Emergency Provisions
General Points
- Contained in Part XVIII of the Constitution (Articles 352-360).
- Enable the Central government to meet abnormal situations effectively.
- Safeguard sovereignty, unity, integrity, security, democratic political system, and the Constitution.
- Transformation from federal to unitary structure without formal amendment.
- Dr. Ambedkar's observation: The Constitution can be both unitary and federal according to the requirements of the time.
Three Types of Emergencies:
National Emergency (Article 352):
- Due to war, external aggression, or armed rebellion.
- Referred to as 'proclamation of emergency'.
State Emergency/President's Rule (Article 356):
- Due to failure of constitutional machinery in states.
- Also known as 'State Emergency' or 'Constitutional Emergency'.
Financial Emergency (Article 360):
- Due to threat to the financial stability or credit of India.
National Emergency
Grounds of Declaration
- President can declare when the security of India (or a part) is threatened by war, external aggression, or armed rebellion.
- Can be declared even before actual occurrence if imminent danger exists.
- 'Armed rebellion' replaced 'internal disturbance' via the 44th Amendment Act of 1978.
- President requires a written recommendation from the cabinet to proclaim a National Emergency.
- The 38th Amendment Act of 1975 made the declaration immune to judicial review.
- Immunity to judicial review was deleted by the 44th Amendment Act of 1978.
- Supreme Court held in Minerva Mills case (1980): proclamation can be challenged if based on malafide, extraneous/irrelevant facts, or is absurd/perverse.
Parliamentary Approval and Duration
Must be approved by both Houses of Parliament within one month of issue.
Originally two months, reduced by the 44th Amendment Act of 1978.
If Lok Sabha is dissolved, proclamation survives until 30 days from first sitting after reconstitution, provided Rajya Sabha approves.
Emergency continues for six months if approved by Parliament; extendable to an indefinite period with approval every six months (44th Amendment Act).
Special majority required for approval:
- Majority of total membership of each house.
- Majority of not less than two-thirds of members present and voting.
Revocation of Proclamation
- President can revoke by subsequent proclamation (no parliamentary approval needed).
- President must revoke if Lok Sabha passes a resolution disapproving continuation (44th Amendment Act).
- If 1/10th of Lok Sabha members give written notice to Speaker (or President if not in session), a special sitting must be held within 14 days to consider disapproval resolution.
- Difference between disapproval and approval resolutions:
- Disapproval: Lok Sabha only, simple majority.
- Approval: Both Houses, special majority.
Effects of National Emergency
Drastic and wide-ranging effects, grouped into three categories:
Effect on Centre-State Relations:
- Executive: Centre can direct any state on how to exercise executive power (normally limited).
- Legislative: Parliament can make laws on any subject in State List; state legislature's power becomes subject to Parliament (Constitution becomes unitary). Laws become inoperative six months after emergency ceases. The President can issue ordinances on state subjects if Parliament is not in session.
- Financial: President can modify the constitutional distribution of revenues between Centre and states; order must be laid before both Houses.
Effect on the Life of the Lok Sabha and State Assembly:
- Lok Sabha's life can be extended by law of Parliament for one year at a time (any length of time), subject to a maximum period of six months after the emergency ceases.
- The Parliament may extend the normal tenure of a state legislative assembly.
Effect on Fundamental Rights:
- Articles 358 and 359 describe the effect.
- Article 358: Suspension of Article 19:
- The six Fundamental Rights under Article 19 are automatically suspended.
- The state can make any law or take any executive action abridging or taking away the six Fundamental Rights guaranteed by Article 19.
- No challenge on the ground of inconsistency with Article 19.
- Article 19 automatically revives when the National Emergency ceases.
- The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways.
- Article 19 stands suspended only when the National Emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion.
- Only those laws which are related with the Emergency are protected from being challenged and not other laws.
- Article 359: Suspension of other Fundamental Rights:
- President can suspend the right to move any court for the enforcement of Fundamental Rights during an Emergency.
- The said rights are theoretically alive but the right to seek remedy is suspended.
- Relates only to those Fundamental Rights that are specified in the Presidential Order.
- The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways.
Distinction between Article 358 & 359
| Feature | Article 358 | Article 359 |
|---|---|---|
| Scope | Confined to Fundamental Rights under Article 19 only | Extends to all Fundamental Rights whose enforcement is suspended by President |
| Suspension | Automatically suspends Article 19 upon Emergency declaration | President empowers suspension of enforcement of specified Fundamental Rights |
| Emergency Type | External Emergency only | Both External and Internal Emergency |
| Duration | Entire duration of Emergency | Period specified by President (entire/shorter duration) |
| Territorial Extent | Entire Country | Entire/Part of the country |
| Article 20 & 21 | - | Does not empower the suspension of the enforcement of Articles 20 and 21. |
| State's Power | Can make laws/executive actions inconsistent with Article 19 | Enables laws/actions inconsistent with rights whose enforcement is suspended |
Declarations Made So Far
- Proclaimed three times: 1962, 1971, and 1975.
- 1962: Chinese aggression.
- 1971: Attack by Pakistan.
- 1975: "Internal disturbance."
- The 44th Amendment Act was enacted in 1978 to introduce a number of safeguards against the misuse of Emergency provisions.
President's Rule
Grounds of Imposition
- Article 355 imposes duty on the Centre to protect states.
- Article 356: Failure of constitutional machinery in a state.
- Also known as 'State Emergency' or 'Constitutional Emergency'.
- Two grounds: Article 356 itself and Article 365:
- Article 356: President satisfied that the government of a state cannot be carried on in accordance with the provisions of the Constitution.
- Article 365: State fails to comply with Centre's directions.
Parliamentary Approval and Duration
- Must be approved by both Houses of Parliament within two months of issue.
- If Lok Sabha is dissolved, proclamation survives until 30 days from first sitting after reconstitution, provided Rajya Sabha approves.
- Continues for six months if approved.
- Can be extended to a maximum of three years with approval every six months.
- Simple majority for approval.
- 44th Amendment Act (1978): President's Rule can be extended beyond one year only if:
- National Emergency is in operation in the whole or part of the state.
- Election Commission certifies difficulties in holding elections.
Consequences of President's Rule
- President acquires extraordinary powers:
- Can take up state government functions.
- Can declare that the state legislature's powers are to be exercised by Parliament.
- Can take other necessary steps, including suspending constitutional provisions relating to any body or authority in the state.
- President dismisses state council of ministers.
- State governor, on behalf of President, carries on administration.
- The President either suspends or dissolves the state legislative assembly.
- Parliament passes state legislative bills and state budget.
- Parliament can delegate power to make laws for the state to the President or any authority specified by him.
Comparing National Emergency and President's Rule
| Feature | National Emergency (Article 352) | President's Rule (Article 356) |
|---|---|---|
| Grounds | Threat to security of India/part thereof by war, external aggression, armed rebellion | Government cannot be carried out per Constitution due to reasons unrelated to war/aggression |
| State Functioning | State executive and legislature continue to function, Centre gets concurrent powers | State executive dismissed, legislature suspended/dissolved; executive/legislative powers assumed by the Centre. |
| Law-Making Power | Parliament can make laws on State List subjects (cannot delegate) | Parliament can delegate law-making power to President/other authority |
| Maximum Period | No maximum period; indefinite with approval every six months | Three years; restoration of constitutional machinery in the state |
| Centre-State Relationship Modification | Relationship of Centre with all states modified | Relationship of Centre with the state under emergency is modified |
| Approval Majority | Special majority | Simple majority |
| Effect on Rights | Affects fundamental rights | No effect on fundamental rights |
| Revocation | Lok Sabha can pass a resolution for its revocation | Can be revoked by the President only |
Use of Article 356
- Imposed more than 125 times since 1950.
- Often imposed arbitrarily for political reasons.
- Bommai case (1994): Supreme Court upheld the validity of President's Rule where secularism is threatened.
Scope of Judicial Review
- The 38th Amendment Act of 1975 made the satisfaction of the President in invoking Article 356 final and conclusive which could not be challenged in any court on any ground.
- This provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the President is not beyond judicial review.
- Presidential proclamation imposing President's Rule is subject to judicial review.
Cases of Proper and Improper Use
- Sarkaria Commission report (1988)
- Proper use: hung assembly, ministry resignation, constitutional direction disregarded.
- Improper use: ministry resignation without probing alternatives, governor's assessment without assembly vote.
Financial Emergency
Grounds of Declaration
- Article 360: President can declare if financial stability or credit of India/territory is threatened.
Parliamentary Approval and Duration
- Approved by both Houses of Parliament within two months.
- If Lok Sabha is dissolved, proclamation survives until 30 days from first sitting after reconstitution, provided Rajya Sabha approves.
- Continues indefinitely until revoked.
- Simple majority for approval.
Effects of Financial Emergency
- Centre can give directions to states regarding financial propriety.
- May include reduction of salaries/allowances.
- Reservation of money bills for President's consideration.
- Reduction of salaries/allowances of Union employees and judges of Supreme Court/High Courts.
Criticism of the Emergency Provisions
- Federal character of the Constitution will be destroyed.
- Powers will be concentrated in Union executive.
- President will become a dictator.
- Financial autonomy of states nullified.
- Fundamental rights meaningless.