Professional Documents
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Article 352 To 360
Article 352 To 360
Project on
Emergency provisions as found in Indian
constitution from article 352 to 360
Constitutional law
SUBMITTED BY-:
SUBMITTED TO-:
Akshey Jose
Ms Kuldeep Kaur
2013 BA.LLB 39
Assistant Professor
5th Trimester
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Table of content
Acknowledgment…………………………………………………03
Introduction…………………………………………….…………04
Emergency provisions in Indian constitution………………..........05
Article 352-proclamation of national emergency…………05
Article 356-state emergency or president’s rule…………..06
Criticism…………………………………………………………..07
Article 360-financial emergency………………..………..08
Effects of proclamation of emergency……………………….…..09
Abuse of power………….……………………………………….09
Conclusion………………………………………………………..11
Bibliography………………………………………………………12
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Acknowledgment
I am very glad that I got an opportunity to learn and imbibe so many things while
making
this project. It helped to a great extent in developing researching skills which
are very
important for a student of law. First and foremost, I would like to thank Ms
Kuldeep Kaur
for giving us this opportunity and always being such a great support. Secondly, I
would
like to thank my friends and family who are always there for me.
Thank you
Akshey Jose
2013 BA LLB 39
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Introduction
The Indian Constitution provides a detailed insight into the entire government
structure, basic
rights and duties of the citizen and special provisions. There are a total of 395
Articles in the
constitution of India. Enacted on 26th of January, 1950, the Constitution contains
Emergency
and Special Provisions of the Indian Constitution. Special Provisions relating to
Certain
Classes are included in Part XVI. The Constitution of India also covers Emergency
Provisions in Part XVIII.
A state of emergency in India refers to a period of governance under an
altered constitutional setup that can be proclaimed by the President of India, when
he/she
perceives grave threats to the nation from internal and external sources or
from financial situations of crisis. Under the advice of the cabinet of ministers
1and using the
powers vested in him largely by Part XVIII of the Constitution of India, the
President can
overrule many provisions of the constitution, which guarantee fundamental rights to
the citizens of India and acts governing devolution of powers to the states which
form
the federation. In the history of independent India, there were three periods
during which a
state of emergency was deemed to have existed.
1. Between 26 October 1962 to 10 January 1968 during the India-China war — "the
security of India" having been declared "threatened by external aggression".
2. Between 3 December 1971 to 1977 originally proclaimed during the Indo Pakistan
war, and later extended along with the third proclamation — "the security of India"
having been declared "threatened by external aggression".
3. Between 26 June 1975 to 21 March 1977 under controversial circumstances of
political instability under the Indira Gandhi's prime ministership — "the security
of
India" having been declared "threatened by internal disturbances".
The President can declare three types of emergencies:
National emergency
State emergency
Financial emergency
President of India needs the aid and advice of cabinet, and is bound to work in
accordance with such advice
as provided under article 74(1) which states thatArticle 74 - Council of Ministers
to aid and advise President
[(1) There shall be a Council of Ministers with the Prime Minister at the head to
aid and advise the
President who shall, in the exercise of his functions, act in accordance with such
advice:]
[Provided that the President may require the Council of Ministers to reconsider
such advice; either
generally or otherwise, and the President shall act in accordance with the advice
tendered after
such reconsideration.]
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Emergency provisions in Indian constitution
The Emergency Provisions are mentioned from Article 352 to Article 360 of the
Indian
Constitution. Below is the list of all the Articles of the Indian Constitution
containing the
Emergency provisions.
National Emergency- Article 352
Proclamation of Emergency - due to external aggression or war the President of
India can
proclaim a state of emergency. This Article suggests that such a Proclamation can
be revoked
or a varied Proclamation can also be issued. However, the decision of the Cabinet
ministers
to issue such a proclamation must be sent to the President in written form prior to
his
issuance of the same. Thus it is clear that president cannot proclaim emergency
unilaterally
and can only do same with the written recommendation of the council of ministers as
declared in Article 74 of Indian constitution. According to the Article, all such
Proclamations
should be presented to both the Houses of the Parliament. The Proclamations, if not
accepted
by a resolution, will be counted as ineffective after one month. If the
Proclamation is not
accepted after the passing of a second resolution, then it will become ineffective
after the
expiry of 6 months of the second resolution. It is also mentioned in the Article
that not less
than two-thirds of the members of both of the Houses of the Parliament should be
required to
pass a resolution. There are certain rules specified in this Article regarding the
President
revoking or issuing a varied Proclamation during Emergency.
Article 353: Effect of Proclamation of Emergency - this Article states that the
Proclamation of Emergency includes extending the executive power of the union to
the states in the form of directions. The Parliament, as per this Article, can
confer the
power to make laws, upon the officers or authorities of the Union.
Article 354: Application of provisions relating to distribution of revenues while a
Proclamation of Emergency is in operation - provisions made under Articles 268 to
279 can be modified or exceptions can be made by the President of India by an Order
while the Proclamation period of emergency is going on. Information about all such
Orders must be conveyed to both the Houses of Parliament.
Article 355: Duty of the Union to protect States against external aggression and
internal disturbance - this Article states the fact that the Union or Center is
solely
responsible for defending the various states from all types of violence and
aggressions
erupting from outside and disturbances occurring within the nation's territory.
So far national emergency has been declared thrice in the history of independent
India. Such
an emergency was at first time declared during Indo-Sino war of 1962, then during
Indo-Pak
war of 1965 and then in 1975 by the then Prime Minister of India, Smt. Indira
Gandhi when
her election was declared invalid by Allahabad High Court in famous case of
Rajnarain v
India Nehru Gandhi2. The emergency proclaimed by Ms Indira Gandhi was a blow for
Indian
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democracy. Several acts of violation of fundamental rights were done during this
period.
Indira Gandhi’s election was declared invalid by the Allahabad High Court and she
found to
be guilty of various offences under Representation of People Act 1956 and in order
to escape
from the conviction, she declare national emergency.
Grounds for proclamation of national emergency-:
Before 44th Constitutional Amendment Act of 1978, the grounds for the proclamation
of
national emergency were war, external aggression and internal disturbance. But the
term
“internal disturbance” was very vague and might also include political agitation in
country.
Hence, the 44th amendment replaced this with armed rebellion. After the 44th
amendment
National Emergency can be proclaimed by the President on the ground of war,
external
aggression and armed rebellion.
Publication of proclamation of emergency-:
There is no prescribed format in which a Proclamation of Emergency needs to be
published. The publication can be made in any manner deemed fit in order to be
known to
public.
Criticism-:
Article 356 gave wide powers to the central government to assert its authority over
a state
if civil unrest occurred and the state government did not have the means to end the
unrest.
This is one of the articles that gave the Indian constitution some amount of
unitary
character. Though the purpose of this article is to give more powers to central
government
to preserve the unity and integrity of the nation, it has often been misused by the
ruling
parties at the centre. It has been used as a pretext to dissolve state governments
ruled by
political opponents. Thus, it is seen by many as a threat to the federal state
system. Since
the adoption of Indian constitution in 1950, the central government has used this
article
several times 3to dissolve elected state governments and impose President's rule.
The article was used for the first time in up 1987. It has also been used in the
state of
Patiala and East Punjab States union (PEPSU) and then during Vimochana samaram to
dismiss the democratically elected Communist state government of Kerala on 31 July
1959. In the 1970s and 1980s it almost became common practice for the central
government to dismiss state governments led by opposition parties. The Indira
Gandhi regime and post-emergency Janata Party were noted for this practice. Indira
Gandhi's government between 1966- 1977 is known to have imposed President' rule in
39
states. Similarly Janta Dal which to power emergency is known to have issued
President's
rule in 9 states which were ruled by congress.
It is only after the landmark judgement in 1994 in the S. R. Bommai v. Union of
India 4case
that the misuse of Article 356 was curtailed. In this case, the Supreme Court
established
strict guidelines for imposing President's rule. Subsequent pronouncements by the
Supreme Court in Jharkand and other states have further whetted down the scope for
misuse of Article 356. Hence since the early 2000, the number of cases of
imposition of
President's rule has come down drastically.
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Article 356 has always been the focal point of a wider debate of the federal
structure of
government in Indian polity. The Sarkaria Commission on central-state relations has
recommended that Article 356 must be used "very sparingly, in extreme cases, as a
measure of last resort, when all the other alternatives fail to prevent or rectify
a breakdown
of constitutional machinery in the state".
Financial emergency-:
If the President is satisfied that there is an economic situation in which the
financial stability
or credit of India is threatened, he or she can declare financial emergency. Such
an
emergency must be approved by the Parliament within two months. It has never been
declared. Such a situation had arisen but was avoided by putting the gold assets of
India as
collateral for foreign credit. It remains enforced till the President revokes it.
In case of a financial emergency, the President can reduce the salaries of all
government
officials, including judges of the Supreme Court and High Courts. All money bills
passed
by the State legislatures are submitted to the President for his approval. He can
direct the
state to observe certain principles (economy measures) relating to financial
matters.
So far financial emergency have never been imposed in the history of independent
India.
Abuse of power-:
It is clear that the power extended to the Union Parliament in the Proclamation of
Emergency
must be used in rarest of the rare cases. However it is not so, the power given to
the President
to be used in extraordinary circumstances is widely used for political benefits of
individuals
(1) Notwithstanding anything in this Chapter, Parliament shall, while a
Proclamation of Emergency is
in operation, have, power to make laws for the whole or any part of the territory
of India with respect
to any of the matters enumerated in the State List
(2) A law made by Parliament which Parliament would not but for the issue of a
Proclamation of
Emergency have been competent to make shall, to the extent of the incompetency,
cease to have
effect on the expiration of a period of six months after the Proclamation has
ceased to operate, except
as respects things done or omitted to be done before the expiration of the said
period
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Conclusion:
Where the Constitution provides for execution of power which may lead to
infringement of
fundamental rights of the individual during Emergency, judicially guaranteed by
Constitution
of India, there must also be effective control mechanism to ensure limitation of
this power
within the ambit of the Constitution. The validity of actions must be reviewed to
deter
political gains and give way to public interest. Despite the abuse of power the
Emergency
provisions still have a role to play under conditions prevailing in India, though
it still remains
a controversial issue in the country.
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Bibliography-:
http://en.wikipedia.org/wiki/Emergency_provisions_of_the_Constitution_of_India
http://www.hanumant.com/Emergency.html
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