In Indian polity, Emergency refers to a situation where the Central executive exercises extraordinary powers given by the Constitution, to deal with a crisis caused by either internal or external factors that threaten the nation’s stability, unity and sovereignty.
Emergency provisions are given in Articles 352 to 360 in Part XVIII of the Indian Constitution. The order to declare an emergency is passed by the President of India on the advice of the Central Council of Ministers.
Application of Emergency leads to unprecedented changes in a country’s political structure and people’s rights and freedom. While the provisions of Emergency in a political system are provided for genuine concerns, they can be misused by authoritarian forces to gain excessive power and trample on the rights of people.
Background of the Emergency Provisions in the Constitution
- At Independence, India was dealing with partition, communal riots, and the integration of princely states. The peculiar situation of the newly independent India compelled the Constitution makers to include emergency provisions in India.
- These prevailing situations made the Constitution makers arm the central government with the necessary authority to deal with the situations that can affect the unity, integrity and sovereignty of the nation.
- The emergency provisions in the Indian Constitution are influenced by the Weimer Constitution of Germany and the Government of India Act 1935.
- The Government of India Act 1935 had provisions to take away the autonomy of states in case of Emergency due to war or internal disturbances or in case the ministry fails to perform its duties.
Types of Emergencies
The Constitution provides for three types of emergencies:
- National Emergency (Article 352): The President declares the Proclamation of this type of Emergency when a situation of grave Emergency arises, causing a threat to the security or territory of India by war, external aggression or armed rebellion.
- President’s Rule (Article 356): This type of Emergency is declared in the situation of failure of the Constitutional machinery in a state. However, the Constitution does not use the term ‘Emergency’ in this case. This type of Emergency is also called a state emergency, Constitutional Emergency, etc.
- Financial Emergency (Article 360): This type of Emergency is declared when there is a threat to the financial stability and credit of India.
TYPES OF EMERGENCY
on concurrence of cabinet
|Both the houses within 1 month
|Both the houses within 2 months
|Both the houses within 2 months
|6 months and can be extended indefinitely
|6 months can be extended up to 3 years
During the situation of a grave crisis, when there is a physical threat to the unity and integrity of India, such as war or internal ‘armed’ rebellion, centre gets extraordinary legislative and executive powers.
Instances of National Emergency
|Since Independence, there have been three instances of declaration of National Emergency:
The first instance was during Indo-China War from 26 October 1962 to 10 January 1968.
The Second was during the Indo-Pak war, from 3 December 1971 to 21 March 1977.
The third instance was on 25 June 1975 and terminated on 21 March 1977. It was the first time that the emergency was imposed without any external threat, on the grounds of “internal disturbances” in the country.
Grounds of Emergency
Under Article 352 of the Constitution, a National emergency can be proclaimed only in two specific situations:
- War or external aggression
- Armed rebellion
Internal Disturbance v/s Armed Rebellion
|The Original constitution contained the term ‘Internal disturbance’ instead of ‘Armed Rebellion’. The infamous Emergency of 1975 was proclaimed on the vague grounds of ‘internal disturbances,’ in which severe restrictions on fundamental rights were imposed.
44th Constitution amendment, 1978 thus replaced the term ‘internal disturbances’ with ‘armed rebellion’, to be more specific. Now, it is no longer possible to declare an emergency on the grounds of mere internal disturbances.
- Thus, we have two types of Emergencies:
- When an emergency is declared on the premises of war or external aggression, it is known as an ‘External emergency’;
- when it is declared on the grounds of internal rebellion, it is known as ‘Internal Emergency’.
- An emergency can be declared even before the actual occurrence of war, external aggression or armed rebellion if the President is satisfied that there is a possibility of such events occurring.
- Further, grounds of emergency can be changed amidst the ongoing emergency. 38th Constitutional Amendment, 1975 added the Provision that the President can issue different proclamations on any of the permissible grounds even if an emergency is already in operation.
- Enforcement: The Emergency can be applicable to the entire territory or a part of it. The 42nd Amendment provided that the ‘National Emergency’ can be applied to a specified part of Indian Territory.
Approval, Duration & Revocation of National Emergency
Since, Emergency leads to incredible centralisation of powers, utmost care has been taken in the Indian constitution, to create checks and balances.
- Cabinet’s Consent Required: The President can declare the Emergency only on the written concurrence of the Cabinet and his satisfaction regarding the prevailing situation. The 44th Constitutional Amendment added this safeguard to ensure that the Prime Minister alone cannot make the decision regarding this, as was the case in the Emergency declared in 1975; Earlier written concurrence was not required.
- Parliament’s approval: Every Proclamation of National Emergency must be laid before each house of the Parliament. If either of the houses do not approve the Proclamation within the expiry of 1 month, the Emergency will cease to operate. The original duration was two months, which was reduced to one month by the 44th Constitutional Amendment Act.
- Duration: If approved by both the Lok Sabha and the Rajya Sabha, the Emergency remains operative for 6 months.
- Continuation beyond 6 months: It can be extended indefinitely with the approval of Parliament every 6 months. The 44th Constitutional Amendment added the Provision of the requirement of Parliamentary approval every 6 months.
- Special Majority: Every resolution concerning the Emergency, either for approval or for continuation, must be passed by a special majority, i.e. a majority of the total members of the house and the majority of 2/3rd of the members present and voting.
- In case of dissolution of Lok Sabha: If the Proclamation of Emergency is declared when the Lok Sabha is dissolved or gets dissolved before the expiry of the one-month duration of Emergency, then the Emergency continues till the 30 days of the first sitting of Lok Sabha after its reconstitution, provided that the Rajya Sabha, in the meantime has approved it.
- Judicial review: The 38th Constitutional Amendment Act of 1975 made the declaration of emergency immune from judicial review. However, this Provision was repealed by the 44th Amendment. Further, in the Minerva Mills judgement of 1980, the apex court held that the Proclamation of Emergency could be challenged in the Court on the grounds of malafide intention or the declaration was based on irrelevant, absurd or perverse reasons.
- Revocation: The President (on council of ministers’ advice) can revoke the Proclamation of Emergency at any time by a subsequent proclamation; it does not require Parliamentary approval. However, Parliament too has power to revoke an Emergency:
- The Emergency can also be revoked if the Lok Sabha passes a resolution (by simple majority) disapproving the continuation of the Emergency. This Provision was added by the 44th Constitutional Amendment.
- The Amendment also added that if 1/10th of the total members of the Lok Sabha give notice to the Speaker (or President in case the house is not in session), a special sitting of the house must be convened for the consideration of disapproving the resolution.
Effects of National Emergency
The effects of the National Emergency can be discussed in the following sub-topics:
- Effects on Centre-state relations
- Term of Lok Sabha and state assemblies
- Effect on Fundamental Rights
Effects on Centre-State Relations
The effects of Emergency on centre-state relations in administrative, legislative and financial matters have been dealt with in detail in the centre-state relations chapter . The Parliament can legislate on state subjects, and the Union can give directions to the state on ‘any’ matter. However, such central laws on state subjects remain operative till the expiration of 6 months after the emergency ceases to operate.
Effect on Term of Lok Sabha and State Assemblies
- Extension of term of Lok Sabha: While the National Emergency is in operation, the duration of Lok Sabha can be extended by one year at a time (indefinitely). However, this extension becomes void beyond a period of 6 months after the Emergency is revoked. For instance, the term of Lok Sabha was extended two times during the National Emergency of 1975.
- Extension of term of state assemblies: In a similar fashion, the terms of state legislatures can be extended by one year at a time for indefinite time. However, this extension discontinues beyond a period of 6 months after the Emergency is revoked.
Fundamental Rights Vs National Emergency
In situations of Emergency, the government is compelled to choose between its primary obligation to protect the integrity and sovereignty of the country and the equally important obligation to protect the fundamental rights of its citizens.
The Constitution has empowered the President, under Articles 358 and 359, to suspend the fundamental rights of the citizen except Article 20 (right to protection in respect to conviction for offences) and Article 21 (right to life and personal liberty).
Suspension of fundamental rights mentioned in Article 19 (Article 368)
- As per Article 358, the fundamental rights mentioned in Article 19 are automatically suspended with the Proclamation of National Emergency. No separate order is required. It means the government can take any executive and legislative action which violates the fundamental rights mentioned in Article 19.
- However, as soon as the Emergency becomes inoperative, the fundamental rights are restored, and any law inconsistent with Article 19, which was made during the Emergency, becomes ineffective.
- Further, any legislative and executive action done during the operation of the Emergency cannot be challenged in the Courts even after the Emergency is revoked.
The 44th Constitutional Amendment put a limitation on Article 358 in three ways:
- The fundamental rights under Article 19 can be suspended only when the National Emergency is declared on the premises of war or external aggression (External Emergency).
- Only those laws are protected from being challenged that have been enacted in relation to the Proclamation of Emergency; also, only those executive actions are protected which are issued under such law.
Suspension of enforcement of fundamental rights (Article 359)
Under Article 359, the President may by notification declare that the right to move any court for enforcement of any fundamental rights (as mentioned in the notification except Article 20 and 21) shall remain suspended for the period in which Emergency is operational or even shorter period specified in the Presidential order.
- It means that the rights are not suspended per se; rather, the right to move to Courts for the enforcement of such rights is suspended.
- The suspension could be applied to either the whole of India or any specified part of India, as mentioned in the Presidential order.
- This Provision applies to only those rights which are mentioned in the Presidential order.
- As per this Article, the government can take any executive and legislative action which violates the specified fundamental rights. However, as soon as the Emergency becomes inoperative, any law inconsistent with specified fundamental rights that were made during the Emergency becomes ineffective.
- However, any legislative and executive action done during the operation of the Emergency cannot be challenged in the Courts even after the Emergency is revoked.
- The 44th Constitutional Amendment has put limitations on Article 359 in the following ways:
- The President cannot suspend the right to move the Court for enforcement of rights under Article 20 and 21.
- *Only those laws that have been enacted in relation to Proclamation of Emergency, also only those executive actions which are issued under such law.
ADM Jabalpur (Habeas Corpus) Case
|This is considered one of the most controversial judgements of the Indian Supreme Court. In this judgement, the Court upheld the state’s power to undermine individual liberty and the right to life of a person under Article 359.
Background: The mass detention of political opponents during the Emergency in 1975 was challenged on the basis that Article 359 suspends enforcement of fundamental rights under Article 32 and not under Article 226 (power of High Court to issue writs for enforcement of fundamental rights or any other purpose), and right to life and liberty is not limited to Article 21.
Judgement: The judgement given by the five-judge bench (by 4-1) did not consider the natural right to life and liberty (right to life and liberty even in the absence of the Constitution) and stated that the right to life and liberty is a “gift of law” and this law must give way to the state’s interests in cases of threat to the state.
44th Constitutional Amendment: This Amendment made the Provision that Article 20 (protection in respect of conviction of offences) and Article 21 (right to life and liberty) do not come under the purview of Article 359; hence, their enforcement cannot be suspended even during operation of National Emergency.
KS Puttaswamy (Right to Privacy) Case, 2017: The Supreme Court overturned its judgement in the ADM Jabalpur case and recognized that neither the state nor the Constitution is the source of the right to life and liberty (natural rights). It ruled that the power of the Court to issue habeas corpus writs is an undeniable feature of the rule of law.
Distinction between Article 358 and 359
Distinction Between Article 358 & 359
|IMPLICATIONS ON FUNDAMENTAL RIGHTS
|Applicable only to Article 19 and gets automatically suspended
|Applicable to all Fundamental rights (except 20 & 21) as mentioned in presidential order and suspends its enforcement
|Applies in external emergency
|Applies in both external and internal emergency
|Either specified or entire territory
|Entire duration of emergency
|Either entire duration or period specified in presidential order
- Article 358 is applicable only to rights mentioned in Article 19, whereas Article 358 is applicable to all those rights (Including Article 19) which are mentioned in the Presidential order (except Article 20 and 21).
- Article 358 automatically suspends fundamental rights under Article 19 in case of war or external aggression (External Emergency). Whereas Article 359 empowers the President to suspend the enforcement of fundamental rights. It does not lead to automatic suspension of enforcement of fundamental rights.
- Article 358 only applies in case of External Emergency, whereas Article 359 is applicable in both external as well as internal Emergency.
- Under Article 358, fundamental rights mentioned in Article 19 are suspended for the entire duration of the Emergency, whereas under Article 359, the enforcement of fundamental rights can be suspended for either the entire duration of the Emergency or for a shorter period, as specified in the Presidential order.
- Article 358 extends to the entire territory of India, whereas Article 359 can be either limited to a specific territory or can be applicable to the entire territory of the country.
Similarities between Article 358 and Article 359
Both Articles provide immunity to only those articles that have been enacted in relation to the Proclamation of National Emergency and to only those executive actions which are issued under such laws.
Misuse of Article 352 (National Emergency)
|As we know, there have been three instances when the National Emergency was declared; however, in the previous two instances, it was declared on genuine grounds of threat to the territorial integrity of the nation. However, the third declaration of Emergency was political in nature.
Reasons for declaration: The reasons cited were political unrest and economic challenges, but critics argue that the real reason was the conviction of Indira Gandhi by Allahabad High Court on charges of electoral malpractice, which barred her from holding elected office for six years.
President rule or state emergency is imposed in the case of failure of the Constitutional machinery in the state. For example, if there is a hung assembly, or no government is in power in state, generally President’s rule is imposed. It is less severe and does not impact fundamental rights, and thus is a milder way to deal with an emergency situation.
Grounds of Imposition
The Constitution has, under Article 356, provided for the President’s rule in states under certain circumstances. However, the Constitution does not use the term ‘emergency’ in this case.
The Centre can impose presidential rule in two conditions:
- If the President is satisfied that a situation has arisen in which the state cannot function in accordance with the provisions of the Constitution. In such cases, the President can act either on the Governor’s report or on Suo Moto cognizance (Article 356).
For example, if government formation is not possible, then without the council of ministers, the state government cannot run in accordance with the constitution. In such a case, President’s rule can be imposed.
- When a state fails to comply with or to implement any direction from the Centre, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot function in accordance with the provisions of this Constitution (Article 365).
For example, under Article 257, Union can direct states to maintain railway infrastructure and means of communication. If states fail to comply with such directions, President’s rule can be imposed.
As per Article 355, the Union government has a duty to protect every state government from external threats and internal disturbances and to ensure that the government of every state is carried on in accordance with the Constitution of India. Thus, a President’s rule can be imposed under any of the above situation.
Approval, Duration & Revocation of State Emergency
To prevent the misuse of President’s rule provision, following checks are mentioned in the constitution:
- Approval: Like in a National Emergency, a proclamation to impose the President’s Rule in a state must be approved by both houses of the Parliament (by simple majority) within two months.
- However, in case the Loksabha is dissolved, or dissolution takes place within two months without approving the Proclamation of state emergency, then the Proclamation survives until the first 30 days of the reconstitution of the lower house, provided that the upper house has approved it in the meantime.
- Duration: If approved, the President’s rule continues for six months. It can be extended for a maximum of three years, with the approval of the Indian Parliament every 6 months. (The 68th Constitutional Amendment extended the duration of the President’s rule in Punjab for 5 years.)
- 44th Constitutional Amendment: The Amendment provided that the President’s Rule can be extended beyond one year only if it fulfils certain conditions.
- A National Emergency is in operation in the whole of India or in the whole or any part of the state.
- The Election Commission of India must acknowledge that Elections of legislative assembly cannot be held due to certain circumstances.
Revocation: The President can revoke the Proclamation on his own without requiring any Parliamentary approval. Unlike National Emergency, there is no provision for Loksabha to pass a resolution to revoke the President’s rule.
|The 38th Constitutional Amendment of 1975 made the satisfaction of the President final and conclusive, which means it could not be challenged in any court. During this time Emergency was launched during the Indira Gandhi Government.
However, these provisions were repealed by the 44th Amendment Act, when the Janata Party Government came to power.
Effects of State Emergency
When a state emergency is imposed on a state, the President dismisses the state council of ministers chaired by the Chief Minister. The state Governor runs the state administration on behalf of the President. However, the judicial dispensation in the state is not affected by the state emergency, and its powers, status, and functions remain the same.
The President can either suspend or dissolve the legislative assembly.
- Effect on Legislative powers
- During the Proclamation of the President’s Rule in a State, the Parliament is empowered to legislate on subjects mentioned in the state list. The President can also promulgate ordinances for the governance of the state.
- Unlike the National Emergency, where the Parliament can make law on state subjects by itself, here, the Parliament can delegate the state’s legislative powers to any authority.
- As per convention, the President make laws in consultation with the Member of Parliament of that state. Such laws are called as President’s Acts. Such laws continue to be valid even after the termination of the President’s rule.
- Effect on Administrative Power: The President is authorized to carry out all of the Governor’s duties as well as those of any other executive authority in the state.
- Effect on Financial Power: The Parliament passes the budget of the state. In case the Lok Sabha is not in session, the President authorizes the expenditure from the state consolidated fund, pending its sanction by the Parliament.
Misuse of President’s Rule
Article 356 is one of the most controversial provisions in the Indian Constitution in the context of Centre-State relations. The Central governments have been accused by the opposition parties, particularly in the states, of misusing the Provision for political reasons.
Initially, constitution makers like Dr BR Ambedkar hoped that this drastic Provision would remain a “dead letter”. But that has never been the case. In the context of gross misuse of Article 356, HV Kamath, a member of the Constituent Assembly, commented decades later, “Dr Ambedkar is dead, and the Articles are very much alive”.
- For the first time, President’s Rule was imposed in Punjab in 1951; since then, the President’s Rule has been imposed 125 times and barring Chhattisgarh and Telangana, all of the states have come under President’s Rule at least once.
- In most cases, the Central government, particularly under the Congress Party, used this Provision against the left and regional parties.
- Most Brazen misuse of Article 356 was witnessed after the National Emergency, when the Janata Party came to power in 1977, it dismissed the Government in 9 congress-ruled states on the filmsy ground that Congress no longer represented the electorate. When the Congress Party came back in power in 1980, it did the same in 9 states on the same grounds.
Thus, in 1994, the Supreme Court in the SR Bommai case gave a landmark judgement in which it discussed the provisions of Article 356 at length, listed proper and improper use case scenarios and laid guidelines on the imposition of the President’s Rule.
Supreme Court’s Observations in SR Bommai Case
The Supreme Court (in SR Bommai Case) has made the following propositions with regard to the imposition of the President’s Rule:
- The President’s Proclamation under Article 356 is not beyond the scope of judicial review.
- The satisfaction of the President should be on reasonable grounds. The Proclamation can be struck down if it is based on irrelevant grounds or found to be mala-fide or perverse.
- The burden of justification (of application of Article 356) lies on the Centre.
- If the Court declares the Proclamation of President Rule invalid, it can restore the state legislature and revive the dismissed state assembly.
- The state assembly should be dissolved only after the Parliament approves the President’s Proclamation. Until the approval, the assembly can only be suspended. If the Parliament fails to give approval, the assembly will be active again.
- Secularism is a basic feature of the Constitution; hence, states pursuing anti-secular politics can be a justifiable ground for imposition of the President’s rule.
- Question of No-confidence in govt. must be decided on the floor of the house; until then, the ministry should not be dismissed by the Governor.
- When a new political party comes into power at the Centre, it does not have the authority to dismiss the state governments ruled by other parties without appropriate reasons.
- The power under Article 356 should be used sparingly, only in exceptional circumstances.
Cases of Proper Use of President’s rule:
- When state government refuses to act on the Constitutional guidelines given by the Centre.
- During the breakdown of state machinery, risking the security of the state where the state government is not cooperating with the Centre.
- When the government is wilfully flouting the Constitutional provisions and involved in fomenting a violent revolt.
- In the case of a hung assembly, after elections, no party has secured a majority.
- When the party that has secured the majority has declined to form the government, and the Governor cannot find a coalition of parties who have the required numbers.
- When a ministry reigns after losing confidence and other parties are not willing to form a ministry.
Cases of Improper Use
- When the Governor personally assesses the confidence of the ministry instead of allowing the ministry to prove its majority on the floor of the assembly.
- When a ministry resigns or loses confidence, the Governor recommends imposition of the President’s Rule without exploring the prospects of forming an alternative government.
- Allegation of corruption against the ministry or maladministration in the state.
- Internal disturbance that does not result in physical breakdown or internal subversion.
- To sort out internal issues of the ruling party or for irrelevant reasons.
- When the state ministry is not given prior warning, except in extreme circumstances.
Under Article 360, the Constitution has provided for the imposition of the Financial Emergency in case of financial instability in the whole or any part of India. Financial Emergency has not been proclaimed so far.
Ground of Imposition
- Article 360 of the Constitution empowers the President to proclaim the declaration of financial Emergency if s/he is satisfied that a situation has developed whereby the financial stability or credit of India or of any part of the territory thereof is threatened.
- The 38th Constitutional Amendment (1975) made the satisfaction of the President final and conclusive and not questionable in any court. However, the 44th Amendment repealed that Provision, which means it can be challenged in Court.
The declaration of Proclamation of Emergency must be approved (by a simple majority) by the Parliament within two months if the Lok Sabha is dissolved or gets dissolved in the period of two months without approving the Proclamation. In that case, the Emergency remains operational until 30 days after the reconstitution of the Lok Sabha.
Duration: Once approved, the financial Emergency continues indefinitely until it is revoked. No Parliamentary approval is required for its continuation.
Revocation: The Proclamation can be revoked by the President anytime by a subsequent notification. It does not require Parliamentary approval.
Effects of the Financial Emergency
During the operation of the Financial Emergency, the Union acquires full control of the financial matters of the state.
The Provision under Article 360 empowers the Union executive to direct the states:
- To observe the principles of financial propriety as may be specified in the direction.
- On any other matters which the President may deem necessary for the purpose, such as:
- A provision necessitating the reduction of salaries and allowances of all or any class of state employees;
- A provision requiring all money bills and financial bills (containing provisions under Article 207) to be reserved for the consideration of the President.
The President is empowered to issue directions for the reduction of salaries and allowances of all or any class of Union government employees as well as the Judges of the Supreme Court and the High Courts.
Criticism of the Emergency Provisions in the Constitution
Several members of the Constituent Assembly criticized the inclusion of Emergency provisions in the Constitution on the grounds of:
- Endangering the federal character of the Constitution.
- Threat to fundamental rights of the citizen.
- Concentration of power in the hands of the union executive.
Views of Constituent Assembly Members:
- KT Shah: He described the provisions as “a chapter of reaction and regression”. As per him, two thoughts influence these provisions: (a) to arm the Union with special powers against states and (b) to arm the state against the people.
- HV Kamath: Expressing his apprehension, he stated that “we are laying the foundation of a police state and a totalitarian state, a state which is completely opposed to the ideals we have upheld in the last few decades”.
- TT Krishnamachari: He feared that these provisions could lead to a “constitutional dictatorship”.
- Dr BR Ambedkar: He also thought that these provisions could be misused. He observed, “I do not altogether deny that there is a possibility of the Articles [related to Emergency] being abused or employed for political purposes.
- However, many members supported the provisions, such as Mahabir Tyagi, who called these provisions a “safety valve” and hence would help maintain the Constitution.
The Emergency provisions in a democratic state are meant for the preservation of vital values of democratic society, which can be endangered in exceptional circumstances. It is a “safety valve” to protect a nation’s unity, integrity and sovereignty. It must not be exercised to undermine democracy, centralize power or crush dissent.
The rule of law is a fundamental feature of democracy, in the absence of which lawlessness prevails, and the government’s lawlessness, when there is no authority to question government, is even more dangerous.
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- Background of the Emergency Provisions in the Constitution
- Types of Emergencies
- National Emergency
- Grounds of Emergency
- Approval, Duration & Revocation of National Emergency
- Effects of National Emergency
- Fundamental Rights Vs National Emergency
- President’s Rule
- Grounds of Imposition
- Approval, Duration & Revocation of State Emergency
- Parliamentary Control
- Effects of State Emergency
- Misuse of President’s Rule
- Supreme Court’s Observations in SR Bommai Case
- Financial Emergency
- Ground of Imposition
- Parliamentary approval
- Effects of the Financial Emergency
- Criticism of the Emergency Provisions in the Constitution
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