Submitted by Aadesh Agarkar
44th Amendment Act, 1978
44th Amendment Act, 1971
Article 352 provide that if the President is satisfied that there exist grave emergency in the state in case of armed rebellion or war or the security of India is threatened, he may proclaim an emergency in respect of the whole of India or any part of India. In a case of an emergency normal federal constitution can be adopted in which basic fundamental principles are suspended.
Article 352 (1) states emergency can be proclaimed by the president if he is satisfied that there exist grave emergency by war, arms, rebellion and threat to the security
of India. Also, emergency can proclaim before the actual occurrence of event contemplated in Article 352.
According to clause (2), the Proclamation at any time can be revoked by the president varying such proclamation if the Lok Sabha passes resolution disapproving
or disapproving its continuation.
Clause (3) states emergency can be proclaimed only on the occurrence of the cabinet of minister and by the advice of the prime minister and such proclamation must be communicated to president in writing. According to clause (4), The proclamation of emergency must be laid before each house of parliament before the Expiration of 30 days. It shall cease to be in operation unless approved by both the houses. If the proclamation of emergency is issued at the time of the dissolution of Lok Sabha without approving it but the proclamation is approved by Rajya Sabha, the proclamation shall cease to operate at the expiration of 30 days from the date on which the Lok Sabha seat after fresh election. A proclamation once approved can remain in operation for period of 6 months and for further continuation of the emergency beyond the period of 6-month approval shall be required by the parliament every 6 months.
In Minerva Mills limited v. Union of India
The Supreme Court held that there is no bar to judicial review of the proclamation of emergency issued by the President under article 352 (1). The courts power is however limited only to examining whether the limitations conferred by Constitution have been observed or not. The court cannot go into the question of correctness or adequacy of the facts and circumstances on which the satisfaction of the government is based. The satisfaction of the President is a condition Precedent and if it can be shown that there is no satisfaction of the President at all, the exercise of the power would be constitutionally invalid.
The word satisfaction in article 352 does not mean personal satisfaction of the president, but it is satisfaction of the cabinet. The power to declare emergency can be exercised by the president only on the advice of the Council of Ministers.
3)Duration of emergency-
Prior to 44th Amendment, a proclamation of emergency could remain in force in the first instance for 2 months. But once approved by parliament emergency could remain in force indefinitely. After the 44th Amendment, a proclamation of emergency may remain in force in the first instance for 1 month. Such proclamation, if approved by the parliament, shall remain in force for the period of six months unless revoked earlier. For further continuation of emergency beyond the period of 6 months approval by parliament would be required after every 6 months.
4)Effect of proclamation of emergency-
1) Extension of center's executive power (article 353)-
During the operation of a proclamation of emergency the executive power of the union extend to giving of directions to any state as to the manner in which the executive power of the state is to be exercised. The 42nd amendment provided that the union to exercise this power on any other state where emergency is not in force if there is a threat to the territory of India and the state where the emergency is in force.
2) Parliament empowered to legislate on state subject (art 353(b))
While the proclamation of emergency is in force, the union parliament is empowered to make laws with respect to any of the matter in the state list. The distribution of legislative power is thus fundamentally changed during the emergency. The law-making power of the state is not suspended during the emergency. The state can make law but it is subject to the overriding power of the union parliament.
3) Extension of life of Lok Sabha-
According to the article 83(2) during the operation of the emergency the president may extend the normal life of Lok Sabha by a year each time, but the period must not exceed 6 months after the proclamation ceases to operate.
4)Centre empowered to alter distribution of revenue between Union and the State (Article 354)
Article 354 empowers the president to alter, modify the Financial Arrangement between the State and the Center provided in the article 268 to 279 while the proclamation of an emergency is in operation.
5) Suspension of Fundamental Rights guaranteed under Article 19.
Article 358 provides for suspension of 6 freedom guaranteed to the citizens by Article 19 of the Constitution. Article 358 provides that during a proclamation of emergency nothing in Article 19 shall restrict the power of the state to make any law or to take any executive action. Article 19 comes back to life after the proclamation of emergency ceases but no action shall lie for any action done during emergency even after emergency is over.
5)The 44th Amendment Act, 1978
Two most important changes were made in article 358
1) article 19 will be suspended only when the proclamation of emergency is declared on the ground of war or external aggression and not when emergency is declared on the grounds of arms rebellion.
2) It has inserted a new clause (2) in article 358 which says that nothing in the clause (1) shall apply to-
a)Any law which does not contain recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made.
b)To any executive action taken otherwise than under a law containing such recital. Prior to this amendment, the validity of even other laws, which were not related to the emergency, could not be challenged under article 358.
Suspension of right of enforcement of fundamental rights (article 359) According to article 359 the president may suspend the right to enforce fundamental rights guaranteed by part 3 (except article 20 and 21). Further all proceedings pending for enforcement of rights remains suspended.
6)44th Amendment 1971
Two changes :
1) article 359 does not provide the right to suspend the right under article 20 and 21.
2) article 359 will not apply to any law which does not declare it to be in relation to the emergency.
In Ghulam Sarwar v. Union of India
The supreme court held that a presidential order issued under article 359 can be challenged if it has been discriminatory.
State Emergency : Article 355 provides that it shall be the duty of the union to protect every state against external aggression and internal disturbance to ensure that the government of every state is carried on in accordance with the constitution.
7)Failure of constitutional machinery
According to the article 356
1) According to clause 1) if the president on receipt of report from the governor of a state or otherwise is satisfied that a situation has arisen in which the government of the state cannot be carried on in accordance with the provision of the Constitution he may issue proclamation. By that proclamation
1) the president may assume to himself all or any of the power vested in or exercisable by the Governor to anybody or authority in the state.
2) the president declare that the power of Legislature of the state shall be exercised by or under the authorities of parliament.
3)the president may make such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of proclamation.
In S.R Bommai v. Union of India
The court held that proclamation issued by the president under article 356 is subject to Judicial review if president rule is imposed under political consideration only the court can restore the Assembly.
8)Financial emergency Article 360
Article 360 provides that if the president is satisfied that situation has arisen whereby financial stability or credit of India or part of the territory, is threatened he can buy proclamation make a declaration to the same effect. The proclamation of Financial Emergency shall cease to operate after 2 months unless the same has been approved by both the houses. The executive authority of the Union shall extend to giving financial directions to any state to maintain financial stability or credit. This includes the reduction in salary and allowances of any class of persons serving the state and even members of the Judiciary.
Submitted by Aadesh Agarkar