Emergency System in India

Emergency and Constitution

It is an exceptional system when the normal functioning of Legislature, executive and Judiciary is interrupted to handle any unforeseen situation in the country and states.

It is provided under the original constitution and amended once by the 44th Constitutional Amendment act 1978.

Articles related with Emergency

  1. Art 352: Emergency can be declared in any part (or whole) of India on grounds of war, external aggression or armed rebellion.
    1. Article 44th CA Act, 1978 changed ‘internal disturbance’ to ‘armed rebellion’).

  2. Art 356: In cases where governance of the state can’t be carried according to the provisions of the Constitution.

  3. Art 360: Financial emergency applicable in any part (or whole) of India.

Article 352 - Proclamation of Emergency

  1. Declared on the basis of external aggression/ armed rebellion in the whole of India / part of its territory.
  2. It  must be approved by both the Houses of Parliament within a month by special majority. After this Parliament approval for every 6 months is required.

Declaration in past

  1. External aggression
    1. India-China war ( 26 Oct 1962 – 10 Jan 1968)
    2. Indo-Pakistan war; and later extended ( 3 Dec 1971 – 25 June 1975 )
  2. Political instability ( 25 June 1975 – 21 March 1977 )
    1. Internal disturbances.

Centre state relation and 352

The President has the power reduce or cancel the transfer of finances ( Tax sharing + Grant ) from Centre to the states. Such changes continues till the end of the Financial Year in which the emergency ceases to operate.

Proclamation

President and Cabinet Provisions
  1. Art 352 emergency can be proclaimed even before the actual occurrence of any such disturbance.
  2. The President should take in writing from the cabinet for emergency proclamation.
Parliamentary Provision
  1. It should be laid down in the parliament and must be approved within one month of the proclamation by both the houses with a special majority. 
  2. If the HoP is dissolved, should be approved by the CoS within one month of the proclamation. Once HoP session star, it should approve emergency within one month. After the approval it will get a fresh lease of 6 months.
  3. To continue it, resolution must be passed by a special majority in both houses after every 6 months.
Discontinuation of 352

It can be discontinued by a resolution passed by a simple majority in House of People. 

To make this special sitting of House of People, ≤ 10% members may give a notice to speaker (when the house is in sitting) or the president (when the house is not in sitting). 

Such a sitting shall be convened within 14 days.

Judiciary and 352

Proclamation of emergency is subject to judicial review on ground of mala fides.

Impact of 352

  1. Article 358 – If the emergency under Art 352 is on the grounds of war or external aggression/war only ( and not internal armed rebellion ), the freedoms under Art 19 shall be suspended or cease to exist.
    But if the emergency is under internal armed rebellion, then after it is withdrawn, citizens can go to the Supreme or High court for violations during the emergency period.
  2. Article 359 – President has the power to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency through an order. As such Fundamental Rights are not suspended only going to court/article 32 /remedy to FR is suspended.
    1. Enforcement is not allowed only for those FRs which are mentioned in the Presidential order.

Financial Emergency ( Article 360 )

Declared by the President in situations of the financial crisis and must be approved by the Parliament within 2 months.

President can reduce the salaries of all govt officials. All money bills passed by the state legislatures will require the president approval.

Fundamental Rights cannot be suspended.
Time Period – It has no maximum duration.
History – It has never been declared.