Part XVIII - Emergency Provisions
Article
352 Proclamation of Emergency
(1) If the President is
satisfied that a grave emergency exists whereby the security of India
or of any part of the territory thereof is threatened, whether by war
or external aggression or armed rebellion, he may, by proclamation,
make a declaration to that effect in respect of the whole of India or
of such part of the territory thereof as may be specified in the
proclamation.
Explanation: A proclamation of Emergency declaring
that the security of India or any part of the territory thereof is
threatened by war or by external aggression or by armed rebellion may
be made before the actual occurrence of war or of any such aggression
or rebellion, if the President is satisfied that there is imminent
danger thereof.
(2) A Proclamation issued under clause (1) may
be varied or revoked by a subsequent Proclamation.
(3) The
President shall not issue a Proclamation under clause (1) or a
Proclamation varying such Proclamation unless the decision of the
Union cabinet (that is to say, the Council consisting of the Prime
Minister and other Ministers of Cabinet rank appointed under article
75) that such a Proclamation may be issued has been communicated to
him in writing.
(4) Every Proclamation issued under this article
shall be laid before each House of Parliament and shall, except where
it is a Proclamation revoking a previous Proclamation, cease to
operate at the expiration of one month unless before the expiration
of that period it has been approved by resolutions of both Houses of
Parliament:
Provided that if any such Proclamation (not being
a
Proclamation revoking a previous Proclamation) is issued at a
time when the House of the People has been dissolved, or the
dissolution of the House of the People takes place during the period
of one month referred to in this clause, and if a resolution
approving the Proclamation has been passed by the Council of States,
but no resolution with respect to such Proclamation has been passed
by the House of the People before the expiration of that period, the
Proclamation shall cease to operate at the expiration of thirty days
from the date on which the House of the People first sits after its
reconstitution, unless before the expiration of the said period of
thirty days a resolution approving the Proclamation has been also
passed by the House of the People.
(5) A Proclamation so
approved shall, unless revoked, cease to operate on the expiration of
a period of six months from the date of the passing of the second of
the resolutions approving the Proclamation under clause (4):
Provided
that if and so often as a resolution approving the continuance in
force of such a Proclamation is passed by both Houses of Parliament
the Proclamation shall, unless revoked, continue in force for a
further period of six months from the date on which it would
otherwise have ceased to operate under this clause:
Provided
further that if the dissolution of the House of the People takes
place during any such period of six months and a resolution approving
the continuance in force of such Proclamation has been passed by the
Council of States but no resolution with respect to the continuance
in force of such Proclamation has been passed by the house of the
people during the said period, the proclamation shall cease to
operate at the expiration of thirty days from the date on which the
House of the People first sits after its reconstitution unless before
the expiration of the said period of thirty days, a resolution
approving the continence in force of the Proclamation has been also
passed by the House of the People.
(6) For the purposes of
clauses (4) and (5), a resolution may be passed by either House of
Parliament only by a majority of the total membership of that House
and by a majority of not less than two-thirds of the members of that
House present and voting.
(7) Notwithstanding anything contained
in the foregoing clauses, the President shall revoke a Proclamation
issued under clause (1) or a Proclamation varying such Proclamation
if the House of the People passes a resolution disapproving, or, as
the case may be, disapproving the continence in force of, such
Proclamation.
(8) Where a notice in writing signed by not less
than one-tenth of the total number of members of the House of the
People has been given, of their intention to move a resolution for
disapproving, or, as the case may be, for disapproving the
continuance in force of, a Proclamation issued under clause (1) or a
Proclamation varying such Proclamation, -
(a) to the Speaker, if
the House is in session; or
(b) to the President, if the House
is not in session, a special sitting on the House shall be held
within fourteen days from the date on which such notice is received
by the Speaker, or, as the case may be, by the President, for the
purpose of considering such resolution.
(9) The power conferred
on the President by this article shall include the power to issue
different Proclamations on different grounds, being war or external
aggression or armed rebellion or imminent danger of war or external
aggression or armed rebellion, whether or not there is a Proclamation
already issued by the President under clause (1) and such
Proclamation is in operation.
Article
353 Effect of Proclamation of Emergency
While a Proclamation
of Emergency is in operation, then -
(a) notwithstanding
anything in this Constitution, the executive power of the Union shall
extend to the giving of directions to any State as to the manner in
which the executive power thereof is to be exercised;
(b) the
power of Parliament to make laws with respect to any matter shall
include power to make laws conferring powers and imposing duties, or
authorising the conferring of powers and the imposition of duties,
upon the Union or officers and authorities of the Union as respects
that matter, notwithstanding that it is one which is not enumerated
in the Union List:
Provided that where a Proclamation of
Emergency is in operation only in any part of the territory of India,
-
(i) the executive power of the Union to give directions under
clause (a), and
(ii) the power of Parliament to make laws under
clause (b),
shall also extend to any State other than a State in
which or in any part of which the Proclamation of Emergency is in
operation if and in so far as the security of India or any part of
the territory thereof is threatened by activities in or in relation
to the part of the territory of India in which the Proclamation of
Emergency is in operation.
Article
354 Application of provisions relating to distribution of revenues
while a Proclamation of Emergency is in operation
(1)
The President may, while a Proclamation of Emergency is in operation,
by order direct that all or any of the provisions of articles 268 to
279 shall for such period, not extending in any case beyond the
expiration of the financial year in which such Proclamation ceases to
operate, as may be specified in the order, have effect subject to
such exceptions or modifications as he thinks fit.
(2) Every
order made under clause (1) shall, as soon as may be after it is
made, be laid before each House of Parliament.
Article
355 Duty of the Union to protect States against external aggression
and internal disturbance
It shall be the duty of the Union
to protect every State against external aggression and internal
disturbance and to ensure that the government of every State is
carried on in accordance with the provisions of this Constitution.
Article
356 Provisions in case of failure of constitutional machinery in
States
(1) If the President, on receipt of a report
from the Governor of a State or otherwise, is satisfied that a
situation has arisen in which the government of the State cannot be
carried on in accordance with the provisions of this Constitution,
the President may by Proclamation -
(a) assume to himself all or
any of the functions of the Government of the State and all or any of
the powers vested in or exercisable by the Governor or any body or
authority in the State other than the Legislature of the State;
(b)
declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
(c) make
such incidental and consequential provisions as appear to the
President to be necessary or desirable for giving effect to the
objects of the Proclamation, including provisions for suspending in
whole or in part the operation of any provisions of this Constitution
relating to any body or authority in the State:
Provided that
nothing in this clause shall authorise the President to assume to
himself any of the powers vested in or exercisable by a High Court,
or to suspend in whole or in part the operation of any provision of
this Constitution relating to High Courts.
(2) Any such
Proclamation may be revoked or varied by a subsequent
Proclamation.
(3) Every Proclamation under this article shall be
laid before
each House of Parliament and shall, except where it
is a Proclamation revoking a previous Proclamation, cease to operate
at the expiration of two months unless before the expiration of that
period it has been approved by resolutions of both Houses of
Parliament:
Provided that if any such Proclamation (not being a
Proclamation revoking a previous Proclamation) is issued at a time
when the House of the People is dissolved or the dissolution of the
House of the People takes place during the period of two months
referred to in this clause, and if a resolution approving the
Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the
House of the People before the expiration of that period, the
Proclamation shall cease to operate at the expiration of thirty days
from the date on which the House of the People first sits after its
reconstitution unless before the expiration of the said period of
thirty days a resolution approving the Proclamation has been also
passed by the House of the People.
(4) A Proclamation so
approved shall, unless revoked, cease to operate on the expiration of
a period of six months from the date of issue of the
Proclamation:
Provided that if and so often as a resolution
approving the continuance in force of such a Proclamation is passed
by both Houses of Parliament, the Proclamation shall, unless revoked,
continue in force for a further period of six months from the date on
which under this clause it would otherwise have ceased to operate,
but no such Proclamation shall in any case remain in force for more
than three years:
Provided further that if the dissolution of
the House of the People takes place during any such period of six
months and a resolution approving the continuance in force of such
Proclamation has been passed by the Council of States, but no
resolution with respect to the continuance in force of such
Proclamation has been passed by the House of the People during the
said period, the Proclamation shall cease to operate at the
expiration of thirty days from the date on which the House of the
People first sits after its reconstitution unless before the
expiration of the said period of thirty days a resolution approving
the continuance in force of the Proclamation has been also passed by
the House of the People:
Provided also that in the case of the
Proclamation issued under clause (1) on the 11th day of May, 1987
with respect to the State of Punjab the reference in the first
provisio to this clause to "three years" shall be construed
as a reference to Five years.
(5) Notwithstanding anything
contained in clause (4), a resolution with respect to the continuance
in force of a Proclamation approved under clause (3) for any period
beyond the expiration of one year from the date of issue of such
Proclamation shall not be passed by either House of Parliament unless
-
(a) a Proclamation of Emergency is in operation, in the whole
of India or, as the case may be, in the whole or any part of the
State, at the time of the passing of such resolution, and
(b)
the Election Commission certifies that the continuance in force of
the Proclamation approved under clause (3) during the period
specified in such resolution is necessary on account of difficulties
in holding general elections to the Legislative Assembly of the State
concerned:
Provided that nothing in this clause shall apply to
the Proclamation issued under clause (1) on the 11th day of May, 1987
with respect to the State of Punjab.
Article
357 Exercise of legislative powers under Proclamation issued under
article 356
(1) Where by a Proclamation issued under
clause (1) of article 356, it has been declared that the powers of
the Legislature of
the State shall be exercisable by or under
the authority of Parliament, it shall be competent -
(a) for
Parliament to confer on the President the power of the Legislature of
the State to make laws, and to authorise the President to delegate,
subject to such conditions as he may think fit to impose, the power
so conferred to any other authority to be specified by him in that
behalf;
(b) for Parliament, or for the President or other
authority in whom such power to make laws is vested under sub-clause
(a), to make laws conferring powers and imposing duties, or
authorising the conferring of powers and the imposition of duties,
upon the Union or officers and authorities thereof;
(c) for the
President to authorise when the House of the People is not in session
expenditure from the Consolidated Fund of the State pending the
sanction of such expenditure by Parliament.
(2) Any law made in
exercise of the power to the Legislature of the State by Parliament
or the President or other authority referred to in sub-clause (a) of
clause (1) which Parliament or the President or such other authority
would not, but for the issue of a Proclamation under article 356,
have been competent to make shall, after the Proclamation has ceased
to operate, continue in force until altered or repealed or amended by
a competent Legislature or other authority.
Article
358 Suspension of provisions of article 19 during emergencies
(1)
While a Proclamation of Emergency declaring that the security of
India or any part of the territory thereof is threatened by war or by
external aggression is in operation, nothing in article 19 shall
restrict the power of the State as defined in Part III to make any
law or to take any executive action which the State would but for the
provisions contained in that Part be competent to make or to take,
but any law so made shall, to the extent of the incompetency, cease
to have effect as soon as the Proclamation ceases to operate, except
as respects things done or omitted to be done before the law so
ceases to have effect:
Provided that where such Proclamation of
Emergency is in operation only in any part of the territory of India,
any such law may be made, or any such executive action may be taken,
under this article in relation to or in any State or Union territory
in which or in any part of which the Proclamation of Emergency is not
in operation, if and in so far as the security of India or any part
of the territory thereof is threatened by activities in or in
relation to the part of the territory of India in which the
Proclamation of Emergency is in operation.
(2) Nothing in clause
(1) shall apply -
(a) to any law which does not contain a
recital to the effect that such law is in relation to the
Proclamation of Emergency in operation when it is made; or
(b)
to any executive action taken otherwise than under a law containing
such a recital.
Article
359 Suspension of the enforcement of the rights conferred by Part III
during emergencies
(1) Where a Proclamation of
Emergency is in operation, the President may by order declare that
the right to move any court for the enforcement of such of the rights
conferred by Part III (except articles 20 and 21) as may be mentioned
in the order and all proceedings pending in any court for the
enforcement of the rights so mentioned shall remain suspended for the
period during which the Proclamation is in force or for such shorter
period as may be specified in the order.
(1A) While an order
made under clause (1) mentioning any of the rights conferred by Part
III (except articles 20 and 21) is in operation, nothing in that Part
conferring those rights shall restrict the power of the State as
defined in the said Part to make any law or to take any executive
action which the State would but for the provisions contained in that
Part be competent
to make or to take, but any law so made shall,
to the extent of the incompetency, cease to have effect as soon as
the order aforesaid ceases to operate, except as respects things done
or omitted to be done before the law so ceases to have
effect:
Provided that where a Proclamation of Emergency is in
operation only in any part of the territory of India, any such law
may be made, or any such executive action may be taken, under this
article in relation to or in any State or Union territory in which or
in any part of which the Proclamation of Emergency is not in
operation, if and in so far as the security of India or any part of
the territory thereof is threatened by activities in or in relation
to the part of the territory of India in which the Proclamation of
Emergency is in operation.
(1B) Nothing in clause (1A) shall
apply -
(a) to any law which does not contain a recital to the
effect that such law is in relation to the Proclamation of Emergency
in operation when it is made; or
(b) to any executive action
taken otherwise than under a law containing such a recital.
(2)
An order made as aforesaid may extend to the whole or any part of the
territory of India:
Provided that where a Proclamation of
Emergency is in operation only in a part of the territory of India,
any such order shall not extend to any other part of the territory of
India unless the President, being satisfied that the security of
India or any part of the territory thereof is threatened by
activities in or in relation to the part of the territory of Indian
in which the Proclamation of Emergency is in operation, considers
such extension to be necessary.
(3) Every order made under
clause (1) shall, as soon as may be after it is made, be laid before
each House of Parliament.
Article
359A Application of this Part to the State of Punjab
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Article
360 Provisions as to financial emergency
(1) If the
President is satisfied that a situation has arisen whereby the
financial stability or credit of India or of any part of the
territory thereof is threatened, he may by a Proclamation make a
declaration to that effect.
(2) A Proclamation issued under
clause (1) -
(a) may be revoked or varied by a subsequent
Proclamation;
(b) shall be laid before each House of
Parliament;
(c) shall cease to operate at the expiration of two
months, unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament:
Provided
that if any such Proclamation is issued at a time when the House of
the People has been dissolved or the dissolution of the House of the
People takes place during the period of two months referred to in
sub-clause (c), and if a resolution approving the Proclamation has
been passed by the Council of States, but no resolution with respect
to such Proclamation has been passed by the House of the People
before the expiration of that period, the proclamation shall cease to
operate at the expiration of thirty days from the date on which the
house of the People first sits after its reconstitution unless before
the expiration of the said period of thirty days a resolution
approving the Proclamation has been also passed by the House of the
People.
(3) During the period any such Proclamation as is
mentioned in clause (1) is in operation, the executive authority of
the Union shall extend to the giving of directions to any State to
observe such canons of financial propriety as may be specified in the
directions, and to the giving of such other directions as the
President may deem necessary and adequate for the purpose.
(4)
Notwithstanding anything in this constitution -
(a) any such
direction may include -
(i) a provision requiring the reduction
of salaries and allowances of all or any class of persons serving in
connection with the affairs of a State;
(ii) a provision
requiring all Money Bills or other Bills to which the provisions of
article 207 apply to be reserved for the consideration of the
President after they are passed by the Legislature of the State;
(b)
it shall be competent for the President during the period any
Proclamation issued under this article is in operation to issue
directions for the reduction of salaries and allowances of all or any
class of persons serving in connection with the affairs of the Union
including the Judges of the Supreme Court and the High Courts.
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