ConstitutionJudicial ExamLegal Notes

PCS (J): Constitutional Law, National Emergency

 

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National Emergency

(Article 352 – 355)

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One of the chief characteristics of Indian Constitution is the way in which normal federal Constitution can be adapted to emergency situations. It is the merit of the Constitution that it visualises the circumstances when the strict application of the Federal principles might destroy the basic assumptions on which our Constitution is build.

The Constitution of India provides for 3 types of emergency:

  1. National Emergency (Article 352) – Due to war, external aggression or armed rebellion.
  2. State Emergency (Article 356) – Due to the failure of Constitutional machinery in States.
  3. Financial Emergency (Article 360)

Proclamation of Emergency – when made (Article 352)

If the President is satisfied that a grave emergency exists whereby the security of India (or for any part) is threatened, whether by war or external aggression or armed rebellion, he may, by a Proclamation, make a declaration to that effect in respect of the whole of India or of such part of India as may be specified in the Proclamation.

Formerly, the satisfaction of the President was to be final and conclusive, and could not be called in question in any Court on any ground whatsoever. This provision was, however, deleted by the Forty-fourth Amendment, 1978.

 

How Revoked?

Such a Proclamation may be revoked or varied by a subsequent proclamation, and is to be laid before each House of Parliament. It has now been provided by the Forty-fourth Amendment, 1978 that such a proclamation cannot be issued unless the decision of the Union Cabinet (i.e., Council consisting of the Prime Minister and other Cabinet rank appointed under Article 75) that such a proclamation may be issued has been communicated to the President in writing.

When it ceases to operate

There are two cases in which the Proclamation ceases to operate:

  1. It ceases to operate after one month, unless it has been approved by resolutions of both Houses of Parliament before the expiry of the said period.
  2. If the Proclamation of Emergency is issued at a time when the House of People has been dissolved or the dissolution of the House of People takes place during the period of one month referred to above, and if a resolution approving the Proclamation has been passed by the house of the People before the expiry of that period – the Proclamation ceases to operate at the expiration of thirty days from the date on which the House of People first sits after reconstitution. But it does not cease to operate if, before the expiry of the said period of thirty days, a resolution approving the Proclamation has been also passed by the House of the People.

Effect of such a Proclamation (Article 353-354, 358-359)

  1. While a Proclamation of Emergency is in operation, the executive power of the Union extends to the giving of directions to any States to the manner in which its executive powers is to be exercised. (Article 353)
  2. The President may by order direct the provisions of Article 268 to 279 may be notified or that they would affect subject to such exceptions as he thinks fit. Every such order must be laid before each House of Parliament, as soon as may be after it is made. (Article 354)
  3. The third effect of Proclamation of Emergency is that while it is in operation, the provisions of Article 19 may be suspended. (Article 358)
  4. The fourth effect of Proclamation of Emergency is that while it is in operation, the President may declare the right to move to any Court for the enforcement of Fundamental Rights mentioned in Part III of the Constitution (except Article 20 and 21) and all the proceedings for such enforcement may be suspended. (Article 359)

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