Emergency under Constitution of India

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Written by: Kajal Kumari

Introduction:

The emergency provision is covered under chapter XVIII of the Constitution of India. Chapter XVIII of the Constitution of India covers articles from Article 352 to 360. Article 359A has been repealed by the sixty-third Amendment Act, 1989. The Constitution of India provides three types of emergency i.e. National Emergency, State Emergency, Financial Emergency. National Emergency is covered under Article 352 of the Constitution of India. National Emergency is declared on the ground of war, external aggression, or armed rebellion. State Emergency is covered under Article 356 of the Constitution of India. State Emergency is declared on the account of the failure of constitutional machinery in States. Financial Emergency is covered under Article 360 of the Constitution of India. Financial Emergency is declared when the financial stability of the country is threatened.

National Emergency/Proclamation of Emergency:

Under Article 352 of the Constitution of India, it is declared by the President of India on the written advice of the Union Cabinet headed by the Prime Minister of India. The proclamation can be made in respect of the whole of India or any part of the territory thereof. The proclamation can be made even before the actual occurrence of the event contemplated under Article 352 if the President of India is satisfied that there is imminent danger of war, external aggression, or armed rebellion.

The proclamation must be laid before each House of Parliament and shall cease to operate at the expiration of one month unless before that period it has been approved by resolutions of both the houses of parliament. A resolution approving the proclamation must be passed by a special majority that is the resolution has been passed by a majority of the total membership of the House and by a majority of not less than 2/3rd of the members of the House present and voting. A Proclamation of Emergency once approved by the Parliament shall remain in force for a further period of 6 months unless revoked earlier.

Prior to the 44th Amendment Act, 1978, one of the grounds on which the emergency could be declared as an internal disturbance. The word ‘internal disturbance’ was vague and gave a wide discretion to execute to declare emergency even on flimsy grounds.

Article 353 of the Constitution of India deals with the effects of the Proclamation of Emergency. During the operation of an emergency, the executive power of the Union extends to giving directions to any State as to the manner in which the executive power of the State is to be exercised. Also, the Union Legislature is empowered to make laws with respect to any matter in the State List.

While the Proclamation of Emergency is in operation, the President may extend the tenure of Lok Sabha by a year each time up to a period not exceeding beyond 6 months after the proclamation ceases to operate under article 83(2) of the Constitution of India. While the Proclamation of Emergency is in operation the President may order to alter the distribution of Revenue between Union and States. Every such order is to be laid before the Parliament and will come to an end by the end of the Financial Year in which the Proclamation of Emergency ceased to operate under  Article 354 of the Constitution of India.

Suspension of Fundamental Rights guaranteed by Article 19:

As per Article 358, the freedom guaranteed by Article 19, automatically get suspended while the proclamation is in force. As per Article 359, while the proclamation of emergency is in operation the President is empowered to suspend the right to move any Court for the enforcement of Fundamental Rights (under Articles 32 and 226). However, Articles 20 and 21 can not be suspended under any circumstances whatsoever. Article 20 deals with protection in respect of conviction for offenses, Article 21 deals with Protection of life and personal liberty.

In ADM Jabalpur v. Shiv Kant Shukla, 1976 (Habeus Corpus case), by 4:1 the majority Court held that Article 21 was the sole repository of the right to life and personal liberty. The moment the right to move any court for the enforcement of Article 21 was suspended, no one could move to any court for redress, In other words, even if a person is illegally detained during the Proclamation of Emergency, he has no remedy under the Law. Descending opinion by Justice Hansraj Khanna, he said that right to life and personal liberty as a human being is inherent in you, no one can curtail. It was only after the Emergency was revoked in March 1977 and a new government came to power, an amendment was made to the constitution (44th Amendment Act, 1978), whereby it was declared that Articles 20 and 21 can not be suspended under any circumstances whatsoever.

State Emergency/Failure of Constitutional machinery in States:

Under Article 356 of the Constitution of India, Proclamation issued by the President on the report of Governor or otherwise if acting in either of the above ways the President is satisfied that a situation has arisen in which the Government of State can not be carried on in accordance with the provisions of Constitution, the President may issue a proclamation. Under 355 of the Constitution of India, an obligation is cast upon the Union to ensure that the Government of the State is carried on in accordance with the provision of the Constitution.

The proclamation under Article 356 is laid before each House of Parliament and unless approved by both the houses within a period of 2 months shall cease to operate. Once it is so approved it shall continue for further 6 months. However, the maximum duration for the continuance of proclamation is 3 years but after a period of one year it can continue only if the following two conditions are fulfilled:

  1. Emergency under Article 352 is in force in respect of whole India or any part of the State.
  2. Election Commission certifies that it is not possible to hold general elections to the Legislative Assembly of the State concerned.

Effects:

President may assume to himself all or any of the functions of the Government of State, and all or any of the powers exercise-able by the Governor.

The President may declare that the powers of the legislature of the State shall be exercisable by or under any authority by the Parliament.

There is no effect upon the fundamental rights and the powers of the High Court.

Financial Emergency:

Proclamation issued by the President, if he is satisfied that a situation has arisen where the financial stability of India or of any part of the territory is threatened.

Conclusion:

Proclamation under Article 356(1) is not immune from judicial review. The Supreme Court and High Courts can strike down a proclamation if it is found to be malafidely or based upon wholly irrelevant or extraneous grounds.[1]


[1] S.R. Bommai v. Union of India, 1994 SC.


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