The Emergency Provisions in India

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Chapter 1 Introduction- An Analysis of the Emergency Provisions in the India. It is the President who can proclaim an emergency when he receives in writing a decision of the Union Cabinet to that effect. Ours being a parliamentary system, the President could proclaim emergency only when advised by the Council of Ministers through the Prime Minister. This provision was said to have been misused by the Prime Minister, in 1975 when the President was advised to make a proclamation of emergency on the ground of disturbance.

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In order to minimize the chances of abuse of power to declare emergency and to ensure that a proclamation of emergency is issued only after due consideration, Article 352 was amended by the Constitution (44th Amendment) Act 1978. After the 44th Amendment, it is provided that the President can make a proclamation declaring emergency only when he receives in writing the decision of the Union to this effect. Grounds for Proclamation of an emergency. A proclamation to emergency maybe made on the ground of war, external aggression or internal disturbance. The expression “internal disturbance” is too vague and wide. It may cover a minor disturbance of law and order or even a political agitation. With the view to exclude the possibility of an emergency being proclaimed on the ground of internal disturbance of any nature, minor or grave, the 44th Amendment has substituted the expression “internal disturbance” by the expression armed rebellion. Thus, after the 44th Amendment, a proclamation of emergency maybe issued on any of the following grounds: (a) war (b) external aggression or (c) armed rebellion. However actual occurrence of war, external aggression or armed rebellion is not a condition precedent. Such a proclamation maybe made by the President even before the actual occurrence of the above events, when the President is satisfied that there is current danger of war, external aggression or armed rebellion.[i] War: The term war may mean the existence of violent struggle between two countries through the application of armed forces. When there is a formal declaration of an attacker from one country against another there exists “war” between the two countries and the winning country dictates according to its whim. External Aggression: The expression external aggression has many definitions such as unilateral attacks with force by any one state against another state without formal declaration of war. Such unilateral acts of force so long as they are not answered by similar hostile acts by the other side, constitute external aggression. Publication of a Proclamation: Article 352 does not prescribe any particular mode in which a proclamation should be published in order to come into operation. According to Article 352(1) the President may make a proclamation of emergency only when he is satisfied as the existence of a threat to the security of India,

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