Emergency provisions in India

Emergency provisions are adopted in India from Weimar Constitution of Germany which existed from 1919-1933 between the two World Wars.

In Indian constitution there are three kind of emergency provisions:

(1)   Article 352 – National Emergency

(2)   Article 356 – President’s Rule

(3)   Article 360 – Financial Emergency

National Emergency (Article 352)

If the President is satisfied that there exist a grave emergency whether due to war or external aggression or armed rebellion, then President can proclaim emergency to that effect. He can also proclaim even before the actual threat occurs.

Such a proclamation can be made for the whole of India or any part thereof. The President can issue different types of proclamations on different grounds. The President is not prevented from proclamation of emergency when another type of Emergency is already in operation.

The President can proclaim National Emergency only on the written advice of the Cabinet.

The President has power to revoke or modify the National Emergency. All such proclamations of Emergency shall have to be sent to Parliament for approval and it ceases to be operational if not approved within 1 month of the proclamation of Emergency. Such approval by Parliament is to be on the basis of Special Majority of not less than 2/3^rd of members present and voting and the majority of the House.

Emergency shall be imposed for not more than 6 months from the date of approval. At the expiry of 6 months it ceases unless approved by Parliament again. If Lok Sabha is dissolved then proclamation of Emergency, it must be approved by the Rajya Sabha within 1 month and reconstituted Lok Sabha must approve within 1 month of its reconstitution.

Lok Sabha enjoys powers to disapprove continuation of Emergency at any stage. In such case if not less than 1/10^th of members (55) of Lok Sabha give in writing to the Speaker if Lok Sabha is in session or to the President if Lok Sabha is not in the session, expressing intention to more resolution for the disapproval of National Emergency. Then special session of Lok Sabha shall be convened within 14 days. If Lok Sabha disapproves continuance of National Emergency then President shall have to revoke National Emergency.

Amendments made to the Provision of National Emergency

The provision of National Emergency under Article 352 has been amended various times as pr the need of the need of the hour. The 44^th Amendment act was landmark with respect to National Emergency as it altered various provisions in the Article 352 so as to create cushion against its misuse by the executive.

38^th Amendment Act, 1975

It conferred the power on the President to issue different proclamations on different grounds. Example- External Aggression, War or Internal disturbance or eminent danger of war external aggression or internal disturbances whether or not a proclamation issued by the President is in operation.

42^nd Amendment Act, 1976

It empowered the President to proclaim National Emergency with respect to whole of India or the part thereof. Under original constitution, President could do so for the whole of India only.

44^th Amendment Act, 1978

This amendment act was enacted to incorporate safeguards against the misuse of emergency powers by the executive.

1. Under original constitution President could proclaim National Emergency on the basis of war, external aggression or internal disturbance. Since, the term internal disturbance is a vague expression which could be misused. It was replaced by the term armed rebellion ((Organized armed uprising against civilian government) which is narrower on scope.
2. Under original constitution the President can proclaim Emergency on the oral advice of the Prime Minister. Now the advice must be in written form by the entire Cabinet.
3. Under the original constitution the President had power to proclaim or revoke National Emergency. Now, he has the power even to vary the National Emergency.
4. Originally, the Parliament was to give its approval by simple majority. Now, it has to be Special Majority as under Article 368.
5. In the original constitution the approval given by the Parliament was for an indefinite period till the emergency is revoked by the President. There was not parliamentary control over the executive once the Emergency is approved by the Parliament. Now, the Parliamentary approval has to be obtained once in every 6 month. In other words, it denotes continuous Parliamentary control.
6. Before 1978, there was the provision only for the approval of proclaimed of National Emergency by the Parliament. But after the 44^th Amendment, Lok Sabha can disapprove continuance of National Emergency.
7. Previously when Emergency was proclaimed (Article 358) under any ground Fundamental Right under Article 19 used to get automatically suspended. But after 44^th Amendment Act, suspension of Fundamental Rights under Article 19 can happen only on the case of War or external aggression not in the case of Armed Rebellion.
8. President under Article 359 could suspend any or all Fundamental Rights by a separate proclamation. But at present the enforceability Article 359 of FRs under Articles 20 and 21 cannot be suspended even under National Emergency.

Effect of National Emergency

On Executive                      

As soon as National Emergency is proclaimed distribution of power between Centre and States gets automatically suspended. Hence, Union Executive is free to give directions on all the subjects and such directions are binding on the States.

State Government is not dismissed when National Emergency is proclaimed but brought under the effective control of the Union.

On Legislature

Under Article 250 when National Emergency is in force, Parliament assumes Concurrent Legislative Jurisdiction over all the subjects under the State List.

State Legislative Assembly is not suspended or dissolved. It continues to enjoy the jurisdiction over state subjects but Parliament also assumes legislative powers on such subjects.

Judicial Review

The satisfaction of President under Article 352 can be challenged in a court of law on the ground of mala fide.

Emergency in States on President’s Rule (Article 356)

Under Article 356 if the President is satisfied on the report of Governor or otherwise that there exists a grave situation in a State where the administration of the State cannot be carried out in accordance with provisions of Constitution, than he can:

(a)   Takeover the administration of the State himself and

(b)   Notify that the Parliament shall exercise jurisdiction over State subject for the State concerned, the President cannot take over the powers conferred on the High Courts of State concerned.

Every proclamation made under Article 356 ceases to be in operation unless approved by both Houses of the Parliament within 2 months after its proclamation.

Once, approved by Parliament, Emergency shall be enforced for not more than 6 months from the date of proclamation by the President.

Such an approval by the Parliament needs only simple Majority. If Lok Sabha stands dissolved then Rajya Sabha shall have to approve it within 2 months and Lok Sabha shall approve it within 1 month of its reconstitution. However, Parliament can extend it for a further period of 6 months only. If it has to approve beyond 1 year then two conditions shall have to be satisfied.

• There shall be National Emergency in force either in whole of the State concerned on in part thereof.
• Election Commission is satisfied that under prevailing conditions general election to State Legislative Assembly of the State concerned cannot be held.

But under no circumstances, State Emergency cannot be extended beyond 3 years. To extend it further, constitutional amendment is required.

Effects of State Emergency (President’s Rule)

On Executive

State government is dismissed, Centre takes over the powers conferred in government and executive powers are exercised by the Union.

On Legislature

State Legislative Assembly is either suspended or dissolved. The State legislature does not function to do legislative works. Its legislative functions can be assumed by the Parliament.

On Financial Relations

No effect on financial relations takes place in the case of emergency under Article 356.

Amendment Acts and Article 356

Changes Introduced by Amendment Acts are as:

42^nd Amendment Act:

It provided that approval given by Parliament shall continue to be valid for not more than 1 year previously it was 6 months.

44^th Amendment Act

(i)        It restored the period of approval given by Parliament to 6 months.

(ii)    Under original constitution, Emergency on state can be introduced by Parliament for 3 years each time for not more than 6 months. But 44^th Amendment Act has divided this 3 year period into 1 year of ordinary and 2 years of Extra ordinary periods for which special conditions have to be satisfied.

Judicial Review

S.R. Bommai and others Vs Union of India, 1994 Case

In this famous case the Supreme Court laid down that the powers vested in the President under Article 368 are not absolute but are open to judicial review. However the power of Judicial Review related to Article 356 shall be applicable only on 3 grounds:

(1)    Whether the proclamation was issued on the basis of any material.

(2)    Whether the material was relevant.

(3)    Whether the exercise of power by the President was mala fide.

Under Article 356, President is justified to make use of powers a only when there is a Constitutional Breakdown in State and not on the basis of the breakdown of administrative machinery.

 If the State Government fails to carry out the administrative directions given by the Centre, or when State Government fails to fulfill its obligations given in the Preamble to the Constitution, this amount to the breakdown of the constitution machinery.

The Court held that it holds the power under Article 356 and under Judicial Review to provide suitable remedy if there is mala fide intention from the part of President. Court also held that powers held under Article 356 should be sparingly used by the constitutional balance between the centre and the States.

Financial Emergency

Under Article 360 the President enjoys the power to proclaim the financial Emergency. If he is satisfied that a situation has arisen that financial stability and credit of India or any part thereof is threatened he may proclaim emergency to that effect. All such proclamations 

(a)   Can be varied or revoked by the President.

(b)   Financial Emergency must be approved by the Parliament within 2 months after its proclamation. Once it is approved, it will remain till the President revokes it.

Effects of Financial Emergency

(1)     President is empowered to suspend the distribution of financial resources with States.

(2)     President can issue directions to States to follow canons of financial propriety.

(3)     He can direct State Government to decrease salaries allowances of Civil Servants and other Constitutional dignitaries.

(4)     President can direct the government to resume all the financial and Money Bills passed by legislature for his consideration.

The President can issue directions for the reduction of salaries and allowances of Judges of the Supreme Court and the High Courts.