Internal test of CDR on the topic
The impact of emergency powers under the
Constitution on Centre State Relations and compare
the position in US, India and Canada.
SUBMITTED BY
DIVYANSH MADHURENDRA LL.M 10226
INTRODUCTION
Federalism according to Dicey is a weak form of government because it involves division of
power between the Centre and the units. Every modern federation, however, has sought to avoid
this weakness by providing for the assumption of larger powers by the federal government
whenever unified action is necessary due to internal or external emergent circumstances. For
different kinds of emergencies, [The Indian Constitution] confers extraordinary powers upon the
union. The emergency provisions provided under the Constitution enables the federal
government to acquire the strength of a unitary system whenever the exigencies of the situation
so demand.
Effects of national emergency
The declaration of National Emergency effects both on the rights of individuals and the
autonomy of the states in the following manner:-
1. The most significant effect is that the federal form of the Constitution changes into unitary.
The authority of the Centre increases and the Parliament assumes the power to make laws for
the entire country or any part thereof, even in respect of subjects mentioned in the State List.
2. The President of India can issue directions to the states as to the manner in which the
executive power of the states is to be exercised.
3. During the emergency period, the Lok Sabha can extend tenure by a period of 1 year at a time.
But the same cannot be extended beyond 6 months after the proclamation ceases to operate. The
tenure of State Assemblies can also be extended in the same manner
4. During emergency, the President is empowered to modify the provisions regarding distribution
of revenues between the Union and the States.
5. The Fundamental Rights under Article 19 are automatically suspended and this suspension
continues till the end of the emergency.
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But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended only in
case of proclamation on the ground of war or external aggression. From the above discussion, it
becomes quite clear that emergency not only suspends the autonomy of the States but also
converts the federal structure of India into a unitary one. Still it is considered necessary as it
equips the Union Government with vast powers to cope up with the abnormal situations.
Effect of State Emergency
The declaration of emergency due to the breakdown of Constitutional machinery in a State has
the following effects:
1. The President can assume to himself all or any of the functions of the State Government or he
may vest all or any of those functions with the Governor or any other executive authority.
2. The President may dissolve the State Legislative Assembly or put it under suspension. He may
authorise the Parliament to make laws on behalf of the State Legislature.
3. The President can make any other incidental or consequential provision necessary to give
effect to the object of proclamation.
Effects of Financial Emergency
The proclamation of Financial Emergency may have the following consequences:
1. The Union Government may give direction to any of the States regarding financial matters.
2. The President may ask the States to reduce the salaries and allowances of all or any class of
persons in government service.
3. The President may ask the States to reserve all the money bills for the consideration of the
Parliament after they have been passed by the State Legislature.
4. The President may also give directions for the reduction of salaries and allowances of the
Central Government employees including the Judges of the Supreme Court and the High Courts.
Effects of Proclamation of Emergency on the Fundamental Rights
• Federal laws will overrule state legislation, and the Union is empowered to govern areas (eg.
Policing) that are normally devolved to the states
• The Union is also empowered to take over and completely control the taxation and budgetary
revenue processes. Under financial emergency, the Union is empowered to have the final say in
the promulgation of financial acts approved by the state legislature.
• The Union may decide to suspend some or all of the fundamental rights guaranteed by Part III
(Articles 12 through 35) of the constitution - which include:
§ freedom of equality before law
§ freedom of speech and expression
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§ freedom to assemble peacefully
§ freedom for movement across Indian territory
§ freedom to practice any profession, occupation, trade or business.
§ freedom to practice or propagate religion.
• Further, the right to challenge the suspension of the above mentioned rights (the right to
constitutional remedies) may also be suspended. However, this provision will not cover the
suspension of Articles 20 and 21 which govern rights to personal liberty, Right to silence,
freedom from double jeopardy and freedom from unlawful arrest and detention. Any individual
who deems that his rights under these categories have been suspended unlawfully, can challenge
the suspensions under a court of law.
• The Union may decide to dismiss the legislative functions of a state legislature and impose
federal law for a period of six months. This state of suspension may be renewed at the end of this
period under the vote of Parliament (indefinite number of times) until such a time when the
Election Commission of India can certify the feasibility of holding free and fair elections in the
state to reconstitute the legislature.
• Any order to the above effects however, should be passed by the House of Parliament "as soon
may be after it is made".
While a proclamation of Emergency is in force, the normal fabric of the Centre–state relations
undergoes a basic change. This can be studied under three sections, executive, legislative and
financial.
Executive -
During a national emergency, the executive power of the Centre extends to directing any state
regarding the manner in which its executive power is to be exercised. In normal times, the Centre
can give executive directions to a state only on certain specified matters.
However, during a national emergency, the Centre becomes entitled to give executive directions
to a state on ‘any’ matter. Thus, the state governments are brought under the complete control of
the Centre, though they are not suspended.
Legislative -
During a national emergency, the Parliament becomes empowered to make laws on any subject
mentioned in the State List. Although the legislative power of a state legislature is not
suspended, it becomes subject to the overriding power of the Parliament.
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Thus, the normal distribution of the legislative powers between the Centre and states is
suspended, though the state Legislatures are not suspended. In brief, the Constitution becomes
unitary rather than federal.
The laws made by Parliament on the state subjects during a National Emergency become
inoperative six months after the emergency has ceased to operate. Notably, while a proclamation
of national emergency is in operation, the President can issue ordinances on the state subjects
also, if the Parliament is not in session.
Further, the Parliament can confer powers and impose duties upon the Centre or its officers and
authorities in respect of matters outside the Union List, in order to carry out the laws made by it
under its extended jurisdiction as a result of the proclamation of a National Emergency. The
42nd Amendment Act of 1976 provided that the two consequences mentioned above (executive
and legislative) extends not only to a state where the Emergency is in operation but also to any
other state.
Financial-
While a proclamation of national emergency is in operation, the President can modify the
constitutional distribution of revenues between the Centre and the states. This means that the
president can either reduce or cancel the transfer of finances from Centre to the states. Such
modification continues till the end of the financial year in which the Emergency ceases to
operate. In addition, every such order of the President has to be laid before both the Houses of
Parliament.
RECOMMENDATION OF THE PUNCHHI COMMISION
This commission dealt at length with Emergency provisions under Article 355 and Article 356
and proposed safeguards to prevent their abuse to dismiss state governments 1. It suggested that
Article 355 and 356 should be amended. Via these amendments, the Centre should be enabled to
bring specific troubled areas under its rule for a limited period. This means that the commission
recommended for “localising emergency provisions” under Articles 355 and 356, contending that
localised areas— either a district or parts of a district — be brought under Governor’s rule
instead of the whole state. The duration of such an emergency provision should however not be
of duration of more than three months.
EFFECT OF EMERGENCY POWERS ON CENTRE STATE RELATION
IN U.S.A
1
COMMISSION ON CENTRE-STATE RELATIONS REPORT VOLUME II CONSTITUTIONAL GOVERNANCE AND THE
MANAGEMENT OF CENTRE-STATE RELATIONS MARCH 2010, CHAPTER 5 EMERGENCY PROVISIONS AND
CONSTITUTIONAL GOVERNANCE 91-128
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Congress has delegated at least 136 distinct statutory emergency powers to the President, each
available upon the declaration of an emergency. Only 13 of these require a declaration from
Congress; the remaining 123 are assumed by an executive declaration with no further
Congressional input.
Congressionally-authorized emergency presidential powers are sweeping and dramatic, and
range from suspending all laws regulating chemical and biological weapons, including the ban
on human testing2. to suspending any Clean Air Act implementation plan or excess emissions
penalty upon petition of a state governor3. Authorizing and constructing military construction
projects 4using any existing defense appropriations for such military constructions ($10.4 billion
in FY2018[18]); to drafting any retired Coast Guard officers 5or enlisted members 6 into active
duty regardless of ineligibility for Selective Service.
EFFECTS ON CENTRE-STATE RELATIONS:
The emergency powers place eminent control over the center which include power to make laws
with regards to any statehood. It provides a despotic governance at the center giving exclusive
powers to the President where the questioning to the actions of the president is next to
impossible, thus basically America gives a very narrow route to check the government
machinery during emergency.
EFFECT OF EMERGENCY POWER ON CENTRE-STATE RELATIONS
IN CANADA
The residuary power regarding ‘peace, order and good government’ and S.91 (7) of the British
North America Act gives power to the parliament to enact law for ‘military and naval services
and defense’. The emergency powers gives War time control over the provincial subjects, which
means government gets control over the provincials legislations. The only system of check and
balance is justified by court under the residuary powers
CONCLUSION:
The emergency power as described by the constitution of India gives immense power to the state
government authority. The national emergency, which was declared in India in 1962 war
(China war), 1971 war (Pakistan war), and 1975 internal disturbance (declared by Indira
Gandhi), displayed a more similar approach like that of Canada and U.S where the Presidential
2
(50 U.S.C. § 1515, passed 1969)
3
(42 U.S.C. (f) § 7410 (f), passed 1977)
4
(10 U.S.C. (a) § 2808 (a), passed 1982)
5
(14 U.S.C. § 331, passed 1963)
6
(14 U.S.C. § 359, passed 1949)
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rule is almost impossible to challenge. In order to decentralize the emergency powers, the
Punchhi commission report has suggested to localize the emergency for a district, by doing this
the Governor rule shall only be applicable to the district itself and not over all the states.
The Emergency powers when exercised effects the center state relation in an adverse way,
starting from the constitutional breakdown, to the economic instability, there are many factors,
which are effected by declaration of emergency in a state.
Suggestions:
There was a debate regarding conferring Emergency powers on the head of the nation but Dr.
Ambedkar said that such articles would never be brought into operation and would remain a dead
letter. But, the situation has proved to be otherwise Article 356 has been abused, misused but
seldom has it been used. Therefore the use of emergency power should be bare minimum and it
should be resorted to only in last resort, by this we will be able to preserve the very essence of
federalism in our country.
Bibliography.
https://en.wikipedia.org/wiki/National_Emergencies_Act
http://interstatecouncil.nic.in/wp-content/uploads/2015/06/volume2.pdf
http://www.legalservicesindia.com/article/1769/Emergency-Provisions:-Effects-and-Impact..html
Sharma, I. D. “EMERGENCY GOVERNMENT PROVISION IN THE INDIAN CONSTITUTION.” The
Indian Journal of Political Science, vol. 21, no. 4, 1960, pp. 355–360. JSTOR, www.jstor.org/stable/41853862.
Accessed 30 Mar. 2020.
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