October 2, 2022

Emergency Provisions in the Constitution- A Brief

Part XVIII of the Indian Constitution contains emergency Provisions from Article 352-360. These provisions may be divided in three categories-

  1. Provision for the Emergency in the country;
  2. Presidential Rule in the States; and
  3. Financial Emergency.

We have witnessed the use of emergency provisions and presidential rule in state but Indian never faced financial emergency.

Proclamation of Emergency

Article 352

Article 352 deals with Proclamation of emergency. It states that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened whether by war or external aggression or armed rebellion, he may by Proclamation make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.

Explanation to clause (1) of the said article states that Proclamation of emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion, may be made before the actual occurrence of war or of any such aggression or rebellion if the President is satisfied that there is imminent danger thereof.

Clause (4) of the said article requires that every Proclamation issued under the said article shall be laid before each House of Parliament and shall cease to operate at the expiration of one month, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament.

Article 353

Article 353 refers to the effect of the Proclamation of emergency. It states that while the Proclamation of emergency is in operation, executive power of the Union shall extend to the giving of the directions to any State as to the manner in which the executive power thereof is to be exercised.

It further states that during the emergency the power of Parliament to make laws with respect to any matter, shall include power to make laws conferring powers and imposing duties or authorising the conferring of powers and the imposition of duties upon the Union or officers and authorities of the Union as respects that matter even if it is not enumerated in the Union List.

Article 354

Article 354 gives power to the President to direct that Articles 268 and 269 which relate to the distribution of revenue between the Union and the States shall cease to operate during the period of emergency.

Article 358

Article 358 gives power during the emergency to suspend the provisions of Article 19 to enable the State (i.e. the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India) to make any law or to take any executive action which the State would be competent to make or to take but for the provisions contained in Part III of the Constitution while the Proclamation of emergency declaring that the security of India or any part of the territory thereof is threatened by way or by external aggression, is in operation.

Such power, it appears, cannot be assumed by the State when the security of India is threatened by armed rebellion and the Proclamation of emergency is issued for that purpose.

Article 359

Article 359 gives power to the President to declare that the right to move any court for the enforcement of rights conferred by Part III of the Constitution except those conferred by Articles 20 and 21, shall remain suspended when a Proclamation of emergency is in operation.

Presidential Rule in state

Article 355

Article 355 makes an important provision. It casts a duty on the Union to protect States against external aggression and internal disturbance, and to ensure that the Government of every State is carried “in accordance with the provisions of the Constitution”.

Article 356

Article 356 is the provision which give the power to president to impose presidential rule in the state. It empowers the President, on his being satisfied that, “a situation has arisen” in which the Government of the State ‘cannot’ be carried on in accordance with the provisions of the Constitution, i.e., on the failure of the constitutional machinery, to take action in the manner provided in sub-clauses (a), (b) and (c) and (sic of) clause (1) thereof.

This action he must take on receipt of a report from the Governor of the State concerned or otherwise, if he is satisfied therefrom about the failure of the constitutional machinery.

Sub-clause (a), (b), (c) says that-

  • President may by Proclamation-
  • assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody 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.

However, this article does not give power to the president to also assume the power of high court.

Every Proclamation shall be laid before each House of Parliament and shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament. And A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation

Financial Emergency

Article 360

Article 360 envisages the Proclamation of financial emergency by the President when he is satisfied that a situation has arisen whereby the financial stability or credit of the country or of any part of the territory thereof is threatened. It declares that such Proclamation shall be laid before each House of Parliament and shall cease to operate at the expiration of two months unless it is approved by the resolutions of both Houses of Parliament. We have thus emergency provisions contained in other articles in the same part of the Constitution.

COMMON THREAD

The common thread running through all these articles in Part XVIII relating to emergency provisions is that the said provisions can be invoked only when there is an emergency and the emergency is of the nature described therein and not of any other kind.

The Proclamation of emergency under Articles 352, 356 and 360 is further dependent on the satisfaction of the President with regard to the existence of the relevant conditions precedent. The duty cast on the Union under Article 355 also arises in the twin conditions stated therein.