Part XVIII of the Constitution deals with two types of emergencies, national emergencies, and the failure of constitutional machinery in a State. The invocation of a national emergency under Article 352 and the invocation of President’s rule under Article 356 represent exceptions to the ordinary operation of the Constitution where, to address an urgent internal or external threat, the Constitution temporarily delegates certain powers to the President and Parliament until the threat abates and ordinary Constitutional governance is restored.
The invocation and operation of this exceptional power is itself subject to the Constitution and thus the rule of law. In the case of national emergencies, Article 353, and in the case of President’s rule in a State, Article 356(1) clearly delineate the legal effects of the emergency and outline the powers that can be exercised by the Union Government and Parliament during such emergencies.
As a result, the delegation of powers to the President and Parliament are also governed by the constitutional text of Part XVIII. The key consequence of the Constitution itself providing for emergency powers is a negation of the notion of any extra-legal or extra-constitutional power and the reiteration of the supremacy of the rule of law. All governmental power, even during an emergency, must be exercised subject to constitutional constraints. The task of the Court is not to infer any implied extra-constitutional limitations on the Union’s power during the invocation of President’s rule but rather to interpret the relevant constitutional provisions and scheme to determine if the Constitution places any limits on the Union’s power during the invocation of President’s rule are, and if so, what those limits are.
Implications of these powers on the principle of federalism
The powers under Articles 352 and 356 cannot be properly understood without a reference to the implications of these powers on the principle of federalism. Both national emergencies and the imposition of President’s rule represent limited constitutionally sanctioned exceptions to the federal principle which ordinarily dictates that the State Governments and Legislatures are supreme within their sphere of operation.
In the limited circumstances set out in Articles 352 and 356, the Constitution itself necessitates the temporary and limited delegation of power to the Union to restore the ordinary operation of the Constitution.
Article 352 grants the President the power to issue a Proclamation of emergency if he is satisfied that a grave emergency exists which threatens the security of India or any part of the territory is threatened by war, external aggression or armed rebellion. Similar to Article 356, the Proclamation is required to be approved by both Houses of Parliament.
Article 353 stipulates when a national Emergency is in operation, the executive power of the Union shall extend to directing the States on the manner of exercising their executive power, and the power of Parliament to make laws shall extend to matters in the State list. In addition, when a national Emergency is in force, Article 19 of the Constitution, and the right to move the court for the enforcement of rights under Part III (except Articles 20 and 21) is suspended.
Thus, any law or executive action cannot be challenged in court on the ground that they are violative of the provisions of Part III (other than Articles 20 and 21). The executive and legislative power conferred on the Union upon the issuance of a Proclamation under Article 356 is narrow when compared to the power conferred when a Proclamation is issued under Article 352 for the following reasons:
a. The ground(s) for issuing a Proclamation under Article 352 are much graver when compared to the grounds for issuing a Proclamation under Article 356. Article 352 covers threats to the security of the nation as a whole or parts of it. The ground “internal aggression” in Article 352 was substituted with “armed rebellion” by the Constitution (Forty-fourth Amendment) Act 1978.
The substitution indicates that a national Emergency which has wide repercussions including the suspension of fundamental rights can be declared only in grave situations. It is but a natural corollary that the executive and the legislative power that the Union would require to handle an emergency under Article 352 will be different from the power that would be required to handle a situation of a failure of constitutional machinery under Article 356;
b. Article 358 creates a hierarchy even amongst the grounds for declaring a national Emergency. Article 19 can only be suspended when Emergency is declared upon the territory being threatened by war or external aggression. The provision specifically excludes the ground of armed rebellion.
The exclusion of the ground of armed rebellion from the purview of Article 358 indicates that the suspension of Article 19 is only necessary when national Emergency is declared on graver grounds; and
c. When a national Emergency is declared, the executive power of the Union shall extend to giving directions to the State and Parliament to make laws on any subject notwithstanding that it is beyond the scope of its legislative powers.
Article 252 expressly recognises this principle. The provision states that Parliament, when a Proclamation of Emergency is in operation, shall have the power to make laws for the whole or any part of the territory of India even on matters enumerated in List II of the Seventh Schedule.
However, when a Proclamation under Article 356 is issued, the President may assume or declare powers mentioned in sub-clauses (a), (b), and (c) of Article 356(1). Thus, while the powers mentioned in Article 353 are a natural consequence to declaring a National Emergency, the powers mentioned in sub-clauses (a), (b), and (c) of Article 356(1) do not automatically flow from the exercise of power under Article 356. Rather, the President on application of mind must decide the scope of exercise of powers.
Re: article 370 of the constitution, 2023