Emergencies in India

The Emergency Provisions are contained in part XVIII of the Indian constitution from article 352 to 360. These provisions enable the central government to satisfy any abnormal situation effectively.

The central government becomes all powerful during the emergency period and the states go under control of the union. The rationality behind the incorporation of these provisions of the Indian constitution is to protect the Sovereignty, Unity, Integrity and Security of the nation, the democratic political system and the constitution.

In this context, Dr B.R. Ambedkar observed in the constituent assembly that:
“All federal systems are placed within a tight mould of federalism consisting America. No matter what are the consequences, it cannot change its form and shape. On the other hand, the Constitution of India can be both Unitary as well as Federal as per the situation. In normal times, it is framed to work as a federal system but in times of emergency the unitary system prevails.”

There are three types of emergencies under Constitution of India:

1. National emergency: Due to war, external aggressions, or armed rebellion (Art 352).
2. State emergency: Due to the failure of constitutional machinery in states, this is popularly known as ‘Presidential Rule’ (Art 356).
3. Financial emergency: Due to a threat to the financial constancy or credibility of India (Art 360).

A. National Emergency (Art 352):

This emergency provides that if the president is satisfied that a grave emergency exists whereby the safety of India or any part of India is threatened, either by war or external aggression or armed rebellion,[1] he may make a Proclamation of Emergency in respect of the whole of India or any part of it as may be specified in the proclamation.

A proclamation of emergency can be made even before the actual occurrence if the president is satisfied that there is imminent danger of war, or external aggression, or armed rebellion. Thus, actual occurrence of events mentioned in Art. 352 is not essential. An imminent danger of war, or external aggression, or armed rebellion is adequate for the proclamation of emergency.

The president shall not issue a proclamation without consulting the union cabinet (i.e., the council of ministers and the prime minister) such a proclamation may be issued has been communicated to him in writing. This means that the emergency will be declared only on the conformity of the cabinet, and not merely on the advice of the prime minister.[2]

In Minerva Mills Ltd V. Union of India,[3]
The Court held that there is no bar or limitation to judicial review of the validity of a proclamation of emergency issued by the president under Art. 352 (1). This proclamation of emergency can be challenged in a court on the basis of mala fide or for the declaration that was wholly extraneous and irrelevant facts or is absurd or perverse.

However, the word “satisfaction” used in Art. 352 does not mean the personal satisfaction of the president, but it is the satisfaction of the cabinet. The power to declare emergency can be exercised by the president only on the recommendation of the council of ministers.

Parliamentary Approval and Duration:
Prior to the 44th Amendment Act of 1978, a proclamation of emergency could remain in force for 2 months in the first instance, but once approved by parliament the emergency could remain in force for indefinite period of time as long as the executive wanted it to continue. The 44th Amendment has curtailed the power of the executive to extend the operation of emergency unnecessarily.

After the 44th Amendment a proclamation of emergency could remain in force in the first instance for 1 month, such a proclamation if approved shall remain in force for the period of six months unless revoked earlier. The resolution approving the proclamation must be passed by both the houses of parliament by special majority, that is by majority of the total members of each house and also by a majority of not less than 2/3 of the members present and voting in each house.

For the further continuance of emergency beyond the period of six months approval by parliament would be required every six months. If the proclamation is issued at the time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes places during the period of six months without approving the proclamation, then the proclamation remains until 30 days from the first sitting of the Lok Sabha after its reconstruction.[4]

Revocation of National Emergency:

A proclamation of emergency may be revoked by the president any time by a subsequent proclamation, that proclamation does not require any parliamentary approval. The president shall revoke a proclamation if the Lok Sabha passes a resolution disapproving it or disapproving its continuance, where a notice in writing signed by not less than 1/10th of the total number of members of the Lok Sabha. The notice should be given:

1. to the speaker, if the lower house is in session, or
2. to the president, if the house is not in session; a special sitting of the Lok Sabha shall be held within 14 days from the date on which such notice is received by the speaker or by the president for the purpose of considering the resolution.

A resolution of disapproval is different from a resolution approving the continuation of a proclamation in the following two ways:

1. The first one is required to be passed by the Lok Sabha only, while the second one needs to be passed by both the houses of parliament.
2. The first one is to be done by a simple majority only, while the second one needs to be done by a special majority.

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.

1. Effect on the centre – state relations:While a proclamation of emergency is in force, the centre – state relations undergo basic changes. This is headed under:
   
   
   1. 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.
       
   2. 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.
       
   3. 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.
       
2. Effects on the life of the Lok Sabha and State Assembly:
   While a proclamation of National emergency is in process, the life of Lok Sabha is also extended beyond its normal term (5 years) by a law of parliament for one year at a time. However, this extension cannot continue beyond a period of 6 months after the emergency has ceased to operate. Similarly, the parliament may extend the normal tenure of a state legislative assembly (5 years) by one year each time. During a national emergency subject to a minimum period of six months after the emergency has 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.

1. 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.
    
2. 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.[5]

B. State Emergency (Art 356):

It says that the president can act on report of the Governor or otherwise is satisfied that a situation has arisen in which the state government is unable to perform its duty in accordance with the provisions of the constitution, he may issue a proclamation. This concludes that the president can also act even without the Governor’s report.

Art 355 justifies it by saying that the centre is obliged to ensure that the government of the state is carried on in accordance with the provisions of the Indian constitution. In that circumstance, proclamation by president is called ‘proclamation due to the failure of constitutional machinery in state’.

By that proclamation:

1. The president may assume to himself all or any of the powers vested in the Governor or exercised by him to anybody or authority in the state.
2. The president may declare that the powers of the legislature of the state shall be exercised by or under the authority of parliament.
3. The president may make such consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of proclamation.

The president cannot assume to himself any of the powers vested in high court or suspend the operation of any provisions of the constitution relating to the high court.[6]

Parliamentary Approval and Duration:

A proclamation shall laid before each house of parliament for approval and shall remain operational for two months, after the expiry of this period the proclamation ceases to operate.
If the proclamation is issued at the time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes places during this period of 2 months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstruction.

If the proclamation is approved by the parliament it will remain in operation for six months. Parliament may extend the duration of proclamation for 6 months at a time. No proclamation shall remain in force more than 3 years, after the expiry of the maximum period of 3 years neither the parliament nor the president shall have power to continue a proclamation and the constitutional machinery must be restored to the state.

Judicial Guidelines for imposing President’s Rule:
In S.R. Bommai V. Union of India,[7]
Facts:

1. On Dec 15, 1992 president rule was imposed in three BJP ruled-states Madhya Pradesh, Himachal Pradesh, and Rajasthan and assemblies were dissolved on the ground that these states were not implementing sincerely the ban imposed by the centre on religious organisation.
    
2. The main grounds on which the government had been dismissed were that the chief ministers of these states had connections with an organisation which had been banned, and secondly, that these governments had encouraged the Kar Sevaks to go to Ayodhya. Thus, the premise was mere suspicion that they might refuse to enforce the ban. There were no proof that they were not following the directions of the centre.

Held:

1. The dismissal of the governments in Madhya Pradesh, Himachal Pradesh and Rajasthan in the wake of the Ayodhya incident of Dec 6, 1992 was valid and imposition of the president’s rule in these states was constitutional.
2. ‘Secularism’ is a basic feature of the constitution and any state government which acts against that ideal can be dismissed by the president.
3. It was held that in matters of religion the state has no place. No party can simultaneously be a non-secular party as well as political party.[8]

C.Financial Emergency (Art 360)

It empowers the president to proclaim a financial emergency if he is satisfied that a situation has arisen, where the financial stability or constancy or credit of India or any part of its territory is threatened. In other words, it means whenever the president is contended that the economy of India is in danger, he may proclaim this emergency.

Parliamentary Approval and Duration:

A proclamation declaring financial emergency must be approved by both the houses of parliament within two months from the date of its issue, it survives until 30 days from the first sitting of Lok Sabha after its reconstruction if at the time of proclamation, the Lok Sabha was dissolved or the dissolution of Lok Sabha was taking place. Once the proclamation is approved by both the houses of parliament the financial emergency continues indefinitely, its time is unspecified till it is revoked. The repeated parliamentary approval is not required for its continuation like other two emergencies.

A resolution approving the proclamation of financial emergency can be passed by either house of parliament only by a simple majority, i.e., a majority of the members present and voting of the house. It can be revoked by the president anytime by a subsequent proclamation. Those proclamation does not require the parliamentary approval.

Effects of Financial Emergency:

The implications of the financial emergency are:

1. The president may reserve all the money bills or financial bills after they are passed by the state legislature for maintaining financial constancy and the credit of the nation.
2. The president may issue directions for the reduction of salaries and allowances of:
   
   
   1. all or any class of persons serving in the state;
   2. all or any class of persons serving the union and;
   3. the judges of the supreme court and the high court.

Thus, during the proclamation of the financial emergency, the union acquires full control over the states in financial matters.

Criticism of Financial Emergency:

1. The federal character of the constitution will be destroyed and therefore the union will become all powerful.
2. The powers of the state will entirely be given to the union executive.
3. The president will become a dictator.
4. The financial autonomy of the state will become invalidate.
5. Fundamental rights will become meaningless and due to which the democratic foundations of the constitution will be destroyed.

Conclusion
Emergency provisions were amended under the Constitution for the security of the country and for the protection of its people but these provisions delegates excessive power to the Executives. This affects the federal character of the Constitution, and the union becomes all powerful. Although, the need for Emergency provisions is understood but there are some changes required in the mechanism so that there is no violation of fundamental rights of the citizens and there is no misuse of the powers vested to the executives for their political purposes.