Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

CONSTITUTION OF INDIA EXPLAINED

The Constitution of India forms the bedrock of any and every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam. To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus:

PART XVIII: EMERGENCY PROVISIONS

Section A

Article 352 — Proclamation of Emergency

Clause 1 — Proclamation

• If President is satisfied that a grave emergency exists
  • whereby security of India or any part is threatened
• he may make a declaration to that effect, by a Proclamation

Grounds:

• war, external aggression or armed rebellion or
  • imminent danger of war, external aggression or armed rebellion

Clause 2

• Revocation
  • by President, at any time

Clause 3

• Pre-condition for Proclamation
  • Cabinet’s recommendation in writing

Clause 4

• Validity of Proclamation
  • valid only for one month
  • unless approved by both Houses of Parliament in the meantime
• If House of People is not in existence
  • Proclamation needs to be approved
    • only by Council of States
• As and when House of People is reconstituted
  • Proclamation needs to be approved by it
    • within 30 days, for further continuance

Clause 5

• Validity of Parliamentary approval
  • 6 months from the date of resolution by the second House
• Subsequent approvals
  • valid for further 6 months
  • continues indefinitely on successive approvals

Clause 6

• Special Parliamentary majority required
  • majority of total membership of House and
  • not less than 2/3rd majority of members present and voting

Clause 7

• Lok Sabha can ask for Revocation
  • by simple majority

Clause 8

• Requisition of special sitting
  • through a notice by 1/10th members of the House of People

Clause 9

• Different proclamations on different grounds may co-exist

Changes made in Article 352 by the 42nd Amendment

• Emergency can be imposed in a part of India too

Changes made in Article 352 by the 44th Amendment

• ‘Armed Rebellion’ has been substituted as a ground
  • in place of ‘internal disturbance’
• Written recommendation from Cabinet
  • has been made a pre-condition for a Proclamation
• Initial validity, without Parliamentary approval, has been reduced
  • from 2 months to 1 month
• Parliamentary approval has been made essential
  • every 6 months, for Emergency to continue
• Lok Sabha has been empowered
  • to ask for revocation by a simple majority

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Section B

CONSEQUENCES OF EMERGENCY

[Articles 353, 250, 354, 358, 359]

Article 353 — Effect of Proclamation on Executive relations

• While Emergency is in operation
  • executive power of Union shall extend
    • to giving directions to any State
    • on how to exercise State executive power

Article 250 — Effect of Proclamation on Legislative relations

• While Emergency is in operation
  • Parliament gets authority to enact laws
    • on any State List subject

Article 354 — Effect of Proclamation on Financial relations

• While Emergency is in operation
  • President may direct
    • that articles 268 to 279 shall have effect subject to modifications
• This order shall not extend
  • beyond the financial year in which Emergency ends

Article 358 — Effect of Proclamation on Article 19

• When Emergency is in operation
  • State can make any law or take any executive action
    • in violation of article 19
• Any law so made shall cease to have effect
  • as soon as Emergency ceases to operate

Law to contain a recital

• This provision shall apply only if
  • such law contains a recital
    • that it has been made in relation to Emergency
• This provision shall not apply
  • to any executive action
    • taken otherwise than under a law with such recital

Note:

• This requirement that the law must contain a recital
  • has been inserted by the 44th Amendment in 1978

Article 359 — Effect of Proclamation on Fundamental Rights

• While Emergency is in operation
  • President may by order declare that
    • the right to move any court for enforcement of specified Part III rights
    • shall remain suspended for a specified period
• This provision shall not apply
  • to rights conferred by articles 20 and 21

Effect of order

• While such order is in operation
  • State can make any law or take any executive action
    • in violation of rights conferred by Part III
• Such law shall cease to have effect
  • as soon as the order ceases to operate

Law to contain a recital

• This provision shall apply only if
  • such law contains a recital
    • that it has been made in relation to Emergency
• This provision shall apply only
  • to that executive action
    • which is taken under a law containing such recital

Note:

• This requirement that the law must contain a recital
  • has been inserted by the 44th Amendment in 1978

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