Lesson 11- Emergency Provisions in the Indian Constitution Important Notes

 

Lesson 11- Emergency Provisions in the Indian Constitution

The Emergency provisions in India derived from the Weimar Constitution of Germany. These provisions are mentioned in Part XVIII of the Indian Constitution and they extend from Article 352 to Article 360. The following three types of Emergency provisions are envisaged in the Constitution of India:

• Article-352; National Emergency: Emergency arising out of war or external aggression or armed rebellion.

• Article-356; Emergency in the State: Emergency arising out of the failure of Constitutional machinery in the state(s), which is also commonly known as the President's Rule.

• Article -360; Financial emergency.

1. National Emergency (Article 352):

Under Article-352, the President can declare an Emergency in the country if he is satisfied that a grave emergency exists based on war, external aggression or internal disturbance. An Emergency can be declared all over India or in some part of it. A Proclamation of Emergency by the President can be terminated at any time by a second Proclamation.

Since the Constitution came into force, there have been many changes in the provisions related to the Emergency. The Constitutional Amendments related to some of the major changes are as follows:

42nd Constitution Amendment Act (1976):

• The Amendment gave the President the right to amend or change the NationalEmergency. Under the original Constitution, it was only possible to enforce or remove it altogether.

• Under the original Constitution, NationalEmergency could be enforced only across whole of the Indian territory. But this Amendment empowered the President to impose Emergency even in some part of the country.

44th Constitution Amendment Act (1978):

It was brought by the executive to prevent the misuse of powers found in the Emergency provisions. Article 352, as after 44th Amendment Act 1978, provides:

• If the President realises that a serious emergency exists, which is causing the security of India or any part of it from a war (national emergency), external invasion or armed rebellion, or if such a crisis is imminent, then by proclamation to this effect May be declared in relation to the whole of India or in relation to any part of it which may be mentioned in the proclamation.

• The President will issue a proclamation of Emergency only when it is communicated in writing to the Cabinet, that is, only in consultation with the entire Cabinet, and not on the advice of the Prime Minister as was the case in June 1975.

• Each such proclamation shall be laid before each House of Parliament and at the end of one month (which was 2 months before the 44th Amendment) for approval. If it is not approved by the resolutions of both the Houses of Parliament before the expiry of that period, then it will cease to be in force.

• On the tenure of Lok Sabha and State Legislative Assembly

The State Legislature will continue to function and make laws but Parliament shall have concurrent legislative powers concerning the State and any such law passed by Parliament shall, to the extent of incapacity, expire six months after the removal of the National Emergency. It is worth mentioning here that both the above extensions remain applicable for a maximum period of six months after the end of the emergency.

• Impact on financial relations

The President can stop the distribution of financial resources between the Centre and the States and can use any national resource, depending on which State the Centre declared the Emergency.

• Impact on Fundamental Rights

According to Article 358, when a National Emergency is declared, the six Fundamental Rights granted under Article 19 remain suspended.

Under Article 359, the President may by order declare that the right to move any court for the enforcement of any Fundamental Rights (except contained in Article 20 and 21) remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.

2. Emergency in the State(s): President's Rule

Article 355 provides that it is 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.

The emergency arising out of the failure of the Constitutional machinery in the State (Article 356), provides that if a report is received from the Governor of a state or otherwise if the President is resolved that such a situation has arisen in which the rule of that state cannot be conducted according to the provisions of the Constitution, then by Presidential Proclamation:

• All or any of the functions of the Government of that State and vested in or exercised by the Governor or anybody or authority of the State shall take all or any power in his hands.

• May declare that the powers of the State Legislature shall be exercisable by or under the authority of Parliament.

Any such proclamation may be withdrawn or amended by the President by a subsequent proclamation. But the President cannot suspend the enforcement of any provision relating to High Courts in whole or in part by this proclamation. It is clear from the term used in Article 356 'on the report from the Governor or otherwise' that the President can take action even if there is no report from the Governor of the State.

And this is the reason why this provision was the most misused in the Indian federal system and to prevent its misuse, the judiciary had to interfere in the executive's actions at times.

Period of Proclamation:

The proclamation issued under Article 356 shall be laid before each House of Parliament and shall not remain in force at the end of two months if it has not been returned by the previous Proclamation. If it is not ratified by resolutions by both the Houses of Parliament before the end of that period but if a proclamation is made at a time when the Lok Sabha has been dissolved or is held within a period of two months and the Rajya Sabha resolution of approval has been passed by but has not been approved by Lok Sabha, then 30 days from the first sitting of Lok Sabha after reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the Lok Sabha.

If the Parliament approves the proclamation within two months, it will remain in enforcement for 6 months. By resolution, this period can be extended for 6 months at a time, but no such proclamation will remain in force in any case for more than 3 years. Thus the maximum period of proclamation under Article 356 is three years. After the end of this period, neither the President nor the Parliament can maintain the proclamation. Within this period, elections will have to be handed over to the representatives of the public.

Emergency in the State: Effects of President's Rule

• Executive

The state government is dismissed and the central government takes over the executive powers of the state government.

• Legislature

The state legislature does not undertake law-making; the state assembly is suspended or dissolved.

• Financial relations

There will be no impact on the distribution of financial resources between the centre and the state. But the President can modify the Constitutional distribution of taxes between the Centre and the States.

Significant Amendments made to the provision:

44th Constitution Amendment Act (1978)

The six-month rule of Emergency was brought back in the state, which was increased to one year in the 42nd Constitution Amendment. In this, the situation of emergency was done for a maximum period of three years, in which one year of emergency under normal circumstances and two years of emergency in unusual circumstances, the conditions prescribed for this would have to be met. Under this Amendment Act, the scope of Article 356 was significantly reduced.

A resolution to continue the emergency provision under the Amendment Act shall not be passed by either House unless:

• The emergency proclamation is in force while passing such a resolution and

• The Election Commission should not give a certificate that it is necessary to continue the emergency due to difficulties in conducting general elections for the concerned assembly.

In this way, the emergency can be continued for more than one year only until the certificate of the appropriate circumstances is obtained by the Election Commission. Earlier there was no such condition and the government used to extend the period to three years without any reason.

Article-356 states that such proclamations are made on the basis of the President's solution. By adding a proviso to Article-356 by the 42nd Constitution Amendment 1976, it was made clear that the President's solution could not be challenged in the Court. But this proviso was again removed by the 44th Constitution Amendment Act 1978. As a result, the President's resolution in the matter may be judicially reviewed, that is, if the proclamation is motivated by mala-fide intentions or the reasons stated therein have no reasonable connection with the President's resolution, the Court may declare it unconstitutional.

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Major Disputes related to the Emergency Provisions:

Article-356 has been used more than 100 times from the day the Constitution came into force. In most of the cases, the President's rule was implemented in such a situation when it was not possible to form a permanent government for some reason. Examples are Punjab in 1951, PEPSU in 1953, Andhra Pradesh in 1954, Travancore-Cochin (1956), Orissa (1961), Kerala (1954), Rajasthan (1966) and Uttar Pradesh in 1978, West Bengal, Bihar (2006 ), Punjab (1969) and Gujarat (1977). But in 1964, President's rule was imposed in Gujarat when the Legislature was disbanded due to the students' movement which draws attention to the misuse of Article-356.

Some other such major disputes are as follows:

President's Rule in nine states in 1977:

In 1977, Article 356 was implemented under specific circumstances. In 1977, the emergency was proclaimed on the basis of internal disturbance in the country. After the end of the Emergency, the Congress government announced the election by dissolving the Lok Sabha. The Congress party suffered a massive defeat in this election and the Janata Party won an overwhelming majority in Lok Sabha.

The Congress party was defeated heavily in the Lok Sabha elections and not a single candidate was successful in Uttar Pradesh, Bihar, West Bengal, Haryana, Punjab, Rajasthan, Madhya Pradesh and Himachal Pradesh. The Janata Party got a two-thirds majority in the Lok Sabha.

The Home Minister believed that the governments of these states had lost the trust of the people so they should resign and hold elections to gain public confidence. This suggestion of the Home Minister was rejected by the Congress Ministers of these states. 6 out of 9 states filed petitions against the central government in the Supreme Court, arguing that the government's threat to dissolve legislatures was unconstitutional.

• President's Rule in nine states again in 1980:

Article-356 was again misused in 1980 in the same circumstances in which it was used by the Janata Party in 1977. The affected states were Uttar Pradesh, Bihar, Rajasthan, Madhya Pradesh, Punjab, Orissa, Gujarat, Maharashtra, and Tamil Nadu.

The Janata Party lost heavily in the 1979 Parliamentary Elections and the Congress Party won an absolute majority in the Parliament. At this time, the Janata Party governments were in power in the appropriate states. The Congress government removed these governments on February 18, 1980 and imposed President's rule in these states. The government did not mention any reason in the order.

Court Decisions related to disputes:

In Rajasthan State vs. Union of India (1977), a seven Judges Constitution Bench of the Supreme Court heard the petition and ruled that the exercise of dissolution of legislative assemblies by the Central Government under Article 356 is constitutional. The Court said that under Article 356 there is no requirement that the President should act only on the report of the Governor.

The Constitution Bench of the nine judges of the Supreme Court in S R Bommai vs. Union of India (1994) suit determined that the proclamation made by the President under Article-356 for the imposition of President's rule in the States is subject to judicial review and reasonable reasons for resolution is a prerequisite condition.

Difference between Articles 352 and 356:

• The assembly of the state is not suspended under Article 352. The executive and legislature of the state continue to function. The only result of emergency proclamation under this article is that the centre gets concurrent power of legislation and administration on the subjects of the state.

On the other hand, under Article 356, the State Legislature is suspended or dissolved and the legislative and administrative powers of the State are vested in the Central Government as a whole.

• Under Article-352, there is a change in the relationship between the Centre and all the states, whereas, under Article-356, there is a change in the relations of only one state in which President's rule applies. In essence, Article-352 applies to all States, while Article-356 applies only to the State in which the Constitutional machinery has failed.

• Under Article 352, the Fundamental Rights of citizens and the right of enforcement by the courts (Article 359) are suspended, while under Article 356 the Fundamental Rights do not get affected.

 

3. Financial Emergency (Article 360):

Under Article 360, if the President is satisfied that a situation has arisen in which the financial or credit stability of India or any part of it is endangered, then he may proclaim Financial Emergency. This Emergency has not yet been imposed in the country.

The 44th Constitutional Amendment provides that a proclamation issued under Article 360 can be revoked or amended by any subsequent proclamation. The provision shall not remain in force at the end of the two months, until the resolution approving the proclamation before the expiry of that period is passed by both the Houses.

But if the Lok Sabha is dissolved in this 2 month period and the resolution is approved by the Rajya Sabha, but not by the Lok Sabha, the proclamation will not remain in force at the end of 30 days from the date when the new Lok Sabha sits. Unless the resolution for approval of the proclamation is passed by the Lok Sabha within this period.

In the said period in which such proclamation is in force, the executive power of the Union to direct any State to abide by such principles of financial justification as may be specified in the directions and to give such other directions as the President may require to give for that purpose, and will be detailed as deemed appropriate. The following provisions will also be included under any such direction:

• Arrangements for the reduction of salaries and allowances of all or any class of persons serving concerning the affairs of the state (including Supreme Court and High Court judges);

• Provides for keeping the Money Bills or other Bills protected after consideration by the President after being passed by the State Legislature. The proclamation issued in Article 360 will have a duration of two months.

Concluding Remarks:

The beginning of the national emergency started in the backdrop of the 1971 Lok Sabha elections, in which the then Prime Minister Smt. Indira Gandhi defeated her main rival Raj Narayan from Rae Bareli Parliamentary seat.

The High Court upheld these allegations and found Indira Gandhi guilty of rigging the election and was banned from holding any office for six years. But Indira Gandhi refused to accept the decision and announced an appeal to the Supreme Court. On 24 June 1975, the Supreme Court upheld the High Court order. Jayaprakash Narayan called for a demonstration across the country till Indira resigned despite her unwillingness.

As soon as the Emergency came into force, political opponents were arrested under the Maintenance of Internal Security Act (MISA), including Jayaprakash Narayan, George Fernandes, and Atal Bihari Vajpayee. The emergency was declared in India over a period of 21 months from 25 June 1975 to 21 March 1977. The then President Fakhruddin Ali Ahmed declared Emergency under Article 352 of the Indian Constitution at the behest of the then Indian Prime Minister Indira Gandhi.

Like in the case relating to the National Emergency provisions, the Constitutional Bench of the Supreme Court in its decision of historical importance determined that the power of the President to implement President's rule and dissolve the Legislative Assembly in the States under Article-356 is conditional.

The specific norms laid down by the Supreme Court regarding the imposition of President's rule which are mandatory for the Central Government to follow are the following:

Under Article 356, the power of the President to impose President's rule in a State and dissolve the Legislative Assembly is 'conditional', not unlimited and he has to show that the circumstances under Article-356 (1) existed on the basis of which the President has taken action.

• President's rule cannot be implemented without the written report of the Governor.

• If the President's rule is imposed only by malicious imposition, the Court can revive the Legislative Assembly.

• Both the implementation of President's rule and dissolution of the Legislative Assembly cannot be done simultaneously.

• The Supreme Court and the High Court may compel the Central Government to convey the advice based on Article-74 (2) on the basis of which the Central Council of Ministers advises the President to implement President's rule in a state. The above advice is not part of the consultation, so the court can examine it.

• The ruling of a political party at the centre with a majority cannot be the reason for the removal of the government of the opposition party in a state. The aforesaid decision of the Supreme Court that, if the President's rule in a state under Article-356 is applied on political grounds, driven by malfeasance, the Court can not only declare it illegal but also revive the dissolved Legislative Assembly. This historic judgement will certainly help in curbing the misuse of Article-356. The guiding principles prescribed by the Court for the use of Article 356 are most welcome and shall help strengthen the democratic polity of the country.

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