- 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:|
- Article 352: Emergency due to war, external aggression or armed rebellion
- Article 356: Emergency due the failure of the constitutional machinery in the states (President’s Rule)
- 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’.
|Features||Description||38th Amendment||42nd Amendment||44th 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.|
|There was no explicit mention of judicial review regarding National Emergency||Made 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)|
|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.|
|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 approval||Originally simple majority||—||—||Introduced 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 disapproval||—||—||—||Simple majority in Lok Sabha for disapproval.|
|EFFECTS OF NATIONAL EMERGENCY:|
|1. EFFECT ON LIFE OF LOK SABHA & STATE ASSEMBLY:|
|· 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
|2. EFFECT ON LIFE OF LOK SABHA & STATE ASSEMBLY:|
|ON LOK SABHA||ON STATE ASSEMBLY|
|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 358||Article 359|
|44th Amendment: ||44th Amendment: |
|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 355||Duty 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 approval||Must be approved by both the houses within two months (One month in case of Art. 352) of such issue.|
|Duration||6 months. It can be extended for a maximum period of 3 years with parliamentary approval every 6 months.|
|Type of majority||Simple majority in both the houses.|
|Revocation||May be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.|
|44th Amendment||Beyond 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 review||38th Amendment: President’s satisfaction under Article 356 made immune from judicial review.|
44th Amendment: above provision was deleted.
|CONSEQUENCES OF PRESIDENT’S RULE:|
President acquires following extraordinary powers:
- President can take up the functions of the state government and powers vested in governor or any other executive authority.
- He can declare that powers of state legislature are to be exercised by the parliament.
- 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 Rule||Improper 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 majority||If 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.
|When?||If financial stability or credit of India or any part of its territory is threatened.|
|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 & duration||Approval 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 approval||Simple majority|
|Revocation||Revoked 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:|
|Article 352||Within one month||Special||By President (Lok Sabha only). No Parliamentary approval required.||Unlimited|
|Article 356||Within two months||Simple||By President. No Parliamentary approval required.||Maximum 3 years|
|Article 360||Within two months||Simple||By President. No Parliamentary approval required.||Unlimited (Repeated approval not required)|