Emergency Provisions

The federal government have been considered to be weaker forms of government since it involves the division of powers between the federal government and the state governments. This weakness is avoided by providing larger power to the federal government whenever a contingency situation demands unified action by the organs of the federation. such emergency powers convert the federal government into a unitary type of government for the time being of contingency, which reverts back to normal federal structure as soon as the crisis is resolved. The constitution makers saw the necessity of such a situation during the times of World War II when the federal governments such as the USA and Australia had to concentrate the powers into the federal government. that is why they put the provisions for the exemption of extraordinary powers by the federal government in the constitution itself. it empowers the president to promulgate three kinds of emergencies: 

1. An emergency due to war, external aggression or armed rebellion (Article 352) – Popularly known as national emergency. however constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this time. 
2. An emergency due to the failure of the constitutional machinery in the states (article 356) – popularly known as ‘presidents rule’. it is also known as ‘state emergency’ or ‘constitutional emergency’. The constitution uses the word ‘emergency’ for this situation. 
3. Financial emergency due to a threat to the financial stability or predict of India (article 360). 

National emergency 

Article 352: Proclamation of emergency 

1. 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) 
2. A proclamation issued under clause (1) may be varied or revoked by a subsequent proclamation. 
3. The president shall not issue a proclamation under clause (1) or a proclamation varying such proclamation unless the decision of the union cabinet (That is to say, the council consisting of the Prime Minister and other ministers of cabinet rank appointed under article 75) that’s such a proclamation may be issued has been communicated to him in writing. 
4. Every proclamation issued under this article shall be laid before each House of parliament and shall, Except where it is a proclamation revoking a previous proclamation, ceased to operate at the expiration of one month unless before the expiration of that. It has been approved by resolutions of both Houses of Parliament: 

Provided that if any such proclamation (not being a proclamation revoking a previous proclamation) is issued at a time when the House of the people has been dissolved, or the dissolution of the House of the people takes place during the period of one month referred to in this clause, and if the resolution approving the proclamation has been passed by the council of states, but no resolution with respect to such proclamation has been passed by the House of the people before the expiration of that period, The proclamation shall cease to operate at the expiration of 30 days from the date on which the House of people first sits after its reconstitution, unless before the expiration of the said period of 30 days a resolution approving the proclamation has been also passed by the House of the people. 

     5. A proclamation so approved shall, unless revoked, he’s to operate on the exploration of a period of six months           from the date of the passing of the second of the resolutions approving the proclamation under clause(4): 

Provided that if and so often as a resolution approving the continuance in force of such a proclamation is passed by both the Houses of Parliament the proclamations shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause: 

Provided further that if the dissolution of the House of the people takes place during any such period of six months and a resolution approving the continuance in force of such proclamation has been passed by the council of states but no resolution with respect to the continuance in force of such proclamation has been passed by the House of the people during the said period, the proclamation shall cease to operate at the expiration of 30 days from the date on which the House of the people first sits after its reconstitution unless before the expiration of the said period of 30 days, a resolution approving the continuance in force of the proclamation has been also passed by the House of the people. 

1. for the purposes of clauses (4) and (5), a resolution maybe passed by either House of parliament only by a majority of the total membership of that house and by a majority of not less than 2/3 of the members of that house present and voting. 
2. notwithstanding anything contained in the foregoing clauses, the president shall revoke a proclamation issued under clause(1) what a proclamation wearing such proclamation if the House of the people passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such proclamation. 
3. where a notice in writing signed by not less than 1/10 of the total number of members of the House of the people has been given, off their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a proclamation issued under clause(1) or a proclamation varying such proclamation,- (a) to the speaker, if the house is in session; or (b) to the president, if the house is not in session, a special sitting of the house shall be held within 14 days from the date on which such notice is received by the speaker, or, as the case may be, by the president, for the purpose of considering such resolution. 
4. The power conferred on the president by this article shall include the power to issue different proclamations on different grounds being more or external aggression or aren’t rebellion or imminent danger of war or external aggression or armed rebellion, whether or not there is a proclamation already issued by the president under clause(1) and such proclamation is in operation. 

Explanation of the above provisions of the constitution under article 352: 

Grounds of proclamation: 

• if the president is satisfied that a grave emergency exists their security of India or any part of the territory is threatened, Whether by war or external aggression or armed rebellion, he may make a declaration by proclamation, in respect of the whole of India or such part of the territory specified in the proclamation. 
• he can make such proclamation even before the actual occurrence of war or external aggression or armed rebellion if he is satisfied that there is an imminent danger. 
• the original constitution of India mentioned the word ‘internal disturbance’ as the third ground. The government led by Mrs Indira Gandhi in 1975 declared emergency on the ground of internal disturbance after her election to Lok Sabha was declared void by Allahabad High Court, The 44th constitutional amendment act, 1978 substituted the word internal disturbance with armed rebellion. 
• The president can issue proclamation for the whole country or any part of it – inserted by 42nd amendment act 1976 

Parliamentary approval and duration 

• The union cabinet may take a decision that approximation of emergencies issued under article 352 and this decision is communicated to the president in writing. on receiptof this the presidential issuer proclamation. 
• It can be revoked by the president subsequently. 
• Also the proclamation made by the president under article 352 is subject to judicial review and its constitutionality can be questioned in a court of law on the grounds of malafide intention. 
• Every proclamation under article 352 should be laid before each House of the parliament and must be approved by them with special majority that is 2/3 member of that house present and voting. 
• If parliament approves – Emergency continues for six months 
• If parliament disapproves – Emergency ceases to operate after one month I.e., it will be in operation for 30 days. 

Revocation of proclamation 

• A proclamation of emergency may be revoked by the president at anytime by subsequent proclamation. 
• it does not need parliamentary approval. 
• it is required to be passed by Lok Sabha only by giving a written notice by 1/10th of the number of members of the lok sabha to the speaker or to the president (if the houses in not in session), and a special sitting of the house is held within 14 days for the purpose of considering a resolution disapproving the continuation of the proclamation. 
• It is adopted by a simple majority only. 

Changes made by various Constitutional Amendment Acts: 

Effects of proclamation of emergency: 

The effect of a proclamation of emergency is the emergence of a full-fledged unitary government. its effect can be studied under the following heads: 

1. Executive: while a proclamation of emergency is in operation, the president is empowered to issue directions to states in the manner in which they executive power is to be exercised. in normal times, the president has the power to give directions to states only on certain matters like maintenance of communication, protection of railways etc. but during the operation of emergency, he can issue directions to states on all matters. the administration, therefore, will be converted into a unitary system. 
2. Legislative: while a proclamation of emergencies in operation, parliament can enact last even on subjects enumerated under the state list. the legislatures of state are not suspended, but the distribution of legislative powers between the union and the states is suspended for the duration of the emergency. parliament is also empowered to extend by law, the life of the looks above beyond the five year turn for a period of not extending one year at a time but in any case, not exceeding six months after the proclamation of emergency has ceased to be in operation. the life of the state legislative assemblies can also be extended by the law by parliament in a similar manner (article 172). 
3. Financial: the president may, when a proclamation of emergency is in operation, modify the provisions of the constitution relating to the distribution of financial resources between the centre and states (article 269 to 279). Also, all money bills are referred to the president for his approval. such an order of the presidential not have an effect beyond the financial year in which the proclamation of the emergency ceases to be operative. the order of the president is subject to the approval of parliament. parliament can also levy any tax which ordinary falls in the state list (article 250). 
4. Effect on the life of the Lok Sabha and state assembly: the life of looks above may be extended beyond its normal turn buy a lot of parliament for one year at a time. this extension cannot continue beyond the period of six months after the emergency has ceased to operate. similarly the parliament may extend the normal tenure of a state legislative assembly by one year each time, subject to a maximum period of six months after the emergency has ceased to operate. 
5. Effect on the fundamental rights: articles 358 and 359 described the effect of a national emergency on the fundamental rights.  

1. Article 358 deals with the suspension of the fundamental rights guaranteed by article 19, while article 359 deals with the suspension of other fundamental rights except article 20 and 21. the six fundamental rights under article 19 are automatically suspended when a proclamation of national emergency is made. Therefore, any law or executive action cannot be challenged on the ground that they are inconsistent with the six fundamental rights guaranteed by article 19. it is to be noted that, the six fundamental rights under article 19 can be suspended only when the national emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion. and only those laws which are related with the emergency are protected from being challenged. 
2. Article 359 authorises the president to suspend the right to move any quote for the enforcement of fundamental rights during a national emergency. this suspension could be for the period during the operation of emergency or for a shorter period as mentioned in the presidential order and the suspension order may extend to the whole or any part of the country. this suspension of enforcement of fundamental rights relates to only those that are specified in the presidential order. also it should be laid before each House of parliament for approval. While a presidential order is in force, the state can make any law or can take any executive action abridging or taking away the specified fundamental rights. Any such law or executive action cannot be challenged on the ground that they are inconsistent with the specified fundamental rights but it ceases to operate to the extent of inconsistency with the specified fundamental rights when the order ceases to operate. The 44th amendment act of 1978 restricted the scope of article 359 in two ways: 

• The president cannot suspend the right to move the code for the enforcement of fundamental rights guaranteed by article 20 and 21. 
• only those laws which are related with the emergency are protected from being challenged and not other laws. 

Difference between article 358 and 359 

Similarity between Article 358 and 359: Provide immunity from challenge to only those laws and executive action taken under such a law which are related to the emergency.

President’s Rule 

Grounds of proclamation: 

Article 355: Duty of the union to protect states against external aggression and internal disturbance- 

It shall be the duty of the union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of this constitution. 

Article 356: 

If the president, on receipt of the report from the governor of the state or otherwise is satisfied that a situation horizon in which the government of the state cannot be carried on in accordance with the provisions of the constitution, he may issue a proclamation. 

The above articles can be read with article 365 which provides that “where any state has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the union under any of the provisions of this constitution, it shall be lawful for the president to hold that a situation has horizon in which the government of the state cannot be carried on in accordance with the provisions of this constitution”. 

Besides the article’s 256 and 257 related to the executive relations between the union and the states can also be read in the application of president’s rule over a state. So, buy a proclamation issued on such of the above grounds 

1. the president may assume to himself all or any of the powers vested in the governor 
2. the president may declare that the powers of the legislature of the state shall be exercisable by the parliament. 
3. make such incidental provisions as may appear to the president to be necessary or desirable for giving effect to the provisions of the proclamation. 

The president cannot assume to himself, any of the powers vested in the High Court or suspend the operation of any provisions of the constitution relating to the High Court. parliament can confer on the president the power to make laws for the state. parliament may also authorise the president to delegate such power to any other authority as specified by him. if the lok sabha is not in session, the president may authorise expenditure from the consolidated fund of the state, pending sanction of such expenditure by parliament. it is to be noted that under article 356, the president acts on a report of the governor or otherwise. this means that the president can act even without the governor’s report. 

Parliamentary approval and duration: 

A proclamation imposing presidents rule must be approved by both houses of the parliament within two months from the date of its issue. a proclamation so approved unless revoked earlier will be in operation for six months from the date of proclamation. the proclamation can be extended by the parliament for six months each time by the approval of both houses. it can be enforced normally for a maximum period of 1 year only at a stretch. it can be extended by a resolution of parliament beyond one year but, in any case not beyond three years from the date of issue of proclamation on two conditions: 

• an emergency under article 352 exists 

• the election Commission certifies that there are difficulties in holding general elections to the legislative assembly of the concerned state 

if the Lok Sabha is dissolved during any such period of six months without a resolution approving the continuation of proclamation but the same has been approved by the Rajya Sabha, then the new looks above will have to approve the resolution of proclamation within 30 days of its first sitting in the house. Otherwise, the proclamation will automatically expire. 

a proclamation of president’s rule may be revoked by the president at anytime by a subsequent proclamation. it does not require the parliamentary approval. 

Consequences of presidents rule: 

• the state executive is dismissed. executive powers of the states are exercised by the union. 

• the state legislative assembly may be suspended or dissolved by the president. in this case, 

 – the parliament can delegate the power to make laws for the state took the president or to any other authority specified by him.  

• also the parliament or the president (in case of delegation) or any specified authority can make loss conferring powers and imposing duties on the centre or its officers and authorities. 
• the president can authorise expenditure from the state consolidated fund pending with sanctioned by the parliament when the Lok Sabha is not in session. 
• the president can promulgate ordinances for the governance of the state when the parliament is not in session. 

• NOTE: a law made by the parliament or president or any other specified authority continues to be operated even after the president’s rule. However, the state can repeal or alter or re-enact the law.

Dissolution of legislative assembly of a state under article 356: The president can this all the legislative assembly if the proclamation has been approved by both the houses of the parliament. Thus, it can be said that a proclamation issued under article 356(1) expires in any of the following modes: 

1. After two months of being imposed if not presented for approval before both the Houses of Parliament (article 356(3)) 
2. even before two months, if the proclamation has been disapproved from any house (article 356(3)) 
3. after six months if a resolution for further continuance is not passed by parliament.  
4. if the condition for continuance beyond one year is not in existence and not beyond the period of three years 
5. By a proclamation of revocation issued by the president 

Change is made by 42nd and 44th amendment acts: 

• if 42nd amendment act amended article 356 and provided that the approval of parliament was for one year at a time. 
• the 44th amendment act, 1978, restored the original condition for the extension of the proclamation under article 356 beyond, one year period. Earlier it could be extended by parliament to a maximum period of three years subject to the approval of six months at a time. but the 44th amendment act has imposed two conditions for the continuation of the proclamation beyond the one year period as discussed earlier. 

Scope of judicial review: 

The 38th amendment act of 1975 made the satisfaction of the president in invoking article 356 final and conclusive which could not be challenged in any on any ground. it was delete it by the 44th amendment act of 1978 implying that the satisfaction of the president is not beyond judicial review. 

In bommai case, the Supreme Court laid down following propositions on imposition of president’s rule in a state under article 356: 

• the proclamation of president’s rule is subject to judicial review. 
• the satisfaction of president must be based on relevant material or else it would be struck down by the Supreme Court. 
• the burden lies on the centre to prove that the relevant material exist to justify the imposition of president’s rule. 
• the Supreme Court cannot go into the correctness of the material but it can see whether the material is relevant or not. 
• if the court holds that the president’s rule is not constitutional then it can be revoked by the Supreme Court and restore state machinery. 
• state legislative assembly is not dissolved until the proclamation is approved by the parliament. until then, it is only suspended. 
• secularism is one of the basic features of the constitution and hence a state government pursuing anti secular politics is liable to action under article 356. 
• the question of the state government losing the confidence of the legislative assembly should be decided on the floor of the house and until that is done the ministry should not be unseated. 
• where a new political party assumes power at the centre, it will not have the authority to dismiss ministeries formed by other parties in the states. 
• the power under article 356 is an exceptional power and should be used only occasionally to meet the requirements of Special Situations. 

Differences between article 352 and article 356 

Financial emergency 

Article 360: Provisions as to financial emergency 

Article 360 states that it is satisfied that the situation has arisen whereby the financial stability or credit of India or any part of the territory thereof is threatened, He may, by a proclamation, make a declaration to that effect. during the period when any such proclamation is in operation, the executive authority of the union shall extend to the giving of directions to any state, to observe such canons of financial property as may be specified in the directions. any such directions may also include- 

1. The union government me give direction to any of the states regarding financial matters. 
2. The president may ask the states to reduce the salaries and allowances of all or any class of persons government service. 
3. The president may ask the states to reserve all the money bills for the consideration of the parliament after they have been passed by the state legislature. 
4. Be president may also give directions for the reduction of salaries and elements of the central government employees including the judges of the Supreme Court and the high courts. 

• If the proclamation of financial emergencies issued at a time when the Lok Sabha has been dissolved or the dissolution of the looks of it takes place during the period of two months without approving the proclamation, then the proclamation serves until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. 
• The financial emergency continues indefinitely till it is revoked. that is, There is no Maximum period specified for its operation, Repeated parliamentary approval is not required for its continuation. 
• Resolution approving the proclamation of financial emergency can be passed by either House of parliament only by a simple majority. 
• The 38 amendment act of 1975 mute the satisfaction of the president in declaring a financial emergency final and conclusive. this was deleted by the 44th amendment act of 1978 implying that the satisfaction of the president is not beyond judicial review. 

A proclamation issued under article 360 will remain in force for two months unless before the expiry of that period, It is approved by both Houses of Parliament. once approved it is enforced until it is revoked by the president. so far, no financial emergency has ever been proclaimed.