Describe different types of emergency provisions in Constitution of India.

Emergency in India is declared by the President. It is important to note that during emergency, all activities are carried out in the name of the President but, it is the Prime Minister or the central government which exercise powers in practice. There are three kinds of emergency and each of them can be declared on different grounds. The three kinds of emergency are: national emergency, state emergency and financial emergency.

 

1) National Emergency (Art. 352)

According to Article 352 A (national) emergency can be proclaimed in India in following situations: war, external aggression, internal disturbances or armed rebellion in whole of India or any part of it. The 44th Constitutional Amendment substituted the phrase ‘internal disturbance’ with “armed rebellion”. The President can declare emergency after receiving a written communication about cabinet’s decision in favour of emergency, and after satisfying himself about prevalence of the situations just mentioned above. According to Articles 358 and 359, President has powers to suspend Fundamental Rights except in respect to Article 20 (right to protection in respect to conviction for offences) and Article 21 (right to life and personal liberty). During national emergency the union government’s powers extends to the jurisdiction of legislatures and executives in the states.It gives direction to the states the way executive power should be exercised (Art. 353). Parliament enjoys power to make laws which are not mentioned in the Union List. These also include matters listed in the State List (Art. 250). During the time of emergency, the President has constitutional power to modify the provisions of the constitution relating to the allocation of financial resources between the Union and the States (Art. 253).

 

Every proclamation of such emergency is required to be laid before each House of Parliament. If both houses of Parliament do not approve the proclamation at the expiry of one month from the date of proclamation, it will cease to operate. If at the time of such proclamation, the House of the People has been dissolved or its dissolution takes place within one month after the proclamation, and if the resolution has been by before Council of States (Rajya Sabha) but has not been passed by the House of People (Lok Sabha), the proclamation will cease to operate on the expiration of thirty days from the date when the house first met after it was reconstituted. However, the condition of expiration of thirty days does not apply if a resolution to this effect is passed by both Houses of Parliament. The proclamation (after being approved by both Houses of Parliament) will cease to exist after expiration of six month from the date of proclamation. It can be extended for another six months. A resolution for proclamation of emergency must be approved by a majority of total number of members of a House and not less than two-third of the members present in the House and voting.

 

The Indian Constitution has a provision of judicial review. It means that the judiciary has power to interpret the constitution and declare any law or order passed by legislature or judiciary void which conflicts with the constitutional provisions. But declaration of emergency, thus violation rights of was removed from the purview of judicial review by the 42nd Constitutional Amendment in 1976. However, provision for its judicial review was restored by the 44th Amendment Act in 1978. A declaration of emergency should be approved by both houses of parliament within two months of its declaration. And if it is not approved by the parliament within this time limit, the declaration of emergency will become ineffective. Once declaration of emergency is approved by Parliament, it may continue be effective for six months at a time unless revoked by the President earlier by a subsequent proclamation.

 

Since Independence, there were three instances of declaration of national emergency. First instance was during Indo- China War from 26 October1962 to 10 January 1968. Second was during Indo-Pak war, from 3 December 1971 to 21 March 1977. And the third instance was during 25 June 1975 and terminated on 21 March 1977. The national emergency in first two instances was clamped due to wars with other countries.In the third instance, the reasons given by the central government were internal disturbances in the country

 

2) State Emergency (Art. 356)

State emergency is also often known as President’s rule.State emergency is imposed on failure of constitutional machinery in the states.All states in India except two newly created states Chhattisgarh and Telangana have been placed under state agency at different times. State emergency is imposed by the President if he is satisfied with the report of the Governor that there is break down of constitutional machinery in the state. President’s rule may be declared in the states on the following grounds: If the State Legislature fails to elect a leader as Chief Minister; Breakdown of the coalition; If the elections are not conducted due to imminent reasons; and Loss of majority in the assembly.Though state emergency is imposed by the President, it is the Governor of the state who acts as representative of the President or the centre. This is also called central rule in the states. The central rule in the states, except in Jammu and Kashmir, is called President rule; in Jammu and Kashmir the central ruleis is called Governor’s rule. The President through the Governor exercises legislative and executive powers. But his functions do not cover judiciary.

3) Financial Emergency (Art. 360)

According to Article 360, Financial emergency can be imposed when there is financial instability in India or any part of it. In India, financial emergency has not been imposed. If a situation arises for proclamation of financial emergency in India, it must be approved by the Parliament within two months of promulgation. In case, thelower house is dissolved at the time of proclamation of financial emergency, it will cease to exist on expiry of thirty days from the date of its first meeting after its reconstitution.Under the situation of financial emergency, the President can reduce the salaries of all government officials, including Supreme Court and High Court judges. Even money bills and other bills under article 207 passed by the State Legislatures need to be submitted to the President for the approval under such circumstance. With respect to Jammu and Kashmiras the state enjoys special status under Article 370, Indian Union have no power to promulgate financial emergency in Jammu & Kashmir.

Subcribe on Youtube - IGNOU SERVICE

For PDF copy of Solved Assignment

WhatsApp Us - 9113311883(Paid)