ARTICLE 352( EMERGENCIES IN INDIA)

– Saksham Sankhla

Student, B.A. LL.B., Indore Institute of Law

– Shivangi Singh

Student, B.A. LL.B., Indore Institute of Law

– Dr. Reva Prasad Mishra

Asst. Prof., Indore Institute of Law

ABSTRACT

In Indian Constitution, under article 352, 356, and article 360 we are going to learn and get knowledge of the following things :

• Proclamation of emergency

• Provisions in case of failure of constitutional machinery in states.

• Provisions as to financial emergency.

• We can identify the situations under that the president can proclaim emergency (National emergency).

• With the special reference of the Fundamental Rights, the one can describe the various effects ofnationalemergencyrelating to basically 3 matters. Theyare executive, legislative and financial matters.

• Different circumstances are provided in which the president can make a proclamation under article 356 of the Indian constitution to impose president’s rule in the state.

• Imposition of President’s Rule has often been controversial in the context of smooth Centre – State relations

• It also describes the circumstances under which financial emergency can be imposed.

• Article 360 of the Indian constitution explains the proclamation of financial emergency.

• Role of the parliament during financial emergency.

INTRODUCTION

In Indian constitution there are different emergency provisions which were made to safeguard the security, integrity and stability of the nation, not only for safeguarding but also for the effective functioning of the state governments. Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as to handle special situation. The provisions regarding emergency are given under the part 18th of the Indian constitution. The president of the country has the right to exercise the power to impose the emergency in any individual state or in all the states. When the Constitution of India was being drafted, India was passing through a period of stress and strain. Partition of the country, communal riots and the problem concerning the merger of princely states including Kashmir. Thus the drafting committee ofthe Indian constitution thought to equip the centralgovernment with the necessary authority, so that, in the hour of emergency, when the security and stability of the country is threatened by internal or external problems.

The Indian constitution contains Articles 352-360 which deals with ‘Emergency Provisions’. The emergency provisions especially Articles 352 and 356 have been exclusively amended by the Constitution (44th Amendment) Act, with a view to introduce a number of safeguards against abuse of power by the executive in the name of emergency. Amendments have been made by the 44thAmendment to the emergencyprovision of the Constitution to make repetition of the 1975 situation extremely difficult; ifnot possible it is a notable feature of Indian constitution where it deals with extraordinary or crisis situations.

KINDS OF EMERGENCIES

(situations under constitution of India)

1. National Emergency

2. State Emergency

3. Financial Emergency

REVIEW OF LITERATURE

• M.P. JAIN INDIAN CONSTITUTIONAL LAW, 6th ed. 2010

• D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 8th ed. 2012

• J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA, 52ND EDITION 2015

CONCLUSION

As the constitution of India provides the executive power which might lead to violation of individuals fundamental rights during “Emergency”, is judicially guaranteed by the Indian Constitution. There should be also an effective control to ensure the limitation of the power within the reach of the Indian constitution. Also the abuse of the power of the provisions regarding emergency, still it have a role to play under conditions prevailing in India, though it still remains a controversial issue in the country.

What we studied from this Article under Indian Constitution

According to the Constitution of India, the President has been given extraordinary power to deal with certain abnormal situations in order to protect the security, integrity and stability of the country. For this purpose, there are three types of emergencies which can be proclaimed by the President of India on the written advice of the Union Cabinet. These three types of emergencies are :

(a) National emergency (Article 352).

(b) Emergency due to the breakdown of constitutional machinery in a State (Article 356).

First, under article 352 of the Indian constitution National emergency has been declared three times so far. Two times it was imposed due to external aggression by China and Pakistan both at once, whereas the emergencyimposed onlyonce due to internaldisturbances. This emergency was imposed on 25th June 1975. Emergency on account of failure of Constitutional machinery has been declared in most of the States some time or the other. But Financial emergency has not been imposed yet in the country. Whenever it willbe imposed it willaffect the fundamental rights of the citizens. It also affects the autonomy of the state government.The union government powers increases and it can make laws even on the subjects that are included in the state list. The state governments follows the direction given by the centre. Basically, the federal nature of the constitution changes to unitaryform. So much so that when the proclamation of national emergency is in operation, some of the Fundamental Rights guaranteed by the Constitution remain suspended. Second, State emergency which is imposed under article 356, is the most frequently imposed emergency. Under this, a State is put under the President’s Rule if the elected representatives failto form or run the government in a State according to the Constitution of India. In India this the most misused form of emergency which has been also criticized by many. Third and the last is Financial emergency which has not been issued until now. During this emergency, the president of India gives directions to the union as well as to the state government. Directions like to reduce the salaries and allowances oftheir employees including the judges also. The only aim of this type of emergency is to resolve the financial crises in the country.

The proclamation of each type of emergency is made by the President on the written advice of the Union Cabinet. Such a proclamation has to be approved by both the Houses of parliament within one month in case of National Emergency and within two months in case of state and financial emergency, from the day and date of imposition of such emergency. The parliament approved the imposition of the president’s rule and the proclamation of national emergency. It will continued to be in operation for six months from the date of proclamation.In case it is to be extended beyond six months, a subsequent prior resolution has to be passed by the Parliament to this effect. If once Financial emergency issued, it continues to operate as long the countryovercome though financial crises. The Emergency Provisions provide the President with sweeping powers to deal with abnormal and extraordinary situations. Any misuse of these powers can easily lead to subversion of democracy. But in real the working of the constitution for more than five decades has demonstrated the emergencypowers were generally used in the interest of the country barring a few cases where emergency was imposed due to political considerations. As we see the misuse of emergency provisions in some of the states in India, there is a broad consensus that emergency provisions given under the Indian constitution still play a role under the conditions prevailing in India.

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