October 2, 2022

Provisions of Emergency in India for Nation’s Peace and Security

This article is written by Smriti Chawla, a law student of ll.b at Department of Laws, Panjab University Chandigarh.

 A notable feature of the Indian Constitution is the way in which the normal peace-time federalism can be adapted to an emergency situation. Indian Constitution is among the few constitutions of democratic countries which have elaborated the emergency provisions. All Constitutions both ancient and modern provide for an emergency government in addition to the normal one. The concept of emergency has passed into political theory. To guard against accidental emergence of dictatorship as result of war, external aggression or internal disturbance, it is always desirable to make specific emergency provision in the constitution. With this ending view, the Constitution of India made a separate part altogether to emergency provisions. Part XVIII, therefore, is an element of modernism in our Constitution.

  The framers of the Constitution felt that, in an emergency, the Centre should have overriding powers to control and direct all aspects of administration and legislation throughout the country. It envisages three types of emergencies:

  1. emergency arising from a threat to the security of India (article 352)
  2.  breakdown of constitutional machinery in a State (article 356)
  3.  financial emergency (article 360)

 (Article 352) with effect after 44th Amendment

Under Art. 352(1), if the President is ‘satisfied’ that a grave emergency exists whereby the security of India or any part thereof is threatened, whether by war, or external aggression, or armed rebellion, he may, by proclamation, make a declaration to that effect. Such a proclamation may be made in respect of the whole of India, or such part of the Indian territory as may be specified in the proclamation.

Before 1978, an emergency could be declared because of war, external aggression or ‘internal disturbance’. However, the expression ‘internal disturbance’ was too vague and broad. Thus, through 44th Constitutional Amendment the words ‘internal disturbance’ were placed against ‘internal disturbance’ with a view to exclude the possibility of an emergency being proclaimed on the ground of ‘internal disturbance’ only and involving armed rebellion in ambit also. This change has somewhat restricted the scope of what may be called as internal emergency. The reason underlying restricting the scope of Art. 352 is that a proclamation of emergency under Art. 352 has a very serious impact on the powers of the States as well as the Fundamental Rights of the people.

Further, the 44th Amendment has introduced a clause, viz., Art. 352(3), to the effect that the President shall not issue a proclamation of emergency [under Art. 352(1)], or a proclamation varying the same, unless the decision of the Union Cabinet has been communicated to him in writing. It so happened in 1975 that the President proclaimed emergency on the advice of the Prime Minister alone and the Council of Ministers was later presented with a fait accompli. This clause is to protect the interest and faith of the people of India in the welfare of the nation as a whole. It is also to be noted that proclamation will automatically cease after one month if not approved by Parliament (both the houses of parliament) in the meantime and has to be passed by each House by a majority of the total membership of each House and not less than two-thirds of the majority of the members present and voting in each House. Formerly, the period allowed for parliamentary approval of the proclamation was two months. The 44th Amendment has reduced it to one month. Once approved by Parliament, the proclamation remains in force, unless revoked earlier, only for six months from the date of the passing of the later of the resolution. For continuance of the emergency beyond that period, parliamentary approval is needed again. Since the passage of the Forty-fourth Amendment of the Constitution, the question of judicial review of the discretion of the President to declare or not to declare an emergency has not arisen as no emergency has been declared after 1975. In Minerva Mills Case, BHAGWATI, J., did express the view that whether the President in proclaiming the emergency under Art. 352 had applied his mind, or whether he acted outside his powers, or acted mala fide in proclaiming the, emergency could not be excluded from the scope of judicial review and declared the 38th Constitutional Amendment violative of the basic structure doctrine of the constitution.

Consequences of National Emergency

There is a transformation in the behaviour of the Indian federalism. The normal fabric of the Centre-State relations undergoes a fundamental change. Parliament becomes empowered to make a law with respect to any matter in the State List, and such a law operates till six months after the proclamation ceases to operate as mentioned in Article 250. According to Article 251, a Central law would override a State law even with respect to a matter in the State List.

Article 359 provides for suspension of the enforcement of the rights conferred by Part III during emergencies. However, by the Constitution (Forty-fourth Amendment) Act, 1978, it has been provided that even during emergencies, the enforcement of the rights under Articles 20 and 21 cannot be suspended. The law enacted by Parliament during an emergency in the exclusive State sphere ceases to exist six months after the emergency comes to end. This means that six months after the ending of the emergency, the normal scheme of distribution of legislative powers is fully restored. Since Parliament can make a law even in the exclusive State field, it means that the Centre can give directions even in the area normally allotted to the States.

Moreover, emergency provision frees the Centre from its obligation to transfer revenue to the States so that its own financial capacity remains unimpaired to deal with the emergency. The life of the Lok Sabha also gets extended beyond its normal five-year period by Parliament by law for a year each time, up to a period not extending beyond six months after the proclamation of emergency ceases to operate.

Invocation of Article 352

Time periodReasonRemarks
26 Oct 1962 – 10 Jan 1968India-China warSecurity of India threatened By external aggression  
3 Dec 1971 – 21 March 1977Indo-Pakistan war; and later extended  Security of India threatened By external aggression  
25 June 1975 – 21 March 1977Political instabilitySecurity of India threatened by internal disturbances  

Breakdown of constitutional government in the State (Article 356)

Central intervention under Art. 355 would be justifiable only in case of aggravated form of disturbance, which a State finds beyond its means to control. Although not laid down in the Constitution, a convention has arisen that ordinarily the Centre sends help to a State on request by the State Government. It is in fulfilment of this obligation that the Centre takes over the Government of a State (Art. 356) in case of breakdown of the constitutional machinery therein.

If the President, on receipt of a report from the Governor of a State or otherwise, is ‘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, the President may by proclamation—

  1. assume to himself all or any of the functions of the State Government, or the powers of the Governor, or anybody or authority in the State other than the State Legislature;
  2. declare that the powers of the State Legislature are to be exercised by Parliament;
  3. make such incidental provisions as may appear to him to be necessary or desirable for giving effect to the provisions of the proclamation; the President may even suspend in whole or in part the provisions of the Constitution relating to anybody or authority in the State

The maximum period for which a proclamation can remain in force in a State is three years. Thereafter, the President’s rule must come to an end, and the normal constitutional machinery restored in the State.

WHEN IS ARTICLE 356 INVOKED?

Failure of the constitutional machinery in a State may arise because of various factors; these factors are diverse and imponderable. In S.R. Bommai’s case the Court has clearly subscribed to the view Power under Art. 356 must be used and the situations of the breakdown of the constitutional machinery may be as follows:

  • No party in the Assembly has a majority in the State Legislative Assembly to be able to form the government.
  • A government in office loses its majority due to defections and no alternative government can be formed.
  • A government may have majority support in the House, but it may function in a manner subversive of the Constitution. As for example, it may promote fissiparous tendencies in the State.
  • The State Government does not comply with the directions issued by the Central Government under various constitutional provisions.
  • Security of the State may be threatened by a widespread breakdown of law and order in the State.

Financial Emergency (Article 360)

There was marked deterioration in the economic situation of the country due to the circumstances created by partition and fall in foreign exchange reserves. The post-war economic situation was also precarious. Dr. Ambedkar wanted to avoid all legal difficulties and thus came Article 360 of the Constitution.

The Article 360 makes provisions concerning financial emergency. If the President is satisfied that a situation has arisen whereby the financial stability or credit of India, or any part thereof, is threatened, he may by a proclamation make a declaration to that effect. The 38th Amendment Act of 1975 made the satisfaction of the president in declaring a Financial Emergency final and conclusive and not questionable in any court on any ground. But this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the president is not beyond judicial review.

A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation of Financial Emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it and once approved by both the houses of Parliament, the Financial Emergency continues indefinitely till it is revoked.

Effects of Financial Emergency

  • Extension of the executive authority of the Union over the financial matters of the States.
  • Reduction of salaries and allowances of all or any class of persons serving in the State.
  • Reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the State.
  • Direction from the President for the reduction of salaries and allowances of all or any class of persons serving the Union; and the judges of the Supreme Court and the High Courts.

Article 360 empowers Union govt to take control over state govt on every financial matter deal by a state. The Financial Emergency has never been imposed in any part of country, neither has Article 360 been used till now.

Way Forward

For the article 356, The Sarkaria Commission Report (1983) recommended that Article 356 should be used “very sparingly” and only as a last resort and mentioned: –

  1. The President’s proclamation of President’s Rule should include reasons as to why he thinks the state cannot run normally.
  2. Whenever possible, the centre should give the state government a warning before imposing Article 356.
  3. The Article should not be used for settling political scores.
  4. The commission recommended the amendment of the article in order for the President to be authorised to dissolve the state legislature only after getting parliamentary approval.

The Punchhi Commission also recommended in regard to article 356 that the centre should try to bring only a specific troubled area under its jurisdiction and that too for a brief period, not more than three months.

  1. The commission recommended that suitable amendments should be made to incorporate the guidelines established by SC in the Bommai case.
  2. The commission recommended the provision of a ‘Localized Emergency’ which implies that the centre can tackle issues at town/district (local) level without dissolving the state legislative assembly while at the same time, performing the duty of the Union to protect States as per Article 355.

Conclusion

Proclamation of an emergency is a very serious matter of concern for the nation’s peace and security as it disturbs the normal fabric of the Constitution and adversely affects the rights of the people, but even during emergencies, the enforcement of the fundamental rights under Articles 20 and 21 cannot be suspended. Such a proclamation should, therefore, be issued only in exceptional circumstances and must not be used for political gains or disturbing the democratic structureof the nation. They are meant only to maintain the constitutional machinery only in cases of real crisis situations. If autocratic rule tries to destroy the democratic structure of India, the citizens have the powers to change the rule by general elections as done in 1977.

REFRENCES

  1. Basu, D. (2017). Commentary on the Constitution of India. Lexi Nexis.
  2. Jain, M. (2018). Indian Constitutional Book. LexiNexis.
  3. Laxmikanth, M. (2019). Indian Polity. McGraw-Hill.
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