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Emergency provisions

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Emergency provisions

  1. 1. EMERGENCY PROVISIONS PART XVIII, ARTICLES 352-360 By: Dr. VK Tripathi1
  2. 2. CONTENTS  Definition  Kinds of Emergencies  Details of Provisions  Proclamation of National Emergency  History of Proclamations 2
  3. 3. Definition The term ‘emergency’ may be defined as a difficult situation arising suddenly and demanding immediate action by public authorities under power specially granted to them by the Constitution or otherwise to meet such exigencies. 3
  4. 4. Dr. Ambedkar claimed that the Indian federation was unique and unlike any other federation inasmuch as in times of emergency it could convert itself into an entirely unitary state. 4
  5. 5. KINDS OF EMERGENCIES (i) National emergency under Article 352 due to threat of war, external aggression or armed rebellion. (ii) Financial emergency under Article 360. 5
  6. 6. (iii) The third kind of situation, that is, the one under Article 356 arising from a failure of the constitutional machinery in any particular State and necessitating President’s Rule, though included under the Part on ‘Emergency Provisions’, may not strictly speaking be considered an emergency situation. 6
  7. 7. DETAILS OF PROVISIONS  352 (1)- If the President is satisfied that a grave emergency exists whereby the security of India or 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 or such part of the territory thereof. 7
  8. 8.  353 -While a Proclamation of emergency is in operation, then not withstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised 8
  9. 9.  355- It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution. 9
  10. 10.  358(1) While a proclamation of emergency is in operation, nothing in Art 19 (Fundamental freedoms) shall restrict the power of the state to make any law in which the state would but for the provisions of Art 19 be competent to make........., 10
  11. 11.  359 (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part 3 (fundamental rights) except ( Art 20 & 21 ) and all proceedings pending in any Court for the enforcement of the same shall remain suspended for the period during which the proclamation is in force... 11
  12. 12.  360 if the President is satisfied that a situation has arisen whereby the financial stability or credit of India is affected, he may make a Proclamation to that effect... 12
  13. 13. PROCLAMATION OF NATIONAL EMERGENCY Article 352 provides that if the President, after receiving a written communication of a cabinet decision, is satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened by war, external aggression or armed rebellion, he/she may issue a proclamation of emergency for the whole of India or part thereof. 13
  14. 14. Every proclamation of emergency is required to be laid before each house of parliament and is to cease to operate at the expiration of one month from the date of its issue by the President unless in the meantime it has been approved by resolutions of both the houses. 14
  15. 15. Once approved by the parliament the proclamation may continue in operation for six months at a time unless revoked by the President earlier by a subsequent proclamation. 15
  16. 16. Resolutions approving the proclamation of emergency or its continuance have to be passed by either house of Parliament by a majority of the total membership and not less than 2/3rd of those present and voting, also if the Lok-Sabha passes a resolution disapproving the proclamation or its continuance, it shall be revoked forthwith. 16
  17. 17. If notice of a resolution signed by not less than 1/10th of the total membership is given to the President/Speaker; special sitting of the house shall be held within 14 days to consider it. 17
  18. 18. Article 353 read with Article 365 provides that once emergency is proclaimed, the executive power of the union extends to giving of directions to any state in regard to the exercise of the executive power of the state and failure to comply with the directions would constitute enough justifications for impositions of President's Rule under Article 356. 18
  19. 19. Article 358 provides for the suspension of the provision of the Article 19 during emergencies while Article 359 authorities the President to suspend by order the enforcement of all the fundamental rights guaranteed in part III of the constitution except the right of protection in respect of conviction for offences and protection of life and liberty in Article 20 & 21. 19
  20. 20. Any law passed under Article 358 & 359 in order to be valid must contain the recital to the effect that it is in relation to the proclamation of emergency in operation. Also, all such laws shall cease to have effect to the extent of in competency under the fundamental rights as soon as the emergency ceases or the Presidential order cease to have effect. 20
  21. 21. HISTORY OF PROCLAMATION OF EMERGENCY IN INDIA (I) October 1962 at the time of the Chinese aggression (II) December 1971 in the wake of the war with Pakistan (III) June 1975 on ground of internal disturbances 21
  22. 22. The provisions of Article 352 were made more stringent in 1978-79 by the constitution (44th amendment), which came into effect from 20th June 1979. To prevent the misuse of emergency provisions the words ‘armed rebellion’ were substituted for ‘internal disturbance’. 22
  23. 23. Also, the same amendment laid down that under no circumstances could the enforcement of rights under article 20 & 21 be denied even during an emergency. 23
  24. 24. In Ram Manohar Lohia v. State of Bihar (1966) case, it was held that the order of detention must prima facie be proper, that “maintenance of law and order” could not be equated with “maintenance of public order” and the action under defense of India rules would be valid only if taken in the “interest of public order” and not merely “in aid of law and order”. 24
  25. 25. PROCLAMATION OF PRESIDENT’S RULE It is constitutional duty of the union to protect its States against external aggressions and internal disturbance and to ensure that the govt. of every state is carried on in accordance with the constitution (Article 355). 25
  26. 26. If on receipt of a report from the Governor or otherwise, the President is satisfied that the govt. of the state cannot be carried on in accordance with the constitution or that constitutional machinery has failed, he may issue a proclamation taking over any of the functions and power of the state govt. including those of the Governor and other state authorities (Article 356). 26
  27. 27. The union can also act in matters of external aggressions or internal disturbances under article 355, i.e., without imposing President’s rule. Article 355 can stand on its own. Also, union govt. can issue certain directions under article 256, 257 & 353. 27
  28. 28. The court, however, significantly added that if the satisfactions of the president was mala-fide, based on extraneous or irrelevant considerations or satisfactions at all, it could interfere. 28
  29. 29. FINANCIAL EMERGENCY The President is authorized by article 360 of the constitution to declare the proclamation of Financial Emergency if he/she is satisfied that the financial stability or credit of India or of any part of its territory is threatened. 29
  30. 30. During the operation of Financial Emergency, the executive authority of the union extends to the giving of directions to any state to observe certain specified canons of financial property and such other directions that the residents may find necessary or adequate. 30
  31. 31. ‘It is unfortunate that before rushing to issue a proclamation under Article under 356, no effort appeared to have been made to ensure that (i) the union had done all that it could in discharge of its duty under 355, and (ii) that the State had ‘failed to comply with, or give effect to’ directions. It seems in many cases recourse to 356 has been taken without keeping other provisions in view. 31

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