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Posted by on Mar 1, 2014 in Emergency Provisions |

National Emergency – Effects and Consequences

Center State Relations during National Emergency

  • Executive – When National Emergency is in operation, the Union may, as considered necessary, direct any state on any executive matter i.e. state govt is under full control of union as state has to follow directions of Union otherwise President rule can be imposed.
  • Legislative –Although State Legislature is remains in operation during National Emergency but subject to overriding power of Parliament. The Union has following legislative powers on state list:-
    • The Parliament is empowered to make laws on any subject matter included in State List. If any such law made by Parliament is in conflict with law made state legislature either during or before emergency then former shall prevail.
    • The laws made by Parliament cease to operate on expiration of 6 months after revocation of proclamation of emergency.
    • The President can issue ordinance on any matter in State List if either house of Parliament is not in session.

Also 42nd Amend 1976 extends executive and legislative powers of Parliament not only to state where emergency is in operation but to any state.

  • Financial – While National Emergency is in action, the President may by order direct that allocation of financial resources b/w Union and State shall subject to such modifications or exceptions as he thinks fit. But such order shall not extend beyond that financial year and order shall be laid before each house of Parliament as soon as it is made.

Life of Lok Sabha and State Assembly

  • Lok Sabha (LS) – While National Emergency is in action. Parliament may by law extend normal term of LS for period of 1 year at a time and can renew it any number of times as thinks fit but can’t extend to beyond a period of 6 months after emergency has ceased to operate.
  • Similarly Parliament empowers to extend life of state assembly for a period of 1 year at a time during National Emergency and can’t extend to beyond a period of 6 months after emergency has ceased to operate.

Fundamental Rights During National Emergency

Article 358

  • Article 358 states that as soon as proclamation of National Emergency is made, all of six Fundamental Rights (FRs) under Article 19 (such as freedom of speech or expression) are automatically suspended and no separate order is required. It means nothing in Article 19 restricts power of state to make any law or take any executive action.
  • But any such law or executive action cease to have effect as soon as proclamation cease to operate except if provisions which are in conflict with FRs under Article 19 are either modified or omitted before law cease to have effect.
  • It means that legislative or executive action taken at time of emergency can’t be challenged even after emergency has ceased to operate.
  • 44th Amend 1978 – The constraints imposed by 44th Amend 1978 on Article 358 are as follows:-
    • All of six FRs under Article 19 can be suspended only when National Emergency is declared on grounds of war or external aggression not on grounds of armed rebellion.
    • Only laws related to emergency are in protection from being challenged and not other laws. Also any executive action related to only those laws are protected.

Article 359

  • During National Emergency, the President by order can suspend the right to move court for enforcement of such FRs as mentioned in the order. It means mentioned FRs are alive but their enforcement is suspended.
  • The FRs can be suspended for whole period of National Emergency or for shorter duration and suspension can be applied to whole or any part of India as mentioned in the order. But such order shall be laid before each house of Parliament for approval as soon as may be after it is made.
  • When suspension order is in force, State is empowered to make any law or take any action either in violation of mentioned FRs or not. But any such law or action cease to have effect as soon as proclamation of National Emergency cease to operate.
  • Any such law made by parliament or any executive action taken by govt, while suspension order is in action, can’t be challenged in any court on grounds of violation of any FRs as mentioned in the order even after order cease to have effect.
  • Unlike Article 358, the President order in Article 359 can be issued after proclamation of National Emergency on any grounds (war or external aggression or armed rebellion).
  • The constraints imposed by 44th Amend 1978 on Article 359 are as follows:-
    • The FRs under Article 20 and 21 (Right to life or Right against arbitrary detention) can’t be taken away i.e. even at time of National Emergency, enforcement of FRs under Article 20 and 21 by court of law can’t be suspended.
    • Only laws related to emergency are in protection from being challenge d and not other laws. Also any executive action related to only those laws are protected.

Declaration Made so Far

  • The National Emergency has been proclaimed three times so far in 1962, 1971 and 1975.
  • In 1962, due to war or external aggression by China in Arunachal Pradesh and remained in force till 1968 due to war with Pakistan in 1965 as there was no provision of renewal in the constitution till 44th amend 1978.
  • In 1971, National Emergency was declared on grounds of war with Pakistan and in 1975 a fresh proclamation of National Emergency was made on grounds of Internal disturbance even when previous one was in operation.
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