In this article, we will discuss National Emergency in a simple and easy way, and try to understand its various important aspects,
So to understand well, definitely read the article till the end, and also read other articles related to this topic.
As soon as there is an emergency, it is such a thing that all the normal rules and regulations fall apart. Yes, if emergency is imposed forcibly, then it is a different matter.
Emergency provisions of India
Emergency means an event that requires immediate action. Such a situation can come at any time and that is why emergency provisions have been made in the Constitution of India. These provisions are mentioned in Article 352 to 360 in Part 18 of the Constitution.
Why is it provided for in the constitution?
Let’s say if the country is invaded from outside. The states are not capable enough to resist such an attack, in such a situation anarchy can spread, people can refuse to obey the constitution, social harmony can be disturbed, etc.-etc. That is why the Constitution imposes a duty on the central government to protect the state from external aggression in such unusual circumstances and to ensure that everything works according to the constitution.
In other words, emergency provisions have been made to maintain the sovereignty , unity , integrity and democratic political system of the country in adverse circumstances.
In such circumstances, this provision gives immense power to the Centre. Although India is a federal system country, but in such unusual circumstances it becomes unitary, that is, all the states come under the complete control of the center. And the interesting thing is that no constitutional amendment is required to implement it, as soon as it is implemented, the country changes from federal to unitary.
Now the question comes that those are the opposite circumstances, can it be imposed or can be imposed by looking at the circumstances in which it is referred?
Necessary conditions for imposition of emergency
Three such circumstances have been mentioned in the Constitution. On whose stay an emergency can be imposed. These three are described in separate paragraphs. such as –
|Under this , emergency can be imposed during war, external aggression and armed rebellion. This type of emergency is called a national emergency .|
|Emergency can be imposed even when the constitutional machinery in the states fails. This type of emergency is called President’s rule . It is also called State Emergency and Constitutional Emergency . However, only the word ‘President’s Rule’ is mentioned in the Constitution.|
|An emergency can be imposed even when the financial stability or creditworthiness of India is in danger. This type of emergency is called a financial emergency .|
Financial emergency has not been imposed in the country till date, so very little information is available on its practical aspects.
National emergency and President’s rule are very important, because we have an idea of the practicality of both of them and their chances of getting it are also relatively high.
The credit for maligning the image of National Emergency goes to our former Prime Minister Smt. Indira Gandhi, otherwise this provision was as good as other constitutional provisions. And talking about President ‘s rule, this is the most misused of these three. It has been implemented in all the states except one or two states.
As we know in this article we will discuss national emergency, other two emergency will be discussed in the next article. So let’s understand-
When a national emergency was imposed during the Indo-China war in 1962 and the Indo-Pakistani war in 1971, it was seen and understood in the same way as other constitutional provisions. But when it was misused by Mrs. Gandhi, the perception of the people towards the Emergency changed.
What actually happened was that in the 1971 elections, Mrs. Gandhi got 352 seats and came to the government with an absolute majority. The intoxication of changing things fell on him so much that gradually he became a dictator. He wanted to change everything that was not right according to him. And since he had an absolute majority, it would have made his job even easier.
This was the reason that when the Allahabad High Court found her guilty of winning the election wrongly and suspended her from politics for 6 years, she could not bear it and to save her power, she resorted to national emergency .
And after that all the laws that came in the way, they changed them. Keeping the dignity of the constitution on hold, he made unwanted changes in it. The 42nd Constitutional Amendment of 1976 is the culmination of that. Through this, he made so many changes in the constitution that the 42nd Constitutional Amendment came to be called the Mini Constitution .
However, all the unconstitutional changes he made in the constitution through the 42nd Constitutional Amendment were made in 1978 by the government of Morarji Desai, which was formed after the end of the Emergency. Most of such provisions were abolished through the 44th Constitutional Amendment.
In other words, Mr. Morarji Desai clarified the raita spread by Mrs. Gandhi through the 42nd Constitutional Amendment. How did this happen, you will know later.
The present state of national emergency as of now is the result of 44th constitutional amendment 1978. And an interesting thing that after that till date no national emergency was imposed.
Declaration of national emergency
Emergency is declared by the President under Article 352 (1) . When the President is satisfied that such a serious situation has arisen as to endanger the security of India or any part of the territory thereof by reason of war or external aggression or armed rebellion , he may, by proclamation, refer to the whole of India or the territory thereof. may impose emergency in any part of the
It is not that the President can declare emergency only when there is danger. Even if there is a possibility of danger, it can be imposed.
Facts to remember about National Emergency
When a national emergency is declared on the grounds of war or external aggression, it is called an external emergency .
Similarly , when emergency is imposed on the ground of armed rebellion then it is called internal emergency .
The President cannot declare a national emergency of his own mind. According to Article 352(3) , the President can declare a national emergency only on the written recommendation of the Council of Ministers. That is, the President cannot impose emergency just on the advice of the Prime Minister.
This arrangement was brought in 1978 by the 44th Constitutional Amendment. This was done because in 1975 Indira Gandhi had asked the President to impose emergency without asking her cabinet.
When Indira Gandhi imposed a national emergency in 1975, an emergency was already going on. how that?
The first emergency was imposed on 26 October 1962 during the Indo-China war. Which was abolished on 10 January 1968. But,
The second emergency was imposed on December 3, 1971, during the Indo-Pakistani War, which was imposed by Mrs. Gandhi herself and it was going on. From above, he imposed another new emergency on the country on 25 June 1975. Both these emergencies were ended simultaneously on 21 March 1977.
One thing to remember here is that the emergency imposed in 1962 and 1971 was imposed on the basis of external attack . The same Emergency imposed by Mrs. Gandhi in 1975 was imposed on the basis of internal disturbance . And this became a cause for controversy.
In fact, earlier one reason for imposing emergency was internal disturbances but it was controversial in itself. Because internal disturbances were not defined in the constitution it meant that it could have been anything.
For example, even if there is a demonstration in the country, it can be called an internal disturbance. And this is what Mrs Gandhi said in her clarification. Because there was a lot of protest going on in the country against Indira Gandhi at that time. Who can forget Jaiprakash Narayan’s entire revolution.
In future, no government should again impose emergency on the basis of internal disturbances, keeping this in mind in the 44th Constitutional Amendment in 1978, it was changed to Armed Revolt .
That is, now except war and external aggression , emergency can be imposed in the country only when people revolt on the basis of weapons.
️ By the 38th Constitutional Amendment 1975, Indira Gandhi kept all types of emergency out of the purview of judicial review.
That is, the emergency could not be challenged in the court. But obviously this provision had to be abolished because it was not constitutional.
That is why this provision was also abolished by the 44th Constitutional Amendment 1978. Later in 1980, in the Minerva Mills case, the Supreme Court also made it clear that a national emergency imposed unethically or on the basis of void or dogma can be challenged in court.
Parliamentary approval and timing of emergency
Things do not end after the declaration of emergency, but even after that proclamation has to go through many types of constitutional provisions.
According to Article 352(4) , a Proclamation of Emergency has to be approved by both the Houses of Parliament within one month from the issue.
Earlier this time used to be two months, but it was also made one month in 1978 by the 44th Constitutional Amendment. Why was it done? So that if it is applied improperly then it will end within 1 month.
But suppose if the emergency came into force at the time when the Lok Sabha was dissolved. Or the Lok Sabha is there but it is dissolved before approval within 1 month.
In such a situation, as soon as the Lok Sabha will be constituted again. It is necessary to get the Proclamation of Emergency passed within thirty days from its first meeting. Otherwise it will be over.
Yes, but there is a condition in this that before that he should be passed from Rajya Sabha. Because Rajya Sabha is not dissolved.
Thus, if it is passed by both the houses, the emergency can continue for six months . It can be extended indefinitely after every six months but will have to go through the same process again every six months. That is, getting approval from both the houses.
Although earlier approval had to be taken from the Parliament only once , then it could be extended as many times as it wanted. But the way Indira Gandhi misused this law, keeping in mind that no one else should, by the 44th Constitutional Amendment in 1978, it was amended to bring a system of periodic expansion . That is, every six months the approval of Parliament will have to be taken again.
But if ever a situation arises that emergency has to be extended for another six months, but at that time the Lok Sabha is dissolved. So even in such a situation, approval has to be taken before the Rajya Sabha. And as soon as the Lok Sabha is reconstituted, it has to be approved by the Lok Sabha within 30 days from its first meeting.
Every resolution for the proclamation of emergency or its continuance must be passed by both the Houses of Parliament with a special majority . If you don’t know the particular majority, read it by clicking here .
End of proclamation of national emergency
Now if it is imposed, it will not last forever, that is why the national emergency can be ended in the following ways.
If the Parliament does not approve the emergency, then the President has to abolish it. This system was not there before.
At first it was up to the discretion of the President that he could terminate whenever he wanted. It was added by the 44th Constitutional Amendment of 1978.
Apart from this, by the 44th Constitutional Amendment of 1978, it was also provided that if 1/10 of the total members of the Lok Sabha (to the Speaker if the House is running and to the President if not running), then within 14 days of giving written notice. A special sitting of the House can be called to end the emergency inside. In that meeting, it has to be passed by the Lok Sabha. As soon as it is passed, the emergency ends.
In this way you can see that after 1978 it has become a bit difficult to impose emergency whereas if somehow it is imposed then it has been easy to abolish it.
Effect of national emergency
The proclamation of emergency has rapid and far-reaching effects on the political system. These results can be grouped into the following three categories:
1. Impact on Centre-State relations
2. Effect on tenure of Lok Sabha and State Legislative Assembly
3. Effect on Fundamental Rights.
Let us assess its effects one by one.
1. Impact on Centre-State Relations
During a national emergency, it has an impact on all three areas of Centre-State relations. i.e. executive relations, legislative relations and financial relations; All three are affected by it.
Executive relations – Under Article 353, during an emergency, complete control of the center is established over the state government. In other words, the center can give directions to the state as to how the state should exercise its executive power. [ Read from here – Centre-State Executive Relations ]
Legislative relations – Under Article 353 (b) , during a national emergency, the Parliament gets the power to make laws on all such subjects which are not mentioned in the Union List. That is, the Parliament can make laws on the subjects mentioned in the State List and also on other subjects.
This does not mean that the state legislature gets suspended, that the law made by the central government is given priority first. At present, whatever law the Center makes on the subject of the state, it remains effective for six months after the end of the emergency.
If the emergency is imposed when the Parliament is not in session, the President can also issue an ordinance on the subject of the State List during this period.
By the 42nd Constitutional Amendment 1976, it has been provided that the above provisions of executive and legislature can be extended even in that state in which emergency has not been imposed. [Read from here – Centre-State Legislative Relations ]
Financial relations – Under Article 354 , the President can modify the constitutional distribution of taxes between the Center andduring a national emergencyIn other words, the Center can reduce or eliminate the money (finance) given to the states.
Such amendments remain in force only till the financial year in which the emergency has been imposed. And any order of the President is required to be laid on the Table of Parliament. [Read here – Centre-State Financial Relations ]
2. Impact on the tenure of Lok Sabha and State Legislatures
During the National Emergency, the term of the Lok Sabha, which is 5 years on normal days. By making it a method, it can be extended for as long as you want. But it can be extended only for one year at a time.
Elections are required to be held within six months from the end of the emergency. Indira Gandhi also extended her tenure under this provision.
Similarly, the state assembly can also be extended for any length of time, if Parliament so desires. But once the emergency is over, it is necessary to hold elections within six months.
3. Impact of National Emergency on Fundamental Rights
The provisions related to suspension of fundamental rights have been mentioned in Article 358 and Article 359.
According to Article 358 , a national emergency is declared as soon as it is declared. Simultaneously, the right of freedom given by Article 19 is automatically suspended. No separate order is required for this.
In other words, the six freedoms provided under Article 19 are taken away till the Emergency is in force. Article 19 comes alive as soon as the emergency is over. But there is no system of compensation for the loss caused to the public by this.
Secondly, it cannot be challenged even in the Supreme Court. This does not mean that the emergency cannot be challenged. The violation of Fundamental Rights simply by the suspension of Article 19 cannot be challenged.
In this regard, by the 44th Constitutional Amendment of 1978, two provisions have been made, first that Article 19 will be suspended only during ‘External Emergency’. Not during an ‘internal emergency’. And the second provision was given that those laws which are related to emergency and the executive decisions given under such laws cannot be challenged in the court.
According to Article 359 , under Article 358, Article 19 automatically suspends but under Article 359, if the President so desires, any other Fundamental Rights except Article 20 and Article 21 can be suspended from operation.
This means that the Fundamental Right remains there but during that period if the Fundamental Rights are violated, then the demand for its restoration cannot be moved to the High Court or the Supreme Court .
It is to be remembered here that earlier the President could have suspended Article 20 and Article 21 also, but it was removed through the 44th Constitutional Amendment 1978. That is, if there is a violation of Article 20 ( Protection from conviction in the case of offences ) and Article 21 ( Life and personal liberty ) the court can be moved.
[There is an interesting case related to this – habeas corpus case 1976 , must read it]
One thing to remember here is that all these rights are suspended and not ended. That is , there is a fundamental right , but if your fundamental rights are violated, then you cannot go to court.
The powers to be suspended by the President under Article 359. Any order made or law made in respect of those rights cannot be challenged in court after the expiry of the order.
Along with this, any legislative or executive work done under the effect of that order cannot be challenged after the completion of the order.
Whatever effect there is on the Fundamental Rights, let us understand through this chart.
|Effect on Fundamental Rights under Article 358 and Article 359|
|Article 19 is automatically suspended under Article 358, for this the President’s order is not required.|
|On the other hand, if the President has to suspend any fundamental rights other than Article 19, then he can do so under Article 359. But except in Articles 20 and 21.|
|Article 358 suspends Article 19 only on the ground of external aggression.|
|Whereas under Article 359, the suspension of Fundamental Rights takes place in both external and internal emergency.|
|Article 19 remains suspended under Article 358 as long as the emergency remains in force.|
|Whereas suspension of fundamental rights under Article 359; It lasts for as long as the President decides.|
|Under Article 358, Article 19 stands suspended throughout the country.|
|On the other hand, under Article 359, the suspension of Fundamental Rights can be done in the whole country or in any part of the country.|
|Such rules can also be made under Article 358 which do not relate to Article 19.|
|But under Article 359 only such rules can be made which are related to the fundamental rights suspended under this article.|
Overall, this is a national emergency, hopefully understandable. A link has been given to other articles related to this, read that too and beyond that, definitely read the President ‘s rule-
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