Revisiting the Basics

Tags ,

Indian Polity | A Quick Brush up with Our Emergency Provisions


This blog is part of the series Constitution simplified 

Very quickly then, most of us are familiar with the 3 types of emergencies.


 


 

We will study them under 3 heads –

#a. When can they be imposed?

#b. Features

#c. Effects


 

#1. Art. 352 – National Emergency

a. When can it be imposed?

3 conditions – War, External Aggression, Armed Rebellion

Note1: Armed Rebellion was changed from Internal Disturbance on the recommendation of the Shah Commission. Internal Disturbance was a vague term prone to misuse.

Q1: What’s the difference between War and External Aggression?

No technical difference! The President makes a “Proclamation of Emergency”. If it says its a war, its a war likewise of external aggression.

b. Features

Flashback : Lets go back to the time of the Emergency. All it took then was an oral instruction by the then PM Indira Gandhi to President Fakhruddin Ali Ahmed (who received a lot of criticism).

To understand National Emergency, we need to examine the 44th Amendment Provisions whose sole purpose was to put a check on such powers of the President.

  • Can only be proclaimed on the written advice of the Union Cabinet (not the PM). Perhaps, this is the only place where Union Cabinet has a role.
  • Expires in 1 month from its issue unless approved by a Special Majority (of the second kind*) – Not less than 2/3rd of the Members present and voting + Absolute Majority – in both the houses of the Parliament.
  • If the LS is dissolved, then RS shall approve it within 1 month and the re-constituted LS shall ratify within 30 days.
  • Once approved, the proclamation is extended for 6 months, which can be extended again for 6 more months.
  • Not less than 1/10th of the Members of the LS(this can only be initiated in the LS) may give notice in writing to the Speaker or President (when LS is not in session). If there is no session, a special sitting of the LS shall be held within 14 days. If the resolution, the President has to revoke the Emergency.

c. Effects

  • Executive : State Govt. is not suspended. Union Govt. can issue orders to the State Govt. on subjects on the State List (something that it can’t normally do).
  • Legislature : State Legislature is not suspended. However, Parliament can make laws on the State subjects. Such laws remain valid for 6 months after the Emergency ceases to be.
  • Financial : Distribution as per the President’s will subject to approval by the Parliament.

Effect on FR (2 clauses here)

  • Art. 19 automatically suspended (only in case of War and External Aggression)
  • President by a further order can specify other FRs that wont be operative, excepting Art. 20 and 21.

Art. 20 and 21 are fundamental of the FRs and cannot be suspended. Interested readers can read the story of Judge Khanna’s courage here.



 

#2. Art. 356 – President’s Rule

a. When can it be imposed?

If the President is satisfied that there exists a situation where the State Admin. cannot be carried in accordance with the provisions of the Constitution, he can make a Proclamation of Failure of Constitutional Machinery in a State.

Ambedkar had envisaged Art. 356 to remain a dead letter in the Constitution. Much to his surprise it has been used not less than 119 times during the first 63 years.

b. Features

Such a proclamation lapses after 2 months, unless approved by the Parliament by a simple majority. Once approved, it lasts for 6 months which can again be extended for 6 more months subjected to maximum of 3 years.

To extend it beyond 1 year, 2 conditions must be fulfilled

  • National Emergency should be in operation (in whole of India or whole or any part of the State).
  • ECI certifies that elections cannot be conducted in the state.

c. Effect

The President can

  • declare Executive powers of the State rest with him. He can also delegate the same to any other authority (like the Governor) as per his liking.
  • dissolve or suspend the State Legislature. If suspended, the Parliament can exercise its legislative powers. (or delegate it to any other authority)

Effect on FR : No Effect


 

#3. Art. 360 – Financial Emergency (^Never imposed till date)

a. When can it be imposed? 

If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.

b. Features

It will ordinarily remain in force for 2 months, unless its is approved by both the houses. If LS is dissolved in this period, similar clause as that of the National Emergency applies.

c. Effect

The financial autonomy of the states is transferred. The President can

  • suspend distribution of financial resources.
  • issue directions to follow canons of finance.
  • direct the State Govt. to reduce the Salaries of their employees.
  • direct the governors to reserve all financial and money bills for his consideration.

Effect on FR : No Effect


Now is the time for 2 quick questions

  1. Attempt the following table. You need to give me the dates corresponding to A,B,C,D,E,F.
Type Date of Issue Last Date of Approval Last Date of Validity
352 1/1/2016 A B
356 1/1/2016 C D
360 1/1/2016 E F

  1. Mention that checks and balances put in place to curb the improper use of Art. 356.

Hint : R. Bommai vs Union Of India

Additional Reads 

  1. Click here for everything on the types of Majority.
  2. Justice Khanna’s Courage 

 

Questions, suggestions and comments


  1. Profile photo of Rehana Hassen Rehana Hassen

    No national emergency can be challenged in a court on grounds of malafide or based on extraneous facts… by Minerva Mills case(1980) n 44th amdmt…

  2. Profile photo of Dr V Dr V

    A till January end
    B July end ie January plus 6
    C Feb end
    D June end ie 6 months from date of imposition
    E same as c
    F when president decides to revoke

    1. Profile photo of Jeelani Tantray Jeelani Tantray

      D= August end…ie 6 months from the the of approval NOT imposition as mentioned above…???
      correct me if i am wrong!!

    2. Profile photo of Disha Gupta Disha Gupta

      Sir…….
      Why national emergency till July not June???
      Why 6 months not counted from January for national emergency ?

    3. Profile photo of saran vs saran vs

      Very dood thank you sir… This example makes it little more clear

  3. Profile photo of Dr V Dr V

    Just 1 more thing .. internal emergency can be extended even beyond 3 years by constitutional amendment as was done in case of Punjab during bey days of khalistan movement.

    1. Profile photo of Manikanta Prasanna Kumar Gudey Manikanta Prasanna Kumar Gudey

      Was national emergency justiciable or not?

      1. Profile photo of Gyanendra Singh Gyanendra Singh

        No its not justiciable as per 44th CAA 1978

  4. Profile photo of Root Root

    @all –

    *Please try to attempt the questions posed below the write-up.*

    We are moving towards enhancing our explainers and long pieces and adding questions towards the end. Take our word that true revision and fact consolidation takes place when you actively engage with the content. Do attempt both the questions.

    1. Profile photo of Manikanta Prasanna Kumar Gudey Manikanta Prasanna Kumar Gudey

      Was national emergency justiciable or not?

  5. Profile photo of Divya Ann Divya Ann

    Just adding to a wonderfully written article..
    Difference between war and external aggression:
    War
    When a violent struggle between two countries with the use of armed forces. It also includes when a country has made a formal declaration of a war against India.

    External Aggression
    External aggression has wide meanings. It covers unilateral attacks with force by one state against another State without a formal declaration of war. As long as the other State has not answered with similar hostile attacks, it can be constituted an external aggression.
    Or even when it is not a specific country which is attacking, rather the attack of terror groups can be termed as external aggression.

    1. Profile photo of Shikhar Sachan Shikhar Sachan

      Hi Divya, can you provide the source where its formally defined? Thanks

  6. Profile photo of Aman Yadav Aman Yadav

    CD, 44th Amendment Act mention the word ‘CABINET’ must give advice in written everywhere else in constitution mention COM. Article 352 is only article where the word cabinet mentioned. If I am wrong,let me know. One more thing Article 19 for armed rebellion can not be suspended.

  7. Profile photo of Nikhil Kumar Rudra Nikhil Kumar Rudra

    Hello. Has the term PROVED MISBEHAVIOR defined by the Indian constitution?

    1. Profile photo of Rini Sen Rini Sen

      Interesting point. The word hasn’t been defined objectively. I could find a Hindu link dated 2012 wrt Judges removal on the same grounds.

      The words “misbehaviour” or “incapacity” have neither been defined nor clarified in the Constitution.

      http://www.thehindu.com/thehindu/op/2002/06/11/stories/2002061100010200.htm

  8. Profile photo of Nagendra Kumar Nagendra Kumar

    Good one ?

Highest Rated App. Over 3 lakh users. Click to Download!!!