Introduction
Indian constitution envisages India to be a unitary-federal polity. However, in certain situations it also allows this federal polity to be turned into an absolutely unitary system to deal with certain exigencies.
The President can declare a state of emergency if he is satisfied that a grave emergency exists whereby the security of India or any part thereof is threatened, whether by war or external aggression, or armed rebellion.
However, the President can do so only on the advice of the union cabinet. Articles 352 to 360 in Part 18 of the Indian constitution contains the emergency provisions.
Types of Emergency in India
The Indian constitution stipulates three kinds of emergencies in India though it uses the word “emergency” only for the one proclaimed under article 352 of the Indian constitution. They are national emergency, state emergency, and financial emergency.
National Emergency in India
This is provided under Article 352 of the Indian constitution. It provides that the President after receiving written communication from the union cabinet may proclaim a state of emergency either in respect of the whole of India or only a part of it if he is satisfied that a grave emergency exists whereby the security of India or any part it thereof is threatened, whether by war or external aggression or armed rebellion.
As per explanation (a) to this article, the actual occurrence of war or of any such aggression or rebellion is not a necessary condition. The President may proclaim an emergency even if he is satisfied that there is imminent danger of such threat.
It must be noted here that the President can make such a proclamation only after receiving written communication from the Union Cabinet in this regard.
A Proclamation issued under clause 1 of article 352 may be revoked by a subsequent proclamation.
Further, every such proclamation by President shall cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions passed with a special majority of both Houses of Parliament.
If the Lok Sabha (House of the People) is dissolved during the issuance of such proclamation, it shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution.
If approved by the parliament the validity of such proclamation shall be 6 months. With regular parliamentary approval at the interval of 6 months, the duration of a national emergency can be extended indefinitely.
Thus, the process of the proclamation of emergency in India broadly involves 3 steps.
- Written communication of Cabinet
- Procalamtion by President
- Approval by Parliament
Grounds of Proclamation of National Emergency
As per Article 352, the president may proclaim a national emergency on three grounds-
- War
- Extrernal Aggression
- Armed Rebellian
Types of National Emergency
If the national emergency is imposed on account of war or external aggression, it is informally called an external emergency. It is called an internal emergency it is imposed on account of armed rebellion.
Effect of National Emergency on Centre-State Relationship
Article 353 of the Indian constitution provides for the effect of the Proclamation of Emergency in India.
When the national emergency is in force, the federal nature of the Indian polity is transformed into a unitary one.
Firstly, the executive power of the Centre extends to directing any state regarding the manner in which its executive power is to be exercised.
Secondly, even though state legislatures are not necessarily suspended, the Parliament becomes empowered to make laws on any subject mentioned in the State List.
Thirdly, during the operation of a national emergency, the President can alter the constitutional distribution of revenues between the center and the states.
Extension of Tenure of Lok Sabha and Vidhan Sabhas
When a national emergency is in force, the union Parliament may extend the life of the Lok Sabha beyond its normal term of five years for one year at a time indefinitely.
However, once the emergency has ceased to operate, this extension cannot continue beyond a period of six months. The same applies to the tenure of State Assemblies.
Effect on Fundamental Rights
Originally the constitution provided for the suspension of most fundamental rights except articles 20 and 21 during the operation of a national emergency.
However, the 44th Constitutional Amendment Act of 1978 gave protection to the six fundamental rights under article 19 as well. These six freedoms include the right to freedom of speech and expression; peaceful assembly; forming associations and unions; professing trade and occupation; and moving and settling in any part of India.
Now they can be suspended only when the National Emergency is proclaimed on the ground of war or external aggression and not on the ground of armed rebellion.
Articles 358 and 359 deal with the suspension of fundamental rights during an emergency.
Also Read| Safeguards for Fundamental Rights: How Effective?
History of National Emergencies in India
So far, the national emergency has been proclaimed only three times.
The first proclamation was issued in October 1962 on account of Chinese aggression in Arunachal Pradesh. This proclamation was made on the ground of external aggression and remained in force till January 1968. Thus, a fresh proclamation was not needed at the time of war against Pakistan in 1965.
The second proclamation on the same ground was made in December 1971 during the Indo-Pak war. While this Emergency was in operation, a third proclamation on the ground of “internal disturbance” was made in June 1975 and finally revoked in March 1977.
State Emergency or President’s Rule
Article 355 makes it a duty of the Union Government to protect States against external aggression and internal disturbances and to ensure that the government of every State is carried on in accordance with the provisions of the Indian Constitution.
So the President may proclaim a state emergency or President’s rule a state on the failure of constitutional machinery in State under article 356.
Further, every such proclamation by President shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions passed with a simple majority of both Houses of Parliament.
If in the meanwhile the Lok Sabha (House of the People) is dissolved, such proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution.
If approved by the parliament, the validity of such proclamation shall be 6 months. With regular parliamentary approval at the interval of 6 months, the duration of President rule in a state can be extended at most for 3 years.
However, as per article 356(5), the President’s rule in a state can be extended beyond one year only in two cases-
First, when a proclamation of national emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution,
Second, the election commission certifies that the continuance of the president’s rule is necessary on account of difficulties in holding general elections to the Legislative Assembly of the concerned state.
Grounds of Imposition of President’s Rule
President’s rule may be imposed in any state of India on two grounds mentioned in articles 356 and 365 respectively.
Failure of Constitutional Machinery
Article 356 provides that if the President is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, he may assume any or all the powers vested in a State government.
In other words, the union government overtakes the functions of the state government as President is bound by the advice of the cabinet.
Failure to comply with Union Government’s directions
Article 365 empowers the President to impose president rule in a state concerned if it fails to comply with the direction of the Union government.
It 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 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 arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution”.
Effect of President’s rule on Centre-State Relationship
The Union Government through President acquires extraordinary power during the operation of the president’s rule in any state.
Article 356 provides that the president may assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State.
Secondly, he may declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.
Thirdly, he may make such incidental and consequential provisions as appear to the president to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to anybody or authority in the State.
The proviso to this section provides that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
Status of Legislative Assemblies
If the president issues a proclamation under article 356 or 365, the state assembly gets suspended. However, it gets dissolved only after the parliamentary approval of such a proclamation. This was held in the SR Bommai case.
Effect on Fundamental Rights
There is no suspension of fundamental rights during the operation of a state emergency or the President’s rule in any state.
History of State Emergencies in India
State emergencies or the president’s rule has been imposed more than a hundred times since independence. It was imposed for the first time in Punjab in 1951.
Financial Emergency in India
Article 360 of the Indian constitution provides for the financial emergency in India. It provides that “if the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect”.
A proclamation of financial emergency has to be approved by Parliament by a simple majority within 2 months from the date of its declaration.
In case the Lok Sabha has been dissolved, then the proclamation of financial emergency survives until 30 days from the first sitting of the Lok Sabha after its reconstitution.
Since the Indian constitution does not prescribe any time limit for the operation of a financial emergency, it can be assumed that parliament can extend it indefinitely with regular parliamentary approval at 6 months.
Further, the revocation of financial emergency does not require approval from parliament. It may be revoked by the president at any time by a subsequent proclamation.
Grounds of Proclamation of Financial Emergency
Article 360 of the Indian constitution provides for the grounds of imposition of financial emergency in India. It has to be to the satisfaction of the President that the financial stability or credit of India or of any part of the territory thereof is threatened.
Effect of Financial Emergency
During the operation of a financial emergency, the union government overtakes the functions of the state government on financial matters.
Article 360(3) provides that the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose.
It provides further that during the operation of financial emergency, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose.
Effect on Fundamental Rights
There is no suspension of fundamental rights during the operation of a financial emergency in any part of India.
History of Financial Emergencies in India
So far, India has never proclaimed a financial emergency.
Judicial Oversight on Proclamation of Emergency in India
There exists judicial review and oversight over the proclamation of emergency in India. In the landmark SR Bommai case, the Supreme Court held that the proclamation of emergency is subject to judicial review.
The court in particular held that-
- The powers under article 356 are exceptional and must be used sparingly.
- The satisfaction of President should be based on relevant material factors and not on arbitrary or extaneous grounds.
- While, the court cannot go into the correctness of the material or its adequacy but it can see whether it is relevant to the action.
- It must be a decision taken in good-faith and should not be mala-fide or perverse.
- The court may reinstate the dismissed state government and revive the state legislative assembly if it was suspended or dissolved unjustly.
- State legislative assembly can be dissolved only after parliamentary approval.
- President may take action under artilce 356 against anti-secular policies of a state as secularism is one of the basic features of the Indian constitution.
- Whether the government enjoys the confidence of the house should be tested on the floor of the house.
Conclusion
- Articles 352-360 in Part 18 of the Indian constitution contains provisions on proclamation of emergency in India.
- Indian constitution stipulates three kind of emergencies namely national, state, and financial emergencies.
- The President can proclaim emergency in India only after receiving a wriiten communication from the union cabinet.
- While the operation of national emergency and financial emergency can be extended indefinetely by regular parlimanetary approvals at 6 months, state emergency cannot be extended beyond 3 years.
- Proclamation of emergency in India is subject to judicial review.
Read more| Constitutional Law Notes