Emergency Provisions in Indian Constitution

(Articles 352 to 360 of Part XVIII of Indian Constitution)

• Emergency Provisions are the methods which enables Central Government to meet any abnormal situation effectively.
• Emergency Provisions were incorporated in Constitution to safeguard the Sovereignty, Unity, Integrity and Security of the country, the democratic political system and the Constitution.
• During an Emergency Central Government becomes Powerful and States go into the Control of the Central Government.
• An Emergency converts the Federal structure to unitary system without amendment in the Constitution. This is a unique feature of the Indian Constitution.

• The Constitution specifies 3 types of Emergency Provisions –

National Emergency

• • • • An emergency due to war, external aggression or armed rebellion (Article 352).
      • The Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type.

President’s Rule (Also known as State Emergency or Constitutional Emergency)

• • • An Emergency due to the failure of the constitutional machinery in the states (Article 356).
    • The Constitution does not use the word ‘emergency’ for this situation.

Financial Emergency

• • • Emergency due to a threat to the financial stability or credit of India (Article 360).

NATIONAL EMERGENCY

• National emergency can be declared on the basis of external aggression or armed rebellion in the whole of India or a part of its territory under Article 352.
• Such an emergency was declared in India in 1962 (China war), 1971 (Pakistan war), and 1975 (declared by Indira Gandhi).

Grounds of Declaration

• • Under Article 352, the President can declare a national emergency when Security of India or a part of it is threatened by war or external aggression or armed rebellion.
  • When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. Whereas, when it is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’.
  • A proclamation of national emergency may be applicable to the entire country or only a part of it.
  • The President can proclaim a National Emergency Provisions only after receiving a written recommendation from the cabinet.

• • 38^th Amendment Act, 1975 – Added the Provision that the President can also issue different proclamations on grounds of war, external aggression, armed rebellion, or imminent danger thereof, whether or not there is a proclamation already issued by him and such proclamation is in operation.
  • 42^nd Amendment Act, 1976 – enabled the President to limit the operation of a National Emergency to a specified part of India.
  • 44^th Amendment Act, 1978 – replaced the expression ‘Internal Disturbance’ with ‘Armed Rebellion’ because the previous term was too wide. Also added that the President can declare emergency only after receiving written recommendation from the Cabinet.

Parliamentary Approval and Duration

• • Proclamation of Emergency must be approved by both the Houses of Parliament within one month from the date of its issue.
  • If the proclamation is issued, when the Lok Sabha has been dissolved or dissolution of Lok Sabha takes place within the period of one month, the proclamation survives until 30 days from the first sitting of the Lok Sabha provided Rajya Sabha has already proved it.
  • If proclamation is approved by both Houses of Parliament, the emergency continues for 6 months, which can be extended for indefinite period with an approval of Parliament for every 6 months. (Added by 44^th Amendment Act, 1978)
  • Every Resolution approving Proclamation of Emergency Provisions or its continuation must be passed by either house of Parliament by Special majority. (Added by 44^th Amendment Act, 1978)

Revocation of Proclamation

• • An emergency Proclamation can be revoked by the president at any time by a subsequent proclamation which do not require Parliamentary approval.
  • The President can revoke an emergency proclamation, if Lok Sabha passes a resolution regarding disapproval of its continuation (Simple Majority is required). (Added by 44th Amendment Act, 1978)

Effects of National Emergency

• • The Proclamation of emergency has widespread effects or consequences which can be categorised as –

1. Effect on the Centre–State Relations

• • • While emergency is in force, the centre state relation goes following changes –

Executive –

• • • During National Emergency, the Centre gains the complete controls over the state and is entitled to give executive directions to the state on any matter.
    • Though, the State government are not suspended.

Legislative –

• • • During Emergency, Parliament can make laws on any subject mentioned in State list.
    • The legislative powers of the State is overridden by the centre. (Feature of Unitary System of Constitution)
    • The laws made by Parliament on the state subjects during a National Emergency become inoperative 6 months after the emergency has ceased to operate.
    • During Emergency, the President can issue ordinances on the state subjects also, if the Parliament is not in session.

Financial –

• • • During Emergency, the President can modify the constitutional distribution of revenues between the centre and the states. Such order of the President has to be laid before both the Houses of Parliament.
    • Such modification lasts upto the end of the financial year in which Emergency ceases to operate.

2. Effect on the Life of the Lok Sabha & State Assembly

• • • During Emergency, life of Lok Sabha can be extended beyond its normal term of 5 years by law for one year at a time (for any length of time).
    • But, after the emergency ceases to operate, this extension cannot be extended beyond a period of 6 months.
    • Similarly, the Parliament may extend the normal tenure of a state legislative assembly by one year each time during a national emergency, subject to a maximum period of six months after the Emergency has ceased to operate.

3. Effect on the Fundamental Rights

• • • Articles 358 and 359 describe the effect of National Emergency on the Fundamental Rights.

4. Suspension of Fundamental Rights under Article 19

• • • Article 358
    • According to Article 358, when a proclamation of national emergency is made, the 6 Fundamental Rights under Article 19 are automatically suspended. No separate order for their suspension is required.
    • Centre & States can make any law during emergency without any restriction imposed by Article 19. Any such law cannot be challenged on the ground of inconsistency with Article 19.
    • When the National Emergency ceases to operate, Article 19 automatically revives and comes into force. Any laws made during emergency which were inconsistence with Article 19 ceases to have effect.
    • 44^th Amendment Act, 1978 – restricted the scope of Article 358 by –
      • • • 6 fundamental rights of Article 19 can only be suspended when National Emergency is declared on the grounds of War or External Aggression.
          • Only those laws which are related with the Emergency are protected from being challenged and no other laws.

5. Suspension of other Fundamental Rights

• • • Article 359
    • Article 359 authorises the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency.
    • The Fundamental rights are suspended in nature. The Suspension of Fundamental rights could be for the period during the operation of emergency or for shorter period of time and the order can be extended to whole country or any part thereof.
    • 44^th Amendment Act, 1978 – restricted the scope of Article 359 by –
      • • The President cannot suspend the right to move the Court for enforcement of fundamental rights guaranteed by Articles 20 & 21.
        • Only those laws which are related with the emergency are protected from being challenged and no other laws and the executive action taken only under such a law, is protected.

PRESIDENT’S RULE

• In India, president’s rule is the suspension of state government and imposition of direct central government rule in a state.
• In practice, president’s rule has been imposed under different circumstances –
  • A state legislature is unable to elect a leader as chief minister
  • Breakdown of a coalition
  • Loss of majority in the assembly
  • Elections postponed for unavoidable reasons
• For the first time, the President’s Rule was imposed in Punjab in 1951.

Grounds of Imposition

• • The President’s Rule can be proclaimed under Article 356 on two grounds –
    • 1. Article 356 empowers the President to issue a proclamation, if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the Constitution. It can be done on the basis of the Governor of the State or otherwise too.
      2. Article 365 says that whenever a state fails to comply with any direction from the Centre, it will be lawful for the president to hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.

Parliamentary Approval and Duration

• • A proclamation imposing President’s Rule must be approved by both the Houses of Parliament within two months from the date of its issue.
  • If approved by both the Houses of Parliament, the President’s Rule continues for 6 months. It can be extended for a maximum period of 3 years with the approval of the Parliament, every six months.
  • If dissolution of Lok Sabha takes place during the period of 6 months without approving the further continuation of the Presidents rule, than the proclamation survives until 30 days from the first sitting of Lok Sabha, provided Rajya Sabha has already approved it.
  • Simple majority is required for the passing of resolution on President Rule by either house of the Parliament.
  • 44th Amendment Act, 1978 – introduced new provision to put restrain on the power of Parliament to extend the proclamation beyond 1 year. It can be extended by 6 month at a time on fulfilment of following –
    1. 1. Proclamation of National Emergency should be in operation in the whole of India, or in whole or any part of the state.
       2. Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.
  • Proclamation of President Rule can be revoked by President at any time through a respective proclamation which does not require parliamentary approval.

Effects of President’s Rule

• • When President’s Rule is imposed in a state, President dismisses the State Council of Minister with Chief Minister. The State Governor carries the state administration with the help of Chief Secretary of the State, on behalf of President.
  • The President acquires the following powers when the President’s Rule is imposed in a state –
    1. 1. He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state.
       2. He can declare that the powers of the state legislature are to be exercised by the Parliament.
       3. He can take all other necessary steps including the suspension of the constitutional provisions relating to anybody in the state.
  • When the state legislature is thus suspended or dissolved –
    • 1. The Parliament can give the power to make laws for the state to the President or to any other authority specified by him
      2. The Parliament, the President or any other specified authority can make laws conferring powers and imposing duties on the Centre or its officers and authorities,
      3. When the Lok Sabha is not in session, the President can authorise, expenditure from the state consolidated fund of which sanction is pending by the Parliament
      4. When the Parliament is not in session, the President can promulgate ordinances for the governance of the state.
  • A law made by the Parliament or president or any other specified authority continues to be operative even after the President’s Rule. But it can be repealed or altered or re-enacted by the state legislature.

Scope of Judicial Review

• • 38^th Amendment Act, 1975 – Added that the Satisfaction of President in implementing President’s Rule in a state is final and conclusive and cannot be challenged in any court.
  • 44^th Amendment Act, 1978 – deleted the above provision implying that satisfaction of President is not beyond Judicial Review.
  • Bommai Case (1994) – Following proportions have been laid down by Supreme Court on imposition of President’s Rule under Article 356 –
    • • 1. Proclamation of Presidents rule is subject to judicial review.
        2. Satisfaction of the President must be based on relevant material. But the action of President can be struck down by the Court if it is found malaise.
        3. Burden lies on the centre to prove the relevance of the material to justify the President’s rule.
        4. If the court holds the presidential proclamation to be unconstitutional and invalid, it has power to restore the dismissed state government and revive the state legislative assembly if it was suspended or dissolved.
        5. The state legislative assembly should be dissolved only after the Parliament has approved the presidential proclamation.
        6. Secularism is one of the ‘basic features’ of the Constitution. Hence, a state government pursuing anti-secular politics is liable to action under Article 356.
        7. The question of the state government losing the confidence of the legislative assembly should be decided on the floor of the House and until that is done the ministry should not be unseated.
        8. The power under Article 356 is an exceptional power and should be used only occasionally to meet the requirements of special situations.

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.
  • 38^th Amendment Act, 1975 – Added that the Satisfaction of President in implementing Financial Emergency is final and conclusive and cannot be challenged in any court.
  • 44^th Amendment Act, 1978 – deleted the above provision implying that satisfaction of President is not beyond Judicial Review.

Parliamentary Approval and Duration

• • Proclamation of Financial Emergency must be approved by both the Houses of Parliament within two month from the date of its issue.
  • If the proclamation is issued, when the Lok Sabha has been dissolved or dissolution of Lok Sabha takes place within the period of two month without approving the proclamation, the proclamation survives until 30 days from the first sitting of the Lok Sabha, provided Rajya Sabha has already approved it.
  • Once approved by both the Houses of Parliament, the Financial Emergency continues indefinitely till it is revoked.
  • This implies two things –
    • 1. There is no maximum period prescribed for its operation
      2. Repeated parliamentary approval is not required for its continuation.
  • Resolution approving the proclamation of financial emergency can be passed by either House of Parliament only by simple majority.
  • Proclamation of Financial Emergency can be revoked by President at any time through a respective proclamation which does not require parliamentary approval.

Effects of Financial Emergency

• • During financial emergency, the Centre acquires full control over the states in financial matters.
  • The consequences of the proclamation of a Financial Emergency are –
    1. The executive authority of the Centre extends to –
       1. Directing any state to observe such norms of financial propriety as are specified by it
       2. Directions as the President may deem necessary and adequate for the purpose.
    2. Any such direction may include a provision requiring
       1. Reduction of salaries and allowances of all or any class of persons serving in the state
       2. 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.
    3. The President may issue directions for the reduction of salaries and allowances of
       1. all or any class of persons serving the Union
       2. Judges of the Supreme Court and the high court.

• • No Financial Emergency has been declared so far, though there was a financial crisis in 1991.

Criticism of the Emergency Provisions

• • Some members of the Constituent Assembly criticised the incorporation of emergency provisions in the Constitution on the following grounds –
    • 1. Federal character of the Constitution will be destroyed and the Union will become all powerful.
      2. Powers of the State will entirely be concentrated in the hands of the Union executive.
      3. The President will become a dictator.
      4. Financial autonomy of the state will be nullified.
      5. Fundamental rights will become meaningless and, as a result, the democratic foundations of the Constitution will be destroyed.
  • H N Kunzru opined that ‘the emergency financial provisions pose a serious threat to the financial autonomy of the States.’

So, this was all about the Emergency Provisions of India and their application and Importance.

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