Emergency Provisions

THE CONSTITUTION OF INDIA and

PROFESSIONAL ETHICS

CIP 81EMERGENCY PROVISIONS

Art.352- art.360

PART XVIII

Class # 16 Week :APR 08-12

EMERGENCY PROVISIONSArt.352- art.360

• EMERGENCY defined as: Event / circumstances which call for immediate action or remedy. sudden, unforeseen or unexpected

EMERGENCY PROVISIONS-to maintain the security and integrity of the Nation.

Art.352: National Emergency:

President if satisfied can proclaim entire or part of India

Threat to the security of India

– War / External aggression

-- imminent danger of above two grounds

Or Armed rebellion


Art.352: National Emergency: President only after receiving a written

recommendation from the CABINET. Art.352(3) Defn of Cabinet: Council consisting of PM &

other ministers of Cabinet Rank. MUST be approved by Parliament within 1 month.If approved shall continue for SIX monthsIndefinite period with approval every SIX months.

[1st Emergency: Oct 1962 Chinese aggression2nd Emergency: Dec 1971 – Indo-Pak War.3rd Emergency: Jun 1987 – (Internal Disturbance)

Armed rebellion. Since after 44th amendment 1978 cannot be declared on Internal Disturbance.]

EMERGENCY PROVISIONS Art.352- art.360

Extra-ordinary Powers of Union during National Emergency:

1) President can give directions to any State

manner in which its executive power is exercised

2) Parliament can extend the normal tenure of LOK SABHA by ONE YEAR at a time.

3) President can modify pattern of distribution of FINANCIAL RESOURCES betn Union & States


Extra-ordinary Powers of Union during National Emergency:

4) President can suspend Fundamental rights of Citizens

[Art. 21: Xpt the right to life and personal Liberty.]

Art. 20: Right to protection in respect of conviction for offences.

Art,19:Six Freedoms can be suspended only in case of External Emergency and not incase of Internal Emergency.

Parliament can make laws on State List items during National Emergency.

Such laws become ineffective six months after emergency

Art.356: State Emergency: Presidents Rule

Art.355 obligates the Center to protect every State

1) Against external aggression

2) Internal disturbance,

3) ensure State Govt. function in accordance to Constitutional provision.

------------------------------------------------------------------


Art.356: State Emergency: Presidents RuleProvisions in case of failure of Constitutional machinery in States

President is satisfied based either on Governors report or otherwise that Governance not possible per constitution

1. No majority party / coalition party in State LA

2. State Govt. looses majority & --- do ----

3. State Govt. functions in a manner subversive of Constitution.

4. State Govt. does not comply with directions issued by Central Govt.

5. Security of the State—threat---Widespread law & order Breakdown.


Art.356: State Emergency: Presidents Rule …contd

Parliament approval within 2 months

If approved, remains in force for SIX months.

Extended for max. period of 3 years.

Beyond 1 year can be extended by 6 months at a time

only when the following two conditions are fulfilled.

1) A proclamation of national emergency should be in operation in the entire country or in the whole or any part of the concerned state and

2) The EC must certify that the General Elections to the concerned State Legislative Assembly cannot be held on account of difficulties.

EMERGENCY PROVISIONS Art.352- art.360Art.356: State Emergency: Presidents Rule …contd

PRESIDE NT acquires extra-ordinary Powers; Can assign himself • all or any of the the functions of the state

government • All or any of the powers vested in the Governor • Or any body or authority in the state. Can declare that• The powers of the State Legislature shall be

exercisable by• Or under the authority of the Parliament



PRESIDE NT acquires extra-ordinary Powers; Can authorise when the Lok Sabha is not in

session• Expenditure from the Consolidated Fund of the

state, pending Parliamentary sanction Can promulgate ordinances• For the administration of the state when the

Parliament is not in session.

[ means dissolves the state council of ministers headed by CM and the state legislature.]



PRESIDENT acquires extra-ordinary Powers; Parliament passes the state budget and legislation

bills State Governor on behalf of the President carries

on the State Administration with the help of advisors appointed by the President or the Chief Secretary of the State.

High Court Constitutional status, position, powers & functions are not affected

President cannot interfere with HC Jurisdiction.


Art.360: Financial Emergency: if president is satisfied

Financial instability or credit of India or any part is Threatened

Such proclamation MUST be approved by Parliament within 2 months. The PRESIDENT can

Give directions to the states

to observe the canons of financial propriety Issue directions

for the reduction of salaries and allowances of all or any class of persons.

Require that all money bills and other financial bills

passed the state legislature be reserved for his consideration.


Art.360: Financial Emergency: if president is satisfied

The PRESIDENT can Issue directions

for the reduction of salaries and allowances of all or any class of persons serving in connection with the affaires of the union , including the judges of the Supreme Court and High Court.

This type of Emergency has not been declared so far.

Effects of Proclamation of EMERGENCY

Art.353:

When proclamation of emergency is in operation, the Power of President shall extend to give directions to any State as to the manner in which its executive power has to be exercised.

Parliament is empowered to make any law w.r.t any subject in the State List (exclusive domain of State LA in normalcy)

Such laws will be alive for six months after closure or withdrawal of emergency

If the emergency is declared only in a part of India, the above power can extend to (security of India) the part, threatened by activities in or in relation to the part.

Effects of Proclamation of EMERGENCY

During emergency Parliament can

levy tax, (of state list)

Executive, Legislative, and distribution of revenue between centre and state will remain in hands of Central Govt.

Art.172 empowers the Parliament (discretionary powers) to extend the life of the State Legislature by one year each time during the emergency, subject to a maximum period of SIX months after emergency ceases to operate.

Impact of EMERGENCY on Fundamental Rights

1. Suspension of Article 19: (Right to Six Freedoms)a) Impact before 44th amendment,1978.

As per Art.358: automatic suspension of Art.19 war or exrernal aggression.

Effect was to remove the limitation imposed by art.19 on the legislature and executive.

If Legislative makes a law or executive commits an act which were inconsistent with Fundamental Rights guaranteed by Art.19 , their validity can not be questioned or challenged either during or after such emergency ceases to exist.

b) Impact after 44th amendment,1978Armed Rebellion- Art.19 can not be suspendedSecurity of India or any part thereof is threatened by war or external aggression. Then Art 19 is suspended.

Restored / revived automatically as soon as Proclamation of emergency is withdrawn.

Impact of EMERGENCY on Fundamental Rights

2. Suspension of other Fundamental Rights

a) Impact before 44th amendment,1978.

As per Art.359: suspension of all Fundamental Rights other than Art.19 during emergency under Art.352.

Under Art 359, Fundamental Rights as such are not suspended; what is suspended is their enforcement.

Not automatic but by an executive order by President. Can not move any court for enforcement of Fundamental Rights for the period in the order.

b) Impact after 44th amendment,1978

restricts scope of Art359. No longer possible to suspend Art 20 &21

Education

Emergency Provisions