Back to Index
PART XVIII - EMERGENCY PROVISIONS (A352 - 360) Sno.
Heading
ARTICLE
Particulars
Miscelleneous
(NE) when (NE) when the security of India or a part of it is threatened by War Has been imposed THRICE
The President The President can can declare a
or External aggression or aggression or Armed Armed rebellion. rebellion. (WEA) 1
352(1)
352(2) 352(3)
It can be declared even before the actual occurrence of (WEA), if he is satisfied that there is an imminent an imminent danger
-> 1962 (Indo - China War) -> 1971(Indo - Pak War) -> BY Indira Gandhi
NE may NE may b varied or revoked by revoked by a NE can NE can b proclaimed by president only after
A special sitting of the house shall be held within 14 days in order to vary a proclamation proclamation of emergency. 1975 - IG case
Proclaimation. ((SIMPLE MAJORITY by Parliament)) from the
The proclamation of Emergencymust Emergency must be approved by approved by both the Houses of Parliament within 1 month from month from the date of its issue. However, if the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of 1 month without month without approving the proclamation,
PROCLAMATION OF EMERGENCY 352(4)
THEN the THEN the proclamation survives until 30 days from days from the 1st sitting of sitting of the LS after LS after its RS has RS has in the meantime approved it.
, provided the
If approved by both the Houses the Houses of Parliament Parliament ,, the emergency continues for continues for 6 months, months , and can be extended to extended to an indefinite period with period with an approval of the Parliament for every 6 months . If the dissolution of dissolution of the LS the LS takes takes place during the period of 6 months without months without approving the further continuance of Emergency, then the proclamation the proclamation survives survives until 30 until 30 days from days from the 1st the 1st sitting of the LS the LS after after its reconstitution, provided the RS the RS has has in the mean-time approved its continuation. 352(5) Every resolution approving the proclamation of emergency or its continuance must be p assed by either House of Parliament by a , that is, (a) a (a) a majority of the total membership of that house , and
352(7)
(b) a (b) a majority of at least 2/3rd of 2/3rd of the members of that house present and voting. A proclamation of emergency emergency may by the President at any time by a subsequent proclamation if theLS the LS passes passes a resolution (SIMPLE MAJORITY) disapproving its continuation.
352(8)
IF 1/10th IF 1/10th of the total number of members of the LS give LS give a written notice to the Speaker ), a special sitting of the House should be held within 14 within 14 days for the purpose of considering a resolution disapproving the continuation of the proclamation.
352(6)
The executive power of power of the Centre extends to directing power is to be exercised exercised .
EFFECTS OF PROCLAIMAT ION OF EMERGENCY
regarding the manner in which its executive
make laws on any subject mentioned mentioned in the St the St ate List. The Parliament becomes empowered to make Legislative power of a state legislatureis legislature is not s uspended , it becomes subject subject to the overriding overriding power of power of the Parliament.
353 Application of Application provisions relating to distribution of revenues while a proclamation of emergency is in operation 354
Emergency can also extend to other states also apart from the states in w hich emergency is proclaimed. The President can modify the constitutional distribution of revenues between the centre and the states. Such modification continues till the end of the FY FY in in which the Emergency ceases to ceases to operate. Also, every such order order of the President has has to be be laid before both the Houses of Parliament. Duty of Union to protect every state agnst External agnst External Aggression & Internal Disturbance Disturbance AND
355
Govt. of every state is carried out as per the constitutional provisions
If P is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions the provisions of the the Constitution. Notably, the P can act either on a report of the governor of the state or otherwise too (ie, even without the governor’s report). In above situation PRESIDENT -
The executive and legislative powers of the state are assumed by the Centre. 356
The relationship of
under
with with the Centre undergoes a modification
y
(3)A proclamation imposing President’s Rule months from the date of its issue. Failure of of Constitutional Machinery in states This is popularly known as . It is also known as ‘State Emergency’ or ‘Constitutional Emergency’. Emergency’.
within 2 within 2
However, if the proclamation proclamation of President’s Rule is issued at issued at a time when the Lok Sabha has been dissolved or dissolved or the dissolution of the Lok Sabha takes place during place during the period of 2 month w month w ithout ithout approving the proclamatio proclamation, n,
until 30 days from the first sitting of the Lok Sabha after its then the proclamation survives until 30 , provided the Rajya Sabha approves it in the mean time. Same as U/A 360 - Financial Emergency
If approved by both t he Houses of Parliament, the President’s Rule continues for6 for 6 months. months . It can be extended for a with the approval of the Parliament, every 6 months . However, if the dissolution of the Lok Sabha takes place during the period of 6 months without approving the further continuation of the President’s Rule, then the proclamation survives until 30 30 days from the 1st sitting of sitting of the LS after LS after its reconstitution, provided the RS has RS has in the meantime approved its continuance. Every resolution approving the proclamation of President’s Rule or its continuation can be passed by either House of Parliament only by that is, a majority a majority of the members of that House present and voting. voting.
The 44th Amendment Act of 1978 provided t hat,beyond one year, the President’s Rule can be extended by 6 MONTHS at a time only when the following two conditions are fulfilled: 1. a proclamation of NE (A352) should be in o peration in the whole of India, or in the whole or any part of the state; and 2. the Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.
A proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval. Same in case of U/A 360 The Parliament can delegate the power to make laws -- > * for the state or to any other authority specified by him.
* &/or conferring powers & imposing duties or to
Exercise of Legislative Powers under proclamation issued U/A 356
357
*&/or when LS is not in
any other authority specified by him.
session - expenditure fromConsolidated Fund of State after approval from parliament.
So far, the practice has been for the president to make laws for the state in consultation with the members of Parliament from that state. Such laws are known as President’s Acts. When a proclamation of NE(u/A 352) is made, the 6 FR's U/A 19 are
Suspension of A19 during emergencies
suspended.
358 No separate order for their su spension is required The president to suspends the right to move any court for the enforcement of FR during a National Emergency . The suspension could be for the periodduring the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may extend to t he whole or any part of the country.
Suspension of other FR during emergencies
44 CA A 1978 ==FR U/A 20 & 21 are enforceable durimg operation of emergency
359 It should be laid before each House of Parliament for approval. While a Presidential Order is in force, the State can make any law or can take any executive action abridging or taking away the specified FR. Any such law or executive action cannot be challenged on the ground that they are inconsistent with the specified FR. When the Order ceases to operate, any law so made, to the extent of inconsistency with the specified FR, ceases to have effect. But no remedy lies for anything done during the operation of the order even after the order ceases to operate. President proclaims FE if - he is satisfied (final & conclusive & not questionable in any court of Law) that a situation has arisen due to which the
Financial Emergency (FE)
360 A proclamation declaring FE must be approved by both the Houses of Parliament within 2 months from the date of its issue. However, if the proclamation of FE is issued at a time when the LS has been dissolved or the dissolution of the LS takes place during the period of 2 months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the RS has in the meantime approved it. Same as U/A 356 - President's rule A resolution approving the proclamation ofFE can be passed by either House of Parliament only by a simple majority, that is, a majority of the members of that house present and voting. A proclamation ofFE may be revoked by the president at anytime by a subsequent proclamation. Such a proclamation does not require the parliamentry approval. The consequences of the proclamation of a FE are as follows: 1. The executive authority of the Centre extends (a) to directing any state to observe such canons of f inancial propriety as are specified by it; and (b) to directions as the President may deemnecessary and adequate for the purpose.
Effects of FE
2. Any such direction may include a provision requiring (a) the reduction of salaries and allowances of all or any class of persons serving in the state; and (b) the of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the state. 3. The President may issue directions for the reduction of salaries and allowances of (a) all or any class of persons serving the Union; and (b) the judges of the SC and the HC. Duration – Once declaration of Financial Emergency is approved by both houses of Parliament, it remains in operation till revoked by President and no maximum period is defined under constitution.
ARTICLE P roclaim 352
Special
356
Simple
360
Simple
Type of majority Revoke Simple (LS)
Approval Within 1 Month from Proclaimation, Initially in effect for 6 months. After that can be extended for Indefinite Period.
By President , No Within 2 Months from Proclaimation, Initially in effect for 6 months. After that can be extended for 3 Yrs. parliamentary approval reqd. Within 2 Months from Proclaimation. - Once declaration of Financial Emergency is approved by both houses of Parliament, it
remains in operation till revoked by President and no maximum period is defined under constitution.
Same as U/A 356 - President's rule
