EMERGENCY PROVISIONS IN INDIA: AN ANALYSIS

INTRODUCTION:

According to the Black Law’s Dictionary, “Emergency is a situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation. It is a failure of the social system to deliver reasonable conditions of life”. Part XVIII of the constitution of India, provides provisions for emergency in India, from Article 352 to 360. In India emergency is a situation of breakdown of administrative machinery or any war etc, the President or Union Government will have absolute power over the Country. Even Dr. B. R . Ambedkar, as stated this provision as unique. That is because, India follows a federal form of government, but at times of emergency it turns into an unitary form. When an emergency is proclaimed in India, there will be temporary suspension of people’s freedom or rights. Even the Fundamental rights are cannot be enforced during emergency, except for Article 20 and 21.


TYPES OF EMERGENCIES IN INDIA:

In Constitution of India there are provisions for three types of emergencies, which are:

1. National Emergency (Article 352)

2. State Emergency (Article 356)

3. Financial Emergency (Article 360)

NATIONAL EMERGENCY:

National Emergency is proclaimed in India, when the President is satisfied that there is a situation of grave Emergency, where the security of India or any part of the India id threatened, due to war or external aggression or armed rebellion. The President shall only proclaim such emergency, after consulting the Union Cabinet. This proclamation can be made even before the occurrence of actual war or aggression.


PARLIAMENTARY APPROVAL:

The proclamation will remain in force for 1 month, then such proclamation, if approved by the parliament can be in force for six months. After six months, again the approval of parliament is required, if proclamation, had to continue. The proclamation should be passed by both houses, with special majority. If at the time of proclamation, Lok sabha is dissolved, then the proclaim remains until 30 days from the first sitting of Lok sabha .


REVOCATION:

• The proclamation can be revoked by President through subsequent proclamation for revocation, for which parliament’s approval is not necessary.

• If Lok sabha passes a resolution disapproving the proclamation, where a notice in writing is signed by not less then 1/10 of the total number of members.


EFFECTS OF THE PROCLAMATION OF NATIONAL EMERGENCY:

1) The Government changes from federal to unitary form. The Centre’s powers are increased and parliament gets authority over whole India or any part of it, to make legislation.

2) Effect on executive- The executive power of the Centre extends to the state, and can direct the state regarding such executive power.

3) Effects on legislative- parliament gets power to make laws on any subject matter of the state list.

4) Effects on financial- The President gets power to either reduce or cancel the transfer of finances from centre to state.

5) The tenure of Lok sabha can be prolonged for one year and even the tenure if state legislative can be prolonged to one year.

STATE EMERGENCY:

This situation occurs when there is failure of constitutional machinery in State. Article 356, provides provisions for this, where a president can proclaim state Emergency when a governor of the state provides report for the same or if President is satisfied that, the state cannot work in accordance with the provisions of the constitution. The President by such proclamation gets the following powers:

a) The President may assume to himself any powers or all the powers vested in the Governor or anybody/ authority in the State.

b) The President may declare that the parliament can either exercise the powers if state legislature or can be excercised under the authority of Parliament.

c) The President can make any provisions which are necessary for giving effect to the object of proclamation.


PARLIAMENTARY APPROVAL:

The proclamation shall remain in force for two months, and it should be laid before each house of parliament for approval. If not approved by two months, the proclamation ceases. If the Lok sabha is dissolved or at dissolution, before approving the proclamation, it can survive for 30 days from the first sitting. If it is approved by the houses, it remain in operation for six months, and after six months again the approval of parliament is required to extend further. No proclamation shall remain in force more then 3 years.

EFFECTS OF STATE EMERGENCY:

1) The President gets power to take over all or any of the positions of state government, it can also appoint governor or any other authority.

2) The President gets the power to dissolve or terminate the State Legislative, and he authorizes parliament to make laws during this proclamation.

3) To give effect to the intend of the declaration, the President may make any more adverse or subsequent clause appropriate.

FINANCIAL EMERGENCY:

Article 360 provides and provision, for financial Emergency where it states that, if President is satisfied that there is threat to the financial stability or credit of India or any part of the Country, then the President can proclaim financial Emergency. Therefore it can be issued when the economy of India is in danger.

PARLIAMENTARY APPROVAL:

The proclamation must be approved by both the houses of parliament within two months from the date it was proclaimed. The approval of Parliament is done through simple majority basis. If the Lok sabha is dissolved or dissolution takes place, 30 days from its first sitting it may survive. Once the approval is given, the period of financial Emergency will be for infinity until it’s revoked by President. It does not require approval after every six months like other two emergencies.

EFFECTS IF FINANCIAL EMERGENCY:

1) The Central Government provides directions and guidelines regarding the economic or financial affairs if the states.

2) The President if necessary recommend to reduce the minimum wages and benefits of any or all level of the government Officials.

3) The President can order States to allocate all the money bills for Parliamentarians attention.

EFFECTS OF EMERGENCIES ON FUNDAMENTAL RIGHTS:

1) Suspension of Fundamental rights:

Article 358, states that the six fundamental rights under article 19 will automatically be suspended, when emergency is proclaimed. It can be suspended only during National Emergency, when proclaimed due to war or external aggression and not on armed rebellion.

2) Suspension of other fundamental rights:

Article 359 deals with suspension of other fundamental rights, except for Article 20 and 21. In this Article, right to move the court for enforcement of fundamental rights are suspended by President and not exactly the fundamental rights.

LANDMARK JUDGEMENTS:

In case of Minerva Mills Ltd v. Union of India, the court here provided that proclamation of Emergency by the President can be challenged in court on basis of mala fide, whether there is any absurd or interior motive.

In the case of S. R. Bombay v. Union of India, the supreme court clearly provided the limitations within which the Article 356 has to function. The court stated here that, the power under Article 356 can be used only when it’s the last method, when there is clear break down of constitutional machinery in State.

CONCLUSION:

Emergency provisions are needed in the constitution, but it has to amended and changed in few matters, as it has been criticized a lot. The proclamation of Emergency gives whole power the union or centre, these provisions are misused for the political reasons. It kind of makes the President a dictator as, he the whole power and it may prone to misuse those powers and make arbitrary rules. The fundamental rights are also are nit enforced during emergency making it meaningless, as Fundamental rights are basic rights provided in constitution.



This article is written by Sahana S of Kristu Jayanti College Of Law.

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