Open Access Research Article
EMERGENCY IN INDIA AND THE UNITED STATE OF AMERICA AND COMPARISION BY:- MR SUBODH KUMAR SARKAR
Published Paper
Article Details
EMERGENCY IN INDIA AND THE UNITED STATE OF
AMERICA AND COMPARISION
AUTHORED BY:- MR SUBODH
KUMAR SARKAR
Class -LLM Ist YEAR
SEMESTER 2
ROLL NO. 57
PROGRESSIVE EDUCATION
SOCIETY’S MODERN LAW COLLEGE, PUNE
SAVITRIBAI PHULE PUNE
UNIVERSITY, PUNE 411007
(2023-2024)
EMERGENCY
IN INDIA AND UNITED STATE OF AMERICA AND COMPARISION
1
DR Durga Das Basu Comparative federalism second Edition published by Lexis
Nexis dated 16th November,2007pageno 275
2
DR Durga Das Basu Comparative federalism second Edition published by Lexis
Nexis dated 16th November,2007pageno 276 ,
3https://en.m.wikipedia.org>wik.
4 DR Durga Das Basu Comparative federalism
second Edition published by Lexis Nexis dated 16th
November,2007pageno 275 and page no295
5
Indian Constitution law M.P Jain eighth edition pages no728&729
6
Professional’s The constitution Of India BARE ACT2024 Professional book
Publishers page no174
7
Indian Constitution law M. P Jain eighth edition page no732and page no733,735
8
Indian Constitution law M.P. Jain eighth edition page no732and page no743
9
Professional’s The constitution Of India BARE ACT2024 Professional book
Publishers page no179
10
https://byjusexamprep.com
12
Indian Constitution law M.P. Jain eighth edition page no732and page no729
13
Indian Constitution law M.P. Jain eighth edition page no732and page no733
14
Federalgoverments,197 (1953)
15
Indian Politics & Law Review Journal (IPLRJ}
16 Indian
Politics & Law Review Journal (IPLRJ)ISSN 2581 7086Volume 6 – 2021
Abstract:
In modern days, emergency of state
based on those intrinsic powers that a state can exercise in unusual circumstances
such as war, armed rebellion, attacks of terrorism, natural disaster, serious
health emergencies pandemics or other serious threats that threaten the state.
It is acknowledged that these powers should be utilised in only extreme
situations and to the degree that situation is warranted.
Emergency has two significant issues
viz (1) the balance of power between the central Governments and its State
governments (2) and the effect of fundamental Rights. There was bad precedents
of abuses of powers exercised by authority. Object of studying emergency in the state better
understanding the application in correct manner for betterment of STATE or abuses of power by authority
Introduction:
Emergency
powers of India
Emergency in state, we
mean that a situation of severe, wide spread, imminent threat of damage or
injury or loss of property or life caused by natural or man -made causes. the
state can declare[1],India
has so far proclaimed national Emergency three times since 26th January 1950
the Constitution adopted.
A state of emergency in India
refers to a period of governance that can be proclaimed by the President of
India during certain crisis situations. Under the advice of the cabinet of
ministers, the President can overrule many provisions of the Constitution,
which guarantees Fundamental Rights to the citizens of India. The emergency
provisions are contained in Part XVIII of the Constitution of India, from
Article 352 to 360. These provisions enable the Central government to
meet any abnormal situation effectively. The rationality behind the
incorporation is to safeguard the sovereignty, unity, integrity and security of
the country, the democratic political system and the Constitution.
Emergency
powers of United States:
Ther is no emergency provisions in
the constitution of the USA of the nature of Articles 352-354 of the Indian
Constitution[2]. The
1976 National Emergency Act implemented various legal requirement of the United
States [3].As
of March 2024,82 emergencies have been declared;40 have expired and another 42
currently in effect, each having been renewed annually by the President Procedure for new emergencies and rescinding
emergency declarations. The Act authorizes the President to activate emergency
provisions of law via an emergency declaration on the condition that the
President specifies the provisions so activated and notifies Congress.There
is impact of external emergency upon federal powers as well as of internal
emergency upon federal powers
Proclamation
of Emergency in India
Constitution A state of emergency in
India refers to a period of governance that can be proclaimed by the President
of India during certain crisis situations. Under the advice of the cabinet
of ministers, the President can overrule many provisions of the Constitution,
which guarantees Fundamental Rights to the citizens of India.
The emergency provisions are
contained in Part XVIII of the Constitution of India, from Article
352 to 360. These provisions enable the Central government to meet any
abnormal situation effectively.
The rationality behind the
incorporation is to safeguard the sovereignty, unity, integrity and security of
the country, the democratic political system and the Constitution.
The Constitution envisages three
types of emergencies[4]
Emergency arising from a threat to
security of India.
Breakdown Constitutional machinery
in a state
Under Article 352(1), if the president is satisfied that a grave emergency exists whereby
the security of India or any part thereof threatened, heather by war, or by
external aggression ,or armed rebellion, he may ,by proclamation, make a
declaration to that effect. Such a proclamation may be made in respect of whole
of India , or such part of the Indian
territory of India as may be specified in the proclamation.
Under Article 352(2): A
proclamation issued under Article354(2) may be varied or revoked by a
subsequent proclamation.
Under Article 352(3): The 44th
amendment as introduced clause,viz,Article352 (3),to that effect that the
President shall not issue a proclamation emergency under Article 352(!) or
Article 352(2) .,unless the decision of the Union Cabinet that such a proclamation
may be issued has been communicated to him in writing . In1975that President
proclaim emergency on the advice of the Prime Minister alone and the council of
minister was later presented with a fait accompli (something that has already
happened) . It has to avoid any such situation in future that Article 352(3)has
been introduced in the constitution.
Under Article 352(4); every
proclamation issued under article 352(1)is to be laid before each House of
Parliament .Both the should give approval ,other wise it will be void after a
month of proclamation of emergency.
Under Article 352(5); a
proclamation so approved shall ,unless revoked ,cease to operate on the
expiration of a period of six months from the date of passing of the second resolutions approving the proclamation
clause (4).
Under Article 352(6) Before the 44th
amendment, passage of a such resolution by a simple majority in each house was
sufficient. Article 352(6) introduces a very wholesome safeguard, each House
has to approve by two third of the majority of the members present and voting.
Under Article 352(7); Another
safeguard introduced by the 44th amendment President is obliged to
revoke the proclamation emergency issued under Article 354(1) if it is
disapproved by each of houses.
Under Article 352(8) the 44th
amendment introduced where a notice in writing, signed by not less than 1/10th
of the total members of the Lok Sabha has been given of their intention to move
a resolution disproving the proclamation of emergency to the speaker if the
House is in session or to the President ,such resolution Article 358(8) then
resolution is in question.
Under Article 352(9);the President
has power to issue different proclamations on different grounds,” being war or
external aggression armed rebellion or imminent danger for war whether or not
whether is proclamation already issued by the President under the clause (1)
such proclamation is in operation.
Article-353.Effect
of proclamation of Emergency[6]-
a) notwithstanding anything in
this Constitution ,the executive power of Union shall extend to the giving
directions to any state as to the manner in which the executive power thereof ism 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 the duties or authorizing the conferring powers and
imposition of duties upon the union as respect to the matter ,notwithstanding
that it is one which is not enumerated in the union list.
Article-354.Ditrbution
of Revenue and taxes, while the proclamation in Emergency[7]:
Article 354(1) the President may
by order direct that any provision(Article 268 -to279)relating to distribution
of revenue between the Centre and the
states; The provision frees the Centre from its obligation to transfer revenue
to the states ,
Article 354(2)the President may suspending
by an order distribution of revenue is to be laid before both House of
Parliament. It would not remain in force beyond the end of financial year in
which the proclamation of emergency cease to be operate
During emergency Parliament can
also levy any tax which fails in the state list.(article250).Article-355Centre
Duty to protects the states; Article 355imposestwofold duty on the centre :-
i) to protect the every state
against external aggression and internal disturbance( now Arm rebellion after
44th amendment) and
ii) to ensure that government of
every state is carried on in accordance with the provision of the constitution.
Article-356; further this article talks
of “breakdown of constitutional government in the state .This means that mere
internal disturbance “does not justify a proclamation under Article 356 unless
it results in the constitutional break down in the State.
When is
Articlev356 invoked [8]?
Failure of the constitutional
machinery in a state may arise because of various factors ;these factors are
diverse and imponderable some situations of the breakdown of the constitution
machinery may be as follows:
1) No party in the assembly has a
majority in the state legislature Assembly to able to form the government.
2) A government in office looses
its majority due to defections and no alternative government can be formed.
3) A government may have majority support
in the House but it may function in a manner subversive of the constitution.
4)The state government does not comply with the directions issued by
Central Government under the various constitutional provisions.
5) Security of the state may be
threatened by widespread breakdown of the law
and order in the state.
6)When there are serious
allegations of corruption against chief Minister the Ministers of the state.
Article-357(1)(a)The President may
be authorised by parliament to delegate the power so conferred on him to any
other authority to impose power on legislation, may also confer and impose the duties upon the Union officer
under Article-357(1)(b).
Article-357(1)(c) The President
may authorise, when the Lok Sabha not in
session expenditure from the state consolidated fund pending its
sanction by parliament
Article-358 It is suspension of
provisions of Article-19during emergencies.
Article-359 It is suspension of
the enforcement of the rights enforced by
Part III except article 20 and 21 as mentioned in the order during
emergency.’
Article 360[9]; It is provision as to financial emergency. If
the President is satisfied that a situation has arisen whereby the financial
stability or credit of India or any part of territory thereof is threatened, he
may by a proclamation make a declaration to that effect.
There are two amendments in
regards to emergency with its effect discuss here as follows: -
(a) 38th amendments and
(b) 44th amendments
38th
Amendment Act of the Indian Constitution[10]
It also prohibited the judicial
review of the various proclamations of emergency made by the President or
governor. The judicial review of the proclamations of emergency related to laws
enacted during the emergency was also barred.
Any declarations made by the
President declaring a state of emergency are no longer subject to legal review
or judicial review under the 38th Amendment Act.
According to this rule, the
President may restrict a citizen’s fundamental rights depending on the
circumstances surrounding the declaration of an emergency.
Only after being ratified by more
than half of the State legislatures was the 38th Amendment Act passed.
The Act was introduced on July
22nd, 1975, and it took the President 10 days to approve it.
A few states, including Jammu and
Kashmir, Manipur, Gujarat, Nagaland, and Tamil Nadu, chose not to ratify it.
The
Constitution (Forty-fourth Amendment) Act, 1978[11] The 9th May, 1978
Statement of Objects and Reasons
appended to the Constitution (Forty-fifth Amendment) Bill, 1978 (Bill No. 88 of
1978) which was enacted as THE CONSTITUTION (Forty-fourth Amendment) Act, 1978
STATEMENT OF OBJECTS AND REASONS
Experience has shown that the fundamental
rights, including those of life and liberty, granted to citizens by the
Constitution are capable of being taken away by a transient majority. It is,
therefore, necessary to provide adequate safeguards against the recurrence of
such a contingency in the future and to ensure to the people themselves an
effective voice in determining the form of government under which they are to
live. This is one of the primary objects of this Bill.
2. It is, therefore, proposed to
provide that certain changes in the Constitution which would have the effect of
impairing its secular or democratic character, abridging or taking away
fundamental rights prejudicing or impeding free and fair elections on the basis
of adult suffrage and compromising the independence of judiciary, can be made
only if they are approved by the people of India by a majority of votes at a
referendum in which at least fifty-one per cent. of the electorate participate.
Article 368 is being amended to ensure this.
3. In view of the special
position sought to be given to fundamental rights, the right to property, which
has been the occasion for more than one amendment of the Constitution, would
cease to be a fundamental right and become only a legal right. Necessary
amendments for this purpose are being made to article 19 and article 31 is
being deleted. It would, however, be ensured that the removal of property from
the list of fundamental rights would not affect the right of minorities to
establish and administer educational institutions of their choice.
4. Similarly, the right of
persons holding land for personal cultivation and within the ceiling limit to
receive compensation at the market value would not be affected.
5. Property, while ceasing to be
a fundamental right, would, however, be given express recognition as a legal
right, provision being made that no person shall be deprived of his property
save in accordance with law.
6. A Proclamation of Emergency
under article 352 has virtually the effect of amending the Constitution by
converting it for the duration into that of a Unitary State and enabling the
rights of the citizen to move the courts for the enforcement of fundamental
rights---including the right to life and liberty---to be suspended. Adequate
safeguards are, therefore, necessary to ensure that this power is properly
exercised and is not abused. It is, therefore, proposed that a Proclamation of
Emergency can be issued only when the security of India or any part of its
territory is threatened by war or external aggression or by armed rebellion.
Internal disturbance not amounting to armed rebellion would not be a ground for
the issue of a Proclamation.
7. Further, in order to ensure
that a Proclamation is issued only after due consideration, it is sought to be
provided that an Emergency can be proclaimed only on the basis of written
advice tendered to the President by the Cabinet. In addition, as a Proclamation
of Emergency virtually has the effect of amending the Constitution, it is being
provided that the Proclamation would have to be approved by the two Houses of
Parliament by the same majority which is necessary to amend the Constitution
and such approval would have to be given within a period of one month. Any such
Proclamation would be in force only for a period of six months and can be
continued only by further resolutions passed by the same majority. The
Proclamation would also cease to be in operation if a resolution disapproving
the continuance of the Proclamation is passed by Lok Sabha. Ten per cent. or
more of the Members of Lok Sabha can requisition a special meeting for
considering a resolution for disapproving the Proclamation.
8. As a further check against
the misuse of the Emergency provisions and to put the right to life and liberty
on a secure footing, it would be provided that the power to suspend the right
to move the court for the enforcement of a fundamental right cannot be
exercised in respect of the fundamental right to life and liberty. The right to
liberty is further strengthened by the provision that a law for preventive
detention cannot authorise, in any case, detention for a longer period than two
months, unless an Advisory Board has reported that there is sufficient cause
for such detention. An additional safeguard would be provided by the
requirement that the Chairman of an Advisory Board shall be a serving Judge of
the appropriate High Court and that the Board shall be constituted in
accordance with the recommendations of the Chief Justice of that High Court.
9. A special provision is being
made guaranteeing the right of the media to report freely and without
censorship the proceedings in Parliament and the State Legislatures. The
provision with regard to the breakdown of the constitutional machinery in the States
is being amended so as to provide that a Proclamation issued under article 356
would be in force only for a period of six months in the first instance and
that it cannot exceed one year ordinarily. However, if a Proclamation of
Emergency is in operation and the Election Commission certifies that the
extension of the President's rule beyond a period of one year is necessary on
account of difficulties in holding elections to the Legislative Assembly of the
State concerned, the period of operation of the Proclamation can be extended
beyond one year. This is subject to the existing limit of three years. These
changes would ensure that democratic rule is restored to a State after the
minimum period which will be necessary for holding elections.
10. With a view to avoiding
delays, it is proposed to amend articles 132, 133 and 134 and insert a new
article 134A to provide that a High Court should consider the question of
granting a certificate for appeal to Supreme Court immediately after the delivery
of the judgment, decree, final order or sentence concerned on the basis of an
oral application by a party or, if the High Court deems fit so to do, on its
own motion. Cases of special leave to appeal by Supreme Court will be left to
be regulated exclusively by article 136.
11. The other amendments
proposed in the Bill are mainly for removing or correcting the distortions
which came into the Constitution by reason of amendments enacted during the
period of the Internal Emergency.
12. The Bill seeks to achieve
the above objects. The notes on clauses explain in detail the various
provisions of the Bill.
Corrective
Measure[12] :
A proclamation of emergency
under Article352(1) may be under may be made restricted to a part part of
territory . Before 1978,anemergency could be declared because of war ,external
aggression or ‘internal disturbance’. The expression ’internal disturbance’ was
too vague and broad The 44thconstitutional Amendment substituted the words
‘armed rebellion ’for internal disturbance with a view to exclude the
possibility of an emergency being proclaimed on the ground of internal
disturbance only not involving armed rebellion as happened in 1975.this has
minimised scope to implement internal emergency.
Secondly the 44th
amendment has introduced a clause viz Article352(3),to that effect that the
President shall not issue a proclamation of emergency[under 352(1)or varying
the same unless the decision of Union Cabinet is to say that such proclamation
has to be arrived at collectively by the cabinet and not by the Prime Minister
alone without consulting the Cabinet. It so happened in 1975 that the President
proclaimed emergency on the advice of Prime Minister alone and the Council of
Ministers was later presented with fait accompli. It is to avoid such situation
in future that Article352(3) has been introduced in constitution.
A proclamation will
automatically cease after one month if
not approved by parliament in the meantime. formerly, the period allowed for
parliamentary approval of the proclamation was two months . The 44th
amendment has reduced it to one month.
Another significant safeguard introduced by the 44th amendment is to lay
down that a resolution approving the proclamation of emergency has to be passed by each of house by a
majority of the total membership of each House not less than two thirds of the
majority of the members present and
voting in each House [Article352(6))..
Indira
Gandhi V Raj Narayan 1975
Indira Gandhi was assisted by the
government officers and has profiled the administration from the military and
the aviation based armed forces and amid her election battles. The Allahabad
High Court uprightly charged her under section 123(7) of the Peoples
Representative Act, 1951.
Indira Gandhi took an unconditional
stay order from justice Jagmohan Lal Sinha, and made an appeal to the Supreme
Court in the mean time she imposed emergency due to which she easily got rid of
the opposition members, censors, the press and suspended some fundamental
rights in the name of national security.
It was evident that the three
amendments were made to expel all grounds on which Indira Gandhi was found
guilty in its judgment held that Amendment act, 1974 and 1975, were connotationally
real as they were administrative standards and the parliament had forced to
rationalize them, yet the Supreme Court failed to notice that these amendments
were made for the sole motive of removing the changes against the Indira
Gandhi. The Indira Gandhi has misused the powers in accordance to adjust the
very law that changed her of being corrupt but the Supreme court stayed silent
and when the defendant claimed for equity, all that the Supreme court could do
was to give him long superfluous reasoning of how the issue was out of its
words.
It is clearly seen that the Hon’ble
Supreme court was well aware of the fact that the Indira Gandhi had made the
amendments to satisfy her political strategies and had unconventionally imposed
emergency to save herself from being guilty. Yet, the Supreme court upheld the
constitution in some ways as it struck down 4 and 5 of article 329 being
violative of the basic structure
Financial Emergency
Grounds of declaration: Article
360 empowers the president to proclaim a Financial
Emergency if he is satisfied that a situation has arisen due to which the
financial stability or credit of India or any part of its territory is
threatened.
Parliamentary approval and
duration: A proclamation declaring financial emergency must
be approved by both the Houses of Parliament within two months from the date of
its issue.
However, if the proclamation of
Financial Emergency is issued at a time when the Lok Sabha has been dissolved
or the dissolution of the Lok Sabha takes place during the period of two months
without approving the proclamation, then the proclamation survives until 30
days from the first sitting of the Lok Sabha after its reconstitution, provided
the Rajya Sabha has in the meantime approved it.
Once approved by both the houses
of Parliament, the Financial Emergency continues indefinitely till it is
revoked.
Effects of Financial Emergency
Extension of the executive
authority of the Union over the financial matters of the States. Reduction of
salaries and allowances of all or any class of persons serving in the State. Reservation
of all money bills or other financial bills for the consideration of the
President after they are passed by the legislature of the State. Direction from the
President for the reduction of salaries and allowances of all or any class of
persons serving the Union; and the judges of the Supreme Court.
Criticism
of the Emergency Provision
Some members of the Constituent
Assembly criticised the incorporation of emergency provisions in the
constitution on the following grounds:
The federal character of the
constitution will be destroyed and the union will become all-powerful The
powers of the State- both the Union and the Units- will entirely be
concentrated in the hands of the union executive .The president will become a
dictator The financial autonomy of the state will be nullified Fundamental
rights will become meaningless and, as a result, the democratic foundation of
the constitution will be destroyed.’
While defending the emergency
provisions in the Constituent Assembly, Dr Ambedkar accepted the possibility of
their misuse. He observed, ‘I do not altogether deny that there is a
possibility of the Articles being abused or employed for political purposes
Emergency Provision in United State of
America[13].
Federalism says Dicey, is a week
government because of the distribution of powers between the Centre and the units ,but the war time experience of USA
has shown that this is not necessarily so and that a federation can very well
stand the test of time. This federation has faced the emergency of two world
wars [18911-14 and 1939-45].In the USA ,the emergency was met by the courts
giving an expansive and liberal interpretation to the ‘war’ or the ‘defence’
power of the centre and thus ,giving
greater area of operation than its peace-time ambit so as to enable to do all
these things which are necessary for the safety of country ,or the effective
prosecution of war.
During the war crisis the Constitution of USA
functioned very differently from their normal peace-time behaviour. As Where points out:[14]While
it is the essence of federalism to be pluralistic , it is the essence of war
power to be unitary, to be centralised and regimented, to be the modern word,
totalitarian. there is an immediate contrast between the multiplicity of
federalism with its division of authority, and the unity necessary if war is to
be conducted efficiently
In 1861 President Abraham
Lincoln's suspension of the writ of habeas corpus without Congressional consent
led to the claim of emergency powers. President Abraham Lincoln argued that the
'Confederate Rebellion' posed an emergency, giving him the extraordinary
ability to suspend the writ of habeas corpus immediately. The Federal District
Court of Maryland, knocked down the suspension in Ex Parte Merryman,
notwithstanding Lincoln's defiance of the order.
President Franklin D. Roosevelt in
1933 declared National Emergency due to the financial crisis and banned the
personal amassment of gold. During the Korean War of 1950, President Harry
Truman proclaimed a National Emergency due to communism. When private steel
mills were unable to manufacture steel due to the worker strikes in 1952,
President Harry Truman extended the emergency and took control of several steel
mills citing the private production of steel as an essential commodity to conduct
war .In 1970 due to the postal workers’ strike, President Nixon proclaimed a
National Emergency
.In 1971, President Richard Nixon
declared a national emergency and levied an interim An Open Access Journal from
The Law Brigade Publishers 290 import tariff to reinforce the United States'
foreign economic involvement and combat inflation .In reaction to the four
declared national crises, the U.S. Emergencies Act was enacted and adopted by
Congress. However, U.S. changed its approach to emergency powers drastically in
response to the 9/11 attacks which acted as a catalyst, prompting President WBush
to declare a state of emergency and the Congress to pass a joint declaration
authorising the President to use any force necessary against individuals or
bodies that were involved in this act of terrorism .Following this, dozens of new
laws and policy decisions were adopted, most notable of which was the U.S.
Patriots Act, which was enacted as an immediate response to the 9/11attacks.
This Law enables competent authorities to conduct surveillance to combat acts
that may be linked to terrorism. It also allowed federal investigators to get
bank and corporate information on selected suspects after obtaining approval
from a federal court. Although that many individuals supported the law, many
others opposed it since it infringed fundamental rights and resulted in
unnecessary harassment of immigrants. Thus, whether the Act was efficient in
combating terrorism may be a matter of personal opinion.
COMPARATIVE
ANALYSIS OF THE EMERGENCY PROVISIONS OFTHE U.S. AND INDIA[16]
The U.S. and India are two
different types of States, each with its own set of laws and procedures. In
their respective continents, North America and Asia, they are regarded as model
democratic governments. It is noteworthy to discuss and compare how emergency laws
fit into the democratic norms of these States.
In the U. S., Courts have the
authority to judge whether an emergency direction is warranted or not, even
during emergencies like wars. In Hirabayashi v. U.S., the court supported some laws
that imposed certain restrictions on persons of Japanese heritage in the United
States ,such as requiring them to stay in their homes during particular hours
to avoid any acts of espionage. Further, in Youngstown Sheet & Tube Co. v.
Sawyer, the Court ruled that none of the President’s emergency powers gave him
the ability to confiscate private property without the approval of Congress.
However, in India, emergency actions and directions are not open to courts
approval as they are dependent on the central executive who declares an emergency.
The Constitution itself deals with the repercussions of such situations, and
there is no reliance on the court or its interpretation.
Furthermore, the term
"emergency" is not mentioned in the U.S. Constitution, and the laws and
regulations for dealing with an emergency are supplied indirectly in Articles
I, II and IV. In India, Articles 352 to 360 of Part XVIII of the Indian
Constitution expressly mentions emergency provisions. India has national and
state emergencies, whereas the U.S. has national and financial emergencies, the
latter of which are similar to India.
Both the nations' constitutions
have the ability to quickly transition from federal to unitary states in the
event of a national emergency. In a true federal state, both the centre and the
states are considered equal when it comes to the distribution of powers and
functions, but in the case of a national emergency, the centre assumethe
majority of powers and functions because the centre is usually given the
responsibility to protect the country in a threat or crisis.
CONCLUSION:
The underlying Article352as
outlined by Dr. Ambedkar has thus been justified- “All federal system…are
placed in a tight mould … No matter what circumstances cannot change its form
and shape. On the other hand ,the Draft Constitution (of India) can be both
unitary as well as federal according the requirements of time and circumstances
.In normal times ,it is framed to work as federal system .But in time of war it
is designed as to make it work as though it was a unitary system Such a power
converting itself into a unitary state no federation process.
According to John Locke, revolt
against the state was considered to be legitimate if it encroached on the
liberties it was essentially established to preserve. Furthermore, Locke argued
that emergency declarations should not be used as a pretext for any form of oppressive
action, nor should they be used to suppress human rights activists. It is
natural that from time to time, tension and crisis shall arise. Even with
protections in place, there is still the possibility of such laws being abused.
India's and U.S.' constitutions may indeed borrow provisions from each other to
enhance their respective circumstances, particularly when it comes to national
emergencies. For instance, India's judiciary may be strengthened under
emergencies, similar to the U.S, where judges are in a far better position to
assess the justice ability of emergency actions. In India by the time the Court
conducts its own assessment of the constitutionality of a particular emergency
action, the storm would have already passed. It's difficult, if not impossible,
to find an example of court interference preventing emergency responses or
declarations in India.
Object of study two federal states and one
Monarchical and parliamentary democracy state.
The main object of emergency of the state to
understating the following points as follows:
a) To know how define the state emergency
b) When emergency is applied
c) What are respective provisions basis emergencies
are applied.
d) what are the external and internal impacts in
federal states
e) What are the consequences on emergency
[1] DR Durga
Das Basu Comparative federalism second Edition published by Lexis Nexis dated
16th November,2007pageno 275
[2] DR Durga Das Basu Comparative federalism second Edition published
by Lexis Nexis dated 16th November,2007pageno 276 ,
3https://en.m.wikipedia.org>wik.
4 DR Durga Das Basu Comparative federalism
second Edition published by Lexis Nexis dated 16th
November,2007pageno 275 and page no295
[5] Indian Constitution law M.P Jain eighth edition pages no728,&729
[6] Professional’s The constitution Of India BARE ACT2024 Professional
book Publishers page no174
[7] Indian Constitution law M. P Jain eighth edition page no732and page
no733,735
[8] Indian Constitution law M.P. Jain eighth edition page no732and page
no743
[9] Professional’s The constitution Of India BARE ACT2024 Professional
book Publishers page no179
[10] https://byjusexamprep.com
[11] https://wwwinindia.gov.in.mygovernmentamendments
[12] Indian Constitution law M.P. Jain eighth edition page no732and page
no729
[13] Indian Constitution law M.P. Jain eighth edition page no732and page
no733
[14] Federalgoverments,197 (1953)
Volume 6 - 2021
Article Information
EMERGENCY IN INDIA AND THE UNITED STATE OF AMERICA AND COMPARISION BY:- MR SUBODH KUMAR SARKAR
Authors: MR SUBODH KUMAR SARKAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/05
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.