Emergency Provisions- The Sunday Special Dose! - Seeker's Thoughts

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Sunday, 12 August 2018

Emergency Provisions- The Sunday Special Dose!

Introduction

The Emergency provisions are contained in part XVIII of the constitution, from article 352 to 360. These provisions enable the central government to meet any abnormal situation effectively. 
The rationality behind the incorporation of theses provisions in the constitution is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system, and the constitution.


What does actually happen in Emergency?
During Emergency, the central government becomes all powerful and the states go into the total control of the Centre
It converts the federal structure into a unitary one without a formal amendment of the constitution. This kind of transformation of the political system from federal during normal times to unitary Emergency is a unique feature of the Indian constitution.

How many types of emergencies?
The constitution stipulates three types of emergencies:
1. An emergency due to war, external aggression or armed rebellion (Article 352). This is popularly known as ‘National Emergency’. However, the constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type.
2. An emergency due to failure of the constitutional machinery in the states (Article 356). This is popularly known as ‘president rule’. It is also known as by two other names ----- ‘state Emergency’ or ‘constitutional Emergency’. However, the constitution does not us the word ‘emergency’ for this situation. 


3. Financial Emergency due to threat to the financial stability or credit of India. (Article 360)

Lets know in detail----
1. National Emergency
Article 352 holds the key for national Emergency, provisions which are taken from Germany or Weimar constitution.
National emergency can be declared by the president in India. If he is satisfied that the situation is very serious and the security of India or any part thereof is threatened or is likely to be threatened.
The president can declare national emergency only if the cabinet recommends in writing. Such  proclamation of emergency must be approved by both houses of parliament by absolute majority of the total membership of the houses as well as 2/3 majority of members present and voting within one month, otherwise the proclamation ceases (finishes) to operate.

In case at the time of proclamation of emergency the Lok Sabha stands dissolved or not in session, it must be approved by the Rajya Sabha within one month and later by the Lok Sabha also within one month of the start of its next session. 
Time- Once proclamation of emergency approved by the parliament, the emergency remains in force for a period of six month from the date of proclamation.  In case if the emergency extends beyond six months, another prior resolution must be passed by the parliament. In this way such emergency continues indefinitely. But if the situation improves the emergency can be revoked by another proclamation by the president of India.
The 44th amendment of the constitution provide that 10% or more members of the Lok Sabha can demand a meeting of the Lok Sabha and in that meeting, it can disapprove or revoke the emergency by a simple majority. In such cases emergency will immediately become inoperative.

Effects of National Emergency

n  The first and foremost effect of an emergency is the suspension of the fundamental rights guaranteed by Article 19 of the Indian constitution. Under the article 358 and 359, the president of India can extend the suspension of all fundamental rights except those mentioned in Article 20 and 21.

n  Union Executive is free to give directions on all the subjects and such directions are binding on the states. State government is not dismissed when National Emergency is proclaimed but brought under the effective control of the union. Under article 250 when national emergency is in force, parliament assumes concurrent legislative jurisdiction over all the subjects under the state list. State legislative assembly is not suspended or dissolved. It continues to enjoy the jurisdiction over state subjects, but parliament also assumes legislative powers on such subject.

n  The satisfaction of president under article 352 can be challenged in a court of law on the ground of mala fide.

 2. The State Emergency (President Rule)

 Article 355 imposes a duty on the center to ensure that the government of every state is carried in accordance with the provisions of the constitution. The Center government takes over the government of a state under Article 356 in case of failure of constitutional machinery in state. This is popularly known as ‘president rule’. It is also known as ‘State Emergency’.


Article 356 empowers the president to issue a proclamation, if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provision of the constitution. Notably, the president can act either on a report of the governor of the state or otherwise too (i.e., even without the governor’s report).
 Article 365 says that whenever a state fails to comply with or to give effect to any direction from the center, it will be lawful for the president to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with provision of the constitution.  

Scope of Judicial Review: -The 38th Amendment Act of 1975 made the satisfaction of the president in invoking Article 356 final and conclusive which could not be challenged in any court on any ground. But this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the president is not beyond judicial review.

3. Financial Emergency
Article 360 empowers the president to proclaim a Financial Emergency. If he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory in threatened.

Effect of Financial Emergency
The consequences of the proclamation of a Financial Emergency are as follows.

n  The executive authority of the Centre extends (a) to directing any state to observe such canons of financial propriety as are specified by it and (b) directions as the president may b deem necessary and adequate for the purpose.

n  Any such direction may include a provision requiring (a) the reduction of salaries and allowance of all or any class of persons serving in the state; and (b) the reservation of all money bill or other financial bills for the consideration of the president after they are passed by the legislature of the state.

n  The president may issue directions for the reduction of salaries and allowance of (a) all or any class of persons serving the Union; and (b) the judges of the Supreme Court and the high court.   

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