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Posted by on Feb 28, 2014 in Emergency Provisions |

National Emergency – Grounds and Approval

The Emergency provisions are enumerated in Part XVIII (Article 352 – 360) of the Constitution. The Emergencies are of three types a) National Emergency, b) President’s Rule and c) Financial Emergency as defined in the constitution. The Emergency provisions are basically a tool for conversion of Federal govt into a unitary govt (i.e. union govt assumes all powers of states). It is a unique feature of Indian Constitution to convert federal into unitary system (not even provided in USA). Here we will discuss provisions of National Emergency.

Grounds of Declaration

  • Article 352 – The President can declare National Emergency on grounds of war or external aggression or armed rebellion if President satisfied that there is imminent danger thereof. War or External aggression means External Emergency and armed rebellion means internal emergency.
  • Historical View – Until 44th amend 1978, President can declare National Emergency in whole or in any part of India on grounds of war or external aggression or internal disturbance. Also National Emergency can be declared by President if any minister of cabinet rank headed by PM tells him to do so.
  • 44th Amend 1978
    • It replaces the internal disturbance with armed rebellion as internal disturbance is a vague term and can be misused as done by PM Indira Gandhi in 1975 to declare emergency on grounds of Internal Disturbance.
    • Now President can declare emergency only on written advice by the Cabinet not alone by PM as done by Indira Gandhi in 1975 without consulting the Cabinet.

Parliamentary Approval

  • Every Proclamation of emergency shall be laid down before each house of Parliament and must get approval in one month from date of issue.
  • Provided that if at time of proclamation Lok Sabha (LS) has been dissolved or dissolution of LS takes place in mean time (i.e. within one month from date of issue) then RS must approve it within 30 days but such proclamation shall cease to operate after 30 days from first sitting of LS after its reconstitution if not get approval of new LS in 30 days.
  • Originally period for approval was 2 months but reduced to one month by 44th amend 1978.

Duration of National Emergency

  • If approved by both houses of Parliament then National Emergency shall continue for 6 months and it can be renewed any number of times by approval of Parliament after every 6 months.
  • But if dissolution of LS takes place in that 6 months and resolution for renewal of National Emergency is under consideration then emergency survives till 30days from first sitting of newly elected LS provided that already approved by RS.
  • Until 44th amend 1978, if Parliament approves proclamation of National Emergency then it remains in operation on pleasure or desire of cabinet or executive.
  • Any of above resolution related to proclamation or renewal of National Emergency must be passed by both houses of Parliament by special majority (i.e. majority of total membership of that house or not less than 2/3rd of members present and voting). This provision is again added by 44th amend 1978 and before that such resolution can be passed by simple majority i.e. more than total members present and voting.

Revocation or End of Proclamation

  • The President shall revoke proclamation of emergency any time if Lok Sabha passes a resolution by simple majority in relation to disapproval of continuation of National Emergency.
  • A notice in writing shall be given to Speaker of LS or to President if house is not in session and that notice shall be signed by at least one tenth of total members of LS, in relation to their intend to move a resolution to revoke National Emergency. A special sitting of LS shall be called within 14 days from date of such notice.
  • Until 44th amend 1978, there was no requirement of resolution to be adopted by LS for removal of proclamation of National Emergency and only satisfaction of cabinet is required for such removal.
  • The differences b/w resolution of proclamation and revocation of National Emergency are as follows:-
    • The approval resolution must be passed by both houses but disapproval resolution is required to be passed by LS only.
    • The approval resolution must be passed by special majority but disapproval resolution is need to be passed by simple majority.

Scope of Judicial Review

  • The 38th Amend 1975 states that proclamation of National Emergency by President is immune from judicial review and 42nd amend 1976 states that constitutional amendments are not in scope of judicial review to give effect to 38th amendment.
  • Above provisions are deleted by 44th amend 1978 and power of judicial review is restored. Further in Minerva Mills case (1980), the SC held that proclamation of National Emergency can be challenged in any court of law on ground of malafide intention.
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