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Monday, October 10, 2011

Q. What are the grounds for imposing National Emergency ? Can the proclamation of National Emergency be challenged in the court of law?

Ans. The provisions of the Constitution relating to Emergency (352— 360) have been subjected to various changes by the 42nd and the 44 Amendments in 1976 and 1978 respectively. The Proclamation of National Emergency is made by the President under Article 352 on any one of the following grounds—
(1) War or
(2) External Aggression or
(3) Armed rebellion (the word ‘internal disturbance’ was replaced by Armed Rebellion by 44th Amendment Act, 1978).
The President makes Proclamation of National Emergency only on he written recommendation of the Union Cabinet (not the whole Council of Ministers). Also, the Proclamation of National Emergency may be issued even on the ground of apprehension of any, one of the above situations. That means, the President can issue such proclamation even before the actual occurrence of the above situations. By the 44th Amendment, 1978, it was provided that the proclamation of National Emergency may be issued with respect to whole country or a part of it. The 42nd Amendment, 1976 excluded such Proclamation from the scope of judicial inquiry. However, the 44th Amendment provided that the Proclamation of National Emergency may be challenged in the court of law on the ground of malafide intention in issuing such Proclamation.

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