Emergency

A unitary characteristics of Indian

constitution
 Origin
• Emergency provision has been taken from
German constitution.
• It is inserted in part 18 of our Indian
constitution
 Kinds of emergency
– National emergency(article 352)
– State emergency( article 356)
– Financial emergency(article 360)
 National emergency
• Grounds:
– 1) war
– 2)external aggression
– 3) armed rebellion( previously it was internal
disturbance)
 Procedure

– The president can proclaim national emergency on

the written advice of cabinet;
– The president proclamation has to be approved
within one month by a special majority in both
houses;
– The approval of the parliament will be valid for
6months at a time and every after 6 months it has
to be extended if parliament thinks fit. But in the
matter of how many days it will be extended in
this matter the constitution remains silent.
How many times it has been proclaimed?

– October 3, 1962 to 1968( indo china external

aggression)
– December 1971 to march 1977(indo pak war)
– June 25 1975 to march 1977( internal disturbance)
 Effects on fundamental rights
– Article 358, article 19 is automatically suspended;
– Article 359, except article 20 and article 21 each
fundamental rights are suspended.
– The distribution of power between center and
state is suspended and the parliament can make
any law though it is the state subject matter.
 First emergency
China attacked on India on 26 th October 1962
Every fundamental rights were suspended
even article 21 and article 20 also, so that
oppositions were made arrested.
On 1965 a war was taken place between India
and Pakistan, on implementing the Tashkent
agreement the war was ceased fire but the
political situation was not under controlled.
 Second emergency
• On 3rd December 1971 the second emergency
was proclaimed due to war between India and
Pakistan.
– MISA ACT
– CAFÉ POSA ACT
– GOVERNMENT OF INDIA RULES
 3 Emergency
RD

• On commencing of Shimla agreement war was

stopped but the emergency was not revoked.
• During the period of second emergency the
third was imposed.
• JP Movement( on April 24th 1975)
• Indira Gandhi versus Raj Narain case
 Minerva mills Ltd versus union of India
AIR1970 SC1789
• On 38 th amendment the parliament passed a
resolution that in during the proclamation of
emergency no one can go to the court of law
and can not file the habeas corpus writ. But in
this case supreme court decides that this
amendment is mala fide and totally ultra virus
in nature.
Three amendments are needed to mention:

– 39 th amendment: no one could not be able to raise

any question regarding the election of president, vice
president, prime minister and speaker into the court.
– 42nd amendment: 1) any amendment of parliament
can not be reviewed by judiciary;
– 2) the power of state government was transferred to
central government at the time of emergency.
– 3) socialist, secular and integrity
– 4) article 31 d inserted- prohibition of antinational
activities
 44 amendment
th

– Armed rebellion is inserted in the place of internal

disturbance;
– Written advice of cabinet is needed;
– Parliament approval is needed between one month after
proclamation of emergency, earlier it was two month
– Article 19 is only suspended in war and external
aggression but in armed rebellion it can not be ceased.
– Article 20 and 21 can not be suspended
– The loksabha in a special session by one tenth majority
can revoke the emergency.
 conclusion
• Thus I conclude that nowadays the provision
relating to emergency is to rigid to proclaim
and it is also under the matter of judicial
review.