No\npart of the Constitution has been the subject of more acrimonious attack by the\ncritics than the one that deals with the emergency provisions (Part XVIII of\nthe Constitution). The Constituent Assembly witnessed one of its most agitated\nscenes during the discussion of these provisions. Many prominent members of the\nAssembly opposed the inclusion of these provisions in the Constitution as they\nthought that these were inconsistent with the democratic provisions embodied elsewhere. The majority\nof the members, however, favoured the inclusion of these provisions, although\nreluctantly, as a precautionary measure, against possible disruptive forces\ndestroying the newly established Union.<\/p>\n\n\n\n
The\nConstitution provides for three different categories of emergency and in each\ncase, the President is empowered to declare the emergency.<\/p>\n\n\n\n
National\nEmergency<\/strong><\/p>\n\n\n\n If\nthe President is satisfied that a grave emergency exists whereby the security\nof India or any part of its territory is threatened by war, external aggression\nor armed rebellion, he may proclaim a state of emergency under Article 352. It\nmay be proclaimed even before the actual occurrence when external aggression is\napprehended. But no such proclamation can be made by the President unless the\nUnion Ministers of Cabinet rank, headed by the Prime Minister, recommend to\nhim, in writing, that such a proclamation should be issued. The proclamation\nmay be revoked subsequently; if not, it shall be laid before both Houses of\nParliament. If Parliament does not\napprove of it within one month, it will become ineffective.<\/p>\n\n\n\n As\nsoon as the emergency is proclaimed, the federal provisions of the Constitution\ncease to function in the area affected by the proclamation. As a result, there\nis a twofold expansion of the authority of the Union. First, the executive\npower of the Union will extend to the giving of any direction to any State\nexecutive in the emergency area. Secondly, Parliament\u2019s law-making power will\nextend to the subjects enumerated in the State List. Further, the President is\nempowered to prohibit by order the distribution of revenues that are normally\nto be assigned to the States under the financial provisions of the\nConstitution. However, all such orders have to be placed before each House of\nParliament for its approval. The combined effect of the operation of these\nprovisions is the emer\u00adgence of full-fledged unitary Government.<\/p>\n\n\n\n So\nfar, there have been three occasions when emergency of the first category was\nproclaimed by the President : 1962 (Chinese aggression), 1971 (Indo-Pakistan\nwar before the formation of Bangladesh) and 1975 (internal emergency).<\/p>\n\n\n\n Constitutional\nEmergency in the States<\/strong><\/p>\n\n\n\n If\nthe President is satisfied on receipt of a report from the Governor or\notherwise that a situation has arisen in which the Government of a State cannot\nbe carried on in accordance with the provisions of the Constitution, he is\nempowered to proclaim an emergency under Articles 356 and 365. As a result, (i)\nhe may assume to himself all or any of the functions of the State or he may\nvest all or any of those functions in the Governor or any other executive\nauthority; (ii) he may declare that the powers of the State legislature shall\nbe exercisable by Parliament; and (iii) he may make any other incidental or\nconsequential provisions necessary to give effect to the objects of the\nproclamation. The President, however, cannot assume to himself any of the\npowers vested in a High Court.<\/p>\n\n\n\n The\nproclamation may be revoked subsequently; if not, it shall be laid before both\nHouses of Parliament. Since\nthe inauguration of the Constitution, this type of emergency has been declared\nmore than 100 times. For the first time constitutional emergency was declared\nin Punjab in 1952. The States which came under President\u2019s rule for the maximum\nnumber of times were Kerala (9 times), followed by Punjab (8 times).<\/p>\n\n\n\n Suspension\nof Fundamental Rights :<\/strong> During the period\nof emergency, as declared under either of the two categories discussed above,\nthe State is empowered to suspend the Fundamental Rights guaranteed under\nArticle 19 of the Constitution. The term \u2018State\u2019 is used here in the same sense\nin which it has been used in the Part III on Fundamental Rights. It means that\nthe power to suspend the operation of these Fundamental Rights is vested not\nonly in Parliament but also in the Union Executive and even in a subordinate\nauthority. Further, the Constitution empowers the President to suspend the\nright to move any court of law for \nthe enforcement of any \nof the Fundamental Rights. It means\nthat virtually the whole Part on Fundamental Rights can be suspended during the\noperation of the emergency. However, such orders are to be placed before\nParliament as soon as possible for its approval.<\/p>\n\n\n\n Financial\nEmergency<\/strong><\/p>\n\n\n\n If\nthe President is satisfied that a situation has arisen whereby the financial\nstability or credit of India or any During\nthe financial emergency, \u201cthe executive authority of the Union shall extend to\nthe giving of directions to any State to observe such canons of financial\npropriety as may be specified in the direction\u201d or any other directions An\nAnalysis<\/strong><\/p>\n\n\n\n So\nfar, there have been three occasions when National emergency of the first\ncategory was proclaimed by the President. Moreover, there have been more than 100 times when constitutional\nemergency was proclaimed.<\/p>\n\n\n\n An\nanalysis of these instances would indicate the purpose and the manner in which,\nin actual practice, a proclamation of emergency in the States will be made by\nthe President. These may be summed up in the following terms :<\/p>\n\n\n\n (1) The essential condition for the intervention\nby the Centre is the political instability of the State, that is, the virtual\nbreakdown of the Parliamentary System of the Government.<\/p>\n\n\n\n (2) The\nUnion will watch the situation of instability with utmost caution and provide\nevery opportunity for the formation of an alternative ministry.<\/p>\n\n\n\n (3) The\nproclamation of emergency will only be the last resort when (i) the existing\nministry does not have the confidence of the legislature; and (ii) no\nalternative ministry can be formed.<\/p>\n\n\n\n (4) During\nthe period of emergency, the legislative work of the State will be transferred\nto Parliament. Delegation of such work to any administrative body will be\nreduced to the minimum.<\/p>\n\n\n\n (5) As\nsoon as the political situation within the State becomes conducive to a\nresponsible Government, it will be restored.<\/p>\n\n\n\n Generally\nspeaking, in practice, the emergency provisions for Central intervention in\ncase of a breakdown of Constitutional machinery in the States have proved to be\nnot only a protective device for responsible government in politically unstable\nStates, but also a blessing to political parties who were unwilling and\nincapable to shoulder responsibility for a time, on account of group rivalries\nor any other unfavourable circumstances.<\/p>\n\n\n\n During\na period of emergency, it is natural that the Executive becomes unusually\npowerful. This is a tendency How\neffectively Parliament would and could function during a period of national\nemergency was a subject of speculation until 1962 when the President proclaimed\nemergency under Article 352. But the manner in which Parliament has dealt with\nthe emergency shows that instead of the executive\narrogating to itself the powers of Parliament in the name of emergency,\nParliament has subjected the executive\nto greater control and scrutiny in all its actions vitally affecting the\nnation. In fact, the debates in Parliament demonstrated the eagerness with\nwhich the executive sought the\napproval of Parliament not only with regard to the action already taken by the\nGovernment, but also that proposed for the future.<\/p>\n\n\n\n The\nonly exception to this practice was the internal emergency period of 1975-77.\nThere was widespread abuse of executive power in many parts of the country in\nmany forms during this period. The extent of abuse became clear only after the\nlifting of emergency in 1977. Naturally, the new Parliament which came into being\nafter the general elections of March 1977, was interested in preventing the\nrepetition of such a situation in future and hence initiated steps to amend the\nConstitution suitably to limit the powers of the Government to proclaim\ninternal emergency.<\/p>\n\n\n\n The\n44th Constitutional Amendment adopted by Parliament in December 1978 ensures\nthat the proclamation of emergency can be made only on the basis of written\nadvice tendered to the President by the Cabinet. Internal disturbance not\namounting to armed rebellion will no longer be a ground for declaration of\nemergency. Emergency can be proclaimed only when the security of the country is\nthreatened by war, external aggression or armed rebellion. As an additional\nsafeguard, proclamation of emergency will require approval within a month by a\nresolution of Parliament by a majority of the total membership and not less\nthan two-thirds of the members present and voting.<\/p>\n\n\n\n The\nprovisions for financial emergency, again, show how the framers of the\nConstitution have drawn upon the experience of the working of federalism\nelsewhere.<\/p>\n\n\n\n Finally,\none may consider the provision for the suspension of Fundamental Rights.\nApparently, this is by far the most unwholesome provision in the Constitution.<\/p>\n\n\n\n The\nprovision for the suspension of Constitutional rights does not mean, however,\nthat with the proclamation of emergency, there will be an automatic suspension\nof Fundamental Rights. It may be quite possible to keep the enforcement of the\nFundamental Rights intact and there need not be a universal suspension\nthroughout the country merely by reason of the proclamation. Further, the order\nof suspension should be placed before Parliament and it will be free to take\nwhatever action it deems fit.<\/p>\n\n\n\n The\nworking of the Constitution, so far, shows that the suspension of Fundamental\nRights took place rarely. That happened as a result of the proclamation of\nnational emergency in 1962, 1971 and 1975.<\/p>\n\n\n\n In contrast to the national emergencies\nmentioned above, Fundamental Rights were never suspended during any of the\nemergencies proclaimed in the States. That remains a good precedent. Even\nduring the national emergency, suspension of Fundamental Rights should be\nrestricted to the absolute minimum. <\/p>\n\n\n\n There have been only a few instances so far of the\nUnion Executive behaving high-handedly towards the States orignoring Parliament\nin the name of emergency. The apprehension that the President may act as a\ndictator is not No part of the Constitution has been the subject of more acrimonious attack by the critics than the one that deals with the emergency provisions (Part XVIII of the Constitution). The Constituent Assembly witnessed one of its most agitated scenes during the discussion of these provisions. Many prominent members of the Assembly opposed the inclusion […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[3],"tags":[],"_links":{"self":[{"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/posts\/557"}],"collection":[{"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/comments?post=557"}],"version-history":[{"count":1,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/posts\/557\/revisions"}],"predecessor-version":[{"id":558,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/posts\/557\/revisions\/558"}],"wp:attachment":[{"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/media?parent=557"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/categories?post=557"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.competitionreview.in\/blogs\/wp-json\/wp\/v2\/tags?post=557"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nIf Parliament does not approve of it within two months, it will become\nineffective.<\/p>\n\n\n\n
\npart of it is threatened, he may declare a financial emergency under Article\n360. The proclamation in this case also should be approved by Parliament as in\nthe other two cases of emergency.<\/p>\n\n\n\n
\nwhich the President may deem necessary for the purpose. Such directions may\ninclude those requiring the reduction of salaries and allowances of Government\nservants and even those of the Judges of the Supreme Court and the High Courts.<\/p>\n\n\n\n
\nof governments all over the world, federal or unitary. The experience of\nparliamentary democracies indicates that a Parliament is vigilant and through\nthe members of the Opposition particularly, it manages to compel the executive to account for all its\nactions. Thus, Parliament has the power to check the executive whenever the latter goes beyond reasonable limits.\nEmergency provisions do not, in any way, cut Parliament out of the picture and\nParliament has always the right to call the executive\nto order; and if they find that the executive\nhas exceeded its powers with regard to the operation of any of the provisions\nenacted under the emergency laws, they can always pull it up, even dismiss the\nministry and replace it.<\/p>\n\n\n\n
\none of the acute discomforts of our political thinking. On the other hand, the\nemergency provisions have been, on the whole, justified when viewed in the\nlight of the experiences of the past. <\/p>\n","protected":false},"excerpt":{"rendered":"