What are the reasons behind the Emergency provisions in Indian constitution? Explain how the 44th constitutional amendment protects against the arbitrary imposition of National Emergency.

What are the reasons behind the Emergency provisions in Indian constitution? Explain how the 44th constitutional amendment protects against the arbitrary imposition of National Emergency.

Approach:

  • Introduce with types of emergencies and the relevant articles in the Constitution
  • Explain the rationality behind the provisions
  • Explain briefly the background to the 44th constitutional amendment
  • Explain how it protects against the arbitrary imposition of National Emergency.
  • Conclude appropriately
Model Answer :

The constitution of India stipulates three kinds of emergency i.e. National Emergency (Article 352), Constitutional Emergency (Article 356) and Financial Emergency (Article 360). These provisions enable the Central government to meet any abnormal situation effectively.

The rationality behind the incorporation of these provisions in the Constitution is to safeguard the sovereignty, unity, integrity and security of the country. For example, Art 352 empowers the President to declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. Art 356 enables the centre to take over the government of a state in case of failure of constitutional machinery in the state, while Art 360 is aimed at managing a situation when the financial stability of India or part of its territory is threatened.

Significance of the 44th constitutional amendment:

The post-emergency Shah Commission enquiry found that the imposition of 1975 Emergency was not justified and was taken by the then Prime Minister alone. The 44th amendment 1978 of the Indian Constitution was introduced to protect against the arbitrary imposition of emergency (by amending Art 352) as well as to remove distortions that were introduced into the Constitution by 42nd Amendment 1976.

Relevant amendments to Article 352:

  • The ground of “internal disturbance” was substituted by the ground of “armed rebellion”. Proclamation of Emergency can now be issued only when the security of India or any part of its territory is threatened by war or external aggression or by armed rebellion.
  • President shall not issue a Proclamation of Emergency unless the decision of the Union Cabinet is communicated to him in writing.
  • Declaration of National Emergency was brought under judicial review.
  • Proclamation of Emergency has to be approved within a period of one month (instead of two months) by resolutions of both Houses of Parliament and has to be passed by a majority of the total membership of each house and by a majority of not less than two-thirds of the members present and voting in each House instead of a simple majority.
  • For continuance of the Proclamation of Emergency, approval by resolutions of both Houses will be required every six months.

Thus these amendments have provided safeguards against the arbitrary imposition of National Emergency, as can be seen by the fact that National Emergency has never been declared since the 44th Constitutional Amendment.

Subjects : Polity