RESEARCH ARTICLE ON
CONSTITUTIONAL LAW OF INDIA
TOPIC ‘ EMERGENCY
SUBMITTED TO:- SUBMITTED BY:-
DR. JYOTI DHARM KAJAL KUKREJA
L.L.B. 3 YEAR (2 SEM)
ROLL NO ‘ 138
TABLE OF CONTENTS
SERIAL NO.
CONTENT
PAGE NO.
1.
ABSTRACT
3
2.
KEY WORDS
3
3.
INTRODUCTION
3
4.
GROUNDS
4
5.
CASE LAWS
4
6.
EFFECTS
5
7.
DUTY OF THE UNION TO PROTECT STATES
5
8.
CONCLUSION
6
9.
BIBLIOGRAPHY
7
ABSTRACT
At the time of drafting of Indian Constitution India was passing through a stressful time. Then at the time of division of the country, Communal riots and there was one problem which was related to the merger of Princely states which includes Kashmir. Then the makers of the Constitution thought to provide the Central Government to the necessary authority in the situation of emergency.
KEY WORDS
War
Proclamation of emergency
President’s Rule
Failure of Machinery
Introduction
There are various types of provisions which are mentioned in our Indian Constitution for the protection of the country and for the protection of the rights of the individuals. Therefore if our country is threatened and it may be external or internal then for the protection and stability of the country there are some emergency provisions which were made in constitution to safeguard and protect the security of the country.
There are three types of emergency which are explained in the Indian Constitution:-
1. NATIONAL EMERGENCY (ARTICLE 352)
2. STATE EMERGENCY (ARICLE 356)
3. FINANCIAL EMERGENCY (ARTICLE 360)
1. NATIONAL EMERGENCY ‘ Article 352 defines the National Emergency. It is that type of emergency which is caused by war, aggression or armed rebellion . This article clearly says that if any serious type of emergency exits and the President is satisfied by his decision that it is disturbing the peace of the country and may be any part is threatened by war or something else. Then the President may declare a emergency in whole of the country or may be in that part only. It can take back by the President by another declaration. The provision of emergency can only be declared on the discretion of the cabinet. It cannot be declare only on the advice of the Prime Minister. They have to communicate with them in writing. The Proclamation of emergency should put before each house of Parliament and it will work at the expiration of one month.
This article also provides the power to issue different proclamations on different grounds i.e it may be by any danger, war, aggression etc.
GROUNDS OF EMERGENCY:-
The President can declare emergency when he will be satisfied that there is a threat by war or something which disturbs the peace of the country. Before the 44th Amendment there was one ground on which emergency could be declared which is mentioned in the clause (1) i.e. internal disturbance. At that time these words were vague and which provides the Executive to give pre discretion to declare emergency even on these thin grounds. Further these provisions got the addition of the new clause (3) in Article 352 in the Constitution (44th Amendment) Act, 1978. It says that the President can declare emergency only when the Cabinet gave advice in writing.
MINERVA MILLS LTD. V.UNION OF INDIA ‘ In this case Justice Bhagwati held that there is no bar to judicial review of the validity of a Proclamation of emergency issued by the President under Article 352(1).The first condition is the satisfaction of the President and if there will be no satisfaction of the president then the power of him will be constitutionally invalid. If the satisfaction is on the irrelevant ground then it will be challenged in the court of law.
TERRITORIAL EXTENT OF PROCLAMATION:-
Article 352 provides the President to give a proclamation of emergency in the whole of the India or may be any part of the territory which is specified. This provision is added by the (42 Amendment) Act, 1976 which says that the President can declare emergency in any part of the territory of India. If the emergency is declared in any part of the country and then the situation becomes normal then the emergency can be revoked from that part of the country but it can be continue in other parts of the country.
DURATION OF EMERGENCY:-
Before the 44th Amendment a declaration of emergency can be for ‘two ‘months. But if it is approved by Parliament emergency then it can remain for indefinite period of time and till that time when the executive wants it to be continued. The declaration of emergency should be passed by either House of Parliament by the special majority.
EFFECTS OF PROCLAMATION OF EMERGENCY :-
1. Extension of centre’s Executive Power (Art.353)
2. Parliament empowered to legislate on state subjects [Art. 353(b)]
3. Centre empowered to alter distribution of revenue between the Union and the State (Art.354)
4. Extension of life of Lok Sabha [ Art. 83(2)]
5. Suspension of Fundamental rights guaranteed by (Art. 19)
M.M. PATHAK V. UNION OF INDIA ‘ Under this case the Supreme Court held that the effect of declaration of emergency on fundamental rights which is guaranteed by Articles 14 and 19. These articles will not be suspended only their work will be suspended which means that the effect of this article is suspended during the emergency.
DUTY OF THE UNION TO PROTECT STATES :-
Article 355 gives a duty on the Union to secure every State against external aggression and internal war with the provisions of the Constitution.
1. They have the duty to protect States from internal disturbance and external aggression. Same provisions are also found in other federal Constitutions. For example- America, Australia.
2. They have the duty to see that the Government of every state should be carried on the provisions of the Constitution. Same provisions are in U.S.A. and Australia.
2.STATE EMERGENCY- Article 356 defines about the State emergency. Under this when there is a failure of constitutional machinery in State then this emergency will be declared. Under this emergency it is the duty of the union Government to ensure that governance of a state is working according to the provisions of the Constitution. Under this article the President can declare a emergency in a state if he got a receipt of report from the Governor of the State or a situation arose that through that the functioning of the State cannot run smoothly. In famous language this is called PRESIDENT’S RULE. For the approval of State emergency it is also have to placed before the both the houses of Parliament. If this will be approved by the Parliament then it will be valid for six months. It can be extended to subsequent six months but not more than one year.
3. FINANCIAL EMERGENCY ‘ Article 360 defines about the Financial emergency. This article says that if any situation has arisen in which financial stability or credit of India is threatened then he can declare a Financial emergency.
The time period of a declaration of Financial emergency will be in effect for 2 months and if it will be approved by President it shall be operate at the expiry of two months.
Conclusion
According to my opinion the provisions of the emergency are discussed clearly that if in any situation there is a threatened of war or internal disturbance then the President can declare a emergency to safeguard and protect the integrity of the country with the approval of the Parliament. Emergency can be declared in whole of the India or may be in any part so that the situation of the country can be in stabilize position. For the benefit of the country the emergency is declared so that the peace of the country can be maintained.
BIBLIOGRAPHY:-
BOOKS:-
DR. J.N. PANDEY (CONSTITUTIONAL LAW OF INDIA)
M.P. JAIN (CONSTITUTIONAL LAW OF INDIA)
WEBSITES:-
https://en.wikipedia.org/wiki/State_of_emergency
http://www.constitution.org/cons/india/p18.html
http://download.nos.org/srsec317newE/317EL9.pdf