Emergency - Polity and Constitution, UPSC, IAS. | Polity and Constitution (Prelims) by IAS Masters PDF Download

Emergency

Chapter-18

EMERGENCY

Emergency powers to the President:- President is authorized to imposed 3 kinds of emergency –

1. National [Article 352].
2. State [Article 356].
3. Financial [Article 360].

NATIONAL EMERGENCY

National Emergency was imposed in 1962, 1965, and 1975. Emergency is imposed by the President on written advice of union cabinet.

Ground: When in the opinion of President the security of India or any part of it is threatened on the ground of

• war
• external aggression
• Armed rebellion (The ground of armed rebellion was substituted for the earlier ground of internal disturbance by the 44^th Amendment Act 1978).

Emergency can be imposed before the actual occurrence of war; in case of threat of war. It is required to be passed by both the Houses of Parliament within One month.
If house of people is dissolved before passing the resolution of emergency, the resolution can be passed by the other House. It will be passed within a period of one month of the newly constituted Lok Sabha. Emergency period begins after the 2^nd stage of emergency. Emergency can be extended by passing a resolution for extension before the expiry of 6 months. It can be further extended for another six months for any number of times, there is no outer limit to it. Fundamental Rights are not abolished but right for enforcement is taken for a limited period. But Article 20 and 21 cannot be suspended (provide by 44^th amendment act 1978).

Effects of National Emergency

1. The powers of the union extend in giving direction to any state for the exercise of their executive powers.

1. The power of the Parliament to make laws extends to any matter not mentioned in the Union List.
2. Alternation of the distribution of revenue between centre and state can be done.
3. Life of the house of people can be extended 1 year at a time.
4. It becomes the duty of the union to protect the every state from external aggression and internal disturbance.
5. All fundamental freedoms under article 19 are automatically suspended if emergency is declared on the ground of war or External Aggression.
6. The laws made during the emergency will have effect only if there is a Recital Clause in relation to those laws.
7. The President may suspend the right to go to the court for the enforcement of F.Rs except Article 29 and 21.

STATE EMERGENCY OR PRESIDENT’S RULE

President can proclaim President’s Rule / State Emergency if he is satisfied:

1. Either on the report of the Governor or
2. Otherwise-
   That the administration of the state cannot be carried in accordance with the provisions of the constitution or the constitutional machinery has failed in the state.
   Election commission certifies that it is not possible to hold the election in that state.

EFFECTS

1. President can assume himself all the powers of the state which are otherwise vested in the Governor.
2. President can declare that all the legislature powers will be exercised by the Parliament.
3. President can make any incidental or consequential provision which he thinks necessary. But he cannot take the powers of High Court or suspend any provisions relating to the High Courts.
4. President’s Rule can be revoked or vary by subsequent proclamation.

DURATION

After proclamation it must be passed by both the Houses within the period of two months. It will remain in force for six months. For further extension a resolution must be passed for the same before the expiry term. After the total period of 1 year further extension is possible only if two conditions are satisfied:-

1). Emergency is in operation either in whole or part of the country as the case may be

2). Election commission certifies that it is not possible to hold the election.

If these 2 conditions are satisfied then the President’s Rule can be extended by 6 months duration each time up to the maximum period of 3 years (3 years from the date of proclamation i.e. from 2 months onwards).

If the circumstances require for the further extension beyond 3 years then it can be done only by amending Article 356.

Case: - S.R. Bommai versus government of India (1994, Supreme Court):- guidelines issued by Supreme Court (now law).

1. The proclamation of state emergency and dissolution of any state assembly is subject to judicial review (High Court can dissolve the state emergency).
2. The burden lies on the government to prove that relevant material existed for the imposition of the President’s Rule.
3. Courts cannot inquire into the correctness of the material.
4. If these are anti secular activities in the state then it justifies the imposition of President’s Rule.
5. On the imposition of the President’s Rule the Legislative Assembly remains in suspended animation and it can be dissolved only after the proclamation or the state emergency is approved by both the Houses of the Parliament.
6. If the court strikes down the imposition of the President’s Rule, the suspended legislative Assembly shall automatically revive.

FINANCIAL EMERGENCY [ARTICLE 360]

Can be imposed under article 360 President can proclaim financial emergency if he is satisfied that the financial stability or the credit of India is threatened.

EFFECTS

1. Reduction of salaries and allowance of any class of persons.
2. President can give direction to this state for maintaining the financial stability.
3. State may be asked to reserve the money bill for the prior consideration of the    President.
4. Salaries of the judges of Supreme Court and High Court can be reduced.

DURATION

After proclamation it must be passed by both the Houses within the period of two months. It will remain in force for six months. For further extension a resolution must be passed for the same before the expiry term. It can be further extended for another six months for any number of times, there is no outer limit to it.     

Majority required for passing the resolution

Special majority (i.e. majority of total number of members of house + 2/3^rd majority of members present and voting) is required.

Resolution for extension of existing emergency can be originated in Lok Sabha only, if 1/10^th of its members give in writing-

 -To the Speaker if the house is in session.

-To the President if the house is not in session and in that case, the President is bound to call the special sitting (i.e. joint sitting) of both the houses within the periods of 14 days.