Constitution Shipra Final

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CHAPTER - I

INTRODUCTION

The situation which is caused due to failure of Government Machinery and which demands
immediate action from the authority is called an Emergency. According to the Black Laws
dictionary “Emergency is a situation which requires quick action and immediate notice as such a
situation causes a threat to the life and property in the nation. It is a failure of the social system to
deliver reasonable conditions of life. The Emergency Provisions in the Indian Constitution have
been borrowed from the Weimar Constitution of Germany. An Emergency can only be imposed by
the president. The Indian Constitution is one of the few constitutions which provide against their
breakdown. The Indian Constitution followed the Government of India Act 1935, which contained
the emergency provisions in section 45. Emergency provisions are provided in part 18 of the Union
Constitution and are covered under articles 352 to 360. Emergency provisions are desirable in every
constitution to guard the country against the accidental emergence of dictatorship. The emergency
can be declared by the President of India. There are three types of emergencies recognized by our
constitution.

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CHAPTER - II

EVOLUTION OF THE PROBLEM

The application and consequences of emergency powers under Article 356 of the Indian
Constitution within the country's federal democratic framework continue to be a source of
contention. This constitutional provision, which was created to act as a last resort, under a rare and
crucial time to resolve breaks down in state constitutional mechanism, has frequently been the
subject of political disputes. The issue at hand includes ongoing discussions about its discretionary
use, the possibility that it would be abused as a political tool, and the resulting consequences on the
principles of federalism and democracy. Furthermore, the absence of precise guidelines and norms
for using Article 356 further increases the probability of it being misused. The overall issue that this
research aims to answer is how emergency powers, when used in accordance with Article 356, may
be properly balanced to upholding the unity and integrity of the nation while protecting state
sovereignty and democratic ideals within the intricate Indian federal framework.

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CHAPTER - III

STATEMENT OF THE PROBLEM

The study has helped us grow our knowledge about various aspects of Indian Constitution. It
enables us in understanding the real necessity of Constitution. We have also learned a lot about
Emergency Provisions under Indian Constitution, its objectives, its provisions under Indian
Constitution.

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CHAPTER - IV

RESEARCH QUESTIONS

 Understand the Emergency provision in the Indian constitution.


 What were the effects of these provisions on Indian politics?
 Analysis of Case laws relating to these emergency provisions.?
 How the legal framework governing state emergencies does enumerates the procedures for
declaring such emergencies?
 What are the various judicial guidelines that regulate state emergencies under Article 356?
 What are the various Commission’s recommendations related to state emergencies under
Article 356?

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CHAPTER - V

HYPOTHESIS

Over the years, the state emergency declared under Article 356 of the Indian Constitution,
which was initially prone to misuse, has seen a transformation. The judiciary, once hesitant
to scrutinize its constitutionality, has now evolved and provided guidelines for declaring
emergency. Additionally, recommendations from various commissions have become
instrumental in shaping the procedure for state emergency declarations.

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CHAPTER - VI

RESEARCH METHODOLOGY

The research methodology that will be adopted in this synopsis shall be the Doctrinal method of
research. This method is also called the traditional method of research. It involves analysis of case
law, arranging, ordering and systematizing legal propositions and study of legal institutions. There
are certain features and advantages considering which this research method has been adopted.
Following are the features and advantages:

1) Within a limited time, researchers are provided with the tools to reach decisions on a variety
of problems.
2) This method is research method is flexible and thus makes it easier to stretch it to any extent
to make it workable.
3) This type of research is considered to provide appropriate guidance and hence it is of
informational value.

CHAPTER - VII
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SIGNIFICANCE

 The Three Types of Emergencies in Detail

A. National Emergency - Emergency arising due to threat to the national security is called
National Emergency. Article 352 of the constitution deals with National Emergency.
There are conditions in which National Emergency can be imposed:
1) External Aggression: When a country attacks another country without a formal
declaration of war. unilaterally then the President can impose a National Emergency.
2) War:
3) Armed Rebellion: Effects of National Emergency If any country attacks India Use
of violent force when a Country declares formal war. The President can impose
National emergency. Armed rebellion was substituted for ‘Internal Disturbance’ by
the forty-fourth Constitution Amendment Act.

o The fundamental rights under Article 19 of the Constitution of India are


suspended in case of a National Emergency under article 358.
o Under article 359 15 the other fundamental rights get suspended except article 20
and 21.
o Article 20 - protects the rights of a person in case of conviction and Article 21
deals with the ‘Protection of life and liberty’.
o Central Government has direct Control over State Government The Parliament
gets power over the subjects of the state list. However, it ceases after six months.
o The President may suspend the distribution of financial resources between the
Union and the State.

B) State Emergency - Article 356 of the Indian Constitution deals with State emergency or
‘President’s Rule’. This type of emergency imposed when the Constitutional machinery of
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the State collapses and the State is unable to function in accordance with the Constitutional
provisions. If the President is satisfied with the report from the Governor of that particular
State only then a State emergency can be imposed. State Emergency can be imposed on the
following grounds:

1. When the coalition Government of the State collapses.


2. When the State Legislature fails to elect a Chief Minister.
3. If there is a postponement of State Elections due to any reason.
4. When law and order are not followed in the State.

 Effects of imposing State Emergency:


o The State Legislative Assembly is either dissolved or suspended.
o This type of emergency can be imposed for three months  President proclaims
ordinances in the State.
o The Fundamental rights of the people remain unaffected.
o President has full power over the executive of the State. However, in the case of, S.
R. Bommai V. Union of India it was held that the President has limited power under
Article 356. Even If both the houses pass the declaration Supreme Court has the
power to declare the emergency void.

C) Financial Emergency - Article 360 of the Constitution deals with Financial Emergency.
This type of Emergency can only be imposed by the President sure that there is a threat to
the financial credibility and the credit in part of the country. The duration of this emergency
is two months. It must be placed before both the houses of the Parliament and the
emergency expires after two months if it is not approved by the resolution of the two houses.
Financial Emergency has never been imposed in India.

What Were the Effects of Emergency Provisions on Indian Politics?


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The National Emergency which was passed in 1975 had a big impact on Indian Politics as well
as democracy. The main reason behind this Emergency was the judgement given by the
Allahabad High Court. The 39th Constitutional Amendment was passed. Article 329-A was
inserted. It barred the Supreme Court from entertaining matters relating to elections. Moreover,
it made the election of the President, Prime Minister, Vice-President and the Lok Sabha
unjustifiable. The major impact of this was that it violated the ideals of free and fair elections,
which were an essential feature of democracy. Any dispute which took place with regards to the
election, judicial review was the only way to solve those. This Article took away the right of the
Court. It disturbed the basic structure of the Constitution. Hence this is also called the Darkest
Phase because it violated the basic structure and the rights of the people. However Supreme
struck down Clause 4 of Article 329 as it was well aware that Indira Gandhi had made
Amendments to fulfil her own Political exigencies and to imposed an emergency to save herself
from being proven guilty.

D) National Emergency - India has faced National Emergency three times. First time due to
India- China war in 1962. Second time due to Pakistan in 1971 and the third time due to the
landmark case of Indira Gandhi vs Shri Raj Narain and Anr. In 1971, the 5th Lok Sabha
election was held. Indira Gandhi and her party won the elections and had won 352 out of
518 seats. Her opponent was Raj Narain who was the leader of Ram Manohar Lohia’s SSP.
Despite him being confident that he would win the elections he lost. Further, he filed an
appeal to nullify the elections and also accused Indira Gandhi of violating the Election Code
in the Representation of People Act, 1951 and filled a petition in Allahabad High Court for
the same. He also accused Indira Gandhi of exceeding the campaigning expenses. In the
final judgement, Indira Gandhi’s Election was held void. Due to internal disturbance
Emergency was passed by then President Fakhruddin Ali Ahmad. State Emergency The
following two cases contain a reference to State Emergency: In the case of State of
Rajasthan & Ors v. Union of India, courts did not have any power to review the
proclamation passed under Article 352 and Imposing the State Emergency continuously
becomes arbitrary. In the Case of S. R. Bommai V. Union of India it was held that the
President has limited power under Article 356. Even If both, the houses of the Parliament
pass the declaration, Supreme Court has the power to declare the emergency void.

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CHAPTER - VIII

SCOPE AND LIMITATION

The Emergency Provisions are incorporated to protect the Constitution, and the democratic political
system, and to safeguard the sovereignty, unity, integrity, and security of the country.

During an Emergency, the Central government becomes all-powerful and the States go into
total control of the Centre.

a. It converts the federal structure into a unitary one without a formal amendment
of the Constitution.

b. This kind of transformation of the political system from federal during normal times
to unitary during Emergency is a unique feature of the Indian Constitution.

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CHAPTER - IX

CITATION STYLE

The Bluebook citation style will be followed throughout the research to cite judicial
decisions, statutes, and academic literature. All sources will be appropriately noted, and a
bibliography will be provided at the end.

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CHAPTER - X

LITERATURE REVIEW

The researcher has referred to various books, articles and journals to make this research
effective.

1) The book The Case That Shook India, by Prashant Bhushan is a detailed account of the
verdict that led to emergency. The book deals with Article 352 National Emergency
which was imposed in India in 1975, due to the verdict of Indira Nehru Gandhi vs Shri
Raj Narain and Anrs, in which Prime minister Indira Gandhi’s candidature was
declared invalid. This book also describes the impact of the Amendments of the
constitution on Indian politics and the impact of the same on the elections.

2) In the book The Constitution of India - A Politico-legal Study, author J.C. Johari has
written in great detail about The Constitution of India. In chapter, he has described the
emergency provisions in the Constitution, the three emergencies and also the grounds for
imposing these emergencies. The chapter also contains detailed information about the
amendments which have taken place with regard to the emergency provisions. The use
of case laws makes the chapter more interesting to read.

3) Authority to Recommend President’s Rule Under Article 356 of The Constitution , an


internet sourced article gives a detailed account regarding State Emergency under
Article 356. The article explains about the procedure of imposing State Emergency. The
use of case laws in the article makes it more interesting to read.

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CHAPTERISATION

Chapter I : Introduction of Guardianship


Chapter II : Evolution of the Problem of Guardianship
Chapter III : Statements of the Problem
Chapter IV : Research Questions
Chapter V : Hypothesis
Chapter VI : Research Methodology
Chapter VII : Significance
Chapter VIII : Scope & Limitation
Chapter IX : Citation Style
Chapter X : Literature Review
Chapter XI : Conclusion and References

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CHAPTER - XI

CONCLUSION

It has come to the conclusion that when an emergency is imposed, there can be a violation of
people’s rights, which are guaranteed to them by the Constitution. In order to impose power,
the people should not be deprived of their basic rights. To prevent misuse of the powers,
there should be a strong review system so that we never get to see the dark phase again. A
case like Indira Gandhi v. Raj Narain, shows the loophole in the judiciary system.

The fundamental rights of the people are nowhere recognized in a case of emergency, which
should be done to maintain the essence of democracy. However, Emergency provisions
remain an essential part to maintain peace when there is a disturbance in the country. It will
be more effective if the rights of the people are not taken away from them during emergency
period.

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REFERENCES

A) Statutes
 The Constitution of India

B) Books

 Dr. T. Padma and K P C Rao, Legal Research Methodology, 31(1st ed. Asia Law House,
Hyderabad 2011)
 Prashant Bhushan, The Case that Shook India (Penguin books 2018) C) Research Articles 3)
J. C. Johari, The Constitution of India- A Politico-legal Study 350 (Stirling Publishers
Private Limited 2007)
 I. D. Sharma, Emergency Government Provision in the Indian Constitution, JStor (Nov
15,2020, 9:46 AM), https://www.jstor.org/stable/41853862search Article
 K. Madhusudhana Rao, Authority to Recommend President’s Rule Under Article 356 Of the
Constitution, Jstor (15 Nov 2020, 9:33AM) https://www.jstor.org/stable/43952424
 Vivek Tiwari, Financial Emergency- Article 360 of Indian Constitution, Blog (16 Nov 2020,
10:15 AM) https://blog.finology.in/economy/the-financial-emergency
 Malika Chhikara, Three Types of Emergencies Under the Indian Constitution, Legal
Services India (15th January, 2021, 7;30 PM),
http://www.legalservicesindia.com/article/1834/Three-types-of-emergencies-underthe-
Indian-Constitution.html
 Subodh Asthana, Emergency Provisions Under Indian Constitution, iBlog (14th January,
2021,8:00PM) https://blog.ipleaders.in/emergency-provisions-india/.

C) Case Laws

 Indira Nehru Gandhi vs Shri Raj Narain, AIR 1975 SC 2299


 S. R. Bommai V. Union of India, AIR 1977 SC1361
 State of Rajasthan & Ors v. Union of India, AIR 1977 INSC 145

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