SUBMITTED BY:ALAMITI MISHRA

ROLL NO:14
DEPARTMENT:LAW
YEAR:2nd
SEMESTER:4th
SUBJECT:CONSTITUTIONAL LAW II
SUBMITTED TO-PURANJAY DAS
 ACKNOWLEDGEMENT

I would like to convey my heartfelt gratitude to Mr. Puranjay Das for his
tremendous support and assistance in the completion of my assignment. I would
also like to thank his for providing me with this wonderful opportunity to work
on an assignment with the topic “Effects of National Emergency on
governance of the country”. The completion of the Assignment would not
have been possible without his help and insights.
 CONTENTS

SL NO DESCRIPTION PAGE NO
1. Introduction 1
2. Grounds of declaration 1-2

3. Effects Of National Emergency 2-5

4. 5
Criticism of the Emergency Provision

5. 5
Conclusion

6. Bibliography 5
Introduction

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]-
1. National Emergency
1
2. Constitutional Emergency
3. Financial Emergency

Grounds of declaration:

 National emergency can be declared on the basis of war, external aggression or armed rebellion. The
Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this
type.
 Grounds of declaration:
o Under Article 352[2], the president can declare a national emergency when the security of
India or a part of it is threatened by war or external aggression or armed rebellion.
o The President can declare a national emergency even before the actual occurrence of war or
armed rebellion or external aggression
o When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it
is known as ‘External Emergency’. On the other hand, when it is declared on the grounds
of ‘armed rebellion’, it is known as ‘Internal Emergency’.
 This term ‘armed rebellion’ is inserted from the 44th amendment. Before this term it
was known as internal disturbance.
 Example:
o If India and Pakistan openly accept that they will use armed forces against each other is
simply war.

1 Constitutional law of India By Dr. J.N. Pandey

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 o If there is no formal declaration that there will be armed forces used against a country is
External aggression.
o And if because of these two grounds an emergency is proclaimed as an external emergency.

Facts

 The 38th Amendment Act[3] of 1975 made the declaration of National Emergency immune to
judicial review. But, this provision was subsequently deleted by the 44 th Amendment Act of 1978.
 In Minerva Mills case (1980), the Supreme Court held that National Emergency can be challenged in
the court on the ground of malafide or that the declaration was based on wholly extraneous and
irrelevant facts.
 Parliamentary approval and duration
 The proclamation of emergency must be approved by both the houses of parliament within
one month from the date of its issue.
 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.
 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.
 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
 A proclamation of Emergency may be revoked by the President at any time by a subsequent
proclamation. Such proclamation does not require parliamentary approval.
 The emergency must be revoked if the Lok Sabha passes a resolution by a simple majority
disapproving its continuation.

Effects of national emergency

A proclamation of Emergency has drastic and wide-ranging effects on the political system.
These consequences can be grouped into 3 categories:

3 Constitutional law of India By Dr. J.N. Pandey

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Effects on the centre-state relations[4]: 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 heads:

Executive

 During a national emergency, the Centre's executive power extends to directing any state as to how
its executive power should be exercised.
 Normally, the Centre can only issue executive directives to a state on a limited number of issues.
 During a national emergency, however, the Centre gains the authority to issue executive orders to a
state on 'any' matter.
 The state governments are thus brought completely under the control of the Centre, though they are
not suspended.

Legislative

 During a national emergency, the Parliament is given the authority to pass laws on any subject on the
State List.
 Although a state legislature's legislative power is not suspended, it is subject to the Parliament's
overriding power.
 As a result, the normal distribution of legislative powers between the Centre and the states is
suspended, though state legislatures are not.
 The laws passed by Parliament on state subjects during a National Emergency are rendered
ineffective six months after the emergency has ended.
 Notably, while a proclamation of national emergency is in effect, the President has the authority to
issue ordinances on state subjects even if Parliament is not in session.
 Furthermore, the Parliament may delegate powers and impose duties on the Centre or its officers and
authorities in matters not covered by the Union List in order to carry out laws enacted under its
expanded jurisdiction as a result of the declaration of a National Emergency.

Financial3

 While a state of national emergency is declared, the President has the authority to change the
constitutional distribution of revenues between the centre and the states.
 This means that the president has the authority to either reduce or cancel the transfer of funds from
the Centre to the states.

4 The Constitution of India Universal’s Bare Act

Effect on Lok Sabha and State Assembly

 While a proclamation of National Emergency is in effect, the Lok Sabha's term may be extended by
a law of Parliament for one year at a time (for any length of time)beyond its normal term of five
years.
 This extension, however, cannot last longer than six months after the emergency has ended.
 Similarly, during a national emergency, the Parliament may extend the normal tenure of a state
legislative assembly (five years) by one year each time (for any length of time), subject to a
maximum period of six months after the Emergency has ended.

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.

Declarations made so far:

This type of emergency has been proclaimed three times so far- in 1962, 1971 and 1975

 The first proclamation of National Emergency was issued in October 1962 on account of Chinese
aggression in the NEFA and was in force till January 1968.
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  The second proclamation of National Emergency was made in December 1971 in the wake of the
attack by Pakistan.
 Even when the emergency was in operation, the third proclamation of National Emergency was
made in June 1975. Both the second and the third proclamations were revoked in March 1977.

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.’

Conclusion
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 the subversion of democracy.But the
actual working of the Constitution for more than five decades has demonstrated that emergency powers were
generally used in the interest of the country barring a few cases where emergency was imposed due to
political considerations.

Bibliography
https://prepp.in/news/e-492-effects-of-national-emergency-indian-polity-notes

Constitutional law of India By Dr. J.N. Pandey

https://www.drishtiias.com/to-the-points/Paper2/emergency-provisions/print_manually

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