This article was written by Shivam Saxena, a student of Tamil Nadu National Law School, in which he discusses about the historical background of the provisions related Emergency under the Constitution of India.
The thought of emergency has passed into political hypothesis. The basic idea, to make specific emergency provisions in the Constitution, was to protect against unintended emergence of autocracy as a result of internal disorder, external attack or battle. In the Indian Constitution, there is a separate part present for the emergency provisions. Part XVIII, therefore, is a component of innovation in our Constitution.
[II.1.] HISTORICAL BACKGROUND
The conditions, which were at that time of framing the Constitution, played an important role for that the provisions of emergency were included. The framers of the Constitution compelled to think about such provisions after facing many incidents after and before of independence period.[1]
The disruptive forces of casteism, regionalism, communalism, and languish[2] created cacophony and disturbed the peace and harmony of the country. The communal riots were happening between Hindus and Muslims which were disintegrating dangers for the establishment and maintenance of democracy in India. Kashmir problem came up with the lapse of the Crown at the time of making of our Constitution. Danger from Pakistan was coming up. There was the recalcitrant attitude of some of the Native States (Junagarh and Hyderabad) towards joining the Indian Union. It was a biggest challenge for the government of India at that time because the government could not permit such separatist conduct Military action in Junagarh and Hyderabad was necessary as a matter of geographical compulsion. This all motivated to need of Art. 352.[3]
The early years of independence witnessed a spurt in the communist activities among the workers and peasants in Telengana. The revolution of the communists was a probable danger to the harmony and democratic order of the country. This led to the inclusion of stringent emergency provisions in the Constitution. Government of a province. Thus, the Constitution- makers were worried of the regular and successful functioning of the State governments. So they included Art. 356 to take care of the breakdown of Constitutional machinery in a State.
There was also marked decline in the economic condition of the country due to the circumstances created by fall in foreign exchange reserves and partition. Dr. Ambedkar wanted to avoid all legal difficulties and thus came Art. 360 of the Constitution.[4]
[II.2.] TYPES OF EMERGENCIES UNDER THE INDIAN CONSTITUTION:[5]
To protect the active order in the nation, Constitution provides the laws for emergency action. The unusual circumstances are to be dealt with by the provisions contained in Part XVIII of the Indian Constitution. These situations can be broadly classified under three head, which are given below[6]:-
- National Emergency- Emergency due to war, external aggression or internal disturbance – ( Art. 352 ),
- State Emergency- Emergency in case of failure of Constitutional machinery in States – ( Art. 356 ); and
- Financial Emergency- Emergency due to financial crisis (Art. 360).[7]
- NATIONAL EMERGENCY (Art. 352)
PROCLAMATION OF EMERGENCY:
“If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.”[8]
A proclamation of emergency under Article 352(1) may be made before the actual occurrence of war, external aggression or armed rebellion.[9] Moreover, the forty fourth amendment introduced another innovation : where a notice in writing, signed by not less than 1/10th of the total members of the Lok Sabha has been given of their intention to move a resolution disapproving the proclamation of emergency, to the speaker if the house is in session or to the president, if the house is not in session, a special sitting of the house is to be held within 14 days from the date on which such notice is received by the speaker or the president, as the case may be, for the purpose of considering such resolution.[Article 352(8)][10]
CONSEQUENCES OF A PROCLAMATION OF EMERGENCY[11]
(a) There is a transformation in the behaviour of the Indian federalism. The normal fabric of the Centre-State relations undergoes a fundamental change. Parliament becomes empowered to make a law with respect to any matter in the state list, and such a law operates till six months after the proclamation ceases to operate [Art. 250][12]
(b) Further, the Centre can give directions to the state as to the manner in which it is to exercise its executive powers [353(a)]. [13]Since parliament can make a law even in the exclusive state field, it means that the centre can give directions even in the area normally allotted to the states. Parliament may confer powers and impose duties upon the Centre or its officers or authorities even though the law pertains to a matter not in the Union List [Art. 353(b)].[14]
(c) When emergency is declared not in the whole of India but only in a part of India, the executive power of the Centre to give directions, and the power of Parliament to make laws as mentioned above, extend not only to the State in which the territory under emergency lies, but also to any other state, “if and so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation ” [Proviso to Art. 353]. [15]
(d) While the proclamation of emergency is in operation, the President may by order direct that any provision (Arts. 268 to 279) relating to the distribution of revenue between the Centre and the States, shall take effect subject to such exceptions or modifications as he thinks fit [Art. 354(1)].[16]This provision frees the Centre from its obligation to transfer revenue to the States so that’s own financial capacity remains unimpaired to deal with the emergency.
(e) During an emergency, Parliament can also levy any tax which ordinarily falls in the Sate list [Art. 250][17]
(f) As has already been pointed out, during the operation of the proclamation of emergency, the life of the Lok Sabah may be extended beyond its normal five year period by parliament by law for a year each time, up to a period not extending beyond six months after the proclamation of emergency ceases to operate.[18]
(g) Parliament may by law extend the life of the state legislators by one year each time during an emergency, subject to a maximum period of six months after the emergency ceases to operate.[19]
INVOCATION OF NATIONAL EMERGENCY[20]
In India, national emergency has been invoked three times so far.
First time, on October 26, 1962, in the wake of clash with china. It remained in force during the Indo-Pak conflict in 1965, and was revoked only in January, 1968.
Second time, on December, 1971, as a result of the India and Pakistan dispute on the ground of external aggression.
While the 1971 was still effective, another proclamation was issued on June 26, 1975. This time the proclamation was issued on the ground of “internal disturbance” threatening the security of India. Bothe these proclamations were revoked in March 1977.
One of the major result which come out after the proclamation of the emergency in 1975was the amendment of Article 352 by 44th Constitutional amendment so as to introduce some more safeguards therein against any unwarranted declaration of emergency in future. The main purpose of this amendment was that what happened in 1975 should not repeat in future.[21]
- STATE EMERGENCY
PROCLAMATION OF EMERGENCY
Article 356 and 357 provide for meeting a situation arising from the failure of the Constitutional machinery in a state.[22]
“If the President, on receipt of a 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 provisions of this Constitution, the President may by Proclamation
(a) Assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State;
(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State.”[23]
CONSEQUENCES OF INVOKING STATE EMERGENCY
Article 356(1) has been invoked a number of times since the advent of the Constitution.[24]Reading Art. 356 along with Art. 357 a pattern has thus come into existence, whenever the centre takes over a state government. The centre has acted only when the governor has reported failure of the Constitutional machinery in the state and in no case has the centre acted ‘otherwise’. The governor makes the report to act in this matter on the advice of the council of ministers.
The proclamation issued by the President under Art. 356(1) is placed before parliament. If it is expected to remain in force only for two months, then no further action is necessary. But if it is proposed to keep it in force for a longer period, it is to be ratified by both houses.
Under Art. 356(1) (a), the President can assume to himself the powers of the Governor. One of the Governor’s powers is to dissolve the Legislative Assembly. Consequently, when the. President issues a proclamation and assumes the governor’s powers, the powers to dissolve the assembly and hold fresh elections is automatically transferred to the president. Therefore, the Presidential proclamation may dissolve the State Legislature and arrangements for holding fresh elections are set afoot.
INVOCATION OF NATIONAL EMERGENCY
The sweep of the phrase, “the government of the State cannot be carried on in accordance with the provisions of this Constitution” in Art. 356(1) has indefinite connotations. Failure of the Constitutional machinery in a State may arise because of various factors; these factors are diverse an imponderable. Nevertheless, some situations of the breakdown of the Constitutional machinery may be as follows:
(1) No party in the Assembly has a majority in the State Legislative Assembly to be able to form the government.
(2) A government in office loses its majority due to defections and no alternative government can be formed.
(3) A government may have majority support in the House, but it may function in a mar ner subversive of the Constitution. As for example, it may promote fissiparous tendencies in the State.
(4) The State Government does not comply with the directions[25] issued by the Centre Government under various Constitutional provisions.[26]
(5) Security of the State may be threatened by a widespread breakdown of law and order in the State.
(6) It may be debatable whether Art. 356(1) can be invoked when there are serious allegations of corruption against the Chief Minister and the Ministers in a State.[27]
Reading Articles 355 and 356 together, it can be argued plausibly that the Constitutional machinery breaks down in the State when the government indulges in corruption.
Article 356 has been invoked in the State of Uttar Pradesh because it did not appear to be feasible to form a stable government. [28]
- FINANCIAL EMERGENCY
Article 360 makes a provision concerning financial emergency. “If the President is satisfied that a situation has been whereby the financial stability or credit of India, or any part thereof, is threatened, he may by a proclamation make a declaration to that effect.”[29]
When such a proclamation is in operation, the centre can give directions to any state to observe such canons of financial property as may be specified in the directions. It may give such other directions as the President may deem necessary and adequate for the purpose [360(3)].[30] Any such directions may provide for the reduction of salaries and allowances of all. Or any class of persons serving in the state. [Art. 360(4)(a)(i)].[31]
The centre may require that all money bills, or financial bills or those which involve expenditure from the state consolidated fund, shall be reserved for the President’s consideration after being passed by the state legislature [Art. 360(4) (a) (ii)].[32]
The President may also issue directions for reducing the salaries and allowances of persons serving the union including the Supreme Court and the high court judges [Article 360(4) (b).][33]
A proclamation issued under issued under Art. 360(1) may be revoked or varied by a subsequent proclamation [Art. 360(2) (a)], and has to be laid before each House of Parliament [Art. 360(2) (b). The proclamation ceases to have effect after two months unless in the meantime it is approved by the Thirty-Eighth Amendment of the Constitution, the Presidential ‘satisfaction’ in Art. 360(1) was declared to be ‘final and conclusive’ and not questionable in any court on any ground. No court was to have jurisdiction to entertain any question, on any ground, regarding the validity of —
- A declaration made by proclamation by the President to the effect stated in Article 360(1); or
- The continued operation of such Proclamation. This provision has now been deleted by the Forty-Fourth Amendment of the Constitution.
In India, there has not been financial emergency imposed till now.
[II.3.] DURATIAN OF EMERGENCY PROCLAMATION
The Constitution specifically provides that a Proclamation of Emergency made by the President shall be valid for a period of two months only in the maximum within which it shall be laid before each House of Parliament and approved by them. But if within that period, Lok Sabha is dissolved, the proclamation shall be laid before Rajya Sabha only. On its approval, it shall continue beyond two months till the new Lok Sabha are elected, and it ratifies the proclamation within thirty days of its first session. Fixed time limit is always qualified by clauses like, “as soon as”, “for the time being”, etc. The Constitution also does not provided for the contingency of Parliament disapproving the proclamation. Parliament has three options before it – (a) it may approve the proclamation by a resolution; (b) it may take no action; or (c) it may reject or disapprove the proclamation. If the President feels the necessity of continuance of the proclamation beyond two months, and Parliament is opposed to its continuance, there is a deadlock. Its tenure can be extended by Parliament alone.[34] Ordinarily, the wishes of the legislature will prevail. If the executive persists in its view, it may issue another proclamation which shall remain valid for another two months. The issue of another proclamation is not barred by the Constitution. It is difficult to agree that the President will take advantage of this gap. In practice, there is no room for conflict between the executive and the legislature especially, the lower house in a parliamentary democracy. If at all such a conflict arises, it will result in the resignation of the ministry and/or dissolution of the Lower house.[35]
CHAPTER-III: EMERGENCY PROVISIONS: HISTORY, TYPES AND DURATION IN GERMANY AND U.S.A.
[III.1.] IN GERMANY:-
[III.1.i.] HISTORICAL BACKGROUND
In Germany there are two important things i.e. the state and the federation which are called Landers and bund respectively. The German Constitution is called “only a week Constitution” due to the various historical reasons. There were no laws of emergency at the time of enactment of The German Basic Law of 1949.
[III.1.ii.] TYPES OF EMERGENCY
Basic Law of Germany provides three types of emergency in toto. Which are given below:-
- STATE OF DEFENCE- it exists when the nation is under attack or threat of imminent attack by an armed force. [36]
- STATE OF TENSION- It covers the situations that precede a state of defence. For instance a “situation approaching preparation for international war or civil war “.[37]
- INTERNAL STATE OF EMERGENCY- It mainly covers the threats to the free democratic order in the federation or the Lander, grave accidents, natural disasters, or dangers to public security or order.[38]
Similarly to India, Germany has also two types of emergency i.e. national which includes state of defence and state of tension and state emergency.
PROCLAMATION OF EMERGENCY
In Germany, similar to India there are two legislative houses which are called the Bundestag and the Bundesrat. For declaring the state of tension and the state of defence, it is necessary that it must be declared by a two-thirds majority of both the Bundesrat and the Bundestag.[39] The government may request the Bundestag to initiate the state of defence. The decision must then be promulgated by the Federal President. [40] The state of tension may also be commenced by a two-thirds majority of the Bundestag. [41] The internal state of emergency may be initiated without a formal resolution of the Bundestag. In the internal state of emergency the Federal Government may place the police in that Land and the police forces of other Länder under its own orders and deploy units of the Federal Border Police.[42]
CONSEQUENCES OF EMERGENCY
During a declared emergency period all significant organizations and authorities work under the joined direction and hierarchical obligation of the competent authority. The authority can take every measure which is necessary to protect the emergency situation or to fight it. It lies within its discretion to define what is necessary and what is not. But all the measures are in principal subject to judicial review. The powers are not really strange but follow the powers of the “normal” police forces, whereas the police powers remain in-tact but subordinated to orders by the catastrophe authority
There is a provision relating to urgent and preliminary help in cases of damages. In most cases the federation and the Landers constitute a fund, granting financial help for losses caused by a particular emergency situation, for example earthquake and floods etc.
The German Constitution consists of many provisions related to prospective emergency. It is impossible to systematically cover them and some general insights were put forth above. [43]
INVOCATION OF EMERGENCY
There are many conditions and situations when the emergency can be imposed. One of such situation is nuclear disasters. With regard to nuclear disasters, in the non-binding guiding principles several possible measures, that the authorities can adopt, are mentioned below which more or less typical also for other disasters are:
- Analyzing existing measuring devices (see above) and installation of mobile ad-hoc measuring devices.
- Distributing iodine tablets in accordance with a special plan and requesting to take iodine tablets,
- Evacuation in accordance with a special plan,
- Establishing and operating emergency stations for decontamination and medical care of the population and task personnel affected,
- Warning the population not to eat freshly harvested groceries and to not use water
- Blocking contaminated water catchment points. [44]
[III.2.] EMERGENCY PROVISIONS IN U.S.A.:-
[III.2.i.] HISTORICAL BACKGROUND: [45]
The effect of emergency powers had long been an apprehension of the traditional political theorists, including the eighteenth-century English philosopher John Locke, who had a strong persuade upon the Founding Fathers in the United States. A greatest proponent of a government of laws and not of men, Locke argued that occasions may arise when the executive must apply a wide discretion in meeting special requirements or “emergencies” for which the law-making power provided no support or existing law granted no essential solution. He did not regard this privilege as restricted to wartime, or even to situations of enormous exigency. It was enough if the “public good” might be advanced by its implement.[46] One authority has summed up the situation in the following words:
“Emergency powers are not solely derived from legal sources. The extent of their invocation and use is also contingent upon the personal conception which the incumbent of the Presidential office has of the Presidency and the premises upon which he interprets his legal powers. In the last analysis, the authority of a President is largely determined by the President himself.”[47]
There are many stand-by laws that express particular emergency powers once the President officially declares a national emergency activating them. In 1973, a Senate special committee studying emergency powers published a compilation identifying some 470 provisions of federal law delegating to the executive extraordinary authority in time of national emergency.[48] The vast majority of them are of the stand-by kind — dormant until activated by the President. However, formal procedures for invoking these authorities, accounting for their use, and regulating their activation and application were established a while ago by the National Emergencies Act of 1976.[49]
[III.2.ii.] TYPES OF EMERGENCIES
The US Constitution includes just three types of emergencies.
- Habeas Corpus is to be suspended only in instance of rebellion or the invasion of the Republic.[50]
- Congress has the right to declare war. [51]
- A limitation on trial by grand jury in times of service during wartime or “public danger.”[52]
But basically, there are two types of emergencies which are national emergency explained under national emergency Act and financial emergency described under the International Emergency Economic Powers Act.[53]
- NATIONAL EMERGENCIES ACT, 1976:-
PROCLAMATION OF EMERGENCY
The preliminary draw up of the NEA provided that the President would only be authorized to proclaim a national emergency if he finds that the proclamation of a national emergency is essential to the maintenance, security, and protection of the Constitution, and is essential to the common defence, safety, or wellbeing of the territory and people of the United States.[54]Any emergency powers activated by “provisions of law” authorizing certain actions in a national emergency may only be used if the President declared a national emergency in accordance with the Provisions of the NEA and otherwise complied with the Act. Both the initial and final versions also specify that the President may only exercise those emergency powers that he specified when declaring a national emergency.
Section 201 of NEA provides a right to president to declare a national emergency. The proclamation of a national emergency must be communicated to Congress and must be published in federal register.[55]Statutory emergency authorities permitted by the national emergency announcement cannot be exercised until the president specifies the provisions of law under which the president or other officials will act. Such specification may be made either in the declaration or in subsequent Executive Orders published in the Federal Register and transmitted to Congress.[56]
CONCEQUENCES OF EMERGENCY
When the president declares the national emergency so it restricts many legal authorities to do their work properly. Which means, Any conditions of law presenting rules and authorities to be exercised during a national emergency shall be effective and stay in effect
(1) Only in accordance with the chapter which is described under NEA, and
(2) Only when the President exclusively declares a national emergency.
When the President declares a national emergency, no authorities or powers made existing by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he suggests that he, or other officers will act.[57]
INVOCATION OF EMERGENCY
U.S. legislation does not allow the restrictions of any human rights in different from that at other times. But only exception for this is habeas corpus. Any such restraint must be introduced throughout legislation passed by Congress.[58] In some cases such violation of rights must be permitted by a judicial instance.[59]
This does not imply that in practice instances have not occurred in which rights have been violated in emergencies. The most well-known examples of such violations are the internment of US citizens of Japanese origin during the Second World War and the Trading with the Enemy Act, 1917 (TWEA), which on occasion led to the seizure of merchandise and the violation of the right to property. [60]
It should be noted that the Act uses the term “citizen” in restricting the authorities’ powers. In a different context, this aspect has been the subject of discussion in various articles raising the criticism that US law does not sufficiently restrict the violation of the human rights of non-citizens in emergencies.
- THE INTERNATIONAL EMERGENCY ECONOMIC POWERS ACT,1977
Likewise NEA, 1976 Congress passed the International Emergency Economic Powers Act (IEEPA) in 1977 to “revise and delimit” the president’s emergency authority.[61]The main aim to introducing this Act was to protect and prevent the nation from any economic situation. The IEEPA mainly alarms international financial transactions[62] and transactions that otherwise “involve an interest” of a foreign national.[63] But the federal government has normally applied the emergency powers decided by the statute to “U.S. persons”, people and organizations with legal status in the United States, including U.S. citizens.
PROCLAMATION OF EMERGENCY
The IEEPA states that the President may use powers to declare these type of emergency only when,
“unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.”[64]
The statute further provides, somewhat ambiguously, that the President may only use IEEPA powers activated by a declaration of national emergency to “deal with” that specific emergency.[65]
CONCEQUENCES OF EMERGENCY
Therefore, the IEEPA grants the power to the president to freeze the assets of, and forbid monetary transactions involving, individuals selected by Executive Order. This includes the power to prohibit bank payments and transfers of credit insofar as they “involve” an interest of a designated country, entity, or person and to prohibit the use, holding, or transfer of property implicating a relevant foreign interest. The President may exercise these powers over property belonging to any person within the jurisdiction of the United States.
Even the president of U.S.A. has the authority to block the basic life necessities. Although one section of the IEEPA excuses from the President’s authority “donations, by persons subject to the jurisdiction of the United States, of articles, such as food, clothing, and medicine, intended to be used to relieve human suffering,”[66] another section permits the President to regulate or prohibit the donation of these items if “the President determines that such donations. Would seriously impair his ability to deal with” a declared national emergency.[67]
INVOCATION OF EMERGENCY
There is a specific punishment regarding the violation of rules and restrictions relating to economic emergency. It states that anyone who violates the IEEPA is subject to a civil penalty up to $250,000;145 a wilful violation may incur a criminal penalty up to $1,000,000 and up to twenty years in prison.146 Every President who has declared a national emergency and exercised IEEPA powers pursuant to that emergency has prohibited such donations.147
[III.2.iii.] DURATION OF EMERGENCY
National emergencies are to end after six months unless Congress voted by concurrent resolution to extend the emergency; it could also vote at any time to end the emergency[68]. The draft bill also required that the President transmit to Congress all regulations, rules and orders circulated pursuant to a declared emergency. The final bill preserved this obligation.[69] It also required that, every six months following a declaration of national emergency, the President must submit to Congress an accounting of expenditures “directly attributable to the exercise of powers and authorities conferred by such declaration.” The NEA still imposes a requirement that “not later than six months after a national emergency is declared, and not later than the end of each six-month period, thereafter, each House of Congress shall meet to consider a vote on a concurrent resolution to determine whether that emergency shall be terminated.”[70]
The NEA specifies that declared emergencies will terminate automatically after one year unless renewed by the President[71], and that the President may terminate a national emergency at any time.[72]
This article was originally published on Racolb Legal. It can be accessed here.
[1] See R. P. Dutt, India Today and Tomorrow , 267 (1955).
[2] B. C. DAS, The Indian Journal of Political Science, 237-252, (1977), http://www.jstor.org/stable/41854792.
[3] Ibid.
[4] Supra Note 4.
[5] Jain M.P., Indian Constitutional Law, 700 (7th Edition, 2011), Lexis Nexis, New Delhi.
[6] Articles 352, 356 and 360, the Constitution of India, 1950.
[7] Ibid Note 7.
[8] Article 352(1), the Constitution of India, 1950.
[9] Naga people’s Movement of human rights V. Union of India, (1998) 2 SCC 109.
[10] Art. 352 (8). The Constitution of India, 1950, Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (1) or a Proclamation varying such Proclamation,—
(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session,
a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.
[11] Supra Note, 7.
[12] Art. 250. (1), The Constitution of India, 1950, Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List.
(2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.
[13] Art. 353, the Constitution of India, 1950. While a Proclamation of Emergency is in operation, then—
(a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised;
[14](b)the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List:
[15] Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India,—
- the executive power of the Union to give directions under clause (a), and
- the power of Parliament to make laws under clause (b),
shall also extend to any State other than a State in which or in any part of which the Proclamation of Emergency is in operation if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
[16] The President may, while a Proclamation of Emergency is in operation, by order direct that all or any of the provisions of articles 268 to 279 shall for such period, not extending in any case beyond the expiration of the financial year in which such Proclamation ceases to operate, as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit.
[17] Supra Note 12.
[18] Proviso to Art. 83(2), The Constitution of India, 1950, Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.
[19]Proviso to Art. 172, The Constitution of India, 1950, Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.
[20] Supra, Note 7.
[21] See https://books.google.co.in/books?id=PEE8BAAAQBAJ&pg=SA3-PA26&lpg=SA3-PA26&dq=imposed+emergency+in+india+so+far&source=bl&ots=5cLUzplV7j&sig=c4RZMgrhC_XQMVNr_rnhBJsXz1o&hl=en&sa=X&ved=0ahUKEwiS9beQ9rHLAhXEmpQKHZg9ALwQ6AEIWDAJ( Last Visisted Mar. 12, 2016, 6 PM (N.T.M.).
[22] Shetty, President’s power under Art. 356 of the Constitution- theory and practise, Constitutional Developments Since Independence, 335 (1975).
[23] Article 356(1), the Constitution of India, 1950.
[24] See Gopal Subramaniyum: Emergency provisions under the Constitution.
[25] K. Co-op. Building Society V. State of Andhra Pradesh, AIR 1985 AP 242.
[26] Art. 256 and 257, The Constitution of India, 1950.
[27] Supra Note 7.
[28] In the general elections held for the State Legislature, the public gave a fragmented verdict with no party having a majority in the House; and no party wanted to support any other party to form the government. The leader of the Samajwadi Party staked his claim as the single largest party to form the government. He claimed that he would prove his majority on the floor of the House. Implicit in the statement was the fact that being in power, it would be easier for him to engineer defections from the other parties. The Governor was not satisfied with his claim. On the recommendation of the State Governor, the Central Government imposed the President’s rule in the State on March 9, 2002. This is an instance of President’s rule being invoke in a State because it was not possible to form a viable government in the State due to the politically fragmented legislature.
[29] Art. 360 (1), the Constitution of India, 1950.
[30] Art. 360 (3), The Constitution of India, 1950.During the period any such Proclamation as is mentioned in clause (1) is in operation, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose.
[31]Art. 360 (4), The Constitution of India, 1950, Notwithstanding anything in this Constitution (a) any such direction may include (i) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State;
[32] (a) (ii). A provision requiring all Money Bills or other Bills to which the provisions of article 207 apply to be reserved for the consideration of the President after they are passed by the Legislature of the State.
[33]Art. 360 (4) (b), The Constitution of India, 1950. it shall be competent for the President during the period any Proclamation issued under this article is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.
[34] The resolution approving the Proclamation is worded as follows:
“That this House approves the Proclamation issued by the President on clause (1) of Art. 356 of the Constitution in relation to the state of….”
[35] May be revoked by a subsequent Proclamation 352(2) or given a resolution disapproving it 352(7).
[36] Title X a, the German Constitution.
[37] Article 80a, the German Constitution. (1)If this Basic Law or a federal law regarding defence, including protection of the civilian population, provides that legal provisions may be applied only in accordance with this Article, their application, except when a state of defence has been declared, shall be permissible only after the Bundestag has determined that a state of tension exists or has specifically approved such application. The determination of a state of tension and specific approval in the cases mentioned in the first sentence of paragraph (5) and the second sentence of paragraph (6) of Article 12a shall require a two thirds majority of the votes cast.
(2) Any measures taken pursuant to legal provisions by virtue of paragraph (1) of this Article shall be rescinded whenever the Bundestag so demands.
(3) Notwithstanding paragraph (1) of this Article, the application of such legal provisions shall also be permissible on the basis of and in accordance with a decision made by an international body within the framework of a treaty of alliance with the approval of the Federal Government. Any measures taken pursuant to this paragraph shall be rescinded whenever the Bundestag, by the vote of a majority of its Members, so demands.
[38] Article 91, the German Constitution. (1) In order to avert an imminent danger to the existence or free democratic basic order of the Federation or of a Land, a Land may call upon police forces of other Länder, or upon personnel and facilities of other administrative authorities and of the Federal Border Police.
(2) If the Land where such danger is imminent is not itself willing or able to combat the danger, the Federal Government may place the police in that Land and the police forces of other Länder under its own orders and deploy units of the Federal Border Police. Any such order shall be rescinded once the danger is removed, or at any time on the demand of the Bundesrat. If the danger extends beyond the territory of a single Land, the Federal Government, insofar as is necessary to combat such danger, may issue instructions to the Land governments; the first and second sentences of this paragraph shall not be affected by this provision.
[39]115a (2), The German Constitution. If the situation imperatively calls for immediate action, and if insurmountable obstacles prevent the timely convening of the Bundestag or the Bundestag cannot muster a quorum, the Joint Committee shall make this determination by a two-thirds majority of the votes cast, which shall include at least a majority of its members.
.[40] 115a (3), The German Constitution. The determination shall be promulgated by the Federal President in the Federal Law gazette pursuant to Article 82. If this cannot be done in time, promulgation shall be effected in another manner; the determination shall be printed in the Federal Law Gazette as soon as circumstances permit.
[41] Supra F.N. 34.
[42] 90 (2), The German Constitution. The Lander, or such self-governing corporate bodies as are competent under Land law, shall administer the federal motorways and other federal highways used by long-distance traffic on federal commission.
[43] See C. C. Schweitzer, The Western Political Quarterly, 112-121 (1969), http://www.jstor.org/stable/446151.
[44] Ilana Gimpelson, Law and Emergency: An overview.
[45] See Harold C. Relyea, National Emergency Powers.
[46] See Thomas I. Cook, Two Treatises of Government 203-207, (1947). See also,http://www.lawnotes.in (last visited Mar. 9 2016, 4 PM (N.T.M)).
[47] Albert L. Sturm, “Emergencies and the Presidency Journal of Politic”, 125- 126, 1949.
[48] U.S. Congress, Senate Special Committee on the Termination of the National Emergency,Emergency Powers Statutes, 93rd Cong., 1st sess., S.Rept. 93-549 (1973).
[49] The American Constitution, 50 U.S.C. 1601-1651.
[50]Ibid , Art. 1 S. 9.
[51] Ibid Note 51, Art. 1 S. 8.
[52] Ibid Note 51, Fifth amendment.
[53] Patrick A. Thronson, toward comprehensive reform of america’s emergency law regime.
[54] National Emergencies Act, Pub. L. No. 94-412, 90 Stat. 1255 (U.S.A.).
[55] www.law.umaryland.edu/marshall/crsreports/crsdocuments/98505_08302007.pdf. ( Last Visited on Mar. 3, 2016, 7 PM (N.T.M))
[56] Ibid Note 56 Section 301.
[57] Supra Note 46.
[58] See the patriotic Act, 2000 (U.S.A.).
[59]See generally http://www.fjc.gov/history/home.nsf/page/courts-special_fisc.html (Last Visited on Mar. 4th , 2016, 4 PM (N.T.M)).
[60] In 1971 President Nixon used the legal framework of TWEA in order to enforce a de facto economic policy imposing a “tax” of tens of percent on imports to the US. In 1977 the International Emergency Economic Act was enacted, restricting the use of TWEA solely to the wartime.
[61] Supra Note 56, 1977 U.S.C.C.A.N. 4540, 4541.
[62] Ibid 50 U.S.C. S. 1702 (a) (1)(A) (2006).
[63] Ibid. Note 63 S. 1702(a) (1) (B) (C) (2006).
[64] Supra Note 56 S. 1701 (a) (2006).
[65] Ibid. S. 1701 (b) (2006).
[66] Ibid Note 66 50 U.S.C. S. 1702(b) (2) (2006).
[67] Ibid.
[68] National Emergencies Act, S. 301, (U.S.A.).
[69] Ibid, F.N. 70 S. 401(b), 50 U.S.C. S. 1641(b) (2006).
[70]Ibid, S. 202(b), 50 U.S.C,S. 1622(d) (2006)
[71] Ibid, 202(d) 50 U.S.C,S. 1622(d) (2006).
[72] Ibid, 202(a) 50 U.S.C,S. 1622(d) (2006).
Allow notifications
