Emergency Provisions

Emergency Provisions 

Introduction: 

• In India, a state of emergency is a period of governance that can be declared by the President of India in certain crisis situations. The President can overrule many provisions of the Constitution, which guarantees Fundamental Rights to Indian citizens, with the advice of the cabinet of ministers. Bharat, or India, is an "own kind" federal republic. It has unitary functionality during an emergency. That is why Dr B. R. Ambedkar declared the Indian Federal structure to be unique because it becomes fully unitary during an emergency. As the constitutional apparatus fails in an emergency, the mechanism becomes a unitary trait. 
• Part XVIII of the Indian Constitution, from Articles 352 to 360, contains emergency provisions. These provisions enable the Central Government to effectively respond to any abnormal situation. 
• The rationale for incorporation is to protect the country's sovereignty, unity, integrity, and security, as well as the democratic political system and the Constitution. 
• The Constitution stipulates three types of emergencies- 
• National Emergency (Article 352) 
• Constitutional Emergency/State Emergency/ President Rule (Article 356) 
• Financial Emergency (Article 360) 

Important Preliminary Facts:  

• Emergency provisions are borrowed from the Government of India Act 1935. 
• Provisions of the Constitution: Articles 352 to 360 of Part XVIII 
• The Weimer constitution's "Suspension of Fundamental Rights During Proclamation of Emergency" provision was borrowed (Now Russia) 
• During an emergency, the central government becomes all-powerful, and the states have complete control over the union. 
• Without a formal amendment to the constitution, the federal structure becomes unitary. 
• In 1951, President's Rule was imposed for the first time in Punjab. 
• So far, no Financial Emergency has been declared in India. 

National Emergency 

• War, external aggression, or armed rebellion can all trigger a national emergency declaration. The term "proclamation of emergency" is used in the Constitution to describe such an emergency. 
• Declaration grounds: 
• Article 352 empowers the president to declare a national emergency if the security of India or a portion of it is jeopardised by war, external aggression, or armed rebellion. 
• Even before the occurrence of war, armed rebellion, or external aggression, the President may declare a national emergency. 
• When a national emergency is declared on the grounds of 'war' or 'external aggression', it is known as an 'External Emergency'. On the other hand, when it is declared on the grounds of 'armed rebellion', it is known as an 'Internal Emergency'. 
• The term "armed rebellion" was added by the 44th amendment. It was previously known as an internal disturbance. 
• For example, openly admitting that India and Pakistan will use armed forces against each other is simply war. 
• External aggression occurs when there is no formal declaration that armed forces will be used against a country. 
• And if an emergency is declared as an external emergency for either of these reasons. 

Facts 

• The declaration of a national emergency is not subject to judicial review under the 38th Amendment Act of 1975. However, the 44th Amendment Act of 1978 repealed this provision. 
• The Supreme Court held in the Minerva Mills case (1980) that a declaration of national emergency can be challenged in court on the grounds of malafide or that the declaration was based on wholly extraneous and irrelevant facts. 

Approval by Parliament and duration 

• The declaration of emergency must be approved by both houses of parliament within one month of its issuance. 
• However, if the proclamation of emergency is issued while the Lok Sabha is dissolved, or if the dissolution occurs within one month of the proclamation without approval, the proclamation is valid until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has approved it in the meantime. 
• If approved by both houses, the Emergency lasts for six months and can be extended indefinitely with Parliament's approval every six months. 
• Every resolution approving the proclamation of emergency or its continuation must be approved by a special majority in either House of Parliament. 

Proclamation revocation 

• The President may revoke an Emergency Proclamation at any time by issuing a subsequent proclamation. Such a proclamation is not subject to parliamentary approval. 
• If the Lok Sabha passes a resolution by a simple majority opposing the continuation of the emergency, it must be revoked. 

Effects of a national emergency 

• A declaration of emergency has far-reaching consequences for the political system. These consequences are classified into three types: 
• Effects on centre-state relations: When a state of emergency is declared, the normal fabric of centre-state relations undergoes a fundamental change. This can be investigated under three headings: 
• Executive: The Centre gains the authority to issue executive directives to a state on "any" subject. 
• Legislative: The parliament is empowered to make laws on any subject mentioned in the state list; if the parliament is not in session, the president may issue ordinances on state subjects. The laws passed by the parliament on state subjects become ineffective six months after the emergency is lifted. 
• Financial: The president has the authority to change the constitutional revenue distribution between the centre and the states. 

The effect on the life of the Lok Sabha and State Assembly:  

• While a proclamation of National Emergency is in effect, the life of the Lok Sabha may be extended for one year at a time beyond the normal term. This extension, however, cannot last longer than six months after the emergency has ended. 
• Similarly, during a national emergency, the Parliament may extend the normal tenure of a state Legislative Assembly by one year, up to a maximum of six months after the emergency has ended. 

Effect on fundamental rights:  

• Articles 358 and 359 describe how a National Emergency affects fundamental rights. These two provisions are as follows: 

Article 19 Suspension of Fundamental Rights:  

• When a proclamation of National Emergency is issued, the six fundamental rights outlined in Article 358 are automatically suspended. After the emergency ends, Article 19 is automatically reactivated. 
• The 44th Amendment Act stated that Article 19 can only be suspended if the National Emergency is declared due to war or external aggression, not armed rebellion. 

Suspension of other Fundamental Rights:  

• Under Article 359, the President has the authority to suspend the right to petition any court for the enforcement of Fundamental Rights during a National Emergency by order. As a result, only corrective measures are suspended, not fundamental rights. 
• The suspension of enforcement only applies to the Fundamental Rights specified in the Presidential Order. 
• The suspension could be for the duration of the emergency operation or for a shorter period. 
• The Order should be presented for approval to each House of Parliament. 
• According to the 44 Amendment Act, the President cannot suspend the right to petition the courts for the enforcement of Fundamental Rights guaranteed by Articles 20 and 21. 

Articles 358 and 359 

So far, the following declarations have been made:  

• So far, this type of emergency has been declared three times: in 1962, 1971, and 1975. 
• The first National Emergency Proclamation was issued in October 1962 in response to Chinese aggression in the NEFA and lasted until January 1968. 
• In the aftermath of the Pakistani attack, the government declared a second state of emergency in December 1971. 
• Even while the emergency was still in effect, the third National Emergency Proclamation was issued in June 1975. In March 1977, both the second and third proclamations were revoked. 

President's Rule/State Emergency 

• Article 355 requires the centre to ensure that each state's government is carried out in accordance with the provisions of the constitution. 
• In the event that a state's constitutional machinery fails, it is this duty that the centre assumes control of its government under Article 356. 
• This is referred to as 'President's Rule'. 

Imposition grounds:  

• The president's ruler can be proclaimed under Article 356 for two reasons: 
• Article 356 authorises the President to issue a proclamation if he believes that a situation has arisen in which a state's government cannot be carried out in accordance with the provisions of the constitution. 
• According to Article 365, whenever a state fails to comply with or give effect to any direction from the centre, the President may declare that a situation has arisen in which the state's government cannot be carried on in accordance with the provisions of the constitution. 

Parliamentary approval and duration:  

• A presidential proclamation must be approved by both houses of parliament within two months of its issuance. 
• However, if the proclamation of the President's rule is issued while the Lok Sabha is dissolved, or if the Lok Sabha is dissolved during the two-month period without approving the proclamation, the proclamation is valid until 30 days after the first sitting of the Lok Sabha after its reconstitution, provided that the Rajya Sabha approves it in the meantime. 

Consequences of the President's Rule:  

• When the President's Rule is imposed in a state, the President gains the following extraordinary powers: 
• He can assume state government functions and powers delegated to the governor or any other executive authority in the state. 
• He can declare that the state legislature's powers will be exercised by the parliament. 
• He has the authority to take all other necessary actions, including suspending constitutional provisions relating to anybody or authority in the state. 

Scope of judicial review:  

• The 38th Amendment act of 1975 made the President's satisfaction in invoking Article 356 final and conclusive, which could not be challenged in any court on any grounds. 
• However, this provision was later repealed by the 44th Amendment Act of 1978, implying that the President's satisfaction is not immune from judicial review. 

Article 356 and Safety Measures 

• The majority decision of the Supreme Court (S.R. Bommai case) in 1994 effectively overturned a long tradition that the use of Article 356 was not subject to judicial review, a doctrine articulated in a landmark 1977 case, State of Rajasthan vs Union of India. 
• The Bommai case verdict established the conditions and mechanisms for the dismissal of state governments. 
• A nine-member bench of the Supreme Court construed the scope of Article 356, which also allows the imposition of the President's Rule in the States under strict conditions, in the S.R. Bommai case. 
• These included determining whether objective conditions exist that make it impossible to carry out governance in the state where the proclamation was issued, and the process must be approved by both Houses of Parliament before judicial review is considered. 

Financial Emergency 

• Grounds for declaration: Article 360 empowers the president to declare a Financial Emergency if he believes that a situation has arisen that threatens India's financial stability or credit, or any part of its territory. 
• Parliamentary approval and duration: A financial emergency proclamation must be approved by both Houses of Parliament within two months of its issuance. 
• However, if the proclamation of Financial Emergency is issued while the Lok Sabha is dissolved, or if the Lok Sabha is dissolved during the two-month period without approving the proclamation, the proclamation is valid until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has approved it in the meantime. 
• Once approved by both houses of Parliament, the Financial Emergency lasts indefinitely until repealed. 

The Consequences of a Financial Emergency 

• Extending the Union's executive authority over the financial affairs of the states. 
• Salary and allowance reductions for all or any class of state employees. 
• Reservation of all money bills or other financial bills for consideration by the President after they have been passed by the State legislature. 
• Direction from the President to reduce the salaries and allowances of all or any class of Union employees, including Supreme Court and High Court judges. 

Criticism of the Emergency Provision 

• Some members of the Constituent Assembly criticised the incorporation of emergency provisions in the constitution on the following grounds: The federal character of the constitution will be destroyed and the union will become all-powerful 
• The union executive will have complete control of the state's powers (both the Union and the Units). 
• The president will turn into a dictator. 
• The state's financial autonomy will be revoked. 
• Fundamental rights will lose their meaning, and the democratic foundation of the constitution will be undermined.' 
• While defending the emergency provisions in the Constituent Assembly, Dr Ambedkar admitted that they could be abused. 'I do not entirely deny the possibility of the Articles being abused or used for political purposes,' he said.