Laxmikanth Summary: Emergency Provisions UPSC Notes | EduRev

Indian Polity for UPSC CSE

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1. Art. 352 - National Emergency
When can it be imposed:- 3 conditions - War, External Aggression, Aimed Rebellion

• Note 1: Armed Rebellion was changed from Internal Disturbance on the recommendation of the Shah Commission. Internal Disturbance was a vague term prone to misuse.
To understand National Emergency, we need to examine the 44th Amendment Provisions whose sole purpose was to put a check on such powers of the President.

• Can only be proclaimed on the written advice of the Union Cabinet (not the PM). Perhaps, this is the only place where Union Cabinet has a role.

  • The President, however, can proclaim a national emergency only after receiving a written recommendation from the cabinet. This means that the emergency can be declared only on the concurrence of the cabinet and not merely on the advice of the prime minister. In 1975, the then Prime Minister, Indira Gandhi advised the president to proclaim emergency without consulting her cabinet. The cabinet was informed of the proclamation after it was made, as a fait accompli. The 44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the prime minister alone taking a decision in this regard.

• Expires in 1 month from its issue unless approved by a Special Majority (of the second kind*) - Not less than 2/3rd of the Members present and voting + Absolute Majority - in both the houses of the Parliament.

• If the LokSabha is dissolved, then RajyaSabha shall approve it within 1 month and the re-constituted LS shall ratify within 30 days.

• Once approved, the proclamation is extended for 6 months, which can be extended again for 6 more months.

• Not less than 1/10th of the Members of the LS(this can only be initiated in the LS) may give notice in writing to the Speaker or President (when LS is not in session). If there is no session, a special sitting of the LS shall be held within 14 days. If the resolution, the President has to revoke the Emergency.

Effects

  • Executive : State Govt, is not suspended. Union Govt, can issue orders to the State Govt, on subjects on the State List (something that it can’t normally do).
  • Legislature : State Legislature is not suspended. However, Parliament can make laws on the State subjects. Such laws remain valid for 6 months after the Emergency ceases to be.
  • Financial: Distribution as per the President’s will subject to approval by the Parliament.

Effect on FR (2 clauses here)

  • Art. 19 automatically suspended (only in case of War and External Aggression)
  • President by a further order can specify other FRs that wont be operative, excepting Art. 20 and 21.
  • Art. 20 and 21 are fundamental of the FRs and cannot be suspended. Interested readers can read the story of Judge Khanna’s courage.

2. Art. 356 - President’s Rule
If the President is satisfied that there exists a situation where the State Admin, cannot be carried in accordance with the provisions of the Constitution, he can make a Proclamation of Failure of Constitutional Machinery in a State.
Ambedkar had envisaged Art. 356 to remain a dead letter in the Constitution. Much to his surprise it has been used not less than 119 times during the first 63 years.

Features

  • Such a proclamation lapses after 2 months, unless approved by the Parliament by a simple majority. Once approved, it lasts for 6 months which can again be extended for 6 more months subjected to maximum of 3 years.
  • To extend it beyond 1 year, 2 conditions must be fulfilled
  • National Emergency should be in operation (in whole of India or whole or any part of the State)
  • ECI certifies that elections cannot be conducted in the state.

Effect

  • Declare Executive powers of the State rest with him. He can also delegate the same to any other authority (like the Governor) as per his liking.
  • Dissolve or suspend the State Legislature. If suspended, the Parliament can exercise its legislative powers, (or delegate it to any other authority). Effect on FR : No Effect.

3. Art. 360 - Financial Emergency (^Never imposed till date)
If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.

Features

  • It will ordinarily remain in force for 2 months, unless its is approved by both the houses. If LS is dissolved in this period, similar clause as that of the National Emergency applies.

Effect: - The financial autonomy of the states is transferred. The President can

  • Suspend distribution of financial resources.
  • Issue directions to follow canons of finance.
  • Direct the State Govt, to reduce the Salaries of their employees.
  • Direct the governors to reserve all financial and money bills for his consideration.

CRITICISM OF THE EMERGENCY PROVISIONS
Some members of the Constituent Assembly criticised the incorporation of emergency provisions in the Constitution on the following grounds15:
1. ‘The federal character of the Constitution will be destroyed and the Union will become all powerful.
2. The powers of the State—both the Union and the units—will entirely be concentrated in the hands of the Union executive.
3. The President will become a dictator.
4. The financial autonomy of the state will be nullified.

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