Emergency Provisions Flashcards
Basics
Part 17 of constitution
Article 352 to 360
To meet the abnormal conditions effectively
To safeguard sovereignty, unity and integrity of country
Types of emergency:
National emergency (due to war, external aggression or armed rebellion)
President’s rule:
Due to failure of constitutional machinery
Financial emergency:
Due to threat to financial stability
Grounds of declaration:
Under article 352
President can declare, when the security of India or part of it is threatened by war, external aggression or armed rebellion
President can even declare so before the actual occurrence of those events
External emergency is on grounds of War or external aggression
Internal emergency is on grounds of armed rebellion
Can be implemented in entire nation or part of India
President can declare National emergency only after receiving a written recommendation from the cabinet, not the Council of ministers
The 38th constitution amendment Act of 1975, said that there won’t be any judicial review. But in 1980, Minerva mill case, supreme Court received judicial power.
National emergency
Parliamentary approval:
Must be approved by both houses of parliament: Loksabha and rajya Sabha
Time period: 30 days from the date of issue
If Loksabha gets dissolved before approval, then it survive until 30 days from the first sitting of Lok Sabha. But if approved by both houses it continuous for 6 months and can be extended for indefinite period with approval every 6 months.
The approval of both houses come under the 44th constitution amendment Act by special majority.
Revocation of proclamation:
By president at anytime. Does not require parliament.
If Lok Sabha passes resolution then the president must revoke it
Before the 44th constitution amendment Act, president on his own could revoke. Loksabha had no control
If house is not in session, then ⅒ total member of Lok Sabha should give written notice to speaker or president
How should be held for 10 days of consideration
For disapproval, it requires to be passed by Lok Sabha only by simple majority.
For approval, it need to be passed by both houses of Parliament by special majority.
Effect on centre state relation:
Executive: Centre extends to directing any state. Centre can give executive direction to any state. State is brought under complete control of centre.
Legislative: Parliament is empowered to make laws on state list. Such laws are inoperative 6 months after emergency. President can issue ordinance on state list.
Financial: president can modify the constitutional distribution of revenue between centre and state. Search modifications continue until the end of financial year.
Effect on life of Lok Sabha and state assembly:
Life of Lok Sabha can be extended beyond its normal term (5 years) by the law of Parliament for one year at a time.
But extension cannot continue beyond the period of 6 months after the emergency has ceased to operate
State has same rights on national emergency.
The 5th Lok Sabha extended it two times.
Effect on fundamental rights
Article 358 and 359 describe the effect of National emergency on fundamental rights. 358 suspends article 19. Where as 359 suspends fundamental rights except 20 and 21.
The 44th constitutional amendment Act of 1978, article 19 can be suspended only when National emergency is decided on the grounds of War and external aggression. Not armed rebellion.
Article 359 authorizes the President to suspend the right to move to any court for the enforcement of any fundamental rights during the national emergency even though they are not suspended, only not enforceable.
Only those which are specified in the presidential order, be it the whole or part of India
Under 44th constitutional amendment Act, president cannot suspend article 20 and 21, only those law related to emergency are suspended.
Distinction between article 358 and 359:
358 is only for fundamental right 19
359 covers all fundamental rights whose enforcement is suspended by the presidential order
358 automatically suspends article 19
359 does not suspend the fundamental rights, only the enforcement is suspended
358 operates only in case of external emergency
359 is both for external and internal emergency
358 suspends the article 19 for entire duration of emergency
359 suspends the enforcement for a period specified by the president
President’s rule
Also called state emergency or constitutional emergency
Grounds of imposition:
Article 355 imposes duty on the centre to ensure that the state government is carried on in accordance with the provisions of the constitution
Article 356 empowered the president issue a proclamation regarding a situation that cannot be carried out according to the constitution or when the state fails to comply or give effect to any direction from centre
Parliamentary approval and duration
Must be approved by both houses within 2 months
Is
If Loksabha is dissolved before approving during 2 months then the proclamation survives answers 30 days from the sitting of Lok Sabha provided rajya Sabha approves it
If approved it continues for 6 months and can be extended further if necessary
If Loksabha is dissolved during this period then the proclamation survies and 30 days from the last sitting of Lok Sabha provided the rajya Sabha approves it with simple majority
The 44th constitutional amendment Act:
Beyond 1 year the president’s rule can be extended by 6 months at a time only when the proclamation of National emergency is in operation (wholly/part of the country/state) or if the election commission clarifies that the general election to the legislative assembly of the concerned State cannot be held on account of difficulties
Consequences:
He can take up functions of the state government
Power in the hand of governor or other executive authority
He can declare power of state legislature to be exercised by parliament
Suspension of the constitutional provision related to anybody in the state
State legislature is suspended, the Parliament can delegate power to make laws to the president
Expenditure from state consolidated fund pending its sanctions by the parliament
President can promulgate ordinances when the parliament is not in session
Law made by the president remains operative even after President’s rule
High court operates as per normal rules
Scope of judicial review is possible according to the 44th constitutional amendment Act of 1978
So president’s rule is subject to judicial review and the satisfaction of president should be based on relevant material.
Burden lies on centre to prove relevance, Court cannot go into the correctness of material.
If court rules president’s rule invalid then it can restore the state legislative that was suspended.
Cases of proper use
If no party secures majority (hung assembly and no alternative)
When party having majority declines to form a ministry
Where ministry resigns and there is no alternative
Constitutional direction of the centre is disregarded by the state
State government deliberately acting against the constitution
Physical breakdown of the government, which willfully refuses to discharge obligation
Cases of improper use
If no party secured majority (hung assembly + available alternative)
Government does not allow to prove the majority on the floor
Maladministration
Where state government is not given prior warning
Power is used to sort out intra-party problems
Financial emergency
Grounds of declaration:
Article 360 empires the President to proclaim financial emergency if he think that the financial stability of India or any part is threatened
Scope of judicial review:
44th constitutional amendment Act of 1978 allowed judicial review
Parliamentary approval and duration
Must be approved by both houses within 2 months
If loksabha is dissolved before approving during those two months then the proclamation survives until 30 days from the first sitting of Lok Sabha, provided that the rajya Sabha approves it. Once approved, it continuous for an indefinite period. Repeated parliamentary approval is not required. It requires a simple majority.
Effects
The executive authority of the centre extends, directing any state to observe such canons of financial propriety and to directions as the President as deemed necessary and adequate for the purpose
Any such directions may include a provision required in the reservation of salaries and allowances of all classes serving in the state. Reservation of all money bills and finance bills passed by legislature.
President may issue direction for the reduction of salaries and allowances of any classes of person serving the union or judges of supreme court and high court.
Centre acquires full control over the state in financial matter
Criticism
Federal character is destroyed when Union becomes strong
President can become dictatorial
Financial autonomy of state will be nullified
Fundamental rights will become meaningless, if the democratic foundation is destroyed
Till date there has been no financial emergency in India
