EMERGENCY PROVISIONS IN THE INDIAN
CONSTITUTION vis-a-vis FUNDAMENTAL
RIGHTS- A CRITICAL ANALYSIS
Project
Submitted in the partial
fulfillment for the
requirement of a paper
of Constitutional
law-II
In the course of
B.A.LLB.(HONS) 4th
Semester May 2023
Submitted To: Dr. Akashdeep Singh
Submitted By: Bhawani Pratap Singh (19190)
CERTIFICATE
• This is to certify that Bhawani
Pratap Singh
(19190) student of class – B.A.LLB.
(HONS) 4th
Sem Sec-A has successfully
completed their
Constitutional Law Project under
the guidance of Dr. Akashdeep
Singh
•ACKNOWLEDGEMENT
• I would like to express my special
thanks of gratitude to my teacher
Dr. Akashdeep Singh who gave me
the golden opportunity to do this
wonderful project on Emergency
Provisions in the Indian
Constitution, which also helped me
in doing a lot of search and I came
to know about so many new things I
am really thankful to them.
Secondly I would also like to thank my
parents and friends who helped me a
lot in finalizing this project within the
limited time frame.
INDEX
Emergency provisions in the
Indian constitution
National Emergency
Effect on fundamental rights
State Emergency
Financial Emergency
Criticism Of Emergency Provision
Bibliography
EMERGENCY PROVISIONS IN THE
INDIAN CONSITUTION
A state of emergency in India refers
to a period of governance that can be
proclaimed by the President of
India during certain crisis situations.
Under the advice of the cabinet of
ministers, the President can overrule
many provisions of the Constitution,
which guarantees Fundamental
Rights to the citizens of India.
The emergency provisions are
contained in Part XVIII of the
Constitution of India, from Article
352 to 360. These provisions enable
the Central government
to meet any abnormal situation
effectively.
The rationality behind the
incorporation is to safeguard the
sovereignty, unity, integrity and
security of the country, the
democratic political system and
the Constitution.
The Constitution stipulates three
types of emergencies-
1. National Emergency
2. Constitutional Emergency
3. Financial Emergency
NATIONAL EMERGENCY
Article 352 of the Constitution stipulates
national emergency. National emergency.
The national emergency coincides with
statutory requirements to be enforced when
an unusual situation affects or threatens
part of the nation’s harmony, defence,
prosperity, and administration. In
compliance with Article 352 of the
Constitution, emergency implementation
when conditions preceding were also
present-
(i) Attack,
(ii) External intrusion or
iii) Internal rebellion.
Article 352 states that if, because of outside
aggression or armed revolt, the President is
‘comfortable’ that a dangerous situation
occurs which endangers the protection of
India or indeed any portion of it, he will
make a declaration in that respect with or
for almost all of India. Such a declaration,
though, may only be made through
authorized advice of the cabinet of the
Nation in clause 3. Such a declaration must
be put before the legislative house and
accepted from each chamber, or it will
lapse after a month from the declaration.
It must be remembered that it has been
accounted for in the clarification of Article
352 that neither the foreign invasion nor
violent revolution has really taken place in
the event of an emergency declaration. It
may be declared even though foreign
violence or military revolt is likely.
Parliamentary approval and
duration
o The proclamation of emergency
must be approved by both the
houses of parliament within one
month from the date of its issue.
o However, if the proclamation of
emergency is issued at a time
when the Lok Sabha has been
dissolved or the dissolution takes
place during the period of one
month without approving the
proclamation, then the
proclamation survives until 30
days from the first sitting of Lok
Sabha after its reconstitution,
provided the Rajya Sabha has in
the meantime approved it.
o If approved by both the houses,
the Emergency continues for 6
months and can be extended to
an indefinite period with an
approval of the Parliament for
every six months.
o Every resolution approving the
proclamation of emergency or its
continuance must be passed by
either House of Parliament by a
special majority.
Revocation of proclamation
o A proclamation of Emergency
may be revoked by the President
at any time by a subsequent
proclamation. Such proclamation
does not require parliamentary
approval.
o The emergency must be revoked
if the Lok Sabha passes a
resolution by a simple majority
disapproving its continuation.
Effect on Fundamental
Rights: Articles 358 and 359 describes the
effect of a National Emergency on the
Fundamental Rights. These two provisions are
explained below:
Suspension of Fundamental rights under
Article 19: According to Article 358, when a
proclamation of National Emergency is made, the six
fundamental rights under article 19 are automatically
suspended. Article 19 is automatically revived after
the expiry of the emergency.
The 44th Amendment Act laid out
that Article 19 can only be
suspended when the National
Emergency is laid on the grounds
of war or external aggression and
not in the case of armed
rebellion.
Suspension of other Fundamental
Rights: Under Article 359, the President
is authorised to suspend, by order, the
right to move any court for the
enforcement of Fundamental Rights
during a National Emergency.
Thus, remedial measures are
suspended and not the Fundamental
Rights.
The suspension of enforcement
relates to only those
Fundamental Rights that are
specified in the Presidential
Order.
The suspension could be for the
period during the operation of
emergency or for a shorter
period.
The Order should be laid before
each House of Parliament for
approval.
The 44 Amendment Act mandates that the President
cannot suspend the right to move the court for the
enforcement of Fundamental Rights guaranteed by Article
20 and 21.
B.STATE EMERGENCY(ARTICLE
356 )
Article 355 imposes a duty on the centre to
ensure that the government of every state is
carried on in accordance with the provisions
of the constitution.
It is this duty in the performance of which the
centre takes over the government of a state
under Article 356 in case of failure of
constitutional machinery in a state.
This is popularly known as ‘President’s Rule’.
Grounds of imposition:
The president’s ruler can be proclaimed
under Article 356 on two grounds:
1.Article 356 empowers the President to
issue a proclamation if he is satisfied that
a situation has arisen in which the
government of a state cannot be carried
on in accordance with the provisions of
the constitution.
2.Article 365 says that whenever a state
fails to comply with or to give effect to any
direction from the centre, it will be lawful
for the President to hold that a situation
has arisen in which the government of the
state cannot be carried on in accordance
with the provisions of the constitution.
Parliamentary approval and
duration: A proclamation imposing
president’s rule must be approved by both
the houses of parliament within two months
from the date of its issue.
o However, if the proclamation of
President’s rule is issued at a time
when the Lok Sabha has been
dissolved or the dissolution of the Lok
Sabha takes place during the period
of two months without approving the
proclamation, then the proclamation
survives until 30 days from the first
sitting of the Lok Sabha after its
reconstitution, provided that the
Rajya Sabha approves it in the
meantime
Consequences of the
President’s rule: The President
acquires the following extraordinary powers
when the President’s rule is imposed in a
state:
o He can take up the functions of the
state government and powers vested
in the governor or any other
executive authority in the state.
o He can declare that the powers of the
state legislature are to be exercised
by the parliament.
o He can take all other necessary steps
including the suspension of the
constitutional provisions relating to
any body or authority in the state.
Financial Emergency(Article
360)
Grounds of declaration: Article
360 empowers the president to proclaim a
Financial Emergency if he is satisfied that a
situation has arisen due to which the
financial stability or credit of India or any part
of its territory is threatened.
Parliamentary approval and
duration: A proclamation declaring
financial emergency must be approved by
both the Houses of Parliament within two
months from the date of its issue.
o However, if the proclamation of
Financial Emergency is issued at a
time when the Lok Sabha has been
dissolved or the dissolution of the Lok
Sabha takes place during the period
of two months without approving the
proclamation, then the proclamation
survives until 30 days from the first
sitting of the Lok Sabha after its
reconstitution, provided the Rajya
Sabha has in the meantime approved
it.
Once approved by both the
houses of Parliament, the
Financial Emergency
continues indefinitely till it is
revoked.
Effects of Financial Emergency
Extension of the executive authority of the
Union over the financial matters of the
States.
Reduction of salaries and allowances of all or
any class of persons serving in the State.
Reservation of all money bills or other
financial bills for the consideration of the
President after they are passed by the
legislature of the State.
Direction from the President for the reduction
of salaries and allowances of all or any class
of persons serving the Union; and the judges
of the Supreme Court and the High Courts.
Criticism of the Emergency
Provision
Some members of the Constituent Assembly
criticised the incorporation of emergency
provisions in the constitution on the following
grounds:
o The federal character of the
constitution will be destroyed and the
union will become all-powerful
o The powers of the State- both the
Union and the Units- will entirely be
concentrated in the hands of the
union executive.
o The president will become a dictator
o The financial autonomy of the state
will be nullified
o Fundamental rights will become
meaningless and, as a result, the
democratic foundation of the
constitution will be destroyed.’
While defending the emergency provisions in
the Constituent Assembly, Dr Ambedkar
accepted the possibility of their misuse. He
observed, ‘I do not altogether deny that there
is a possibility of the Articles being abused or
employed for political purposes.’
BIBLIOGRAPHY
www.legalserviceindia.com
www.blogipleader.com
www.byjus.com
