Chapter 18: EMERGENCY PROVISIONS

Introduction

Articles 352 to 360 are emergency powers of centre. These are given to deal with exceptional circumstances like war or rebellion. The powers were influenced by the German constitution. They turn Indias federal structure into a unitary one without amendment to the constitution.

Types of Emergencies

Constitution handles three types of emergencies national, constitutional and financial.

1.      National Emergency [Article 352]:

      This can be declared due to war / external aggression [external emergency] or armed rebellion [internal emergency]. A proclamation can be issued by the president for different grounds. It can be issued when an already existing proclamation is in force too.

It can apply to entire country or a part.

It can be declared even before an actual occurrence if president is satisfied of imminent threat.

The president can declare this only after written recommendation of the entire cabinet.

A proclamation can be subject to judicial review.

A proclamation must be approved by both houses within one month by a special majority. This extends the life of emergency by six months at a time. This can be done infinite times.

If Lok Sabha is dissolved then the approval of proclamation or extension of its life can be done by Rajya Sabha.  The proclamation survives till 30 days after first sitting of the newly reconstituted Lok Sabha.

A proclamation can be revoked by president anytime [this doesn’t need parliament ratification]. Also Lok Sabha can force a revocation by disapproving it with a simple majority. Thus Rajya Sabha has no role in revocation.

Effects of national emergency:

Centre can issue executive directions to states on any matters. However state governments aren’t suspended. Parliament can make laws on matters in the state list.

If parliament isn’t in session president can pass ordinances on state list matters.

Parliament can also confer powers and duties on centre and its authorities to carry out tasks under its extended jurisdiction. Such legislative actions become inoperative within 6 months of the emergency ceasing to operate. Such laws apply even to states where the emergency isn’t imposed.

President can modify distribution of revenues between centre and states till the end of financial year when emergency is over. Such orders have to be laid before parliament.

Parliament by law can extend term of Lok Sabha and state legislative assembly by 1 year at a time [any number of times]. This becomes inoperable by the end of 6 months of emergency ending.

Under article 358, all fundamental rights under Article 19 i.e. Right to Freedom, are automatically suspended when a proclamation of national emergency on external grounds [not armed rebellion] is declared. This action applies to whole country not a part.

Any law can be passed that violates these rights but not any other, such a law can’t be invalidated till the emergency is operative. Any action as per laws also remains above judicial remedy even after emergency is revoked.

Under article 359 a presidential order can be passed disallowing people from seeking judicial remedy to enforce other fundamental rights i.e. article 14-32 that are specified in that order [ except article 20&21: right to life and liberty] for a specific period only.

The rights remain in force but right to seek remedy is suspended. The state can make laws abridging the fundamental rights mentioned in the order such laws can’t be challenged in court. Any executive action under such laws is also protected. Presidential order has to be approved by both houses. Article 359 is available even during national emergency on armed rebellion. The presidential order can apply to whole country or a part.

 

2. Presidents rule:

When the constitutional machinery breaks down in a state, the president rule is imposed by centre. This can be proclaimed if the president is satisfied that the governance of a state can’t be carried in accordance with the constitution.

In this case, president can act with or without the governor’s report. Also when a state doesn’t follow any directive from the centre, president’s rule can be imposed.

Parliament has to approve the proclamation within two months in both houses by simple majority. The rule can be extended by 6 months at a time for a maximum of 3 yrs.

If Lok Sabha is dissolved Rajya Sabha can approve it but Lok Sabha has to approve too within 30 days of first sitting after its been reconstituted.  Beyond the first year, president’s rule can be extended 6 months at a time only if national emergency is proclaimed in the country or any part of the state.  Election commission certifies that elections can’t be held in the state.

Presidents proclamation can be revoked by president anytime [this doesn’t need parliament’s approval]. Parliament on its own can’t revoke president’s rule.

It also doesn’t affect fundamental rights or powers of the high court. All legislative and executive power of the states assumed by the president and the state executive is dismissed and legislature dissolved or suspended.

Governor acts as the president’s agent and works with the help of chief secretary or advisors appointed by the centre. Parliament can assume legislative powers with itself or delegate to president or other authority. It can make laws on state list matters for the state only. President can issue ordinances on state list matters or make expenditure from state budget if parliament not in session.

Presidential proclamation imposing president’s rule is subject to judicial review.

Quiz

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