Emergency Provisions in Indian Constitution

Black law’s dictionary defines emergency “as a failure of social system to deliver reasonable conditions of life”. The term emergency may be defined as “circumstances arising suddenly that calls for immediate action by the public authorities under the powers especially granted to them”. Dr. B.R Ambedkar claimed that the Indian Federation was unique as during the times of emergency it could convert itself into an entirely unitary system. In India, the emergency provisions are such that the constitution itself enables the federal government acquire the strength of unitary government whenever the situation demands. During such urgent needs all the pacific methods should be exhausted and emergency should also be the last weapon to use as it affects India’s federal feature of government.

There are three types of emergencies under the Indian Constitution namely-

· National Emergency

· Failure of constitutional machinery in states

· Financial Emergency

National Emergency

Article 352 of the Indian Constitution talks about the national emergency. National emergency is imposed whereby there is a grave threat to the security of India or any of its territory due to war, external aggression or armed rebellion. Such emergency shall be imposed by the president on the basis of written request by the council of ministers headed by the Prime Minister. When they are satisfied that they are satisfied that there is an eminent danger thereof.

Every proclamation is required to be laid before each House of Parliament, it will cease to operate after one month from the date of its issue unless in the meantime it is approved by the parliament, the proclamation may continue for a period of 6 months unless revoked by the president. For further continuance of emergency the resolution has to be passed by either house of parliament by a majority of not less than two-third members of the houses.

During the times of such emergency the executive, legislative and financial power rests with the centre whereas the state legislature is not suspended. The union government under Art.250 of the constitution gets the power to legislate in regards to subjects enumerated in the state list. Except Art20 and 21 all the fundamental rights are suspended. Under Art.359 the president may suspend the right to move to the courts for enforcement of fundamental rights during the time of emergency.

National emergency has been imposed thrice in the country- in 1962 at time of Chinese aggression, in 1971 during the indo-pak war, in 1975 on the grounds of internal disturbances.

Art 352 says that if the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened due to outside aggression or armed rebellion, he may make a proclamation to that effect regarding whole of India or a part thereof.

However, sub clause 3 says that President can make such a proclamation only upon the written advise of the Union Cabinet.  Such a proclamation must be placed before each house of the parliament and must be approved by each house with in one month otherwise the proclamation will expire.

An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing happening. 

In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court's power is limited only to examining whether the limitations conferred by the constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.

Prior to 44th amendment, duration of emergency was two months initially and then after approval by the houses, it would continue indefinitely until ended by another proclamation. However after 44th amendment, the period is reduced to 1 month and then 6 months after approval.

Failure Of Constitutional Machinery In State

Article 356 talks about the failure of constitutional machinery in state also known as the President’s rule. If the president on Governor’s report or otherwise is satisfied that the situation has arisen that the government can’t be carried in accordance with the constitutional provisions then, he may issue State emergency.

President can declare emergency either by the report of Governor or he himself is satisfied that the situation is such that the emergency has to be imposed. But at times, President may declare emergency when a report is not received from the governor. This was done by President Venkataraman in 1991 in the state of Tamil Nadu even though he didn’t receive a report from the governor.

After the 42th Amendment of the constitution the state emergency was made immune from judicial review. But later in the 44th Amendment the legality of President’s rule could be challenged

The proclamation relating to state emergency shall be laid before each House of Parliament unless both Houses approve it, the emergency shall cease to have effect after the expiry of a period of two months. Further the duration of proclamation can be extended to 6 months each time by both Houses of Parliament passing resolution approving its continuance. Beyond the period of an year the proclamation can only be continued if the Election Commission certifies that it is not possible to hold election in the state or that territory. The consequences of state emergency are- 

• The president assumes all the executive power of the state himself. The state administration runs by him or any person appointed by him generally the Governor.
• During such proclamation, the state assembly is either dissolved or suspended. But the MLA’s do not lose their membership of the Assembly.
• Parliament makes laws regarding the state list. The parliament only passes the budget for the state.
• The High court of the state functions independently.
• President also proclaims ordinances in the state.

During the state emergency the Union government has absolute control over the state except the judiciary. 

If one looks at the past instances of state emergency in the country, three common grounds emerge that have been invoked under Art.356- breakdown of law and order, political instability, corruption and maladministration. 

In Rameshwar Prasad V. UOI (Bihar Assembly Dissolution Case) it was held that the presidential proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional on extraneous and irrelevant ground. The court said that the state governor misled the centre in recommending dissolution of state assembly.

In the historic case of S.R Bommai V. UOI, a full bench of the Karnataka High court produced different opinion about the imposition of the President’s rule in Karnataka, while in other states the court held that it was in violation of the constitution and would have restored the original position.

S. R. Bommai v. Union of India

1. The SC laid down certain guidelines so as to prevent the misuse of Art-356 of the constitution.
2. The majority enjoyed by the Council of Ministers shall be tested on the floor of the House.
3. Centre should give a warning to the state and a time period of one week to reply.
4. The court cannot question the advice tendered by the CoMs to the President but it can question the material behind the satisfaction of the President. Hence, Judicial Review will involve three questions only: a. Is there any material behind the proclamation, b. Is the material relevant. c. Was there any mala fide use of power.
5. If there is improper use of A356 then the court will provide remedy.
6. Under Article 356(3) it is the limitation on the powers of the President. Hence, the president shall not take any irreversible action until the proclamation is approved by the Parliament i.e. he shall not dissolve the assembly.
7. Art-356 is justified only when there is a breakdown of constitutional machinery and not administrative machinery
8. Art-356 shall be used sparingly by the centre, otherwise it is likely to destroy the constitutional structure between the centre and the states. Even Dr. Ambedkar envisaged it to remain a 'dead letter' in the constitution.

Financial Emergency

The president under Article 360 of the constitution has the power to declare financial emergency if he is satisfied that the financial stability or the credit of India or any part of its territory is threatened. It has to be laid before both the Houses of Parliament and ceases to operate at the expiration of two months unless meanwhile approved by the resolution of Houses.

During the operation of financial emergency, the executive authority of the union extends to the giving of directions to any state to observe certain specified canons or financial propriety and such other directions that the President may find necessary. The directions may include reduction of salaries or allowance of those serving a state, of all those in connection with the affairs of union including judges of high court and Supreme Court. There has been no occasion of financial emergency in India.

Effects of Proclamation of emergency 

The following are the effects arising out of proclamation of emergency in art 352.

Art 353

• executive power of the Union shall extend to giving directions to any state.
• parliament will get power to make laws on subjects that are not in Union list.
• if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if that is also threatened.

Art 354

• Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by the president. Every law such made shall be laid before each house of the parliament.
• Art 355 says that it is the duty of the Union to protect States against external aggression.

Art 358

While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19.

It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency. 

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

Art 359

This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

Distinction Between Articles 358 and 359

The differences between Articles 358 and 359 can be summarised as follows:

1. Article 358 is confined to Fundamental Rights under Article 19 only whereas Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order.
2. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. On the other hand, Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.
3. Article 358 operates only in case of External Emergency (that is, when the emergency is declared on the grounds of war or external aggression) and not in the case of Internal Emergency (i.e., when the Emergency is declared on the ground of armed rebellion). Article 359, on the other hand, operates in case of both External Emergency as well as Internal Emergency.
4. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president which may either be the entire duration of Emergency or a shorter period.
5. Article 358 extends to the entire country whereas Article 359 may extend to the entire country or a part of it.
6. Article 358 suspends Article 19 completely while Article 359 does not empower the suspension of the enforcement of Articles 20 and 21.
7. Article 358 enables the State to make any law or take any executive action inconsistent with Fundamental Rights under Article 19 while Article 359 enables the State to make any law or take any executive action inconsistent with those Fundamental Rights whose enforcement is suspended by the Presidential Order.

There is also a similarity between Article 358 and Article 359. Both provide immunity from challenge to only those laws which are related with the Emergency and not other laws. Also, the executive action taken only under such a law is protected by both.