Emergency Provisions Flashcards
(22 cards)
Emergency Provisions part
XVIII 18 of the constitution
Emergency Provisions reason
Sovereignty, territory, integrity, security
The democratic political system
Constitution
As BR Ambedkar said- switches system from federal to unitary without formal amendment
Types of emergencies
- Art 352- ‘proclamation of emergency’- war/external aggression/armed rebellion
- Art 356- no use of word ‘emergency’- aka president’s rule or constitutional emergency-failure of constitutional machinery of the states
- Art 360-financial emergency-threat to financial stability or credit
National emergency grounds for declaration-who, when, grounds, for where, how
By Prez-war/external aggression/armed rebellion- does not actually have to occur-can be preemptive upon President’s satisfaction
Can be for all of India or part acc to 42nd CAA
But only on written recommendations of cabinet (PM and ors of cabinet rank) and not just PM advice
Can issue separate proclamations acc to 38th CAA
Internal vs external emergency
armed rebellion- internal
war/external aggression- external
Internal disturbance term
Found to be too vague a term, and thus 44 CAA changed to armed rebellion after IG abuse
Judicial review of national emergency
38th CAA made immune but changed by 44th CAA and reemphasized in Minerva Mills case-challenged malafide/irrelevant facts/perverse
National Emergency Parl approval
44 caa-Both houses within 1 month unlike earlier 2 months
But if LS dissolved, upto 30 days after LS 1st sitting provided RS approved
National Emergency duration
44 caa- If approved, 6 months and indefinite continuation of before as long as approval every 6 months but if LS dissolved upto 30 days after LS 1st sitting provided RS approved
44 caa- every approval needs special majority- maj+more than 2/3rds present and voting unlike earlier simple majority
National Emergency revocation
When Prez does it, anytime
44 caa-And if LS passes a simple majority proclamation to revoke, Prez must no matter what unlike before where it was only Prez prerogative
Also if 1/10th members give written notice to speaker, spl sesh in 14 days for considering resolution
National Emergency effect on centre state relations
- Executive- centre can give directions to state govt on ANY matter-under FULL control-unlike normal times limited to specific matters. State govt not dissolved though
- Legislative- Parl can make laws on anything on state list (applicable only for 6 months post emergency), and Prez can also issue ordinances on any state subject if parl not in session. Legislative powers of state still alive though but subordinated. 42nd caa-above applicable even to states where emergency not operative. Parl can also place powers on union govt officials to carry out laws due to extended jurisdiction
- Finance- Prez can change distribution of resources b/w centre state-operable for full fy but has to be laid out before both houses.
Effect on life of LS and state assemblies of National Emergency
LS and state assemblies- can indefinitely extend life beyond 5 years as long as new approval every year. But only up till 6 months since emergency has ceased.
National Emergency effect on fundamental rights
- Art 358- 6 frs under article 19 suspended AUTOMATICALLY-now state can make laws abridging it and cannot be challenged in courts for this. When emergency ends, auto revival of art 19 and death of contralaws. But no remedy for anything that happened during emergency.
44 caa- 6 frs under article 19 suspended only on external aggression and not armed rebellion and only emergency related laws/executive actions cannot be challenged in courts. - Art 359- frs alive but cannot move court for enforcement. But prez order needed which specifies which rights cannot be enforced, can be for a specific shorter period, and needs to be laid before both houses. now state can make laws abridging it and cannot be challenged in courts for this. When emergency ends, auto revival and death of contralaws. But no remedy for anything that happened during emergency. 44 caa- cannot touch articles 20 and 21 and only emergency related laws/executive actions cannot be challenged in courts.
