This article has been written by Ms. Bhawna, a student studying B.A.LLB.(H.) from Teerthanker Mahaveer college of law and legal studies, Moradabad. The author is a 3^rd year law student.

INTRODUCTION

The Black’s law dictionary defines emergency as “a failure of social system to deliver reasonable conditions of life”. In India, a state of emergency refers to a period of governance that can be proclaimed by the President of India during certain crisis situations. The president proclaim the emergency under the aid and advice of the cabinet ministers. The main object behind the incorporation of emergency provisions under the constitution  is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution. In a nation, an unexpected and suddenly situation may arise by events and forces which seriously endanger the security of the nation and the lives of it’s citizens. Such situations in the nation may require the individual liberty of the citizens should be temporarily suspended in order to cope with the dangers confronting the nation. 

EMERGENCY PROVISIONS

The emergency provisions are contained in part XVIII, from article 352 – 360 of the constitution of India. These provisions enable the central government to meet any abnormal situation effectively.

TYPES OF EMERGENCY

The constitution of India provides three types of emergency which are as follow : 

• National emergency : The proclamation of emergency is provided under article 362 of Indian constitution. The president can proclaim the emergency in India or any part of it’s territory on the ground of war , or external aggression, or armed rebellion. The expression Armed rebellion was introduced by 44^th constitutional amendment by replacing the original expression Internal disturbance.
• State emergency : The state emergency is provided under article 356 of Indian constitution. The state Emergency can be declared due to the failure of Constitutional Machinery in States. This emergency is popularly known as “President’s rule”. 
• Financial  emergency : The concept of financial emergency is discussed under article 360 of the Indian constitution. The Financial Emergency can be declared due to the financial stability or credit of India or part of the territory is threatened.

IMPACT OF NATIONAL EMERGENCY

Whenever the National emergency is proclaimed, it widely affects the functioning of the federal government. The emergency affect the relation between the centre and state, the way government draft the legislation, the fundamental rights and many more things. All these things can be categorized into 3 category are as follow : 

• Effect on canter and state relation : While a proclamation of emergency is in force, centre & state relation undergoes a basic change. This can be studied under 3 heads as executive, legislature and financial are as follow : 

1. Executive : Article 353 describe the effect of proclamation of emergency on executive power of union and state. During the normal period, the centre can only give executive orders in few circumstances, but during a national emergency, it can give any executive orders to the state government. However, during a national emergency, canteen becomes entitled to give executive directions to a state on any matter. It means the state government under the total control of the Central Government during the national emergency in India.
2. Legislative : Article 353 relates with the effect of proclamation of emergency on legislative power of union and state. During an emergency, the central government gets the power to make laws related to the state list of the 7^th schedule. The legislative power of the state government is not terminated, only the centre gets the additional power. Thus, the normal distribution of the legislative powers between the centre and state is suspended, though the state legislature are not suspended. That means the constitution becomes unitary rather than federal. The laws made by parliament on subject of state list during the national emergency becomes inoperative 6 months after the emergency has ceased to operate.
3. Financial : Article 354 relates the provision of distribution of revenues while a proclamation of emergency is in operation. During national emergency, the president can amend the Constitutional distribution of taxes between centre and state. This means that the president can either reduce the transfer of finances from centre to the states. Such modifications continues till the end of the financial year in which the emergency ceases to operate. Also, every such order of the president has to be laid before both houses of parliament. The president can also stop the financial aid given to the States. It is mandatory for such amendment to get the approval of the parliament.

• Duration of lok Sabha and Vidhan Sabha : When a proclamation of National emergency is in operation, the life of the lok Sabha may be extended beyond the normal term for one year at a time. However, this extension cannot continue beyond a period of 6 months after the emergency has ceased to operate. Similarly, the parliament may extend the normal tenure of a state legislative assembly by one year each time during a national emergency, subject to a maximum period of 6 months after the emergency has ceased to operate.
• Effect on fundamental rights of citizens : Article 358 and 359 describe the effect of National emergency on the fundamental rights. Article 358 has the provision to dismiss the rights provided by article 19, whereas Article 359 dismiss other fundamental rights other than of article 20 & 21.

1. According to Article 358 when a proclamation of National emergency is made, six fundamental rights under article 19 are automatically suspended. No separate order for their suspension is required. In other words, the state can make any law or can take executive action abridging or taking away the six fundamental rights provided by article 19, during the emergency. Any law made during emergency, to the extent of inconsistency with article 19, ceases to have an effect. Article 19 is automatically revived after the expiry of the emergency. The 44^th amendment Act restricted the scope of article 358 in two ways, firstly, laid down that article 19 can only be suspended when the national emergency is laid on grounds of war or external aggression and not on the ground of armed rebellion, secondly, only those law which are related to the emergency are protected from being challenged and not other laws. Also, the executive action taken only under such a law is protected.
2. Article 359 Empowers the president to dismiss the rights of a citizen to go to the supreme court. It means article 359 does not directly dismiss the fundamental rights, instead, it empowers the president to do so. Under article 359, the fundamental rights as such are not suspended but only their enforcement. The said rights are alive but right to seek remedy is suspended. The suspension of enforcement relates to only those fundamental rights that are in the presidential order. It should be laid before each houses of parliament for approval. In Ghulam Sarwar v. Union of India, the supreme court held that the presidential order issued under article 359(1) could be challenged as being discriminatory. The 44^th amendment Act restricted the scope of article 359 in two ways, firstly, the president can’t suspended the right to move the court for the enforcement of fundamental rights provided by article 20 & 21. Article 20 & 21 remains enforceable during the emergency and, secondly, only those law which are related with the emergency are protected from being challenged and not other laws and the executive action taken only under such a law, is protected.

 In Makhan Singh case, the supreme court distinguish between article 358 & 359. The difference between article 358 & 359 are as follow : 

• Article 358 directly dismiss the rights provided under article 19, but article 359 empowers the president to terminate the rights of citizens to go to the supreme court.
• Article 358 only works when there is an emergency, it doesn’t work in case of internal emergency, while article 359 can be imposed during both the internal and external emergency.
• Whenever article 358 is imposed, it remains valid throughout the country, but article 359 can be implemented in any particular part of the country.

IMPACT OF STATE EMERGENCY

Whenever a state emergency is in the operation, the president gets some extra powers in relation to that state in which the president rule is made.

• The president can declare that the state legislature will exercise it’s function under the parliament.
• The president shall have power to exercise all powers which are exercisable by governor or any authority in the state.
•  The president can take necessary steps including the suspension of the constitutional provisions relating to any body or authority in the state.

IMPACT OF FINANCIAL EMERGENCY 

The financial emergency has the following effects: 

• There shall be extension of the executive authority of the union over the financial matters of the state in which the emergency is in made.
• There shall be 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 judge of supreme court & High court.

RREFERENCES

• http://www.legalservicesindia.com/article/1769/Emergency-Provisions:-Effects-and-Impact..html
• https://www.drishtiias.com/to-the-points/Paper2/emergency-provisions
• https://youtu.be/SOT4q7XWfFg
• Additional District Magistrate, Jabalpur v. Shivkant Shukla AIR 1976 SC 1207
• Ghulam Sarwar vs Union Of India AIR 1968 SC 1335
• Makhan Singh v.  State of Punjab AIR 1964 SC 381

Aishwarya Says:

Law students often face problems, which they cannot share with their friends and families. We have started a column on our website Student’s Corner. In this column we are talking to several law students about the challenges that they face. Students who are interested in participating in the same, can fill this Google Form.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems to aishwarya@aishwaryasandeep.com

Join our  Whatsapp Group for latest Job Opening