Emergency Provisions

Types of Emergency

The President is empowered to promulgate three kinds of emergencies which are as follows:
(i) On the ground of threat to the security of India or of any part of the territory by war or an external aggression or an armed rebellion (Article 352) known as National Emergency.
(ii) On the ground of the failure of the constitutional machinery in a state. (Aritcle 356) known as the President's Rule or State Emergency.
(iii) On the ground of threat to the financial stability or credit of India or any part of the territory (Article 360), known as Financial Emergency.

National Emergency (Article 352)

▸ If the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened, whether by a war or an external aggression or an armed rebellion, he/she may proclaim a state of emergency for the whole of India or part of the territory thereof.
▸ A proclamation of emergency can be made by the President, even before the actual occurrence of war or external aggression or armed rebellion, if he/she is satisfied that there is an imminent danger.
▸ When a national emergency is declared on the ground of 'war' or 'external aggression' it is known as External Emergency. On the other hand, when it is declared on the ground of 'armed rebellion'. it is known as Internal Emergency.
▸ Such a Proclamation of Emergency can be varied or revoked by the President subsequently. The President can issue a proclamation of emergency or vary it, only when the decision of the Union Cabinet is conveyed to him/her in writing.
▸ The proclamation of emergency made by the President under Article 352, is subjected to the judicial review and its constitutionality can be questioned in a Court of Law on grounds of malafide.
▸ Every proclamation made under Article 352 except a proclamation revoking the previous proclamation should be laid before both the Houses of the Parliament and must be approved by them within 1 month by a majority of the total membership of that house and by a majority of not less than two-thirds of the members of that house present and voting.
▸ If the Parliament fails to approve such a proclamation, it ceases to be in operation on the expiry of 1 month after the proclamation is made.
▸ If the Parliament approves such a proclamation, it will be in force, unless revoked earlier, for 6 months from the date on which it was approved by the Parliament.
▸ It can be approved by the Parliament any number of times, but not beyond 6 months at a time. If the Lok Sabha disapproves a proclamation of emergency or its continuance, the President shall revoke the proclamation of emergency.
▸ If not less than one-tenth of the members of the Lok Sabha issue a notice with the intention of disapproving a proclamation of emergency to the President if the Lok Sabha is not in session, or to the Speaker if the Lok Sabha is in a session, a special sitting of the Lok Sabha shall be held within 10 days for the purpose of considering such resolution.
▸ National Emergency has been announced three times so far. First time in October 1962 on account of Chinese aggression in the NEFA, second time in December 1971 in the wake of attack by Pakistan and third time in June 1975.

Effects of the Proclamation of Emergency

On Union-State Relations
▸ The effect of a proclamation of emergency is the emergence of a full-fledged unitary government. Its effects can be studied under the following heads:
Executive Relations
— While a proclamation of emergency is in operation, the President is empowered to issue directions to the states as to the manner in which their executive power is to be exercised.
— In normal times, the President has the power to give directions to the states only on certain matters like maintenance of communication, protection of railways etc.
— But during the operation of emergency, he/she can issue directions to the states on all the matters. The administration, therefore, will be converted into a unitary system.
Legislative Relations
— While a proclamation of emergency is in operation, the Parliament can enact laws even on the subjects enumerated under the State List.
— The legislatures of the state are not suspended, but the distribution of legislative powers between the union and the states is suspended for the duration of the emergency.
— The Parliament is also empowered to extend, by law, the life of the Lok Sabha beyond the 5 years term, for a period not exceeding 1 year at a time, but in any case not exceeding 6 months, after the proclamation of emergency has ceased to be in operation.
— The life of the State Legislative Assemblies can also be extended, by law, by the Parliament in a similar manner.
Financial Relations
— The President may, when a proclamation of emergency is in operation, modify the provisions of the Constitution relating to the distribution of the financial resources between the centre and the states.
— Such an order of the President shall not have effect beyond the financial year in which the proclamation of emergency ceases to be in operation.
— The order of the President is the subject to the approval of the Parliament.
On Fundamental Rights
▸ Article 358 states that as soon as a proclamation of emergency is issued on the grounds of a war or an external aggression (but not on the ground of an armed rebellion), the 6 Fundamental Rights enumerated under Article 19 are automatically suspended.
▸ The state is free from the limitations imposed by Article 19. The citizens cannot move the courts for the enforcement of the Fundamental Rights enumerated under Article 19.
▸ The President, under Article 359, may by order suspend the operation of any of the other Fundamental Rights except Articles 20 and 21 when an emergency declared on the grounds of a war or an external aggression or in armed rebellion is in force.

44th Constitutional Amendment Act and Emergency Provisions

▸ Prior to the 44th Constitutional Amendment Act, 1978, a proclamation of emergency could be issued on the grounds of war or external aggression or internal disturbances. The expression 'internal disturbances' is a vague term and could be misused by the executive. The act, therefore, has introduced the expression armed rebellion replacing internal disturbances.
▸ Earlier, the President could proclaim an emergency on the oral advice tendered by the Prime Minister, as it happened in 1975. Now, the approval of the whole cabinet is essential and it must be communicated to the President in writing.
▸ Before the act became effective in 1978, a proclamation issued by the President was to be approved by the Parliament within 2 months after the proclamation is made. Now, it must be approved within 1 month.
▸ Once approved earlier, it could remain in force for an indefinite period. But by the act, its period is fixed for 6 months only. The approval earlier, was to be on the basis of a simple majority, but at present, it needs a special majority.
▸ There was no parliamentary control, once a proclamation of emergency was approved by it. But, now a special sitting of the Lok Sabha can be held for the purpose of considering its disapproval. If one-tenth of the members of the Lok Sabha asks the Speaker to consider a proposal for discontinuation of the emergency, then the Speaker or the President may call a special sitting for considering such resolution. And if such resolution is passed by a simple majority, then the emergency remains withdrawn.
▸ Under Article 358, before the 44th Amendment Act came into force, the Fundamental Rights enumerated under Article 19 were automatically suspended, whether the National Emergency proclaimed was on the basis of a war or an external aggression or internal disturbances.
▸ But now, under Article 358, Article 19 is automatically suspended only when an emergency is declared on the basis of a war or a external aggression and not on the basis of an armed rebellion, i.e. Article 19 cannot be suspended during an emergency proclaimed on the basis of an armed rebellion.

President's Rule or State Emergency (Article 356)

▸ The President's Rule can be proclaimed under Articles 355, 356 and 365. Article 355 says it shall be the duty of the union to protect every state against external aggression and enternal disturbance and to ensure that the government of every state is carried on in accordance with the provision of this Constitution.
▸ Article 356 says that if the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, he/she may issue a proclamation.
▸ Article 365 administration says that whenever a state fails to comply with or give effect to 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.
By that proclamation, the President
— may assume to him/herself all or any of the powers vested in the Governor.
— may declare that the powers of the Legislature of the State shall be exercisable to the Parliament.
▸ The President cannot, however, assume to himself, any of the power vested in the High Court or suspend the operation of any provisions of the Constitution relating to the High Court.
▸ The Parliament can confer on the President, the power to make laws for the state. The Parliament may also authorise the President to delegate such power to any other authority as specified by him/herself.
▸ If the Lok Sabha is not in session, the President may authorise expenditure from the Consolidated Fund of the State, pending sanction of such expenditure by the Parliament.
▸ Under Article 356, the President acts on the report of the Governor or otherwise. i.e. the President can act even without the Governor's report. A proclamation issued under Article 356 must be laid before each House of the Parliament.
▸ It will cease to operate at the expiry of 2 months, unless before that period it has been approved by both the Houses of the Parliament.
▸ A proclamation so approved shall, unless revoked, be in operation for 6 months from the date of the issue of the proclamation. It can be approved by the Parliament for a further period of 6 months.
▸ A proclamation issued under Article 356, can, therefore, be in force normally for a maximum period of 1 year stretch. However, it can be extended by the Parliament not beyond 3 years from the date of issue of the proclamation, if
— A Proclamation of Emergency under Article 352 is in operation in the whole of India or in the whole or any part of the state at the time of passing of such resolution.
— The Election Commission certifies that the continuance in force of the proclamation beyond the 1 year period is necessary on account of the difficulties in holding the general elections to the Legislative Assembly of the concerned state.

Effects of Imposition of the President's Rule

▸ During State Emergency, the President of India assumes all executive power of the state to him/herself. The state administration is run directly by him/her or through a person designated for the purpose by him/her. It is the Governor of State who runs the state administration on behalf of the President.
▸ During the President's Rule, the State Assembly is either dissolved or kept under suspension. The State Assembly is kept under suspended animation if there is hope that a new Council of Ministers can be formed within a short time. During this period, the MLAs do not lose their membership of the Assembly, nor there is election held to the Assembly.
▸ The Parliament makes laws an all items included in the State List. It also passes the state budget. However, if the Lok Sabha is not in Session, the President may authorise any expenditure from the Consolidated Fund of State.
▸ During the State Emergency, the High Court of the state, as before, functions independently without any of its powers being curtailed. The President has also power to proclaim ordinances in the state.
Difference Between Articles 352 and 356
Article 352 restricts central intervention to a situation of war, external aggression or armed rebellion. Article 356 applies to situation of failure of Constitutional machinery in a State. Under Article 352 the State machinery is not suspended in the state. The State Legislature and Executive continue to function. The only effect is that the centre gets concurrent power of legislation and administration in the State matters. While Article 352 affects Fundamental Rights Article 356 does not. Under Article 352 the relationship of all the States with the Centre undergoes a change but under Article 356 the relationship of only one State (where the President's Rule is imposed) with the Centre is affected. The proclamation under Article 356 is to be approved by the Parliament first within two months, and thereafter every 6 months, and the maximum period for which it can remain in force is 3 years. Whereas a proclamation under Article 352 has to be approved initially within a months with there being no upper limit provided.
▸ During State Emergency, the Union Government assumes absolute control over state administration except the judiciary. As the state administration is mostly run in the name of the President, the State Emergency is known as President's rule.

Sarkaria Commission

▸ Sarkaria Commission recommended that
— The President's rule can be invoked only in the event of political crisis, internal sub-version, physical breakdown and non-compliance with constitutional directives of the union.
— Approval of the Parliament is to be secured before imposing President's rule.
— Before invoking Article 356, a warning in specific terms should be given to the erring state.
— All alternatives should be exhausted to contain the situation and all attempts to resolve the crisis should be made.
— The Governor's report should be the speaking document.

Punchhi Commission

▸ In the report of Madan Mohan Punchhi, there should be an Amendment in Articles 355 and 356 to enable the centre to bring specific trouble-torn areas under its rule for a limited period.
▸ The commission has proposed Localising Emergency provisions under Articles 355 and 356, contending that localised areas :
— either a district or
— parts of a district
▸ These areas be brought under Governor's Rule instead of the whole state. Such an Emergency provision should however not be a duration of more than 3 months.

National Commission to Review the Working of the Constitution

▸ National Commission to Review the working of the Constitution recommended that
— Article 356 should be used spari ngly and only as a remedy of the last resort and after exhausting actions under other Articles like 256, 257 and 355 etc.
— In case of political breakdown, before issuing a proclamation under Article 356, the concerned state should be given an opportunity to explain its position and redress the situation, unless the situation is such that following the above course would not be in the interest of security of the state or defence of the country.
— The Governor's report should be speaking document containing a precise and clear statement of all material facts and grounds.
Article 356 and Judicial Review
In SR Bommai Case (1994), the Supreme Court held that the power of the President in issuing a Proclamation of Emergency in a state is subject to judicial review to the extent of
▸ examining, whether it was issued on the basis of any relevant material at all or
▸ whether the material was relevant or
▸ whether the proclamation was a malafied exercise of power. Another important principle laid down by the court is that the power of dissolving a State Legislative Assembly can be exercised by the President only after the proclamation is approved by both the Houses of the Parliament.

Financial Emergency (Article 360)

▸ Article 360 provides that if the President is satisfied that a situation has arisen whereby the financial stability of India or the credit of India or of any part of India is threatened, he/she may make a declaration to that effect. Under such situation, the executive and legislative powers will go to the center. This article has never been invoked till date.
▸ The proclamation of Financial Emergency shall ordinarily remain in force for a period of 2 months. However, it can continue to stay beyond 2 months if before the expiry of the 2-months period, the proclamation has been approved by both the Houses of the Parliament.
▸ If, at the time of proclamation of Financial Emergency, the Lok Sabha stands dissolved, the proclamation needs to be approved by the Lok Sabha within 30 days of its meeting after its reconstitution, provided in the meantime the Rajya Sabha has approved it.
▸ The National Emergency and Financial Emergency have no time limit. They can continue to be extended without any limit. But the State emergency has a time limit. It cannot go beyond 3 years.

Effects of Financial Emergency

▸ The Executive Authority of the centre extends to directions as the President may deem necessary and adequate for the purpose.
▸ It may include a provision requiring the reduction of salaries and allowances of public servant the reservation of all Money Bills for the consideration of the President.
▸ The President may issue direction for the reduction of salaries and allowance of union servants or the Judge of Supreme Court and High Court.
▸ Thus, during Financial Emergency, the centre acquires full control over the states in financial matters.
▸ During the operation of Financial Emergency the executive authority of the union extends to the giving of directions to any state to observe such canons of financial propriety as may be specified on the directions.