Provisions regarding Emergency

powers
• Emergency power is a constitutional weapon of
government in every state for solving the critical and
serious situation of the country
• In a emergency period a state can suspend various
fundamental and legal rights, therefore we can say
emergency is necessary evil for a country
• It is said that people have to tolerate injustice for the
protection from greater injustice
• Threat of sovereignty(by external ground), natural
disaster, rebellion, extreme economic….etc are the
grounds for emergency
Emergency power in various countries:
USA
– No clearly mentioned in Constitution
– But president has certain powers to act in emergency situation
– Executive branch is able to act quickly in times of emergency
– The Emergency Act, 1976 and such other Acts provides power
to declare emergency and check and balance on the emergency
UK
– Queen declares emergency
– Right of executive through various Acts (e.g.- Emergency Power
Act,1920, Parliament Act of Prevention of Terrorism, 1989 etc.)
India
• Article 352 to 360
• National Emergency can be declared on the basis of
external aggression, arm rebellion in the whole of India
or a part of its territory
• In India the emergency was declared in:
– Period of India China War, 1962
– Period of India Pakistan war-1971
– In 1975 PM Indira Gandhi declared emergency on the
ground of internal aggression
• President can declares emergency in the
recommendation of council of minister
Emergency power in Nepal:
• Government of Nepal Act, 1948- all power was in
PM
• Interim constitution of Nepal, 1951- no clear
provision
• The Constitution of the Kingdom of Nepal, 1959-
King could use emergency power/ first elected
government of Nepal was dissolve by this power
• The Constitution of Nepal, 1962- all articles could
be suspended except Article 81 (emergency
provision) by King
• The constitution of the Kingdom of Nepal declared king
as Constitutional Monarch
– King could declare emergency in recommendation of
council of Minister and necessary to approve by House of
Representative by 2/3 majority
– In Marga, 2058 King Gyanendra declared emergency in
recommendation of PM Sher Bahadur Deuwa
• The Interim Constitution of Nepal, 2063- president
could declare emergency in recommendation of
council of minister
– But the order had to ratify with 2/3 majority of Legislature-
parliament
Present Constitution of Nepal
• Grounds for emergency:
– Serous problem in sovereignty or territorial integrity
of Nepal
– The security of any part of Nepal by war, external
attack, armed revolt
– Extreme economy disarray
– Natural calamity
– Epidemic
• President has the right to declare emergency
• Province government also may request to the
government of Nepal to declare emergency in concern
province or any specific area of province in the ground
of natural calamity or epidemic
• The order shall be presented before the meeting of
both houses of Federal parliament for approval within
a month from the date of its issuance
• If approved by a 2/3 majority of total numbers present
at the meetings of both House of Federal Parliament
– Such order shall continue in force for a period of three
months from the date of order
• In case of continuation of situation the proposal
to extend the period of the order of emergency
for less than another three month may be
forwarded in Federal Parliament
• The order will be continue for said period if it is
approved by 2/3majority of both House
• In case of dissolution of House of Representative
the power of Federal Parliament shall be
exercised by National Assembly
• President can issue other necessary orders to
meet the exigencies
• While issuing the order some fundamental rights
may be suspend
– But some fundamental rights shall not be suspended
which are following:
• Article 16,subclauses (c) and (d) of clause (2) of Article 17,
Article 18, clause (2) of Article 19, Articles 20,21,22 and
24,clause (1) of Article 26, Articles 29,30,31,32,35, clause (1)
and(2)of clause 36, Articles 38 and 39, clauses (2) and (3) of
Article 40, Article 41,42,43 and 45, the right to constitutional
remedy in relation to such Articles pursuant to Article 46 and
right to habeas corpus shall not be suspended
• Due to suspended rights no one can go to court
for remedy in emergency period
• But the affected person can file a petition to
compensation for damage within three months
from the date of termination of the order
• In case the petition is filed, the court may arrange
for the appropriate compensation, or punish the
guilt according to the Federal law
• The president may, at any time, withdraw such
order of state of emergency made in accordance
with this Article