Provisions of emergency under Indian Constitution
TABLE OF
CONTENTS
SERIAL NO.
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CONTENT
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PAGE NO.
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1.
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ABSTRACT
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3
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2.
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KEY WORDS
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3
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3.
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INTRODUCTION
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3
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4.
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GROUNDS
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4
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5.
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CASE LAWS
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4
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6.
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EFFECTS
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5
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7.
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DUTY OF THE UNION TO PROTECT STATES
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5
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8.
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CONCLUSION
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6
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9.
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BIBLIOGRAPHY
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7
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ABSTRACT
At the time of
drafting of Indian Constitution India was passing through a stressful time.
Then at the time of division of the country, Communal riots and there was one
problem which was related to the merger of Princely states which includes
Kashmir. Then the makers of the Constitution thought to provide the Central
Government to the necessary authority in the situation of emergency.
KEY WORDS
War
Proclamation of
emergency
President’s Rule
Failure of
Machinery
INTRODUCTION
There are various
types of provisions which are mentioned in our Indian Constitution for the
protection of the country and for the protection of the rights of the
individuals. Therefore if our country is threatened and it may be external or
internal then for the protection and stability of the country there are some
emergency provisions which were made in constitution to safeguard and protect
the security of the country.
There are three
types of emergency which are explained in the Indian Constitution:-
1. NATIONAL
EMERGENCY (ARTICLE 352)
2. STATE EMERGENCY
(ARTICLE 356)
3. FINANCIAL
EMERGENCY (ARTICLE 360)
1. NATIONAL EMERGENCY – Article 352 defines the National Emergency. It is that
type of emergency which is caused by war, aggression or armed rebellion[1].
This article clearly says that if any serious type of emergency exits and the
President is satisfied by his decision that it is disturbing the peace of the
country and may be any part is threatened by war or something else. Then the
President may declare an emergency in whole of the country or may be in that
part only. It can take back by the President by another declaration. The
provision of emergency can only be declared on the discretion of the cabinet.
It cannot be declare only on the advice of the Prime Minister. They have to
communicate with them in writing. The Proclamation of emergency should put
before each house of Parliament and it will work at the expiration of one
month.
This article also
provides the power to issue different proclamations on different grounds i.e.
it may be by any danger, war, aggression etc.
GROUNDS OF EMERGENCY:-
The President can
declare emergency when he will be satisfied that there is a threat by war or
something which disturbs the peace of the country. Before the 44th
Amendment there was one ground on which emergency could be declared which is
mentioned in the clause (1) i.e. internal disturbance. At that time these words
were vague and which provides the Executive to give prediscretion to declare
emergency even on these thin grounds. Further these provisions got the addition
of the new clause (3) in Article 352 in the Constitution (44th
Amendment) Act, 1978. It says that the President can declare emergency only
when the Cabinet gave advice in writing.
MINERVA MILLS LTD. V.UNION OF INDIA (AIR 1980 SC 1789) [2]– In this case Justice Bhagwati held that there is no bar
to judicial review of the validity of a Proclamation of emergency issued by the
President under Article 352(1).The first condition is the satisfaction of the
President and if there will be no satisfaction of the president then the power
of him will be constitutionally invalid. If the satisfaction is on the
irrelevant ground then it will be challenged in the court of law.
TERRITORIAL EXTENT OF PROCLAMATION:-
Article 352
provides the President to give a proclamation of emergency in the whole of the
India or may be any part of the territory which is specified. This provision is
added by the (42 Amendment) Act, 1976 which says that the President can declare
emergency in any part of the territory of India. If the emergency is declared
in any part of the country and then the situation becomes normal then the
emergency can be revoked from that part of the country but it can be continue
in other parts of the country.
DURATION OF EMERGENCY:-
Before the 44th
Amendment a declaration of emergency can be for “two “months. But if it is
approved by Parliament emergency then it can remain for indefinite period of
time and till that time when the executive wants it to be continued. The
declaration of emergency should be passed by either House of Parliament by the
special majority.
EFFECTS OF PROCLAMATION OF EMERGENCY:-
1. Extension of Center's Executive Power (Art.353)
2. Parliament empowered to legislate on state subjects [Art. 353(b)]
3. Centre empowered to alter distribution of revenue between the Union and
the State (Art.354)
4. Extension of life of Lok Sabha [Art. 83(2)]
5. Suspension of Fundamental rights guaranteed by (Art. 19)
M.M. PATHAK V. UNION OF INDIA (AIR 1978 SC
803)[3] – Under this case the Supreme Court held that the effect of
declaration of emergency on fundamental rights which is guaranteed by Articles
14 and 19. These articles will not be suspended only their work will be suspended
which means that the effect of this article is suspended during the emergency.
DUTY OF THE UNION TO PROTECT STATES:-
Article 355 gives a
duty on the Union to secure every State against external aggression and
internal war with the provisions of the Constitution.
1. They have the duty to protect States from internal disturbance and
external aggression. Same provisions are also found in other federal Constitutions.
2. They have the duty to see that the Government of every state should be
carried on the provisions of the Constitution. Same provisions are in U.S.A. and
Australia.
2. STATE EMERGENCY- Article 356 defines
about the State emergency. Under this when there is a failure of constitutional
machinery in State then this emergency will be declared. Under this emergency
it is the duty of the union Government to ensure that governance of a state is
working according to the provisions of the Constitution. Under this article the
President can declare an emergency in a state if he got a receipt of report from
the Governor of the State or a situation arose that through that the
functioning of the State cannot run smoothly. In famous language this is called
PRESIDENT’S RULE. For the approval of State emergency it is also have to place
before the both the houses of Parliament. If this will be approved by the
Parliament then it will be valid for six months. It can be extended to
subsequent six months but not more than one year.
3. FINANCIAL EMERGENCY – Article 360 defines about the financial emergency. This
article says that if any situation has arisen in which financial stability or
credit of India is threatened then he can declare a financial emergency.
The time period of
a declaration of financial emergency will be in effect for 2 months and if it
will be approved by President it shall be operate at the expiry of two months.
CONCLUSION
According to my
opinion the provisions of the emergency are discussed clearly that if in any
situation there is a threatened of war or internal disturbance then the
President can declare an emergency to safeguard and protect the integrity of
the country with the approval of the Parliament. Emergency can be declared in
whole of the India or may be in any part so that the situation of the country
can be in stabilizing position. For the benefit of the country the emergency is
declared so that the peace of the country can be maintained.
BIBLIOGRAPHY:-
BOOKS:-
DR. J.N. PANDEY
(CONSTITUTIONAL LAW OF INDIA)
M.P. JAIN
(CONSTITUTIONAL LAW OF INDIA)
WEBSITES:-
Tag: Emergency
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