Updated: May 20, 2020
Emergencies categorized into three ways-
A)- NATIONAL EMERGENCY ART- 352
B)- STATE EMERGENCY ART- 356
C)- FINANCIAL EMERGENCY ART-360
NATIONAL EMERGENCY- ART-352
1)- PROCLAMATION- the president, if he is satisfied that a grave emergency exists, or there is an imminent danger thereof, whereby the security of India is threatened by was, external aggression or armed rebellion, may issue a proclamation of National Emergency. This may extend to the whole or any part of India. The president may revoke by a subsequent proclamation.
2) – CONDITION- the president should not issue the proclamation unless the union cabinet communicates its decision to him in writing. Union cabinet includes the Prime Minister and other Cabinet Ministers) The proclamation has a one-month duration. It must be placed before each House of parliament and must be approved by both Houses, otherwise it discontinue to operate on expiry of one month. The proclamation must be approved by the Rajya Sabha and Lok Sabha within one month.
3)- SPECIAL MAJORITY– the proclamation must be approved by the Houses with at least 50% of total membership and 2/3 majority in both the Houses.
4)- DURATION- such an approval proclamation would be in force for 6 months. It may be continued for 6 months at a time.
5)- REVOCATI0N– the president may revoke the proclamation which he has issued under art- 352 (1), He may revoke, if the Lok Sabha disapproved of the proclamation or its continuation.
6)- INITIATION FOR REVOCATION– a special provision is made-
a) – at least 1/10th of the total members of the Lok Sabha, may give notice in writing to the speaker (if the House is in session) or to the president ( if the House is not in Session)
B)- the notice must express the intention to move a resolution, disapproving of the proclamation, or its continuation.
c)- a special sitting of the House must be held within 14 days of such notice.
d)- this enables the House, to make an appraisal of the circumstances and to pass a resolution to continue or discontinue the Emergency.
7)- AMENDMENTS- 42nd and 44th Amendment have ultimately given Art- 352, a final shape. These changes were largely due to the experiences we had during the Emergencies, especially the National Emergency declared on 25-6-1975.
8)- PROCLAMATIONS ISSUED–
(A)- CHINESE AGGRESSION,1962
(B)-PAKISTANI AGGRESSION 1971
(C)-INTERNAL DISTURBANCE, 1975
EFFECT OF PROCLAMATION-
A)- The executive power of the union extends to the giving of direction to the states, as to the manner of exercise of the executive power.
B)- the power of the Parliament extends to make laws conferring powers and imposing duties, in any matter including those in the State list.
C)- suspension of art- 19 – art – 358, when the proclamation is in regard to War or external aggression only, art- 19 is suspended and not with respect to Amend Rebellion.
SUSPENSION OF REMEDY- ART- 359 – the president may be order suspend the remedy for any of the Fundamental Rights stated therein in Part III excepts arts-20 and 21. This order is operating only during the pendency of the Emergency.
HABEAS CORPUS- 44th Amendment prohibits the suspension of Habeas Corpus and Art 20 and 21 ( life and Personal Liberty)
LEADING CASES–
A)- Mahkhan Singh V/S state of Punjab
B)- the Habeas Corpus Case C)- Bennett Coleman V/s Union of India.
STATE EMERGENCY: FAILURE OF CONSTITUTIONAL MACHINERY: ART- 356
DUTY- one of the duties fixed on the union by the Constitution (under 355) is to protect the estates against internal disturbance and to ensure that the government is carried on according to the constitution.
PROCLAMATION- the president may issue a proclamation of State Emergency on the report of the Governor of the State or otherwise. In order to issue such a proclamation a situation must have arisen, in which the government of that state may not be in a position to run according to the Constitution.
NATURE, EXCEPTION, AND DURATION- the president assumes to himself all or any of the function of the State Government and the powers vested in the Governor or any other authority. The President has no powers to assume to himself any powers vested in the High Court or to suspend them. The President may revoke the proclamation at any time. If not so revoked, it must be passed by the two Houses of Parliament within 2 months. Otherwise it lapses. ( if the LokSabha had been dissolved, the proclamation must be approved by it within 30n days of its reconstitution )
The duration is 6 months from the date of the proclamation. The duration may be extended,6 months at a time by the Parliament, but the maximum duration is 3 years. The Parliament should not extend the proclamation beyond one year from the date of issue.
EFFECT OF PROCLAMATION – The Parliament may confer on the President the power of the State Legislature to make Laws. It any authorize him to delegate such powers on may by law confer powers on the other officers. If the Lok Sabha is not in session, the president may authorize the expenditure on the Consolidated Fund of state pending sanction of the Parliament.
OPERATION OF STATE EMERGENCY LAW – any law made during State Emergency continues until it is amended by a competent legislature. State Emergency was proclaimed in Punjab (1951), pepsu(1952) Andhra (1954), etc.
CASES- IN RAO VIRENDRA SINGH V/S INDIA (1968) the Supreme Court held that the power given to the president is not discretionary but he must act according to the advice is not discretionary but he must act according to the advice of the cabinet. It was approved by JYOTIRMONY BASU V/S INDIA (1971) CASE.
FINANCIAL EMERGENCY-
INTRODUCTION- the framers of the constitution represent a possibility of financial depression requiring Central Government intervention.
PROCLAMATION- ART- 360 says the proclamation of Financial Emergency, if the President is satisfied that a situation has arisen whereby the financial stability, or credit of India is threatened, he may issue a proclamation of financial emergency.
SATISFACTION- the President’s satisfaction cannot be questioned in any court (31st Amendment)
DURATION- the President may revoke the proclamation at any time. It operates for two months from the date of the proclamation . But, within this period, It must be placed before each House of Parliament and duly approved. ( if the Lok Sabha is dissolved it must be approved within 30 days of its reconstitution ) maximum duration is not fixed by the constitution.
EFFECT- union executive power becomes enlarged. it may give direction to the States to follow rules of financial propriety. it may give other necessary directions. These directions are as follow-
A)-the reduction of salaries and allowances of the civil servant of the state.
b)- A proviso to reserve for the consideration of the president all Money Bills after they are passed by legislatures of the States.
c)_ The president may give directions for the reduction of salaries of Union Civil Servants, and also the Judges of the Supreme Court and the High Courts.
