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National Emergency (Part-4)

In this article we will discuss National Emergency (Part-4)

In this article, we will discuss National Emergency (Part-4). So, let’s get started.

Effects of National Emergency


A proclamation of Emergency has drastic and wide ranging effects on the political system. These consequences can be grouped into three categories:

  • Effect on the Centre-state relations,
  • Effect on the life of the Lok Sabha and State assembly, and State assembly, and
  • Effect on the Fundamental Rights.

Effect on the Centre-State Relations

While a proclamation of Emergency is in force, the normal fabric of the Centre-state relations
undergoes a basic change. This can be studied under three heads, namely, executive, legislative and financial.

Executive: During a national emergency, the executive power of the Centre extends to
directing any state regarding the manner in which its executive power is to be exercised. In
normal times, the Centre can give cxecutive directions to a state only on certain specitied
matters. However, during a national emergenCy, the Centre becomes entitled to give cxecu-
tive directions to a state on ‘any’ matter. Thus, the state governments are brought under the
complete control of the Centre, though they are not suspended.

Legislative: During a national emergency, the Parliament becomes empowered to make laws on any subject mentioned in the State List. Although the legislative power of a state legislature is not suspended, it becomes subject to the overriding power of the Parliament. Thus, the normal distribution of the legislative powers between the Centre and states is suspended, though the state Legislatures are not suspended. In brief, the Constitution becomes unitary rather than federal.
The laws made by Parliament on the state subjects during a National Emergency become
inoperative six months after the emergency has ceased to operate.
Notably, while a proclamation of national emergency is in operation, the President can issue ordinances on the state subjects also, if the Parliament is not in session. Further, the Parliament can confer powers and impose duties upon the Centre or its officers and authorities in respect of matters outside the Union List, in order to carry out the laws made by it under its extended jurisdiction as a result of the proclamation of a National Emergency.
The 42nd Amendment Act of 1976 provided that the two consequences mentioned above
(executive and legislative) extends not only to a state where the Emergency is in operation
but also to any other state.

Financial: While a proclamation of national emergency 1s in operation, the president can modify the constitutional distribution of revenues between the centre and the states. This means that the president Can either reduce or cancel the transfer of finances from Centre to the states. such modification continues till the end of the financial year in which the Emergency Ceases to operate. Also, every such order of the President has to be laid before both the Houses of Parliament.

Effect on the Life of the Lok Sabha and State Assembly

While a proclamation ot National Emergency is in operation, the life of the Lok Sabha may be extended beyond its normal term(five years) by a law of Parliament for one year at a time (for any length of time). However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate. For example, the term of the Fifth Lok Sabha (1971-1977) was extended two times by one year at a time.
Similarly, the Parliament may extend the normal tenure of a state legislative assembly (five years) by onc year each time (for any length of time) during a national emergency, subject to a maximum period of six months after the Emergency has ceased to operate.

Effect on the Fundamental Rights

Articles 358 and 359 describe the eflect of a National Emergency on the Fundamental Rights.
Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19, while Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21). These two provisions are explained below:

(a) Suspension of Fundamental Rights under Article 10 According to Article 358, when a
proclamation of national emergency is made, the six Fundamental Rights under Article 19
are automatically suspended. No separate order for their suspension is required.
While a proclamation ot national emergency is in operation, the state is freed from the restrictions imposed by Article 19. In other words, the state can make any law or can take any executive action abridging or taking away the six Fundamental Rights guaranteed by Article  19. Any such law or executive action cannot be challenged on the ground that they are inconsistent with the six Fundamental Rights guaranteed by  Article 19. When the National Emergency ceases to operate, Article 19 automatically revives and comes into force. Any law made during Emergency, to the extent of inconsistency with Article 19, ceases to have effect. However, no remedy lies for anything done during the Emergency even after the Emergency expires. This means that the legislative and executive actions taken during the emergency cannot be challenged even after the Emergency ceases to operate.

The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways. Firstly, the six Fundamental Rights under Article 19 can be suspended only when the National Emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion. Secondly, only those laws which are related with the Emergency are protected from being challenged and not other laws. Also, the executive action taken only under such a law is protected.

(b) Suspension of other Fundamental Rights
Article 359 authorises the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. This means that under Article 359, the Fundamental Rights as such as not suspended, but only their enforcement. The said rights are theoretically alive but the right to seek remedy is suspended. The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order. Further, the suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the order, and the suspension order may extend to the whole or any part of the country. It should be laid before each House of Parliament for approval.

While a Presidential Order is in force, the State can make any law or can take any executive action abridging or taking away the specified Fundamental Rights. Any such law or executive action cannot be challenged on the ground that they are inconsistent with the specified Fundamental Rights. When the Order ceases to operate, any law so made, to the extent of inconsistency with the specified Fundamental Rights, ceases to have effect. But no remedy lies for anything done during the operation of the order even after the order ceases to operate. This means that the legislative and executive actions taken during the operation of the Order cannot be challenged even after the Order expires.
The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways. Firstly, the President cannot suspend the right to move the Court for the enforcement of fundamental rights guaranteed by Articles 20 to 21. In other words, the right to protection in respect of conviction for offences (Article 20) and the right to life and personal liberty (Article 21) remain enforceable even during emergency. Secondly, only those laws which are related with the emergency are protected from being challenged and not other laws and the executive action taken only under such a law, is protected.

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