Emergency Provisions

Generally, the federal government is a weak government because it involves a division of power. However, every modern federation has made a provision to avoid this weakness by providing some extraordinary powers to the federal government. These extraordinary powers are used by the federal government whenever unified action is necessary by reason of emergent circumstances, internal or external. But in the United States, this expansion of federal power takes place through the wisdom of judicial interpretation, while in India, the Constitution itself provides for conferring extraordinary powers upon the Union in the case of different kinds of emergencies.

The emergency provisions are contained in Part XVIII of the Constitution from Article 352 to 360. Emergency provisions are borrowed from the Government of India Act 1935. These provisions enable the Central government to meet any abnormal situation effectively. During an emergency, the Central government becomes all powerful and the states go into the total control of the Centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution. “Suspension of Fundamental Rights during proclamation of emergency” provision borrowed from the Weimer constitution (Now Russia). The aim of the incorporation of these provisions into the Constitution is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution.

Different kinds of Emergencies

Three types of emergencies are described in the Constitution. These are:

• An emergency arising due to war, external aggression, or armed rebellion is known as a “National Emergency”. However, the Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type.
• An emergency arising due to the failure of the constitutional machinery in the states is known as “President’s Rule.” It is also known by two other names—”State Emergency” or “Constitutional Emergency”. However, the Constitution does not use the word “emergency” for this situation.
• An emergency arising due to a threat to the financial stability or credit of India is known as a “Financial Emergency”.

National Emergency

Grounds for Declaration of National Emergency-

According to Article 352, the President can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. Furthermore, the President can declare a national emergency before the actual occurrence of war or external aggression or armed rebellion. If the President is satisfied that there is imminent danger of such external aggression or armed rebellion.

When a national emergency is declared on the grounds of “war” or “external aggression”, it is known as an “External Emergency”. On the other hand, when it is declared on the grounds of “armed rebellion”, it is known as an “Internal Emergency”. The 42nd Amendment Act of 1976 enabled the president to limit the operation of a national emergency to a specified part of India. In other words, a proclamation of a national emergency may be applicable to the entire country or only a part of it.

Originally, the Constitution mentioned “internal disturbance” as the third ground for imposing a national emergency, but the expression was too vague and had a wider connotation. Hence, the 44th Amendment Act of 1978 substituted in the Constitution the words “armed rebellion” for “internal disturbance”. After this amendment, it is no longer possible to declare a national emergency on the ground of “internal disturbance” as was done in 1975 by the Congress government headed by Indira Gandhi.

The President can declare a national emergency only after receiving a written recommendation from the cabinet. This means that an emergency can be declared only with the concurrence of the cabinet and not merely on the advice of the prime minister. The 44th Amendment Act of 1978 introduced this safeguard to prevent the prime minister alone taking a decision in a national emergency. Because in 1975, Prime Minister Indira Gandhi advised the president to declare an emergency without consulting her cabinet. The cabinet was informed after the declaration of emergency.

The 44th Amendment Act also repealed that provision of the 38th Amendment Act of 1975 which made a declaration of national emergency immune from judicial review. Furthermore, in 1980, in Minerva Mills’s case, the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts.

Parliamentary Approval and Duration of Operation-

The proclamation of Emergency must be approved by both the Houses of Parliament within one month from the date of its issue. Initially, the period allowed for approval by the Parliament was two months, but the time period allowed for approval was reduced by the 44th Amendment Act of 1978. However, if the proclamation of emergency is issued at a time when the House of the People (Lok Sabha) has been dissolved or the dissolution of the Lok Sabha takes place during the period of one month without approving the proclamation, then the Proclamation may survive until 30 days from the date of the first sitting of the Lok Sabha after its reconstitution, provided the Council of States (Rajya Sabha) has in the meantime approved of it by a resolution.

If the proclamation of emergency approved by both the Houses of Parliament, the emergency continues for six months, and can be extended to an indefinite period with an approval of Parliament for every six months. This provision for periodical parliamentary approval was also added by the 44th Amendment Act of 1978. Before that, the emergency, once approved by the Parliament, could remain in operation as long as the Executive (cabinet) desired. However, if the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuance of Emergency, then the Proclamation may survive until 30 days from the date of the first sitting of the Lok Sabha after its reconstitution, provided the Council of States (Rajya Sabha) has in the meantime approved it continuation.

Every resolution approving the proclamation of emergency or its continuance must be passed by either the Houses of Parliament by a special majority. Here, the meaning of a special majority means a majority of the total membership of that house and a majority of not less than two-thirds of the members of that house present and voting.  This special majority provision was also introduced by the 44th Amendment Act of 1978.  Before this amendment, such a resolution could be passed by a simple majority of the Parliament.

Revocation of the proclamation of emergency-

A proclamation of emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval. Furthermore, the President must revoke a proclamation if the Lok Sabha passes a resolution disapproving its continuation. Again, this safeguard was introduced by the 44th Amendment Act of 1978. Before the amendment, a proclamation could be revoked by the president on his own, and the Lok Sabha had no control in this regard.

The 44th Amendment Act of 1978 also made a provision that one-tenth of the total number of members of the Lok Sabha give a written notice to the Speaker (or to the president if the House is not in session) that a special sitting of the House should be held within 14 days for the purpose of considering a resolution disapproving the continuation of the proclamation.

A resolution of disapproval of the continuation of the proclamation is to be adopted by a simple majority. It is required to be passed by the Lok Sabha only and not the Rajya Sabha.

Effects of National Emergency-

A proclamation of emergency has sharp and wide-ranging effects on the political system of the government. The consequences can be grouped into three categories:

• Effect on the Centre-State relations.
• Effect on the life of Lok Sabha and State Assembly.
• Effect on the Fundamental Rights.

Effect on the Centre-State relations-

When a proclamation of emergency is in force, the normal fabric of Centre-State relations changes. This shift can be studied under three headings: executive, legislative, and financial.

• Executive: When a proclamation of emergency has been made, the executive power of the Centre extends to the giving of directions to any state as to the manner in which the executive power of the state is to be exercised. In normal times, the Centre executive has the power to give directions to a state in certain specified matters. But after a proclamation of emergency, the Centre government has the right to give directions to a state on “any” matter. Thus, the state governments are brought under the complete control of the centre, though they are not suspended.
• Legislative: During the operation of the proclamation of emergency, Parliament becomes empowered to make laws on any subject mentioned in the State List. Though the proclamation of emergency does not suspend the legislative power of a state legislature, it does suspend the distribution of legislative powers between the Centre and the State. In brief, the Constitution becomes unitary rather than federal. The laws passed by parliament on state subjects during a national emergency become ineffective six months after the emergency has ended. Notably, when a national emergency proclamation is in effect, the President has the authority to issue ordinances on state subjects even if Parliament is not in session.
• Financial: During the operation of the proclamation of emergency, the President has the constitutional power to modify the provisions of the Constitution relating to the allocation of financial resources between the Centre and the States. This means that the president can either reduce or cancel the transfer of finances from Centre to the states. Such modification continues till the end of the financial year in which the proclamation of emergency ceases to operate. However, such an order by the President must be approved by Parliament.

Effect on the Life of the Lok Sabha and State Assembly-

When a proclamation of emergency is in operation, the life of the Lok Sabha may be extended beyond its normal term (five years) by a law of Parliament for one year at a time (for any length of time). This extension cannot continue beyond a period of six months after the emergency has ceased to operate. For example, the term of the Fifth Lok Sabha (1971–1977) was extended two times by one year at a time.

Similarly, Parliament may extend the normal tenure of a state legislative assembly (five years) by one year each time (for any length of time) during a national emergency. This extension cannot continue beyond a maximum period of six months after the emergency has ceased to operate.

Effect on the Fundamental Rights-

Article 358 and Article 359 describe the effects of a proclamation of emergency on fundamental rights. Article 358 deals with the suspension of the fundamental rights guaranteed by Article 19. While Article 359 deals with the suspension of other fundamental rights (except guaranteed by Article 20 and 21). These two provisions are described below:

• Suspension of Fundamental Rights under Article 358: According to Article 358, when a proclamation of national emergency is issued, the six fundamental rights under Article 19 are automatically suspended. No separate order for their suspension is required. When a proclamation of emergency is in operation, the state can make any law or can take any executive action abridging or taking away the six fundamental rights guaranteed by Article 19. In other words, the state is freed from the limitations imposed by Article 19. Any such law or executive action cannot be challenged on the ground that they are inconsistent with the six fundamental rights guaranteed by Article 19. When the National Emergency ceases to operate, Article 19 automatically revives and comes into force. Any law made during a national emergency, to the extent of its inconsistency with Article 19, ceases to have effect. The legislative and executive actions taken during the emergency cannot be challenged even after the emergency ceases to operate. The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways. Firstly, the six fundamental rights under Article 19 will be suspended only if the national emergency is asserted on the ground of war or external aggression and not on the ground of armed rebellion. Secondly, only those laws that are related to the emergency are protected from being challenged, not other laws. Also, the executive action taken only under such a law is protected.

• Suspension of Fundamental Rights under Article 359: Article 359 deals with the suspension of other fundamental rights (except guaranteed by Article 20 and 21). Article 359 enables the President to suspend the right to move any court for the enforcement of fundamental rights during a national emergency. In other words, under Article 359, the fundamental rights as such are not suspended, but only their enforcement. The suspension of enforcement relates to only those fundamental rights that are specified in the President’s order. Furthermore, the suspension could last for the duration of the emergency or for a shorter period specified in the Presidential order. The suspension order may extend to the whole or any part of the country. It should be laid before each House of Parliament for approval. When a Presidential Order is in force, the state can make any law or can take any executive action abridging or taking away the specified fundamental rights. Any such law or executive action cannot be challenged on the ground that it is inconsistent with the specified fundamental rights. When the Presidential Order ceases to operate, any law so made, to the extent of inconsistency with the specified fundamental rights, ceases to have effect. The legislative and executive actions taken during the operation of the Presidential Order cannot be challenged even after the Presidential Order expires. The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways. Firstly, the President cannot suspend the right to move the Court for enforcement of fundamental rights guaranteed by Articles 20 to 21. Secondly, only those laws that are related to the emergency are protected from being challenged, not other laws. Also, the executive action taken only under such a law is protected.

Distinction Between Articles 358 and 359-

The differences between Articles 358 and 359 are described in the below table.

Use of the National Emergency Powers So Far-

A National Emergency has been proclaimed three times so far–in 1962, 1971 and 1975.

The first proclamation of national emergency under Article 352 was made by the President on 26 October 1962, in view of the Chinese aggression in the NEFA (North-East Frontier Agency- now Arunachal Pradesh). This proclamation of emergency was revoked by an order made by the President on 10 January 1968.

The second proclamation of national emergency under Article 352 was made by the President on 3 December 1971 when Pakistan launched an undeclared war against India. Though this emergency was in operation when the third proclamation of June 25, 1975 was made.

The third proclamation of national emergency under Article 352 was made on 25 June 1975. Both the second and third proclamations were revoked on 21 March 1977.

The first two proclamations of emergency under Article 352 were made on the grounds of external aggression, while the third proclamation of emergency under Article 352 was made on the grounds of internal disturbance.

In the elections held for the Lok Sabha in 1977 after the emergency, the Congress Party lost and the Janta Party came to power. This government appointed the Shah Commission to investigate the circumstances that warranted the declaration of an emergency in 1975. The commission did not justify the declaration of the emergency. Hence, the 44th Amendment Act of 1978 introduced a number of safeguards against the misuse of the emergency provisions.

President’s Rule

Grounds of Imposition of President’s Rule-

Article 355 says that it is a duty of the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.  So, to perform this duty, the Centre can take over the government of a state under Article 356 in the event of the failure of the constitutional machinery of the state. It is known as a “State Emergency” or “Constitutional Emergency”. But it is also popularly known as “President’s Rule”. First time, the President’s Rule was imposed in Punjab in 1951.

 Under Article 356 of the Constitution, President’s Rule can be proclaimed on two grounds: one mentioned in Article 356 itself and another in Article 365.

• Article 356 empowers the President to issue a proclamation of President’s rule when he is satisfied that the government of a state cannot be carried on in accordance with the provisions of the Constitution, either on a report of the governor of the state or even without the governor’s report.
• 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 the government of the state cannot be carried on in accordance with the provisions of the constitution.

Parliamentary Approval and Duration of Operation-

A proclamation imposing President’s Rule must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation of President’s Rule is issued at a time when the House of the People (Lok Sabha) has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the Proclamation may survive until 30 days from the date of the first sitting of the Lok Sabha after its reconstitution, provided the Council of States (Rajya Sabha) has approved in the meantime.

If the proclamation of President’s Rule is approved by both the Houses of Parliament, the President’s Rule continues for six months. It can be extended for a maximum period of three years with the approval of Parliament every six months. However, if the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuance of the President’s Rule, then the Proclamation of President’s Rule may survive until 30 days from the date of the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha (Council of States) has in the meantime approved its continuation.

Every resolution approving the proclamation of President’s Rule or its continuance can be passed by either the Houses of Parliament by a simple majority. Here, the meaning of a simple majority means a majority of the members of that House present and voting.

 The 44th Constitutional Amendment Act of 1978 inserted a new provision to put a restraint on the power of Parliament to extend a proclamation of President’s Rule beyond one year. It provides that, after one year of President’s Rule, it can be extended by six months at a time only when the following two conditions are satisfied:

• A proclamation of national emergency should be in operation in the whole of India, or in the whole or any part of the state, at the time of the passing of such a resolution.
• The Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.

However, a proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval.

President’s Power During the President’s Rule-

The President acquires the following powers when the President’s Rule is imposed in a state:

• The President can take up the functions of the state government and powers vested in the governor or any other executive authority in the state.
• He can declare that the powers of the state legislature are to be exercised by the Parliament.
• The President can take all other necessary steps including the suspension of the constitutional provisions relating to anybody or authority in the state.

Effects of the President’s Rule-

When the President’s Rule is imposed in a state, the President dismisses the state council of ministers headed by the chief minister. The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of the state or the advisors appointed by the President. Furthermore, the President either suspends or dissolves the state legislative assembly. Parliament passes the state legislative bills and the state budget. When the state legislature is thus suspended or dissolved:

• Parliament can delegate the power to make laws for the state to the President or to any other authority specified by him in this regard.
• The President can authorise, when the Lok Sabha is not in session, expenditure from the state consolidated fund pending its sanction by the Parliament.
• The President can promulgate, when the Parliament is not in session, 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. This means that a law made in President’s Rule remains in force and it is not co-terminus with the duration of the proclamation of President’s Rule. However, it can be repealed or altered or re-enacted by the state legislature.

However, the President cannot acquire the powers vested in the concerned state high court or suspend the provisions of the Constitution relating to them. In other words, the constitutional position, status, powers and functions of the concerned state high court remain the same even during the President’s Rule.

Use of Article 356-

Since 1950, the President’s Rule has been imposed more than 125 times (till July 2022). The President’s Rule has been imposed in an arbitrary manner for political or personal reasons on a number of occasions. Hence, Article 356 has become one of the most controversial and most criticised provisions of the Constitution. For the first time, President’s Rule was imposed in Punjab in 1951. Manipur has imposed the maximum president’s rule 10 times, followed by Uttar Pradesh with 9 times. The imposition of President’s Rule on the states is described in the table given below.

Proper Situation of Imposing President’s Rule in the State-

It is based on the report of the Sarkaria Commission on Centre-state Relations (1988). The Supreme Court in the Bommai case (1994) enlisted the potential situations where the exercise of power under Article 356 could be proper.

The imposition of President’s Rule in a state would be proper in the following situations:

• Where after general elections to the assembly, no party secures a majority, that is, “Hung Assembly”.
• Where the party having a majority in the assembly declines to form a government and the governor cannot find a coalition government commanding a majority in the assembly.
• Where the ministry resigns and no other party is willing or able to form a government commanding a majority in the assembly.
• Where a constitutional direction of the Central government is disregarded by the state government.
• Physical breakdown where the government wilfully refuses to discharge its constitutional obligations endangering the security of the state.
• where Internal subversion, for example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.

Comparing National Emergency and President’s Rule-

 The National Emergency differs from the President’s Rule on the following points. These are described in the table given below.

Financial Emergency

Grounds for Declaration of National Emergency-

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.

The 44th Amendment Act of 1978 made the satisfaction of the president subject to judicial review.

Parliamentary Approval and Duration of Operation-

A proclamation of financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation of financial emergency is issued at a time when the House of the People (Lok Sabha) has been dissolved or the dissolution of the Lok Sabha takes place during the period of two month without approving the proclamation, then the Proclamation may survive until 30 days from the date of the first sitting of the Lok Sabha after its reconstitution, provided the Council of States (Rajya Sabha) has in the meantime approved of it by a resolution. Once a proclamation of financial emergency is approved by both the Houses of Parliament, then it continues indefinitely till it is revoked.

A resolution approving the proclamation of financial emergency can be passed by either the Houses of Parliament by a simple majority. Here, the meaning of a simple majority means a majority of the members of that House present and voting.

However, a proclamation of a financial emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval. No use of Article 360 has ever been made.

Effects of Financial Emergency-

The effects of the proclamation of a financial emergency are as follows:

• The executive authority of the Centre extends to directing any state to observe such canons of financial propriety as are be specified in the directions.
• Any such direction may also include- (a) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in the state; and (b) a provision requiring all Money Bills or other financial Bills to be reserved for the consideration of the President after they are passed by the legislature of the state.
• The President may issue directions for the reduction of salaries and allowances of- (a) all or any class of persons serving the Union: and (b) the judges of the Supreme Court and the High Court.

Hence, during the operation of a financial emergency, the Centre acquires full control over the states in financial matters.

To know about the Article Related to Emergency Provisions, refer to the table

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