Emergency Povisions

EMERGENCY
PROVISIONS
By
Prof. Sandeep Shravan Sawalkar
B.Com, LL.B, LL.M, DCL, PGDHR, M.Phil, UGC-NET/SET
Copyright © 2020 by Prof. Sandeep S.

Sawalkar. All rights reserved. 1
Emergency provisions:
Characteristics
 Taken from the constitution of the Weimar
Republic of Germany.
 Part XVIII, 352-360
 To deal with extra ordinary situation
 To protect democracy, constitution, SUI
(sovereignty, unity, integrity) security of
India

Emergency provisions:
Characteristics
 Unique feature: BR Ambedkar- Only
Indian constitution can function with dual
roles.
 It can be federal in normal times, unitary
in time of emergency.
 No amendment is needed for this
purpose.
 Others like US- tight moulds of
federalism, can never be unitary even if
they wanted too.
3 Types of Emergency
 National Emergency – due to war,
external aggression or armed rebellion
( Art.352)
 State emergency (President Rule) – due
to the failure of constitutional machinery
in States (Art.356)
 Financial Emergency – (Art.360)

National Emergency
 Term national emergency is not used in constitution.
 Art.352: If the President is satisfied that a grave
emergency exists whereby the security of India or
of any part of the territory thereof is threatened ,
whether by war or external aggression or armed
rebellion, he may, by Proclamation, made a
declaration to that effect in respect of the whole of
India or of such part of the territory thereof as may
be specified in the Proclamation.
 The Proclamation of Emergency may be varied or
revoked by the President by a subsequent
Proclamation.

An imminent danger is enough
for proclamation
 A Proclamation of Emergency can be made
even before the actual occurrence of event
contemplated in Article 352 have taken
place if the President is satisfied that there
is an imminent danger of war or external
aggression or armed rebellion.
 Thus actual occurrence of event mentioned
in Article 352 is not essential.
 An imminent danger of war or external
aggression or armed rebellion is enough for
the proclamation of emergency.
 War + External aggression = External
Emergency
 Armed rebellion = Internal emergency
 Internal disturbance replaced by Armed
rebellion by 44th CAA, 1978.
 Also President can proclaim a national
emergency only after receiving a written
recommendation from the cabinet by 44th
CAA, 1978.
 Deleted 38th CAA, 1975 and made emergency
applicable under JR.
 Minerva Mills case,1980, proclamation can be
challenged (JR) on the ground of
 Malafide
 Wholly extraneous and irrelevant facts.
 Absurd or perverse.
 For new proclamation and varying an existing
proclamation: need to be placed in Parliament
and Special majority (50%+1 of Total
membership and 2/3rd of P&V)
 For revoking proclamation: No need to be
placed in Parliament.
Pre 44th CAA, 1978 Post 44th CAA, 1978
Continues as long as Periodic parliamentary
cabinet wants approval (6 months at a
time)
Simple majority Special majority
Internal disturbance Armed Rebellion
(vague definition)
Entire India only (pre 38 Parts or entire (38 CAA)
CAA)
Prez may or may not Prez must revoke, if LS
revoke, if LS disapproves disapproves it
it
Approval by Parliament
 The Proclamation of Emergency must be
laid before each House of Parliament and
it shall cease to be in operation at the
expiration of one month, unless before
the expiration of one month it has been
approved by resolutions of both Houses
of Parliament.
 A resolution approving the Proclamation
must be passed by a special majority,
that is by a majority of not less than 2/3rd
of the members present and voting in
each House. Sawalkar. All rights reserved. 10
EXAMPLE
 25.12.2020: Grave emergent situation
(W.Ea.AR) WEaAR
 29.12.2020: Written recommendation from
the cabinet.
 01.01.2021: Proclamation of emergency by
President
 31.01.2021: Ceases to operate if:
 Parliament not in session.
 Not passed by Lok Sabha and Rajya Sabha.
 Not passed by either LS or RS
Parliamentary sessions:
 Budget session: In the months of February to
May.
 Monsoon session: In the months of July to
September.
 Winter Session: In the month of November to
December.
 This is just convention. Sessions can be
conducted anytime. Only condition is that 6
months should not pass between 2
parliamentary sessions (duty of president of
India).
 30.01.2021: Session is conducted, earlier than convention.
Passed by LS and RS.
 Now it will continue till 30.07.2021 ( 6 months)
 Periodic parliamentary approval (44 CAA)- Can be
extended for 6 months at a time.
 30.01.2021, 30.07.2021 and so on ( But approval before
that date obviously)
 However, if Lok Sabha gets dissolved either before 1
month or 6 months (lets say 29.06.2021) i.e without
approving prolongation of emergency, then emergency
continues till 30 days from first sitting of LS after re-
formation (unless the newly formed LS passes it)
 However, it do needs to be approved by RS even if LS is
dissolved.
End of emergency
 If no continuation given by parliament or
RS as the case may be
 If LS disapproves, president must revoke
it.
 Disapproval: LS only + simple majority
only.

Effects of proclamation of
emergency
 Centre’s Executive power becomes absolute
( Art.353).
 Parliament can make any law on any State
Subject (Art. 353(b)).
 Centre can change the tenets of distribution
of revenue between the Union and the
States (Art.354)
 LS can be extended indefinitely (Art.83(2))
 Suspension of fundamental rights
guaranteed by Art. 19
Centre’s executive power
becomes absolute (Art.353)
 Centre: can give directions to any State
to exercise of its executive power.
 Usually it can be given only in certain
aspects.
 In normal times, the executive power
does not extend to give such direction
subject to certain exceptions.
 Complete control without suspension
 Suppose national emergency is in
Rajasthan, but this provision extends to
any state. Copyright © 2020 by Prof. Sandeep S.
Parliament can make any law on
any State Subject (Art.353(b))
 Parliament can make laws (Prez can issue
ordinances) on any item on State List.
 Fundamental change in distribution of power,
becomes unitary rather than federal.
 Law-making power of the State is not
suspended, it is subject to the overriding
power of the Union Parliament.
 All such laws becomes null and void 6 months
after emergency ends.
 Suppose national emergency is in Rajasthan,
but this provision extends to any state.
Centre can change the tenets
of distribution of revenue
between CS (Art. 354)
 Centre can modify reduce or stop the
transfer of fund to state
 Any modification will continue even after
the emergency is long gone (till 31st
March, end of financial year)
 Need to be passed by both houses

LS can be extended indefinitely
[Art.83(2)]
 5th LS (1971-1977), twice extended by 1
year each,
 Who – President,
 Beyond 5 year, 1 year at a time,
 Parliamentary law needs to be passed to
that effect.
 Same can be done by parliament for
State LS
 Both can’t continue more than 6 months
after emergency ends.
Suspension of fundamental
rights guaranteed by Art.19
 Article 358 = No more Art. 19. Any law or any
executive action can abridge the rights
guaranteed by Article 19 of the Constitution.
 Meaning – no separate notification
required i.e. Art 19 gone as soon as
proclamation of emergency is made.
 E & L action can’t be challenged even after
emergency cease to exist.
 Restriction: Only W, EA no AR; only
emergency related laws are under its purview
not others
Suspension of Right of Enforcement
of Fundamental Rights (Art. 359)
 Art. 359 : Prez can suspend the right to
enforce FRs
 Right to move any court for the
enforcement of any or all FRs (except
Articles 20 & 21)
 All proceedings pending in any court for
the enforcement of such rights is
suspended.
 Duration, number of articles and
territorial extent : Prez decides
Comparison of Articles 358 &
359
 Art.358: Suspension of Article 19 is
complete
 Art.359: Only enforcement and
proceedings are halted i.e. rights are
alive in theory but remedy is absent, so
suspended in practice.
 Any law will become null and void at the
end of emergency, to the extent it is in
contravention of the FRs.
 Not necessarily the entire law, but just a
particular line or
Copyright paragraph.
© 2020 by Prof. Sandeep S. Example 2nd
th
Art.358 Art.359
Automatic Need to pass an
suspension order
Art. 19 only All (except 20,21)
Only external Both IE + EE (W,
emergency (W.EA) EA, AR)
Complete duration Customized
Entire nation Customized
National emergency in India:
History
 Its thrice not once.
 1962: Chinese aggression in Arunachal
Pradesh (NEFA- North East Frontier Agency),
external aggression, continued till 1968 (so no
need to proclaim a new one in 1965, at the
time of war against Pakistan)
 1971: War with Pakistan, it continued till
Mar,1977
 1975: Emergency on grounds of internal
disturbance, even when a national emergency
was already existing, highly controversial.
 1975: Emergency. 21-month period (25 June 1975 until its
withdrawal on 21 March 1977)
 Tug of war between executive and judiciary: 24th CAA, privy
purses abolition, Bank Nationalisation, Kesavanada Bharti,
42nd CAA
 A state of emergency across the country. President
Fakhruddin Ali Ahmed + Prime Minister Indira Gandhi + “
internal disturbance”
 No written recommendation from Cabinet, rather it was not
even aware till after it was made.
 State of Uttar Pradesh v. Raj Narain (contested against IG):
HC said that she used state machinery and cancelled her
election, null and void and barred her from contesting any
lection for next 6 years.
 Guilty on the charge of misuse of government
machinery for her election campaign 12.06.1975
 Challenge to Supreme Court, upheld and stop all
privileges extended to her as MP, 24.06.1975
 PM secretariat gained significant power on the
expense of the cabinet
 The Economist’s described her as the “Express
of India”
 Centralization of power
 Criticism of misuse of exorbitant powers granted
during the emergency
 Election after 1977, Congress party lost
and for the first time
 A non congress government formed at
the centre, with Janta Party, Morarji Desai
as PM
 Shah Commission: Circumstances did
not justify proclamation of emergency
 So the passage of various safety
mechanism against the misuse of
Emergency by 44th CAA, 1978
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EMERGENCY

Copyright © 2020 by Prof. Sandeep S.

Copyright © 2020 by Prof. Sandeep S.

Copyright © 2020 by Prof. Sandeep S.

Copyright © 2020 by Prof. Sandeep S.

Copyright © 2020 by Prof. Sandeep S.

Copyright © 2020 by Prof. Sandeep S.

Copyright © 2020 by Prof. Sandeep S.

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