16447630 Emergency Provisions Under The Indian Constitution

INTRODUCTION EMERGENCY PROVISIONS UNDER CONSTITUTION OF INDIA: The Indian system of government is of quasi-judicial nature where resembling a federal government, powers are distributed between the centre and the state and similar to unitary form because of retention of powers to the Union during emergency. Here the state government relinquishes their rights to the central government to retain security and pursuit of public welfare. It was at the time when neighbouring country, China attacked the northern borders posing a threat to the security of India, when for the first time the Union assumed powers to handle such a situation. Since then the President was assigned with extraordinary powers to act in situations of Emergency. Part XVIII of the Constitution has made provision for three kinds of emergencies:  National Emergency  Emergency due to failure of constitutional machinery in states  Financial Emergencies

These Are Explained Below: 

ARTICLE 352: The constitution makers have equipped the Union under Article 352 with absolute control during time of emergency to preserve the integrity, security and stability of the country. Proclamation of Emergency under this Article excludes the other two kinds of Emergencies. President can impose National Emergency if he is satisfied that a grave situation exists or is likely to arise due to war, external aggression or armed rebellion (earlier it was internal disturbance). However his powers are subject to the recommendation of the Cabinet. The proclamation must also be laid before the House of Parliament which may approve it by passing a resolution, take no action or disapprove it within one month. Such a proclamation is notified by publication in official gazette but this is not obligatory. So far National Emergency has been declared three times in the country, first being in 1962-1968 when China attacked Indian borders, second in 1971-1977 during Second World War and the third was imposed in 1975 on grounds of internal disturbances.

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ARITCLE 356: Under this article the President is vested with wide discretionary powers when he is satisfied that the government of the state cannot be carried on in accordance with the provision of the Constitution of India. Imposition of Emergency during failure of constitutional machinery in state is called Presidents Rule and noncompliance by any state with direction of Union given in the exercise of its executive power is an express ground to impose such a rule. Such a proclamation to be operative 1

must be placed before the House of Parliament and with its approval it is valid for six months. In S.R. Bommai v. Union Of India, a full bench of the Karnataka high court produced different opinion about the imposition of the President’s Rule in Karnataka, while in other states the court held that it was in violation of the constitution and would have restored the original position.

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ARTICLE 360: This article explains Financial Emergency imposed by the President in a situation of financial crises where the credit of India, or any part is threatened or in danger. The purpose of this article is to alter the governmental machinery at the backdrop of the financial stability of the country. Unless approved by the House of Parliament this proclamation shall cease to operate in two months. In so far, this proclamation is not imposed in India.

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EMERGENCY POWERS OF PRESIDENT

The President of India has the power to declare three types of emergency. They are National Emergency, State Emergency and Financial Emergency. Under the Government of India Act 1935, the Governor-General had similar powers. The emergency powers of the President are of far-reaching significance. It is argued by some scholars that the President can become very powerful, even a dictator, by using these powers. Let us first analyse these powers and then we will find out if the President is a potential dictator.

(a) National EmergencyArticle 352 (1) says, "If the President is satisfied that a grave emergency exists whereby the security of India or of any part of territory thereof is threatened, whether by war or external aggression or armed rebellion he may, by proclamation, make declaration to that effect." If the President believes that there is a threat to the security of India or to the security of a part of India, he has the power to declare National Emergency. Such threat to India's security or to the security of any part of its territory may be caused when another country declares war against India or attacks it. It may also be caused by armed rebellion. Because of fear that the President of India may misuse this power, it has been provided in the 44th Amendment that the President cannot declare National Emergency without the written advice of the Union Cabinet. In 1975, Mrs. Indira Gandhi, the then Prime Minister, had advised the President to declare National Emergency without consulting her cabinet. The National Emergency of 1975 was a constitutional abuse and political malaise. The 44th Amendment is an antidote to such danger. The National Emergency can be declared for the whole country or for a part of it. A National Emergency, originally declared for the whole country, can be later limited to a particular part of the country in which there is serious emergency situation. A proclamation of National Emergency has to be passed in each house of Parliament by more than half of the total members and at least by two-third of the members present and voting. This proclamation will be invalid if it is not passed by both houses within one month. It has to be passed first by the Rajya Sabha if the Lok Sabha stands dissolved at the time of proclamation of National Emergency. 3

It has to be passed within one month of Lok Sabha being reconstituted; otherwise the proclamation will be invalid. The proclamation of National Emergency will remain in force for six months after it is duly passed by both houses of Parliament. Each time it can be extended for six months with the approval of the Parliament. There is no limit on such extension. The 44th Amendment Act, 1978 empowers the Lok Sabha to revoke National Emergency by simple majority. A special session of the Lok Sabha has to be convened for this. The Lok Sabha can have a special session if at least one-tenth of its members give a 14-day notice to the speaker to convene a special session of the Lok Sabha. The President of India has also the power to revoke the National Emergency whenever necessary. Consequences of National Emergency 1. The Parliament gets power to make laws in relation to the State List. 2. The Union government is empowered to give directions to the state in executive matters. 3. The right to freedom under Art. 19 are automatically suspended. 4. The right of Citizen to seek constitutional remedy under Art. 32 are abridged; it may be suspended. 5. The Union Government may suspend all other fundamental rights except Art. 20 and Art. 21. 6. The division of sources of revenue between the centre and states may be modified. Use of Emergency Powers. For the first time in independent India, National Emergency was imposed on 26 October 1962 in view of the Chinese aggression against India. It was lifted on 10 January 1968. Another National Emergency was declared on 3 December 1971, the day on which Pakistan launched a war against India. Pakistan attacked India because of its support to the liberation of Bangladesh. This emergency was still in operation when the country was put under the third National Emergency in June 1975. It may be remembered that the third National Emergency was imposed by the Indira Gandhi government after Mrs. Gandhi's election to the Lok Sabha was declared null and void by the Allahabad High Court, The government declared National Emergency on the ground of 'internal disturbance' on 25 June 1975 which was revoked on 21 March 1977. All the three National Emergencies were declared under Article 352. While the first two emergencies were imposed on the ground of 'external aggression', the third was imposed on the ground of 'internal disturbance'. Both the second and third National Emergencies were lifted on 21st March 1977.

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There were no complaints against the promulgation of first two National Emergencies. But the third National Emergency was widely criticized. It was charged that the only motive of imposing this emergency was to defend the political interests of Mrs. Indira Gandhi.

(b) Proclamation of Failure of Constitutional Machinery in a StateUnder Article 356 the President can promulgate the failure of constitutional machinery in a state if he is satisfied either on the basis of a report from the Governor of that State or otherwise that the government of that state cannot be carried on in accordance with the provisions of the constitution. He can also issue such a proclamation if a state has failed to carry out a direction of the Union Government given by it in exercise of its executive power to the state. It is important to note that the President can declare 'State Emergency' or President's Rule either on the basis of a report of the Governor or otherwise that the constitutional machinery of that state has failed. Thus, at times, the President may declare State Emergency even when he has not received a report from the state Governor saying that the constitutional machinery of that state has failed. He might have been satisfied about the failure of the constitutional machinery of a state by the reports received from other sources. In 1991, President Venkatraman declared State Emergency in Tamil Nadu even though he had not received a report from the Governor S. B. Barnala recommending this. Under the 42nd Amendment of 1976, the presidential promulgation of State Emergency became immune from judicial review. In other words, it could not be challenged in the court of law. But this was nullified by the 44th Amendment of 1978. According to this amendment, the legality of the proclamation of President's Rule can be challenged. The State Emergency, once proclaimed, would stay for two months. However, if before the proclamation of emergency the Lok Sabha had been dissolved or if it is dissolved within 2 months of the proclamation, the State Emergency would come to an end after 30 days of the meeting of the Lok Sabha if in the mean time the proclamation of State Emergency had not been approved by the Parliament. This two-month period of State Emergency can be extended by the resolutions passed by both Lok Sabha and Rajya Sabha for a period of six months at a time, subject to a maximum period of three years. Each time it will be extended for six months. The 42nd Amendment provided for such extension for one year, though it did not make any change in the limit of maximum period of the State Emergency for three years. However, the 44th Amendment Act restored the status 5

quo. In other words, each extension of State Emergency will be for six months and the maximum period of its duration is three years. Consequences of the Proclamation of State Emergency 1. During state Emergency, the President of India assumes all executive power of the state to himself. The state administration is run directly by him or through a person designated for the purpose by him. It is the Governor of state who runs the state administration on behalf of the President. 2. During the President's Rule, the state assembly is either dissolved or kept under suspended suspension. The state assembly is kept under suspended animation if there is hope that a new council of ministers can be formed within a short time. During this period, the MLAs do not lose their membership of the Assembly, nor is there election held to the assembly. Therefore some scholars have described state Emergency as 'Half Emergency.' 3. The Parliament makes laws an all items included in the state list. It also passes the state budget. However, if the Lok Sabha is not in session, the President may authorize any expenditure from the consolidated fund of India. 4. During the State Emergency, the High Court of the state, as before, functions independently without any of its powers being curtailed. 5. The president has also power to proclaim ordinances in the state. During State Emergency the Union Government assumes absolute control over state administration except the judiciary. As the state administration is mostly run in the name of the President, the State Emergency is known as 'President's Rule'. However, to many it appears as the 'Governor's Rule', as the Governor runs the state administration as the agent of the President. Dr. Ambedkar, the Father of Indian Constitution, observed, Art 356 is not an ordinary law, and this cannot be enforced arbitrarily and whimsically. This may be used as the last weapon, he said. But this has already been used more than 100 times. Critics say that this Article has often been used in a partisan manner and that its enforcement has been highly politicised. In several cases, the Supreme Court of India has declared the President's Rule illegal. The use of article 356 has embittered relations between the centre and states, and weakened India's federalism. After the Lok Sabha elections held in March 1977 which brought Janata Party to power at the centre, the President's Rule was imposed on 30th April 1977 in nine states which had Congress governments. Similarly, following the Seventh Lok Sabha election held in 1980, the President's Rule was imposed in nine states which had non-Congress governments. In December 1992, the President's Rule was imposed by the Narasimha Rao government in four states, namely, the U.P, Madhya Pradesh, Himachal Pradesh and Rajastan, which had BJP governments. These BJP governments were punished after the destruction of Babri 6

Masjid at Ayodhya on 6th December 1992. While the Madhya Pradesh High Court, in its judgement, said that the imposition of President's Rule in Madhya Pradesh was illegal, this judgement was reversed by the Supreme Court in April 1994 which upheld the legality of the President's Rule in four Indian states in December 1992. Many times the provision of State Emergency has been misused by the party in power at the centre and President's Rule is often imposed to further the interests of the political party or parties ruling at the centre.

(c) Financial EmergencyUnder Article 360, the President of India can proclaim Financial Emergency if he is satisfied that the financial stability or the credit of India or of any part of its territory is threatened. The effects of financial emergency are: 1. The Union Executive will have authority to give directions to any state to observe cannons of financial propriety. 2. The President may issue directions requiring reducing the salary and allowance of all or any class of persons serving in the Union or State Government including the Judges of the Supreme Court and High Courts. 3. The money bills, duly passed by state legislatures, may be reserved for the consideration of the President. 4. The allocation of revenue between the centre and the state may be altered by the President. The proclamation of Financial Emergency shall ordinarily remain in force for a period of two months. However, it can continue to stay beyond two months if before the expiry of the twomonth period, the proclamation has been approved by the both Houses of Parliament. If, at the time of proclamation of Financial Emergency, the Lok Sabha stands dissolved, the proclamation needs to be approved by the Lok Sabha within 30 days of its meeting after its reconstitution, provided in the mean time the Rajya Sabha has approved it. If the Lok Sabha fails to approve it within 30 days of its assembly following its reconstitution, the proclamation of Financial Emergency shall cease to operate. The National Emergency and Financial Emergency have no time limit. They can continue to be extended without any limit. But the State Emergency has a time-limit. It cannot go beyond three years.

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Effects Of Proclamation Of Emergencies:  The effects of Proclamation of Emergency are given under Article 353 of the Constitution. The power under this is provisional and cannot be used without reasonable care. The most important effect is that during the operation of a proclamation the federal nature of the government becomes unitary and the union has power to give directions to the state in reference to the executive power to be exercised by them. In this way the legislative power of the union parliament is enlarged up to the extent that it can make laws for the state and also modify provisions regarding revenue matters. Where the fundamental rights are concerned, during emergency arising out of war or external aggression Article 19 is suspended. During the continuance of proclamation, power is vested in the President to suspend the right of individual to move to the courts in case of infringement of their fundamental rights except those under Article 20 and Article 21 under the Constitution of India. In Bennett Coleman & co. v. Union of India, the supreme court held that the Newsprint Policy of 1972-73 in continuation of the old policy made before the Proclamation of Emergency was not protected during the operation of the proclamation from attack under Article 19.

 Under the President’s Rule the President is empowered with powers to suspend or dissolve the State legislative Assembly. The provisions made by the president in view of the Rule are incidental or consequential and must be necessary to give effect to objects of the proclamation. Article 357 provides the manner in which the legislative powers are exercised under the proclamation issued under Article 356. In Nishi Kanta Mondal v. State of W.B, it was held that the Act enacted, in view of the provisions of clause (2) of Article 357, shall continue to remain in force in spite of the revocation of the Proclamation unless the Act is repealed or re-enacted with or without modifications by an Act of appropriate legislature.  While the Proclamation of Financial Emergency is operative as per Article 360 of the constitution, powers are vested in the President to give directions to states regarding financial matters, to reduce salaries and allowance of government servants and also reserve all money bills. The salaries of the higher official including judges of the Supreme Court can also be altered to make the country financially stable at times of crisis.

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Abuse of Power: It is clear that the power extended to the Union Parliament in the Proclamation of Emergency must be used in rarest of the rare cases. However it is not so, the power given to the President to be used in extraordinary circumstances is widely used for political benefits of individuals rather than public interest. This abuse of power can easily lead to sedition of the Indian democracy. In a number of cases the power was distorted with political considerations, sometimes there is also self interest of the individual that lie behind the decisions taken during manoeuvre of Emergency. The 44th amendment ensured that internal disturbance would no longer be ground for Proclamation of Emergency, where it lead to the worst abuse of Emergency power at National level in 1975 and continued till 1977. The power under Article 356 has been used frequently in India since 1950, especially in states like Uttar Pradesh, Kerela and Punjab. At one instance this President’s Rule was imposed purely on political grounds to overthrow the ministry formed by a different party. By the 42nd amendment in 1976, it was exemplified as it affected almost sixty clauses of the constitution. Therefore there is demand for either deletion or making provisions to restrict misuse of these provisions.

Deterrence of Abuse of Power: It is noteworthy that the Emergency Provisions are subject to abuse by the authorities and relevant safeguards must be followed to deter the same. The constitution of India guarantees to the citizens of India fundamental rights, which are suspended pursuant to Emergency Provisions. It must be kept in mind that the human rights must be not violated during the proclamation, if so, done with justifiable cause in favour of individual interest. Also the social, cultural, political, and civil rights of people must be safeguarded. The Provisions must not be such as to disregard the principle of legality. ‘Due procedure of law’ or ‘procedure established by law’ as mentioned in Maneka Gandhi v. Union of India, must be followed to prevent corruption and misuse of power. It is a conditional power and must be used as a last resort with due care. The Sarkaria Commission sharing a similar view believes that this extraordinary power given by the constitution must be used as a constitutional weapon to deal with extreme situation and not used frequently as is being done in India. First time in S.R Bommai v. Union of India, it was held that the Proclamation under Artcle 356 can be subject to judicial review. The judges have the power to examine the validity of grounds on which the Proclamation of Emergency is based. The power of judicial review was first experienced in State of Rajasthan v. Union of India, held that there cannot be any uniform rule of law for Proclamation of Emergency, it varies in different circumstances.

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Also in Ram Manohar Lohia v. State of Bihar, the order of detention under the Defence of India Rules was held to be illegal because the actual order of detention in the case was not in terms of the rules. Proclamation of Emergency provisions are legitimate action but must be applied only when the situation demands. It should be used cautiously to avoid interruption in the constitutional mechanism. Therefore, limitations should be placed to bring the actions under constitutional limit. Government is responsible for all the acts and thus scrutiny of the basis of rules is a necessity to deter abuse of power for political or other purpose other than social welfare. Where state government fails to follow the directions of the central government, proclamation of Emergency cannot be imposed. Emergency intervention in the country must be for short term and it should deal with Emergency situations only. The decision making power must not be vested in few hands, this may lead to biased ground of imposing Proclamation. Expertise from different areas of work must be involved in decision making process. Thus it is crystal clear that to prevent abuse of power during Proclamation of Emergency three things should be kept in mind i.e functioning democracy, protection of human rights and Rule of Law.

A Relative Study: The Indian Constitution equips the central government with powers to function while operation of Proclamation of Emergency whether National Emergency, Emergency due to failure of constitutional machinery in states or Financial Emergency. The President is vested with wide discretionary powers, subject to constitutional validity of the same. Similarly in the European countries the Emergency measures must not exceed that what the situation demands and they cannot be inconsistent with the states other obligations as per under the International law. One of the duties while exercising the power under Article 352 is the protection of human rights. However Article 19 is suspended during operation of the proclamation but as soon as the Emergency ceases, these rights must be reinstated to the individuals. In Bangladesh it is recommended that there should be immediate restoration of fundamental and democratic rights of people after the Emergency ceases to operate. As stated in S.R. Bommai v. Union of India, that grounds of Proclamation of Emergency must be reasonable and are subject to judicial review, the ancient Romans placed automatic limit of six months on Emergency dictatorship. According to them existence of reasonable cause is must and the same should be proved and justified.

The President can declare an Emergency mentioned in Article 352 of the Constitution of India only on written advice of the Union Cabinet, with further approval of the House of Parliament within one month in case of National Emergency and within two months in case of the other two types of Emergencies, from the date of its imposition. Also, in Germany, the 10

President can declare Emergency on request of the Chancellor with approval of Federal Council.

Conclusion: Where the Constitution provides for execution of power which may lead to infringement of fundamental rights of the individual during Emergency, judicially guaranteed by Constitution of India, there must also be effective control mechanism to ensure limitation of this power within the ambit of the Constitution. The validity of actions must be reviewed to deter political gains and give way to public interest. Despite the abuse of power the Emergency provisions still have a role to play under conditions prevailing in India, though it still remains a controversial issue in the country. In times of emergency—national, state or financial—all powers are concentrated in the hands of the Union Government. The emergencies make our fundamental rights less meaningful. On the other hand, the justification of emergency provisions lies in the fact that when the existence of the State itself is in danger due to external attack or internal disturbance or financial instability, the Union Government must be armed with full powers to avert or meet that danger. And it is well that, at such a time, the restraints are placed on the good of the individuals in the safety and security of the State and the State is not bothered by judicial interferences. The founding fathers of our Constitution have not only wanted to give a democratic Constitution but also provided a solid foundation of national unity and integrity. So, these emergency provisions are expected to be used in such real situations. However, these powers should never be misused to meet out the political ends of the party in power. This can be checked by strong public opinion and democratic forces which are essential for the success of our federal-cum-parliamentary democracy.

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