Emergency Provisions

 

Introduction:

India i.e. Bharat is an “own kind” federal republic. During an emergency, it possesses unitary functionality. That’s why Dr. B. R Ambedkar declared the Indian Federal structure special because throughout an emergency it becomes fully unitary. In an emergency, the mechanism becomes a unitary trait as the constitutional apparatus fails.

Facts for Prelims:
  • Emergency provisions are borrowed from the Govt. Of India Act 1935
  • Constitutional provisions: Part XVIII- Articles 352 to 360
  • “Suspension of Fundamental Rights during proclamation of emergency” provision borrowed from Weimer constitution (Now Russia)
  • During emergency, central government becomes all powerful and states are in the complete control of the union
  • The federal structure becomes unitary without a formal amendment to the constitution.
  • First time, the President’s Rule was imposed in Punjab in 1951.
  • In India, no Financial Emergency has been declared so far


 

National Emergency

 

 

 

 

 

 

 

 

 

 

 

 

 

Grounds of declaration

 

  

·         Under 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.

·         The President can declare a national emergency even before the actual occurrence of war or armed rebellion or external aggression

·         When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’.

 

Changes:

·         This emergency can be imposed either for the whole of India or could be restricted to certain territories (42nd amendment act)

·         Originally, the constitution had internal disturbance as one of the grounds for imposing national emergency, however, this was dropped since the ground was ambiguous and open to misuse. It was replaced by armed rebellion through the 44th amendment act, 1978

·         This emergency can be imposed by the President after receiving a written recommendation from the cabinet. This provision was introduced through the 44th amendment act

·         The 44th amendment act also deleted the provision which barred courts from examining the imposition of emergency by the executive

 

In Minerva Mills 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 declaration was based on wholly extraneous and irrelevant facts

 
 

 

 

 

Parliamentary approval and duration of this emergency

 

 

  

·         Must be approved by both the houses of parliament within one month from the date of its issue (

·         If the Lok Sabha is not in session or has been dissolved then the proclamation has to be approved within 30 days since the new LS is constituted

·         Once approved the proclamation continues to be in force for six months.

·         Such proclamations can be extended indefinitely, however, each extension should be approved by the Parliament through a special majority (44th amendment act, 1978)

 

 
 

 

Revocation of proclamation

 

 

  
  • Emergency can be revoked at any time by the President by passing a subsequent proclamation to this effect.
  • The emergency must be revoked if the Lok Sabha passes a resolution by a simple majority disapproving its continuation.

 

Effects of National Emergency:

A proclamation of emergency has drastic 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, and
  • Effect on the Fundamental Rights.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Effect on the Centre – State relations

   

Executive:

·         During a national emergency, the executive power of the centre extends to directing any state regarding the way in which its executive power is to exercised.

·         In normal times, the union can give executive directions to a state only on certain specified matters.

·         Thus, the state government are brought under the complete control of the centre, though they are not suspended.
Legislative:

·         During a national emergency, the parliament is empowered to make laws on any subject-matter mentioned in the state list.

·         Though the legislative power of a state legislature is not suspended, it becomes subject to the overriding power of the parliament.

·         The laws made by the parliament on the state matters will not be functioning after the emergency ceases to operate.
Financial:

·         While a proclamation of national emergency is in process, the president can either reduce or cancel the transfer of finances from centre to the state.

·         Every such order of the president has to be laid before the both houses of parliament.

   

 

Effects on the life of the Lok Sabha and State Assembly

   

·         The life of LS and state assembly could be extended by one year at a time.

·         However, this extension cannot continue beyond a period of six months after the emergency has to ceased to operate.

   

 

 

 

 

 

 

 

 

 

 

 

 

Effect on the fundamental rights

 

 

   

Articles 358 and 359 sets out the effect of a national emergency on the fundamental rights. Article 358 deals with suspension of the elemental rights guaranteed by Article 19. While Article 359 deals with the suspension of other fundamental rights except guaranteed by Article 20 and 21.

 

Suspension of fundamental rights:

·         According to Article 358, when a proclamation of national emergency is formed the six fundamental rights under Article 19 are automatically suspended. No separate order for their suspension is required.

·         The 44th Amendment Act of 1978 restricted the scope of Art. 358 providing that the six fundamental rights under Art. 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.

Suspension of other fundamental rights:

·         As per Article 359, the president is authorised to suspend the right to move any court for the enforcement of fundamental rights during the National emergency. In other words, the fundamental rights are not suspended as such, but only their enforcement.

·         The suspension of enforcement relates to only those fundamental rights that are as per the presidential order

 

President’s rule

 

Article 355 imposes a duty on the centre to ensure that the government of every state is carried out in accordance with the provisions of the constitution. It is to fulfil this duty that centre takes over the administration of a state under article 356 in case of failure of constitutional machinery in state

 

 

 

 

 

 

Grounds of imposition

 

  

The president’s ruler can be proclaimed under Article 356 on two grounds:

  • Article 356 empowers the President to issue a proclamation if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the constitution.
  • 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

 

 

  

·         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 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 survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided that the Rajya Sabha approves it in the meantime.
 

 

Scope of judicial review

 

 

  

The 38th Amendment act of 1975 made the satisfaction of the President in invoking Article 356 final and conclusive which would not be challenged in any court on any ground.

But this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the President is not beyond judicial review.

 

 

R. Bommai v. Union of India

R. Bommai v. Union of India is a landmark decision of the Supreme Court of India, where the Court discussed at length provisions of Article 356 of the Constitution of India and related issues. This case had huge impact on Centre-State Relations.

 

 

Financial 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

Parliamentary approval and duration:

  • A proclamation approving the financial emergency should be approved by the Parliament through a simple majority within two months. If the LS is not in session or has been dissolved then the proclamation continues until 30 days from the first sitting of the LS after its reconstitution, provided RS has approved it in the meantime
  • Once approved by the parliament, the financial emergency continues indefinitely till it is revoked. Implying, there is no maximum prescribed maximum period for its operation and there is no repeated need for parliamentary approval for its continuation
  • President can discontinue this emergency by passing another proclamation to this effect. Such a proclamation does not require the parliamentary approval.

 

Criticism of emergency provisions

 

Practice question

Do you think emergency provision included in the Indian constitution is a blot on Indian democracy? Critically examine (250W)