EMERGENCY PROVISIONS UNDER CONSTITUTION OF INDIA

 

The Indian government system has a quasi-judicial character similar to that of the federal government and maintains power over the coalition in emergencies, similar to the unified form of power split between the central and state states. Here, the state has abandoned the right for the central government to maintain security and pursue public welfare. At that time, nearby China attacked the North Korean border, threatening India’s security. Since then, the President has been given special powers to act in emergencies.

Article 18 of the Constitution sets out three emergency situations:

1. Emergency
2. Urgent due to breakdown of national constitution machine
3. Financial emergency

 

These descriptions are:

Article 352[1]: Producers of the Indian Constitution have full control of the Union in accordance with Article 352 under emergency conditions to maintain the integrity, security and stability of the State. The emergency conditions provided in this article exclude two other types of emergency situations. The president can force a national emergency if he is convinced that a serious situation exists or may arise as a result of war, external aggression, or armed revolt (formerly internal disturbances). However, his strength depends on the cabinet’s recommendations. The statement must also be submitted to the House of Representatives, and the action may pass the resolution within one month without taking action or approving the resolution. The publication was published in the publication, but is not required. To date, the first to strike the Indian border in China in 1962-1968, the second was during World War II from 1971 to 1977. The second was implemented in 1975 based on internal anxiety.

 

Article 356[2]: In accordance with this article, the President has extensive discretion when convinced that it is not possible to establish a national government under the provisions of the Indian Constitution. The imposition of an emergency during the failure of the national charter system is called the “President’s Rule”, and any country that does not follow the Union’s instructions when exercising its powers is a clear basis for implementing the rule. The enforcement notice must be submitted to Congress and approved for six months. SR Bommai v. In the case of the Indian Federation, Karnataka High Court judges gave different views on the rule of presidential rule in Karnataka, and in other states, the courts will consider it unconstitutional and restore it. . .

 

Article 360[3]: This article describes the financial emergencies imposed by the President when Indian credit or part of that credit is threatened or at risk during the financial crisis. The purpose of this article is to change government mechanisms in the context of national financial stability. Unless approved by the House of Representatives, the announcement will be suspended within two months. So far India has not forced this statement.

THE IMPACT OF THE EMERGENCY DECLARATION:

Article 353[4] of the Constitution provides for an emergency declaration. This power supply is temporary and cannot be used without proper care. The most important impact was that while the statement was in operation, the federal nature of the government became a unified system, and the union had the right to give orders to the state under the executive authority exercised by the government. In this way, the legislative powers of the federal parliament have been expanded to the extent that national laws can be enacted and regulations on tax matters can be amended. If the fundamental rights are involved, in the case of an emergency due to war or external aggression, Article 19 is suspended. While the publication continues, the President has the right to suspend the individual’s right to court in violation of the individual’s basic rights, except in Articles 20 and 21 of the Indian Constitution.

 

For Bennett Coleman & Co., the Supreme Court of India ruled that the newspaper policy of 1972-73 was not protected from the attacks of Article 19 on the premise that it would implement the existing policy formulated prior to the “emergency”.

 

Under the rule of the President, the President has the power to suspend or dissolve state legislative meetings. The provisions provided by the President in accordance with the rules are inadvertent or inevitable and are necessary to implement the announcement. Article 357 stipulates the manner in which legislative powers are exercised in accordance with the public notice under Article 356.

 

The court is Nishi Kanta Mondal v. State of W.B[5] has ruled that the law will remain in effect even if the notice is revoked, unless the law is amended or amended in accordance with the provisions of Article 357 (2). Revised and repealed or reissued.

 

According to Article 360 ​​of the Constitution, notifications of financial emergencies are valid, but the President issues guidelines on financial matters, reduces salaries and civil service allowances, and empowers all money bills to be retained. The salaries of senior officials, including Supreme Court judges, can also be changed to help stabilize the country in times of crisis.

ABUSE OF POWER:

In rare cases, it is necessary to use the powers granted to the United Parliament when an emergency is declared. The powers granted to the President are used for personal and political interests, not public interests, in special circumstances. This abuse of power can easily lead to the division of Indian democracy. In many cases, power is distorted by political considerations, and sometimes there is a personal interest behind decisions made during emergency operations. Amendment 44 caused internal harassment to no longer be used to declare emergencies, leading to the worst abuse of emergencies at the national level in 1975 and continued until 1977.

Since 1950, the powers provided by Article 356 have been widely used in India, especially Uttar Pradesh, Kerala, and Punjab. In some cases, the President’s rule was imposed purely on political grounds to overthrow the ministry formed by other parties. The 42nd Amendment of 1976 is an example of nearly 60 articles that influenced the Constitution. Therefore, regulations must be deleted or established to limit the abuse of these regulations.

 

DETERRENCE OF ABUSE OF POWER:

“Emergency rules” are prone to abuse by authorities and must follow relevant protection measures to prevent emergencies. The Indian Constitution guarantees the basic rights of Indian citizens suspended under emergency regulations. It should be borne in mind that if there is a justifiable reason for the personal benefit, we should not violate human rights during the declaration. Similarly, people’s social, cultural, political and civil rights must be protected.

 

These rules should not ignore the principle of legality. Maneka Gandhi v. The union of India ‘Due procedure of law’ or ‘procedure established by law’ mentioned in the Indian Federation must be followed to prevent corruption and abuse of power. This is a conditional authority that should be used carefully and used as a last resort. The Sakarya Committee has a similar view, arguing that this particular power conferred by the Constitution should not be used frequently in India, but as a constitutional weapon against extreme situations.

 

For the first time in S.R Bommai v. Union of India[6], notice under section 356 was subject to judicial review. The judge has the right to check the validity of the grounds on which the emergency declaration is based. The power of judicial review was originally Experienced in State of Rajasthan v. Union of India, there are no unified legal rules for emergency declarations and may vary from situation to situation.

In the case of Ram Manohar Lohia v. State of Bihar[7], the detention order was considered illegal under Indian defence rules. This is because the actual order of detention of the case was not followed. Declaring an emergency provision is legal, but only if it is necessary in some circumstances. It should be used with caution, so as not to interfere with the construction mechanism. Therefore, it is necessary to take restrictive measures to ensure that actions are not restricted by the Constitution. The government is responsible for all actions, so reviewing the basics of the rules is essential to prevent abuse of power for political or other purposes other than social welfare. Emergency states should not be declared if the state does not follow the direction of the central government.

The state’s emergency intervention must be short-term and can only handle emergencies. Decision making skills should not be left to a handful of people, which can lead to prejudices that force presentations. The decision-making process requires the participation of experts from different fields. Therefore, to prevent abuse of power while proclaiming an emergency, we need to keep in mind three things: the function of democracy, the protection of human rights, and the rule of law.

A Relative Study:

The Indian Constitution allows the central government to play a role in declaring emergencies, emergencies, emergencies or financial emergencies due to the failure of state constitutional bodies. The President has broad discretion, but is determined by the validity of the Constitution. Similarly, in European countries, emergency measures should not exceed the level required by the situation and should not conflict with other state obligations under international law.

One of the duties of exercising the powers stipulated in Article 352 is to protect human rights. However, while the announcement was suspended, Article 19 was suspended, but these rights must be restored to the individual once the emergency is over. In Bangladesh, it is recommended to restore the basic and democratic rights of the people as soon as the emergency is over.

For example, S.R. Bommai v. Union of India, the grounds for declaring an emergency are reasonable, subject to judicial review, and the Romans have imposed an automatic limit of six months on the state of emergency dictatorship. According to them, the existence of a rational cause is necessary, and the same cause must be proven and proven.

The President may declare an emergency in accordance with Article 352 of the Indian Constitution only through written advice of the Federal Charter. In the case of a national emergency, additional approval by the House of Representatives is required within one month (for two other countries). Must get further approval from Congress within 2 months. Type of emergency from date of implementation. Similarly, in Germany, the President may declare an emergency at the request of the Chancellor, with the approval of the Federal Chancellor.

CONCLUSION:

If the Constitution stipulates that the enforcement of power can violate a person’s basic rights in an emergency, a judicial guarantee under the Indian Constitution, effective control mechanisms must be established to ensure that this power is limited to the Constitution. Within range. It is necessary to review the effectiveness of the action in order to prevent political interests and for the public good. Despite the abuse of power, emergency provisions are still controversial, but continue to operate under conditions prevalent in India.

[1] https://indiankanoon.org/doc/1018568/

[2] http://legalaffairs.gov.in/sites/default/files/Article%20356%20of%20the%20Constitution.pdf

[3] https://thefactfactor.com/facts/law/constitutional_law/financial-emergency/1080/

[4] http://www.aaptaxlaw.com/constitution-of-india/article-353-354-constitution-effect-of-proclamation-of-emergency-distribution-of-revenues-while-proclamation-of-emergency-in-operation-article-353-354-of-constitution-of-india-1949.html

[5] https://www.legitquest.com/case/nishi-kanta-mondal-v-state-of-west-bengal/492B

[6] http://lawtimesjournal.in/s-r-bommai-vs-union-of-india/

[7] http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=005691791000

Author: Prakalp Shrivastava,
B.A LL. B(Hons.) 3rd Year, School of law, jagran lakecity university, bhopal (M.P)