Part XVIII: Emergency Provisions
Contains the most extraordinary powers granted to the Central Government during crises. This part provides for three types of emergencies: National Emergency (Article 352), State Emergency (President's Rule under Article 356), and Financial Emergency (Article 360). These provisions, often called the "constitutional dictatorship" clauses, temporarily concentrate power in the Union government to protect the nation's security, integrity, or financial stability.
1. National Emergency (Article 352)
Proclamation of Emergency
(1) If the President 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 may issue a Proclamation of Emergency.
(2) The proclamation can be made before the actual occurrence of war, aggression or rebellion if the President is satisfied that there is imminent danger.
(3) The proclamation must be laid before each House of Parliament and shall cease to operate unless approved within one month.
44th Amendment Safeguards: (a) Emergency can only be proclaimed on written advice of Cabinet; (b) Must be approved by 2/3 majority of Parliament; (c) Can be challenged in court.
📌 Effects of National Emergency
Executive Powers
- Centre can give directions to any state
- President can modify allocation of financial resources
- Union can make laws on State List subjects
Legislative Powers
- Parliament can make laws on State List
- Laws continue for 6 months after emergency ends
- President can issue ordinances for State subjects
Fundamental Rights
- Article 358: Suspends Article 19 freedoms
- Article 359: President can suspend right to move courts for FR enforcement
- Articles 20 & 21 cannot be suspended
2. State Emergency / President's Rule (Article 356)
Provisions in case of failure of constitutional machinery in States
(1) If the President, on receipt of a report from the Governor or otherwise, is satisfied that a situation has arisen in which the government of a State cannot be carried on in accordance with the Constitution, he may issue a proclamation.
(2) Such proclamation may:
- Assume all functions of the State Government
- Declare powers of State Legislature exercisable by Parliament
- Make necessary incidental provisions
S. R. Bommai Case (1994): Supreme Court laid down strict guidelines - President's satisfaction is subject to judicial review, floor test is required to prove majority, secularism is part of basic structure.
Exercise of legislative powers under Proclamation issued under Article 356
(1) Where a proclamation declares that powers of State Legislature shall be exercisable by Parliament, Parliament may confer on the President the power to make laws for the State.
(2) Parliament or President may authorize expenditure from State Consolidated Fund pending sanction by Parliament.
(3) Any law made which Parliament or State Legislature would not normally have power to make shall cease to have effect after one year from the emergency ceasing to operate.
3. Financial Emergency (Article 360)
Provisions as to financial emergency
(1) If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part thereof is threatened, he may make a proclamation.
(2) During such emergency, the executive authority of the Union shall extend to giving directions to any State:
- To observe such canons of financial propriety as specified
- To reduce salaries and allowances of government employees
- To reserve all money bills for President's consideration
Never Invoked: This is the only emergency provision that has never been used in India's history.
📋 Comparison: Three Types of Emergencies
| Feature | National Emergency (Art. 352) | State Emergency (Art. 356) | Financial Emergency (Art. 360) |
|---|---|---|---|
| Grounds | War, external aggression, armed rebellion | Failure of constitutional machinery in state | Threat to financial stability/credit of India |
| Duration | Approved by Parliament: 6 months, extendable indefinitely | Approved by Parliament: 6 months, max 3 years | Approved by Parliament: 2 months, extendable indefinitely |
| Federal Effect | Converts federation to unitary state | State administration taken over by Centre | Centre gives financial directions to States |
| Fundamental Rights | Article 19 suspended automatically; others by Presidential order | Not affected | Not affected |
| Times Invoked | 3 times (1962, 1971, 1975) | Over 125 times since 1950 | Never invoked |
| Judicial Review | Yes (44th Amendment) | Yes (S.R. Bommai case) | Yes (44th Amendment) |
📜 Historical Emergencies in India
1962 Emergency (China War)
Duration: Oct 26, 1962 - Jan 10, 1968
Grounds: External aggression
Effects: First use of emergency powers
Key Features: Defense of India Act, 1962
Significance: Established emergency precedent
Ended: After China declared ceasefire
1971 Emergency (Bangladesh War)
Duration: Dec 3, 1971 - Mar 21, 1977
Grounds: War with Pakistan
Effects: Maintenance of Internal Security Act (MISA)
Key Features: Economic regulations, press censorship
Significance: Continued after war ended
Extended: Merged with 1975 internal emergency
1975 Emergency (Internal Emergency)
Duration: Jun 25, 1975 - Mar 21, 1977
Grounds: Internal disturbance
Effects: Suspension of fundamental rights, press censorship
Key Features: 42nd Amendment, forced sterilizations
Significance: Led to 44th Amendment safeguards
Ended: After 1977 election defeat of Congress
🛡️ 44th Amendment Safeguards (1978)
Enacted after the 1975 Emergency experience to prevent abuse of emergency powers
Procedural Safeguards
- ✅ Emergency only on written Cabinet advice
- ✅ Must be approved by 2/3 majority of Parliament
- ✅ Approval within 1 month (was 2 months)
- ✅ Extension requires fresh parliamentary approval every 6 months
Judicial Safeguards
- ✅ Emergency proclamation subject to judicial review
- ✅ President's satisfaction can be challenged in court
- ✅ Grounds must be based on objective material
- ✅ Courts can examine mala fide use of power
Fundamental Rights Protection
- ✅ Articles 20 & 21 cannot be suspended
- ✅ "Internal disturbance" replaced with "armed rebellion"
- ✅ Right to move courts for Article 21 cannot be suspended
- ✅ Protection of life and personal liberty guaranteed
⚖️ Key Judicial Pronouncements on Emergency
A.D.M. Jabalpur v. Shivkant Shukla (1976)
Issue: Can writ of habeas corpus be suspended during emergency?
Held (4:1): During emergency, right to move court for enforcement of fundamental rights can be suspended. Note: This decision was widely criticized and overturned by the 44th Amendment.
S.R. Bommai v. Union of India (1994)
Issue: Is President's Rule under Article 356 subject to judicial review?
Held: Yes. President's satisfaction is not beyond judicial scrutiny. Imposition of President's Rule must be based on objective material, not political considerations.
State of Rajasthan v. Union of India (1977)
Issue: Can courts examine the validity of emergency proclamation?
Held: Limited judicial review available. Courts can examine whether constitutional requirements were followed but cannot substitute their judgment for President's satisfaction.
Comments
Post a Comment