EMERGENCY PROVISIONS
Articles 352 to 360 of Part XVIII of our Constitution deals with the Emergency Provisions.
These provisions safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution.
INTRODUCTION
Dr Bheemrao Ramji Ambedkar once asserted that Indian Federal System is quite unique and unlike any other federation in the world in times of emergency, it can turn itself into an unitary state.
The Drafting Committee was aware of the fact that in future such situations might arise, in which the normal scheme of division of powers among various organs might not work. To counter such exigencies, Emergency Provisions were added. There are three types of emergencies envisaged in our Constitution
1. National Emergency, proclaimed on the ground of war, external aggression or armed rebellion (Article 352).
2. Emergency on the ground of the failure of Constitutional Machinery or President's rule or State Emergency (Article 356).
3. Financial Emergency (Article 360).
1. NATIONAL EMERGENCY (ARTICLE 352)
Article 352 declares that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by proclamation, make a declaration to that effect in respect of the whole of India or only a part of it.
A proclamation of emergency declaring that the security of India or any part of the territory thereof, is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.
Proclamation may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger. Such a proclamation of emergency can be revoked or varied by the President. Also, the proclamation or variation ofemergency can be done only after Union Cabinet decides so and this decision of the Cabinet should be communicated to the President in writing.
The proclamation under Article 352, is subject to the judicial review and its constitutionality can be questioned in court of law.
When a national emergency is declared on the ground of 'war' or 'external aggression', it is known as 'External Emergency' and when it is declared on the ground of 'armed rebellion', it is known as 'internal emergency'.
PARLIAMENTARY APPROVAL AND DURATION
Every proclamation of emergency made under Article 352, except a proclamation for revoking the previous proclamation has to be laid before both the Houses of the Parliament and it must be approved by Parliament, within one month by special majority (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). In case such a proclamation is not approved by the Parliament within a month then emergency cease to be in operation.
National Emergency can remain in operation for an indefinite period, if Parliament approves its continuance in every 6 months. If one-tenth members of the Lower House (Lok Sabha) issue a notice with the intention of disapproving the emergency to the Speaker (or to the President if House is not in session) a special sitting of the House should be held within 14 days for considering any such resolution.
National Emergency has been announced three times so far. It was announced first time in October 1962 on account of Chinese aggression in the NEFA (North-East Frontier Agency-now Arunachal Pradesh)and lasted till 1968.
The second proclamation of National Emergency was made in December 1971 in the wake of attack by Pakistan and third-one in June 1975. The first-two emergencies were on the ground of external aggression and the third-one was due to internal disturbance.
44TH AMENDMENT AND EMERGENCY
Before the 44th Amendment of 1978 to the Constitution of India, the following were the grounds under which the President could proclaim Emergency war External Aggression Internal Disturbance
44th Amendment replaced the term internal disturbance with armed rebellion. After the 44th Amendment, the following are the grounds under which a National Emergency can be proclaimed by the President War External Aggression Armed Rebellion.
Before 44th Amendment the President could proclaim an emergency on the oral advice given by the Prime Minister as happened in 1975. Now,it can be done only, if the whole Cabinet in writing communicates this to the President. Earlier, the proclamation of emergency had to be approved within two months of its declaration, now it has been reduced to one month.Also, this amendment has made parliamentary control over emergency stronger by introducing the concept of special sitting of the House to consider resolution for disapproval of the emergency, if 1/10th members of the Lok Sabha decide to bring such a resolution to the House.
44th Amendment also made some changes in Articles 358 and 359 to reduce the impact of emergencies on Fundamental Rights enjoyed by the people. Earlier as soon as the emergency was proclaimed the Fundamental Rights enjoyed under Article 19 were automatically suspended. Now, Article 19 cannot be suspended during an emergency proclaimed on the basis of an Armed Rebellion. Also, after this amendment,during an emergency, Articles 20 and 21 cannot be suspended. Prior to the amendment, any or all ofythe Fundamental Rights could be suspended when an emergency was in force.
EFFECTS OF PROCLAMATION
OF EMERGENCY (ARTICLE 353)
The Constitution empowers the union to extend
its executive power during emergency to give
directions to the State. In normal times,
President is empowered to give direction to the
state, but this direction is limited to certain
matters like protection of railways, maintenance of means of communication etc. But during emergency, it is extended to all administrative matters.
In legislative matters, the Parliament becomes
empowered to legislate on the matters enumerated in State List (Article 250). Though,
during emergency the State Legislature is not
suspended but, the normal distribution of powers between Centre and State takes a back seat during such time. During emergency, the life of Lok Sabha and State Legislative Assemblies can also be extended. But, this extension has to be 1 year at a time but should not exceed beyond a period of 6 months, when emergency has ceased to be in operation.
In financial matters also, emergency has some effect. During emergency, President may modify the provisions of the Constitution relating to the distribution of the financial resources between the Centre and the States.
Any such order of the President should be approved by the Parliament within a period of two months.
SUSPENSION OF
FUNDAMENTAL RIGHTS
Article 358 states that when emergency is
proclaimed on the ground of a war or an external aggression, the six Fundamental Rights
enumerated under Article 19 are automatically
suspended. That means State is freed from the
limitation imposed by Article 19. Even, during
this time the citizens can not move to court for
enforcement of their Fundamental Rights. As per Article 359, President can suspend any other Fundamental Right (except Article 20 and 21),
when an emergency is declared on the grounds of war or an external aggression.
2. PRESIDENT'S RULE OR STATE
EMERGENCY (ARTICLE 355, 356, 365)
The President's rule can be proclaimed under following conditions
Article 355 puts the duty of protecting every state against external aggression and internal disturbance on the
union. The union also has to ensure that the Government of every State is carried on in accordance with the Constitution. President's rule is actually rule by the Union Government.
Article 356 of our Constitution makes the provisions to deal in case of failure of constitutional machinery in the state. It says that if the President on receipt of report
from the Governor of the 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, in this case he or she may issue proclamation for emergency.
To ensure that the Government of a State is carried on in accordance with the Constitution, the first-step then would be for the union to issue executive directions to the concerned state Government.
Article 356 then provides that, if any state fails to comply with or give effect to any direction given by the Union, then that situation can be considered as a breakdown of the constitutional machinery. This would then justify the implementation of President's Rule under Article 356 in the given state. The above should ideally be the normal steps followed by the Union Government before implementing President's Rule.
Article 365 says that whenever a state fails to comply with or to give effect to any direction from the centre, it will be lawful for the President to hold that a situation has arisen, in which Government of the State cannot be carried on in accordance with the provisions of the constitution.
STATE EMERGENCY DURATION AND APPROVAL
The Article 356 should be read with Articles 355, 256, 257,353 and 365. Article 356 is not the only article to take care of a situation of failure of constitutional machinery in a state.
In case of 'external aggression' or 'internal disturbance' the Union Government can also act under Article 355 i.e. without imposing President's rule.
When, State Emergency is in operation then Parliament can confer powers on the President, to make laws for the state. The Parliament may also authorise the President to delegate such power to any other authority.
Any Proclamation of Emergency under Article 356 must be laid before each House of Parliament within two months of its proclamation. If it is approved it remains in operation for six months from the date of the issue of the proclamation. It can further be approved by the Parliament for another period of six months.
If it has to be continued beyond one year then two conditions should be fulfilled
1. 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.
2. The Election Commission certifies that the continuance in force of the proclamation beyond the one year period is necessary on account of the difficulties in holding the general elections to the Legislative Assembly of the concerned state. It should be noted that in total President's rule cannot extend beyond 3 years in any case.
EFFECTS OF PRESIDENT'S RULE
The President may, by proclamation, assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the state other than the Legislature of the State. The powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. Such incidental and consequential provisions appear to the President to be necessary or desirable for giving effect to the objects of the proclamation. It includes provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the state.
ARTICLE 356 AND JUDICIAL REVIEW
The 38th Amendment Act of 1975 made President's satisfaction a final ground for imposition of President's rule and restrict the courts from Judicial Review. But, this provision was deleted by the 44th Amendment Act. In SR Bornmai Case (1994), the Supreme Court held that use of Article 356 is subject to judicial review for examining whether it was issued on the basis of relevant material and not with malafide intention.
But, this article also says that nothing in this clause shall authorise the President to assume himself any of the powers vested in or exercisable by a High Court or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
So, powers of High Court remain intact during Presidents . rule. Clause (2) of Article 356 authorises President to revoke or vary this emergency with another proclamation in this regard.
OVERUSE OF ARTICLE 356
The National Commission to review the working of the constitution viewed Article 356 of the Constitution as a bulwark, a giant protection and remedy of the last resort. The commission also noted that in a quite large number of cases the invocation of Article 356 has been found warranted and inevitable.
The commission, however, felt that the invocation of Article356 is a constitutional device, the operation of which is vested in the Executive Domain. In invocation, it is, therefore,essential to preserve its stature in the constitutional scheme.
Hence, it recommended that Article 356 of the Constitution should be used sparingly.
REPORT OF SARKARIA COMMISSION
It viewed that as President is moved to take action under Article 356 on the report of the Governor. So, the report of the governor should be placed before each House of Parliament.Such a report should be a, speaking document containing a precise and clear statement of all material facts and grounds on the basis of which the President may satisfy himself as to the existence or otherwise of the situation contemplated in Article 356. The commission pointed out that failure of constitutional machinery should be examined under four heads, namely
1. Political crisis
3. FINANCIAL EMERGENCY
(ARTICLE 360)
Article 360 of our Constitution makes the provision for imposition of Financial Emergency. It says that, if the President is satisfied that a situation has arisen whereby the financial stability or the credit of India or of any part thereof is threatened, he may declare a State of Financial Emergency.
The country so far did not have financial emergency
though conditions of severe economic crisis did prevail in the year 1990-91.
2. Internal subversion
3. Physical breakdown PARLIAMENTARY APPROVAL AND DURATION
This emergency must be approved by both the Houses of 4. Non-compliance with constitutional directions of the Union Parliament within two months from the take of issue. Once Executive. approved by the both Houses. The Financial Emergency
The commission examines that in case of political crisis, it Continues indefinitely till it was revoked.would be the duty of the governor to explore all possibilities for installing a viable Government. If he finds that it is not EFFECTS OF -possible to do so and if, fresh elections can be held without avoidable delay, he or she should ask the outgoing ministry to continue as a caretaker government, provided it was not defeated on the grounds of mal-administration and corruption;he should then dissolve the assembly. The commission also warned that invoking Article 356 for solving the political crisis in the ruling party was an instance of misuse.
Regarding internal subversion, it said that if any State Government deliberately pursues an unconstitutional policy it would be a case calling for the invocation of this power but after giving due warnings and opportunity for corrective measures. It then gave instances of physical breakdown such as internal disturbance leading to the paralysis of the state administration and natural calamities.
DIFFERENCE BETWEEN ARTICLE 352 AND 356
Article 352 restricts central intervention to a situation of war,external aggression or.armed rebellion. Article 356 applies to a situation of failure of constitutional machinery in a state.
Under Article 352 the state machinery is not suspended in a state. The State Legislature and executive continue to function. The only effect is that the Centre gets concurrent power of legislation and administration 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 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 month and thereafter every 6 months with there being no upper limit provided.
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 servants, 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.
Financial Emergency remains in force till it is revoked by the President, but it must be approved by the Parliament within two months of its proclamation.
CRITICISM OF THE EMERGENCY PROVISIONS
During emergency, the main characteristic of our Constitution i.e. federalism will be destroyed and Union will become all powerful.Powers of the state will be concentrated in the hands of executive.Fundamental Rights would have no meaning, during emergency.The financial autonomy of the state will be nullified.The President will become a dictator.
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