

‘All federal systems including American are placed in a tight mould of federalism. No matter what the circumstances, it cannot change its form and shape. It can never be unitary. On the other hand, the Constitution of India can be both unitary as well as federal according to the requirements of time and circumstances. In normal times, it is framed to work as a federal system. But in times of Emergency, it is so designed as to make it work as though it as a unitary system.’

There are three kinds of emergencies that are mentioned in the Indian Constitution:

  1. National Emergency – Article 352 deals with emergency due to war, external aggression or armed rebellion.
  • When National Emergency is declared on the grounds of war or external aggression, it is known as External Emergency.
  • When National Emergency is declared on the grounds of armed rebellion, it is known as Internal Emergency. Earlier the term ‘internal disturbance’ was used instead of ‘armed rebellion’, but since the term was too vague, it was substituted with the words ‘armed rebellion’, by the 44th Amendment Act of 1978. It was done after the 1975 Emergency declared by the Congress government headed by the then Prime Minister Mrs. Indira Gandhi.
  • National Emergency can be declared to the whole country or just a part of the country. This provision was added to the Constitution by the 42nd Amendment Act of 1976, enabling the President to limit the operation of National Emergency to a specified part of the country.
  • The President can declare the National Emergency only after receiving the written consensus from the cabinet. This provision came into being by the 44th Amendment Act of 1978.
  • In the Minerva Mills case, 1980, the Supreme Court declared that the proclamation of National Emergency can be challenged in a court.

Parliamentary Approval

The proclamation of Emergency must be approved by both the houses of the Parliament within one month from the date of its issue.

According to the 44th Amendment Act of 1978, the resolution approving the proclamation of Emergency must be passed by either house of the Parliament by special majority, that is,

  1. Majority of total membership of that house
  2. Majority of not less than two-thirds of the members of that house present and voting

Revocation of Proclamation

The proclamation of emergency can be revoked by the President at any time and it does not require the Parliament’s approval. Further, if the Lok Sabha passes a resolution to revoke the proclamation of emergency, then the President must revoke it.

National Emergencies Declared So Far

  • 1962 – National Emergency was declared in 1962 due to Chinese aggression in NEFA (North East Frontier Agency), and continued till January 1968.
  • 1971 – National Emergency was declared during attack by Pakistan in 1971.
  • 1975 – This was the most controversial one. The Congress government, headed by Indira Gandhi, declared National Emergency in 1975 on the grounds of internal disturbance. In 1977, the Janata Party came to power and appointed the Shah Commission to investigate the reasons for the proclamation of 1975 Emergency. The Commission did not justify the proclamation of Emergency, which further led to passing of 44th Amendment Act of 1978, which introduced safeguards against the misuse of Emergency provisions.

 

  1. President’s Rule – Article 356 deals with emergency due to the failures of the constitutional machinery in the states. It is also known as State Emergency or Constitutional Emergency.

 

Parliamentary Approval

  • The proclamation of President’s Rule must be approved by both Houses of the Parliament within two months from the date of its issue.
  • The resolution approving the proclamation of President’s rule can be passed by either house of the Parliament by simple majority.

 

Consequences of President’s Rule

  • The President can take up the functions of the state government, powers of the Governor and any other executive authority of the state.
  • He can transfer the powers of the state legislature to the Parliament.
  • He can also suspend the constitutional provisions relating to any authority of the state.

  1. Financial Emergency – Article 360 deals with emergency due to threat to the financial stability or credit of India.
  • Financial emergency must be approved by both houses of the Parliament within two months from the date of its issue. It can be passed by either house of the Parliament only by simple majority.
  • There is no maximum period prescribed for its operation.
  • Repeated Parliamentary approval is not required for its continuation.
  • It can be revoked by the President at anytime, and does not require the Parliament’s approval.

 

Difference between National Emergency and President’s Rule

National Emergency (Article 352)President’s Rule (Article 356)

It can be proclaimed when the security of India or a part of it is threatened by war, external aggression or armed rebellion.

It can be proclaimed when the government of a state can not be carried on in accordance with the provisions of the Constitution.

The state executive and legislature continue to function according to the powers assigned to them in the Constitution.

The executive and legislative powers of the state are assumed by the Centre.
Parliament can make laws on the State List by itself.

Parliament can vest the power to make laws for the state to the President. These laws are known as President’s Acts.

National Emergency can be continued indefinitely with the approval of Parliament for every six months.

It can be in operation for maximum three years.
Centre-state relation is modified.

The relationship between the centre and the state where emergency has been proclaimed is modified.

It affects the Fundamental Rights of the citizens.It does not affect the Fundamental Rights of the citizens.

The approval of proclamation of emergency by the Parliament must be passed by special majority.

The approval of proclamation of emergency by the Parliament can be passed only by simple majority.
A resolution can be passed by the Lok Sabha for its revocation.

It can be revoked by the President only on his own.

 

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      Dr. RS Aggarwal
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