Emergency Provisions Under The Constitution

Constitution provides for emergency provisions under Article 352-360. Emergency provisions have been introduced in the Constitution to protect the unity and integrity of the nation in adverse circumstances.  During emergency the federal form of the nation partakes unitary character to a great extent as executive and legislative function of state governments can be discharged by President or the Parliament respectively.

Constitution provides for three type of proclamation of emergencies  i..e National Emergency under Article 352, President Rule in a State in case of failure of constitutional machinery under Article 356 and Financial Emergency under Article 360.

How National Emergency is proclaimed ?

Article 352 provides for proclamation of National Emergency. Proclamation of National  Emergency has been done only thrice. National emergency was  proclaimed in 1962 during Chinese aggression which continued till 1968.  National Emergency was again  proclaimed in   1971 during external aggression by Pakistan. National Emergency was again proclaimed in 1975 on the ground of internal disturbance while the earlier proclamation was already in existence, both of which were revoked in March 1977.

Article 352 has been amended comprehensibly by 44^th amendment to the Constitution to contain any abuse of power. Firstly, “Internal disturbance” has been replaced by “armed rebellion” as scope of “internal disturbance” was much wider. Secondly,  National Emergency can only be proclaimed on the recommendation of Council of Ministers in writing to the President. Thirdly, proclamation of the emergency has to be approved by Parliament within one month in place of two months. Fourthly, Proclamation can continue beyond six months only after approval of Parliament. Fifthly, One-tenth members of House of the People can move resolution for revocation of proclamation. Sixthly, Article 20 and 21 cannot be suspended even during proclamation of emergency. Seventhly, Article 19 can be suspended only when National Emergency is proclaimed on the ground of war or armed rebellion.

The President can declare National Emergency by proclamation if the President is satisfied that   there exists grave emergency threatening security of India or its any part by war, or external aggression or armed rebellion.  The President can proclaim emergency in respect of whole of India or its any part.

Such proclamation can be made even before the actual occurrence of war or external aggression or armed rebellion if the President is satisfied that there is imminent danger of such happenings.

A proclamation may be varied or revoked by a subsequent proclamation.

The President cannot issue a proclamation or a proclamation varying such proclamation unless the decision of the Union Cabinet that such a proclamation may be issued has been communicated to him in writing.

Every proclamation issued under this article has to be laid before each house of parliament. Such proclamation has to be approved by both houses of Parliament within one month. If such proclamation is not approved by each house of Parliament within thirty days, it ceases to operate.

If any such proclamation is issued at a time when the House of the people has been dissolved or the dissolution of the House of the People takes place during the period of one month and a resolution approving the proclamation has been passed by the Council of States, the proclamation will remain valid. But such proclamation has to be approved by House of the People within thirty days of its first sitting after its reconstitution failing which such proclamation ceases to operate. 

A proclamation so approved, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation. If and so often, both houses of the Parliament pass resolution again for continuance of proclamation, such proclamation will continue to exist for a period of further six months from that it otherwise would have ceased to operate.

If the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by Council of States, the proclamation will remain valid. But such proclamation has to approved by House of the People within thirty days of its first sitting after its reconstitution failing which the proclamation will cease to exist.

Any such resolution has be passed by either House of the Parliament only by a majority of total membership of that House and by a majority of not less than two third of the members of that house present and voting.

If House of the People passes resolution disapproving proclamation or continuance of such proclamation, President has to revoke proclamation.

If at least one-tenth of total members of the House of the People give notice in writing of their intention to move resolution for disapproval of proclamation or continuance of proclamation, as the case may be, a special sitting of the House of the People has to be held within fourteen days of receipt of notice. Such notice has to be sent to the speaker if  Parliament is in session or to the President if Parliament is not in session.

The President can issue different Proclamations on different grounds, being war or external aggression or armed rebellion or imminent danger of war or external aggression or armed rebellion, whether or not there is a Proclamation already issued by the President and such proclamation is in operation.

What is effect of proclamation of National Emergency ?

Article 353 deals with effect of proclamation of emergency. During emergency executive power of the Union and legislative powers of the Parliament get enlarged.

While a proclamation of emergency is in operation then the executive power of the  Union  extends to the giving of directions to any State as to the manner in which the executive power  is to be exercised.

The power of Parliament to make laws  extends to make laws in respect of State list conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union.

Where a proclamation of emergency is in operation only in any part of territory of India, the executive power of the Union to give directions and power of the Parliament to make laws  shall also extend to any State other than a State in which or in any part of which the proclamation of emergency is in operation if and in so far as the security of India or any of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of emergency is in operation.

How National Emergency affects distribution of revenue between Union and States ?

National emergency also impacts the distribution of revenue between Union and States. While a proclamation of emergency is in operation, the President may by order direct that all or any of the provisions of Article 268 to 279 will be subject to such exceptions or modifications as may   be specified in that order.  Such order cannot extend beyond the expiration of the financial year in which such proclamation ceased to operate as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit.

Every such order has to be laid before each house of the Parliament.

How President Rule under Article 356 is imposed ?

Article 356 provides for President Rule in a state in case of failure of constitutional machinery of states.

If the President on receipt of the report from the Governor of a State or otherwise is satisfied that a situation has arisen in which Government of the State cannot be carried on in accordance with the provisions of this Constitution the President may be proclamation

• Assume to himself all or any of the functions of the Government of 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
• Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament
• Make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including 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

The President cannot assume to himself any of the powers vested in or exercisable by a High Court or suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.

Any such proclamation may be revoked or varied by a subsequent proclamation.

Every proclamation under this Article will cease of operate if  such proclamation  is not approved by both houses of the Parliament within two months.

If any such proclamation is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months, and resolution approving the proclamation has been passed by the Council of States, the proclamation remains valid. But such proclamation has to be approved by the House of the People within thirty days of its first sitting after its reconstitution, failing which the proclamation will cease to operate.

A proclamation so approve ceases to operate on the expiration of a period of six months form the date of issue of the Proclamation.  But if and so often both houses of Parliament pass resolution for continuance of the proclamation, the proclamation will continue for further six months. In any case total period of proclamation will not exceed three years.

If dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance of such proclamation has been passed by the Council of States, such proclamation  will remain valid.  But such resolution has to be passed by House of the people within thirty days of its first sitting after its reconstitution.

A resolution with respect to the continuance of a Proclamation approved for any period beyond the expiration of one year form the date of issue of such proclamation shall not be passed by either House of Parliament unless a proclamation of emergency is in operation in the whole of India or as the case may be in the whole or any part of the state at the time of passing of such resolution. Further, the Election Commission certifies that the continuance of the Proclamation approved in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned.

What were instances of misuse of Article 356 ?

National Emergency under Article 352  has been proclaimed only three times after independence. But on the contrary,   President Rule  under Article 356 has been imposed many times in various states. There have been numerous cases when power under Article 356 have been blatantly misused.

President Rule under Article 356 was imposed in State of Punjab in 1951  although State Government  enjoyed support of majority in State Legislature. President Rule under Article 356 was imposed in Kerala in 1957 although the State Government enjoyed support of majority President Rule under  Article 356 was applied in Haryana in 1967 , where government seemed to be enjoying majority support.  Indira Gandhi Government  imposed President Rule  39 times between  1966- 1977.  When Janta Party came in power, it imposed president rule in nine states in  1977. .

With legislative and judicial interventions, imposition of President Rule has been restrained to a great extent.

In State of Rajasthan Vs Union of India  (1977 AIR 1361)  the Supreme Court held that judicial review of executive action can be done if there has been malafide exercise of power or exercised on irrelevant considerations.

S. R. Bommai Vs. Union of India (1994 AIR 1918)  has been one of the landmark judgments on imposition of president rule.  The Supreme Court held that power of the President under Article 356 is not absolute. Such power can be exercised only on relevant material. The Legislature of a State can only be dissolved after approval of proclamation by both houses of Parliament. If proclamation is not approved by Parliament, the State Government as well as State Legislature get revived. Article 74 only bars court to look into advice. It does not bar looking into material on which President has formed opinion The Supreme Court held that the Proclamation under Article 356 (1) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.

How President Rule under Article 356 affects legislative powers of a State ?

Where a proclamation has been issued under Article 356 and it has been declared that that the powers of the Legislature of the State shall be exercisable by or under authority of Parliament, it shall be competent for the Parliament for the following.

• Parliament can confer on the President the power of the Legislature of the State to make laws, and to authorize the President to delegate, subject to such conditions as he may think fit to impose the power so conferred to any other authority to be specified by him in that behalf.
• Parliament or President or other authority, in whom such power to make laws is vested, will be competent to make laws conferring powers and imposing duties or authorizing the conferring of powers and the imposition of duties upon the Union or officers and authorities thereof.
• President will be competent to authorize when the House of the People is not in session expenditure form the Consolidated Fund of the State pending sanction of such expenditure by Parliament.

Any such laws made, after proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent legislature or other authority.

Can Article 19 be restricted during Proclamation of Emergency ?

Article 19 grants various freedoms to a citizen, which can become ineffective during proclamation of emergency on the ground of war and external aggression.  When emergency is proclaimed on the ground of armed rebellion it will have no impact on Article 19. When proclamation of emergency is in operation on the ground of war or external aggression, Article 19 will not restrict State to make any law or take any executive action. But any law, which is incompetent under Article 19, will cease to have effect to the extent of incompetency, after proclamation ceases to have effect. Any action taken under such law will remain valid.

Where such proclamation of emergency is in operation only in any part of the territory of India, any such law may be made or any such executive action may be taken, under this article in relation to or in any state or Union Territory in which or in any part of which proclamation of emergency is not in operation, if and so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency in operation.

Noting shall apply to any law which does not contain a recital to the effect that such law is in relation to the proclamation of emergency in operation when it is made or to any executive action taken otherwise that under a law containing such a recital.

Can Fundamental Rights be suspended during proclamation of emergency ?

Where a proclamation of emergency is in operation, the President may by order declare that the right to move to a court for enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in that order  and  all proceedings pending in any court for the enforcement of the rights so mentioned in the order  shall remain suspended for the period during which the proclamation is in force or for such shorter period as may be specified in the order.

While an order mentioning any of the rights conferred by Part III (except articles 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take but any law so made will to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law ceases to have effect.

Where a proclamation of emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union Territory in which or in any part of which the Proclamation of Emergency is not in operation, if and so fre as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the proclamation of emergency is in operation.

Noting will apply to any law which does not contain a recital to the effect that such law is in relation to the proclamation of emergency in operation when it is made or to any executive action taken otherwise than under a law containing such recital.

An order so made may extend to the whole or any part of the territory of India.  Where a proclamation of emergency is in operation only a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the proclamation of emergency is in operation, consider such extension to be necessary.

Every such order of the President has to be laid before the each house of the Parliament.

Right to approach High Court and Supreme Court through writ of Habeus Corpus during emergency was considered in ADM Jabalpur Vs. Shivkant Shukla (1976 AIR 1207). Many citizens have been detained under Maintenance of Internal Security Act, 1971, who had file writs of habeus corpus before various High Courts.  They had challenged their detention through various writs. The Supreme Court with dissent of Justice Khanna upheld the detention. 

The judgement of the Supreme Court in Shivkant Shukla is one of the most criticized judgment of the Supreme Court. The judgment has been completely made ineffective  and rightly so vide 44^th amendment of the Constitution, which provides that Article 20 and 21 can not be suspended even during proclamation of emergency.

How Financial Emergency under Article 360 is imposed ?

Article 360 provides for Financial Emergency. Financial Emergency has never been imposed in India.

If the President is satisfied that a situation has arisen whereby financial stability or credit of India or of any part of territory thereof is threatened, he may by a proclamation made a declaration to that effect.

Any such proclamation may be revoked or varied by a subsequent proclamation. It has to be  laid before each house of Parliament. Such proclamation shall cease to operate at the expiration of  two months unless before expiration of that period it has been approved by resolution of the both houses of Parliament.

If any such proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months and if a resolution approving the proclamation has been passed by the Council of States, it will remain valid. But such proclamation has to be approved by the House of the People within thirty days of first meeting after its reconstitution, failing which the proclamation will cease to operate.

During the period any such proclamation is operation, the executive authority of the Union will extend to the giving of directions to any state to observe such canons of financial propriety as may be specified in the directions may deem necessary and adequate for the purpose.

Any such direction may include a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State. Any such direction can also include a provision requiring of Money Bills or other Bills to which the provisions of Article 207 apply to be reserved for the consideration of the President after they are passed by the Legislature of the State.

It shall be competent for the President during the period any proclamation issued under this article is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the judges of the Supreme Court and the High Courts.

_________________________________________