Emergency Provisions under the Indian Consitution.pptx

Emergency Provisions under the Indian Constitution

1. EMERGENCY PROVISION IN INDIA PART XVIII (Article 352-360)

2. BACKGROUND Emergency Provisions in India refer to the special measures outlined in the Indian Constitution that grant the Union Government extraordinary powers to address critical or abnormal situations effectively. Inspiration behind the emergency provisions is taken Weimar Constitution of Germany. Emergencies can be broadly classified into three: – National Emergency (Article 352) – President’s Rule (Article 356) – Financial Emergency (Article 360)

3. National Emergency under Article 352 The President can declare a National Emergency in India under Article 352 when the security of India or a part of it is threatened by: war external aggression or armed rebellion. Originally, the Constitution mentioned  ‘Internal Disturbance‘ as the third ground for the proclamation of a National Emergency. However, because of the vagueness and ambiguity of the phrase ‘Internal Disturbance’, it was replaced by the phrase ‘Armed Rebellion’ by the 44th Constitutional Amendment Act of 1978. Based on the grounds of the declaration, the National Emergency is called by any one of the following 2 names: External Emergency – It refers to a National Emergency that is declared on the grounds of War or External Aggression. Internal Emergency  – It refers to a National Emergency that is declared on the grounds of Armed Rebellion. Note: The 44th Constitutional Amendment Act of 1978 mandated that the President can proclaim a National Emergency  only after receiving a written recommendation from the Cabinet  i.e. only on the concurrence of the Cabinet and not merely on the advice of the Prime Minister.

4. Judicial Review of Proclamation of National Emergency 38th Constitutional Amendment Act of 1975 The 38th Constitutional Amendment Act, 1975 made the declaration of a National Emergency immune from judicial review. 44th Constitutional Amendment Act of 1978 The 44th Constitutional Amendment Act, 1978 deleted the above provision of 38th Constitutional Amendment Act, 1975. Thus, it reversed the position and restored the ability of the judiciary to review the decision of the declaration of a National Emergency. Minerva Mills Case of 1980 In Minerva Mills Case, 1980, the Supreme Court held that the proclamation of National Emergency can be challenged in a court on grounds of  malafide  intentions or when the declaration was based on extraneous or irrelevant facts.

5. Parliamentary Approval of National Emergency The proclamation of a National Emergency must be approved by both Houses of Parliament  within one month from the date of its issue. Note: Originally, the period allowed for approval of a National Emergency by the Parliament was two months. It was reduced to one month by the 44th Constitutional Amendment Act of 1978. Passing of the Proclamation Resolution

6. Duration of National Emergency If approved by both Houses of Parliament, the National Emergency continues for six months. It can be extended to an indefinite period with the approval of Parliament every six months. This provision of periodic approval (every six months) was added by the 44th Constitutional Amendment Act of 1978. Prior to this amendment, National Emergency, once approved by the Parliament, could remain in operation as along as the Executive desired. Revocation of National Emergency Proclamation of Emergency can be revoked by the President at any time by a subsequent proclamation. Effects of National Emergency Centre becomes entitled to give executive directions to a state on ‘any’ matter The parliament becomes empowered to make laws on any subject mentioned in the state list , the president can issue ordinances on State subjects also, if the parliament is not in session. The laws made on state subjects by the parliament become inoperative six months after the emergency has ceased to be in operation. Suspension of Fundamental Rights Article 19 gets suspended after the proclamation of national Emergency- Article 358 All Fundamentals Rights except Article 20 and Article 21 shall be suspended- Article 359

7. State Emergency/ President’s Rule- Article 356 Article 355 imposes a duty on the centre to ensure that the government of every state is carried on in accordance with the provisions of the constitution. It is this duty in the performance of which the centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in a state. This is popularly known as ‘President’s Rule’. Grounds of imposition:  the president’s ruler can be proclaimed under Article 356 on two grounds: Article 356 empowers the President to issue a proclamation if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the constitution. Article 365 says that whenever a state fails to comply with or to give effect to any direction from the centre , it will be lawful for the President to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the constitution. Parliamentary approval and duration:  A proclamation imposing president’s rule must be approved by both the houses of parliament within two months from the date of its issue.

8. However, if the proclamation of President’s rule is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution , provided that the Rajya Sabha approves it in the meantime. Consequences of the President’s rule : The President acquires the following extraordinary powers when the President’s rule is imposed in a state: He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state. He can declare that the powers of the state legislature are to be exercised by the parliament . He can take all other necessary steps including the suspension of the constitutional provisions relating to any body or authority in the state. Scope of judicial review:  The 38th Amendment act of 1975 made the satisfaction of the President in invoking Article 356 final and conclusive which would not be challenged in any court on any ground. But, this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the President is not beyond judicial review. NOTE: State Emergency cannot be continued for more than three years

9. FINANCIAL EMERGENCY- ARTICLE 360 Grounds of declaration : Article 360 empowers the president to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened. Parliamentary approval and duration:  A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation of Financial Emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. Once approved by both the houses of Parliament, the Financial Emergency continues indefinitely till it is revoked. Effects of Financial Emergency Extension of the executive authority of the Union over the financial matters of the States. 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.

10. Some facts about Emergency National Emergency The first National Emergency was called between October 26, 1962, and January 10, 1968, during the India-China war. It was when the security of India had been threatened by external aggression. The second National Emergency was between December 3, 1971, and March 21, 1977, during the Indo-Pakistan war. The third National Emergency was for 21-month period from 1975 to 1977 when Prime Minister Indira Gandhi had a state of emergency declared across the country by citing internal and external threats to the country. Officially issued by President Fakhruddin Ali Ahmed under Article 352 of the Constitution because of prevailing "internal disturbance", the Emergency was in effect from 25 June 1975 and ended on 21 March 1977.  Financial Emergency: Financial Emergency has never been imposed in India. State Emergency / President’s Rule: At present state emergency has been imposed 134 times. Manipur and Uttar Pradesh have been under the President’s Rule 10 times each. Followed by Jammu & Kashmir who has seen President’s Rule Nine Times. How many times Madhya Pradesh have been under President’s Rule? Which states have not seen any imposition of the President’s Rule? Which state has been the longest imposition of President’s Rule?

11. DATA ON STATE EMERGENCIES

12. Current Status of Appointment of a Judge and NJAC. NJAC was challenged in the case of SCARA vs UOI in 2015. In which Supreme Court struck the down the NJAC and restored the Collegium position mentioned under Third Judge’s Case 1998. In judicial appointments, it is obligatory for the President to take into account the opinion of the CJI . The opinion of the CJI is binding on the Government. The opinion of the CJI must be formed after due consultation with a collegium of at least four senior-most judges of the Supreme Court. Even if two judges give an adverse opinion, then he should not send the recommendation to the Government.

13. Jurisdiction of Supreme Court of India Supreme Court has been conferred with following jurisdictions: Writ Jurisdiction under Article 32 Original Jurisdiction under under Article 131 Appellate Jurisdiction from Article 132 to 134 Special Leave Petition Article 136 Advisory Jurisdiction under Article 143 Original Jurisdiction: Its an exclusive type of Jurisdiction and no other court can exercise. Supreme Court decides disputes: Between the Center and one or more states; or Between the Center and one or more states on one side and one or more other states on the other side; or Between two or more states

14. Appellate Jurisdiction The Supreme Court is primarily a court of appeal and hears appeals against the judgments of High Courts. The Appellate Jurisdiction of the SC can be classified under the following heads: Appeals in Constitutional Matters An appeal can be made to the Supreme Court against the judgment of the High Court if the High Court certifies that the case involves a substantial question of law that requires interpretation of the Constitution. Appeals in Civil Matters An appeal lies to the Supreme Court from any judgment of a High Court if the High Court certifies that: the case involves a substantial question of law of general importance. the question needs to be decided by the SC.

15. Appeals in Criminal Matters An appeal can be made to the Supreme Court against the judgment of the High Court in the following three situations: if the High Court has on appeal, reversed an order of acquittal  of an accused person and  sentenced him/her for death. if the High Court has taken before itself any case from any subordinate court, convicted the accused person, and sentenced him/her for death. 3. if the High Court certifies  that the case is fit for appeal to the SC.

16. Special Leave Petition under Article 136 (SLP) SLP is a special provision through which a person can directly approach the Supreme Court from any Court of law in India. The Supreme Court is authorized to grant in its discretion Special Leave to Appeal from any judgment in any matter passed by any court or tribunal in the country, except the military tribunal or the martial court. This provision contains 4 aspects: It is a  discretionary power  and hence  cannot be claimed as a matter of right . It can be granted in any judgment whether final or interim. It may be related to any matter – constitutional, civil, criminal, income-tax, labor, revenue, etc . It can be granted against any court or tribunal (except a military court) and not necessarily against a High Court. Thus, the scope of this provision is very wide and it vests the Supreme Court with a plenary jurisdiction to hear appeals.

17. Advisory Jurisdiction: Power of President to consult Supreme Court- Article 143 Article 143  authorizes the  President of India to seek the opinion of the Supreme Court  in the following 2 categories of matters: 1. On any question of law or fact of public importance that has arisen or is likely to arise . In this case, the SC may tender or may refuse to tender its opinion to the President. 2. On any dispute arising out of any pre-Constitution treaty, agreements, etc. In this case, the SC must tender its opinion to the President. In both cases, the opinion tendered by the SC is only advisory and not a judicial order. Hence, they are  not binding on the President . Until today the power under Article 143 has been exercised Fifteen times by the President since independence. Some of the notable references are: In Re Delhi Laws Act Case 1951: First ever reference in the year 1951 with respect to Delegated Legislation provisions. Cauvery Water Dispute Tribunal, Re : 1993 Ram Janma Bhoomi – Babri Masjid Matter : 1993 - only reference wherein question of fact was asked by the President. The question was “whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi – Babri Majid?”

18. ARTICLE 142: EMPOWERING THE SUPREME COURT Article 142 empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any case or matter pending before it. These decrees or orders are enforceable across India's territory, making them significant tools for judicial intervention. Article 142 allows the Supreme Court to go beyond the confines of existing laws or statutes to ensure justice for all parties involved. It enables the Court to exercise functions beyond adjudication, including executive and legislative roles when required. Examples: Union Carbide Corporation vs Union of India (1991) SC Ordered UCC to pay USD 470 million in compensation for the victims of the Bhopal gas tragedy, highlighting the wide scope of Article 142(1) and clarifying that its powers are of a different quality and not subject to express statutory prohibitions. Chandigarh Mayor Elections (2024) The Supreme Court invoked Article 142 to ensure justice and uphold the sanctity of the electoral process in the Chandigarh mayoral election. The election was marred by irregularities due to the illegal conduct of the presiding officer who had announced the winner by invalidating eight votes cast in favour of his opponent, leading to an incorrect declaration of the winner.

19. PARDONING POWER OF THE PRESIDNET Article 72 of the Constitution of India bestows upon the President of the Indian Union a unique function called the “pardoning power”. Article 72  of the Indian Constitution empowers the President to grant pardons  to persons who have been tried and convicted of any offence in all cases where the: Punishment or sentence is for an offence against a Union Law, Punishment or sentence is by a Court Martial (Military Court); and A sentence is a sentence of death. Conviction of an offence is mandatory before the plea of pardon can be submitted to the President. Why such power has been granted to President? - Judicial errors, erroneous reasoning, undue harshment . Note: Pardoning power of the president is the executive function and not the judicial function. Can President exercise this power all on his own? Although not provided in the Constitution, but through a series of judgement it is established that President while deciding on the petition for Pardon has to act on the aid and advise of the Council of Ministers

20. Can there be a judicial review against the decision of the President under Article 73? Not provided in the Constitution. However, in the case of Maru Ram vs Union of India, Supreme Court, held that the Courts cannot look into the merit of the decisions however, a judicial review can lie in cases of arbitrariness, mala fide or ignorance of certain relevant facts. H.W: Read up on the provision on appeal under the new Criminal law. Pardoning power includes  power to grant a Pardon, Commutation, Remission, Respite, or Reprieve . Pardon: A grant of ‘Pardon’ by the President of India removes both the sentence and the conviction  and completely absolves the convict from all sentences, punishments, and disqualifications. Commutation A grant of ‘Commutation’ denotes the  substitution of one form of punishment for a lighter form . For example, a death sentence may be commuted to rigorous imprisonment, which in turn may be commuted to simple imprisonment. For example conversion of nature of punishment from rigorous imprisonment to simple imprisonment.

21. Remission A grant of ‘Remission’ implies reducing the period of a sentence without changing its character. For example, a sentence of rigorous imprisonment for two years may be remitted to rigorous imprisonment for one year. Respite A grant of ‘Respite’ denotes awarding a lesser sentence in place of one originally awarded due to some special fact, such as the physical disability of a convict or the pregnancy of a woman offender. Reprieve A grant of ‘Reprieve’ implies a stay of the execution of a sentence for a temporary period in order to enable the convict to have time to seek pardon or commutation from the President. The provisions related to grant of pardon in criminal cases has been provided under Section 433 of Criminal Procedure Code. Pardoning Power of the Governor of the State- Article 161 Similar to President, Governor of the State also has the power of pardon, commute, reprieve, respite etc. However, the major difference between the power of President and Governor, is that the Governor cannot grant pardon to the death sentence or commute a death sentence into any other punishment,

22. Differences between President and Governor Powers w.r.t Pardon President  Governor  The President can pardon, reprieve, respite, remit, suspend, or commute the punishment or sentence of any person convicted of any  offence against a Central law.  The Governor can pardon, reprieve, respite, remit suspend, or commute the punishment or sentence of any person convicted of any  offence against State law.  The President can pardon, reprieve, respite, remit, suspend, or commute a death sentence. He/she is the  only authority to pardon a death sentence.  The Governor   can only suspend, remit, or commute a death sentence. He/she  cannot pardon a death sentence.   The President can grant pardon, reprieve, respite, suspension, remission, or commutation with respect to  punishment or sentence by a court martial (military courts).  The Governor  does not possess any such power.