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Can Government Of India Declare Emergency Without First Consulting The Supreme Court Of India

 

Can Government Of India Declare Emergency Without First Consulting The Supreme Court Of India

                                                                         DEVNA Menon*

The first national emergency was declared in 1962 after the Chinese invasion and this state of emergency was also used by the government to remedy the situation caused by the IndoPak war of 1965. The last state of emergency was lifted in January 1968. A second national state of emergency was declared in December 1971 during the Bangladesh War and was in effect until March 1977. The third state of national emergency was declared in June 1975 due to internal unrest and was revoked in March. in 1977. An emergency is a difficult situation that requires special actions on the part of public authorities using special powers provided for by the constitution. However, after the 44th amendment of the constitution, it was no longer possible to declare a national emergency due to internal unrest. Instead, it could be declared in the name of an armed uprising. The emergency provisions are described in Section XVIII of our constitution in Articles 352 to 360. We all know that India is a federation, but in case of emergency, the federal nature of the country is cancelled and the country becomes unitary.

Section 352 of the Constitution of India, provides that if the President is satisfied that there is a serious emergency where the security of India or any part of the Indian territory is threatened by war, an invasion foreign strategy or an armed uprising, a state of emergency may be declared. This state of emergency may affect all or part of India. The declaration of a state of emergency must be approved by both houses of Parliament within one month of its announcement. However, if an emergency declaration is made at the time of the Lok Sabha's dissolution, or if the dissolution has taken place within a month without passing a declaration, the declaration will last overnight for up to 30 days since the first meeting. of the Lok Sabha after its restoration, on condition that Rajya Sabha approves it in the meantime.

Declaration of emergency doesn’t need to be consulted with the Supreme court but after declaring a state of national emergency, the Supreme Court can declare a state of emergency unconstitutional if the state of emergency is detrimental to citizens or has been declared because of certain ulterior motives of the executive or has been issued with malafide intentions. Such an emergency if found unconstitutional can be declared ultra vires by the hon’ble Supreme court. Thus, the judiciary takes on the role of the watchdog as the nature of such situations could jeopardize the cause of national defence and unification. Even

though the 38th Amendment of 1975 removed the declaration of a national emergency from judicial scrutiny. But this provision was later removed by the 44th Amendment of 1978.

After the former prime minister Indira Gandhi imposed a state of emergency in 1975, the High Court of Allahabad found Indira Gandhi guilty of electoral inequality. Civil rights and liberties were suspended, the media severely restricted, and many opposition leaders were jailed until 1977. Though this infamous judgement of the Allahabad high court was overruled by the Hon’ble Supreme court.

So, a national emergency can be declared by the president with the approval of both houses and does not require the consultation of the supreme court of India. This is because the role of judiciary is merely to interpret the law whereas declaration of emergency is an act of the executive. Hence is satisfies of principle of separation of power.

 *2nd Year Student of BBA,LL.B, MIT World Peace University , Pune

 

 

 

 

 

 

 



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