EMERGENCY PROVISIONS

EMERGENCY PROVISIONS

  • Constitutional provisions: Part XVIII- Articles 352 to 360
  • Emergency converts the federal structure into a unitary one without a formal amendment of the Constitution.
  • Emergency provisions are borrowed from the Govt. Of India Act 1935
  • Why these provisions: To safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution.

 

NOTE: “Suspension of Fundamental Rights during proclamation of emergency” provision borrowed from Weimer constitution (Now Russia)

 

THREE TYPES OF EMERGENCIES:
  1. Article 352: Emergency due to war, external aggression or armed rebellion
  2. Article 356: Emergency due the failure of the constitutional machinery in the states (President’s Rule)
  3. Article 360: Financial emergency due to threat to financial stability or credit of India

 

NATIONAL EMERGENCY (ART. 352):
  • External Emergency – Declared on the ground of ‘war’ or ‘external aggression’.
  • Internal Emergency – Declared on the ground of ‘armed rebellion’.

 

FeaturesDescription38th Amendment42nd Amendment44th Amendment
 

 

 

 

Grounds of declaration

Article 352: President can declare.

If the security of India or part of it is threatened by war or external aggression or armed rebellion.

He can declare even before the occurrence of above events if he satisfies that there is eminent danger

President can issue different proclamations on above mentioned grounds, whether or not there is a proclamation already issued by him.This enabled president to limit the operation of a National Emergency to a specified part of India or whole country‘Internal Disturbance’ replaced by ‘Armed Rebellion’. No longer possible to declare national emergency on the grounds of internal disturbance.
 

Role of cabinet

In original constitution, there is no mention of role of cabinet 

 

 

 

President can proclaim only after written recommendation (Earlier only concurrence) from cabinet.
 

 

Judicial review

There was no explicit mention of judicial review regarding National EmergencyMade national emergency immune from judicial review 

 

 

 

 

 

Provision under 38th amendment was deleted. (Minerva Mills Case: Supreme Court- proclamation of national emergency can be challenged in the court on the grounds of malafide or that the declaration is based on wholly extraneous or irrelevant facts or is absurd or perverse)
 

 

Parliamentary approval

Approval by both the houses within one month (originally 2 months)

(Note: Two months for Art. 356 & 360.)

Period for Approval by both the houses reduced to one month from two months.
 

 

 

Duration

After approval emergency continues for 6 months. (Originally once approved, emergency could remain as long as executive desires)Emergency can be extended indefinitely but with an approval of parliament for every six months.
Type of majority for approvalOriginally simple majorityIntroduced special majority for the approval
 

 

 

 

 

 

 

Revocation of emergency

President can revoke. Parliamentary approval not necessary.President must revoke the emergency if Lok Sabha passes a resolution disapproving its continuation. (Earlier Lok Sabha had no role in revocation). One tenth LS members need to give written notice to speaker or president (if LS is not in session). A special session is held within 14 days to consider such resolution
Type of majority for disapprovalSimple majority in Lok Sabha for disapproval.

 

EFFECTS OF NATIONAL EMERGENCY:

 

1. EFFECT ON LIFE OF LOK SABHA & STATE ASSEMBLY:

 

EXECUTIVELEGISLATIVEFINANCIAL
·         Executive power of the Centre extends to directing any state regarding any matter it feels necessary. (During normal times, Centre can give executive directions to state only on specified matters)

·         Though the states are brought under complete control of Centre, they are not suspended

  •          Parliament becomes empowered to make laws any subject under State List.
  •         Though the state legislatures are not suspended, parliament acquires the overriding powers.
  •          Such laws by parliament on State List becomes inoperative 6 months after the revocation of emergency.
  •          If parliament is not in session, president can issue ordinances on state subjects.
  •          42nd Amendment: The above legislative and executive functions extend not only to a state where emergency is in operation but also to any other state.
  •          President can modify (reduce/cancel) the constitutional distribution of revenues between Centre and states.
  •          Such modification continues till the end of the financial year in which emergency ceases to operate.
  •          Every such order of president has to be laid before both the houses.

 

2. EFFECT ON LIFE OF LOK SABHA & STATE ASSEMBLY:

 

ON LOK SABHAON STATE ASSEMBLY
  •          During the National Emergency, the life of LS may be extended by the law of the parliament for one year at a time for any number of times.
  •          This extension cannot continue beyond 6 months after the emergency has ceased to operate.
  •          Only parliament can extend life of assemblies (by one year each time for any length of time) i.e. The period of extension is same like parliament.

 

3. EFFECTS ON FUNDAMENTAL RIGHTS:
  • Article 358 & 359 deals with this effect.
  • Article 358: Deals with the suspension of Fundamental Rights under Art. 19
  • Article 359: Deals with the suspension of other Fundamental Rights (except Art. 20 & 21).

 

Suspension of Fundamental Rights under Article 358 & 359:

 

Article 358Article 359
  •          Six FR under Article 19 are automatically suspended and no separate order is required for the suspension.
  •          The state can make laws or take executive actions to take away these rights under Article 19. Such laws cannot be challenged in the courts during emergency and even after emergency.
  •          After emergency ceases to operate, article 19 revives automatically. And any law inconsistent with Article 19 also ceases to operate.
  •          It authorizes president to suspend the right to move to any court for the enforcement of FR during national emergency.
  •         The suspension of FR & its duration is mentioned by president in his order.
  •          The FR are suspended either for a period of emergency or for shorter period.
  •          Any such order should be laid before both the houses for the approval.
44th Amendment:

  •          Six FR under Art. 19 can be suspended only when National Emergency is declared on the grounds of “war or external aggression” & not the ground of “armed rebellion”.
  •         Only those laws which are related to emergency are protected from judicial review and no other laws.
44th Amendment:

  •          President cannot suspend the right to move the court for the enforcement of Fundamental Rights under Art. 20 & 21.
  •          Only those laws which are related to emergency are protected from judicial review and no other laws.

 

  • Article 358 operates only during external emergency and not during internal emergency.
  • Article 359 operates both during external emergency & internal emergency.
  • Article 358 suspends FR under Article 19 for whole duration of emergency.
  • Article 359 suspension of FR & its duration are mentioned by the president in his order.
  • It extends to whole country
  • It extends to either whole country or part of it as mentioned by president.
SIMILARITIES: Both provide immunity from challenge to only those laws which are related with the Emergency no other laws. The executive action taken only under such a law is protected by both.

 

  • Declarations made till now: National Emergency has been declared three times- 1962 (Chinese aggression), 1971 (Pakistan war), 1975 (internal disturbances).
  • Shah Commission: Enquired 1975 emergency and did not justify declaration of Emergency.

 

PRESIDENT’S RULE (ART. 355, 356 & 365):

 

Article 355Duty of the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution.
 

Ground for declaration

1.       Article 356: President can proclaim if he is satisfied that state government cannot be carried on in accordance with the provisions of the Constitution. (President can act on the report of the governor or otherwise).

2.       Article 365: If a state fails to give effect or comply with any direction from the Centre, then it is lawful for the president impose president’s rule.

Parliamentary approvalMust be approved by both the houses within two months (One month in case of Art. 352) of such issue.
Duration6 months. It can be extended for a maximum period of 3 years with parliamentary approval every 6 months.
Type of majoritySimple majority in both the houses.
RevocationMay be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.
44th AmendmentBeyond one year, the president’s rule can be extended by 6 months a time only if following conditions are met:

1.       If national emergency is in operation in whole India or whole or any part of state.

2.       If Election Commission certifies that elections cannot be held due to difficulties.

Judicial review38th Amendment: President’s satisfaction under Article 356 made immune from judicial review.

44th Amendment: above provision was deleted.

Imposition
  •          First time, the President’s Rule was imposed in Punjab in 1951.
  •         Maximum times imposed in Manipur (10 times) followed by UP (9 times)

 

CONSEQUENCES OF PRESIDENT’S RULE:

President acquires following extraordinary powers:

  1. President can take up the functions of the state government and powers vested in governor or any other executive authority.
  2. He can declare that powers of state legislature are to be exercised by the parliament.
  3. He can take all necessary steps including the suspension of constitutional provisions relating to any body or authority in the state.

 

During President’s Rule, president dismisses the Council of Minister headed by Chief Minister and parliament passes the state bills and budgets. The state administration is carried on by governor with help of Chief Secretary on behalf of President.

 

NOTE: The laws made by the parliament or president or any other authority continues to operate even after the President’s Rule. The Constitutional position, status, powers and functions of the State High Court remain same even during President’s Rule.

 

SR BOMMAI CASE (1994): SUPREME COURT GUIDELINES
  • President’s Rule is under judicial review.
  • Satisfaction of president based on relevant material. Court cannot go into correctness of the material or its adequacy but it can see whether it is relevant or not.
  • Centre needs to justify the President’s Rule.
  • If President’s Rule is unconstitutional or invalid, court can revive the state legislative assembly.
  • State assembly can be dissolved only after parliamentary approval till then it can only be suspended.
  • If state government is pursuing anti-secular policy, then it is liable to take action under Article 356.

 

CASES OF PROPER AND IMPROPER IMPOSITION (BASED UPON SARKARIA COMMISSION RECOMMENDATIONS):

 

Proper Imposition of President’s RuleImproper Imposition of President’s Rule
Hung assembly (No party has majority)If ministry resigns or lost majority and governor recommends imposition without assessing possibility of alternative government
Party having majority declines to form ministry and governor cannot find a coalition having majority.If governor does not allow ministry to prove its majority and recommends the rule.
If ministry resigns after its defeat in assembly and no other party has majorityIf ruling party is lost in general elections to the Lok Sabha.
If state disregards constitutional direction given by Centre.Maladministration in the state.
If government is acting against constitution and the law or is fomenting a violent revolt.Internal disturbances not amounting internal subversion or physical breakdown.

 

FINANCIAL EMERGENCY: ARTICLE 360

Art. 360 more or less follows the pattern of what is called the National Recovery Act of the United States passed in 1933.

 

Who proclaims?President
When?If financial stability or credit of India or any part of its territory is threatened.
 

Judicial review

38th Amendment: Satisfaction of president in declaring financial emergency made immune from judicial review.

44th Amendment: Provisions made under 38th Amendment deleted, so subject to Judicial Review.

Parliamentary approval & durationApproval of both the houses within two months (One month in case of Art. 352) from the date of its issue. Once approved emergency continues indefinitely until revoked.
Majority type for approvalSimple majority
RevocationRevoked by president. No parliamentary approval required

 

Note: In India, no Financial Emergency has been declared so far, though there was a financial crisis in 1991.

 

EFFECTS OF FINANCIAL EMERGENCY:
  • Executive authority of Centre extends to directing any state to observe such canons of financial propriety as are specified by it.
  • President can direct:
  • The reduction of salaries and allowances of all or any class of persons serving the state or union and the judges of Supreme Court and high court.
  • Reservation of all money bills or other financial bills for the consideration of the President after they are passed by the state legislatures.

 

BASIC DIFFERENCE BETWEEN THREE EMERGENCIES:

 

ArticleApprovalMajorityRevocationPeriod
Article 352Within one monthSpecialBy President (Lok Sabha only). No Parliamentary approval required.Unlimited
Article 356Within two monthsSimpleBy President. No Parliamentary approval required.Maximum 3 years
Article 360Within two monthsSimpleBy President. No Parliamentary approval required.Unlimited (Repeated approval not required)