Emergency - Indian Polity UPSC Notes | EduRev

Indian Polity for UPSC CSE

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What is Article 356

Article 356 provides that if the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution, he may by proclamation assume to himself all or any of the functions of the Government of the State, declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, and 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.

Such proclamation is required to be laid before each House of Parliament and shall, except where it is a proclamation revoking a previous proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses.

The court also pointed out that Article 356 of the Constitution of India is a provision without a parallel. The only other constitution that contains a somewhat similar provision is in the constitution of Pakistan of 1973 in Articles 58(2) and 112(2).

The court pointed out that since the commencement of the Constitution, the President has invoked Article 356 as many as 90 or more occasions. Article 356 has been used remarkably frequently for a provision that was supposed to remain a ‘dead letter’.

The court, while ruling that the power conferred by Article 356 upon the President was a conditioned power, said that the recommendations of Sarkaria commission with respect to exercise of power under Article 356 merit serious consideration.

Check on the misuse of this Article 

To check the abuse of power, the court ruled that the proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be mala fide or based on extraneous considerations. The court further curtailed the power to dissolve the legislative assembly by holding that Presi-dent shall exercise it only after the proclamation is approved by both Houses of Parliament and not before.

But the court clarified that no writ petition shall be entertained by any court before actual issuance of proclamation under clause (1) of Article 356.

The Court dealt with the question as to whether it has the power to restore the Government to office in case it finds the proclamation to be unconstitutional.
 It was held that the power to restore the Government to office in such an event was beyond question. If this power were not conceded to the Court, the very power of judicial review, it was held, would be rendered nugatory and the entire exercise meaningless. “There is little doubt that the function exercised by the President under Art. 356 is a political one.” Do you agree with this view?

Yes, there is little doubt that the function exercised by the President under Art. 356 is a political one, since the President has to act on the advice of the Council of Ministers and supported by the majority of Members of Parliament who belong to the ruling party or are in alliance with that party.

There is, therefore, every likelihood of the extraordinary power being used for political purposes against a State Government which does not belong to the party in power at the Union, or to secure the purposes of that party in forming a Government of their own in a particular State, taking advantage of fortuitous circumstances.

If that happens at the unbridled pleasure of political parties, there would be an end of democracy and constitutional government in India, because it rests on a federal system and the existence of a responsible government in each State, founded on free election to the State Legislature.

“Art. 356 is an anachronism in a democratic polity” 

Yes, the provision is in fact a hangover from colonial days which are characterised by distrust and authoritarianism, and has no place in a truly federal structure where states are coordinate and co-equal partners of the Centre.

There is no doubt at all that this provision has been much abused, and there have been instances when compliant Governors were asked to send reports to order, to suit the Centre’s designs.

There is at least one case where a Governor, having expressed himself against the dismissal of the State Government, was asked to take it back and furnish a report quite to the contrary—which he obligingly did!

The consensus, therefore, is all for doing away with this Article altogether, but, if at all it is to be retained, is should be the inter-State Council and not the Union Council of Ministers, that must decide whether a sufficiently strong case exists for the dismissal of a State Government or the dissolution of a State legislature.

Use of extraordinary power conferred by Art. 356 

Art. 356 may be invoked in the following situations :

where a Ministry having resigned, the Governor finds it impossible to form an alternative government; when a political party seeking to subvert the principles of responsible government, sets up a party dictatorship;

when a State government enters into an alliance with a foreign power; where the Ministry, although having the confidence of the majority in the Legislature, fails to meet an extraordinary situation such as an outbreak of unprecedented violence or a great national calamity (This failure tantamounts to an abdication of its governmental power);

where the party having a majority in the Assembly declines to form a Ministry and the Governor’s attempts to find a coalition cabinet capable of commanding a majority having failed;

where, after a general election, no party is able to secure a working majority in the Legislative Assembly; when the Ministry fails to carry out the directive issued to it validly by the Union Executive in the exercise of its powers conferred by Art. 365 of the Constitution;

where a Ministry, although properly constituted, acts contrary to the provisions of the Constitution, or seeks to use its powers to purposes not authorised by the Constitution and the Governor’s attempts to call the Ministry to order have failed; and when a new State is created as a result of territorial reorganisation or upgrading of a Union Territory and there is no Legislature for such State (until election is held therefor);

Art. 356 may be resorted to, as a stop-gap measure.

Proclamation of Emergency and Proclamation of Failure of the Constitutional machinery

These two Proclamation differ from each other not merely on the grounds leading to the proclamation, but also on the total effects produced by such proclamations.
 The right to move the courts for enforcement of fundamental rights would not be affected in case of a Proclamation of failure of constitutional machinery.
 But this right is liable to be suspended in case of a Proclamation of Emergency.

On the other hand, the object of a Proclamation of Emergency is to confer greater powers of control upon the Union, but the authorities in the State would not cease to function. In the case of a Proclamation of failure of the constitutional machinery in a State, the Government of the said State or some part thereof would be superseded by the Union.

Arts. 352 and 353 merely give the Union concurrent powers of legislation and administration over the affairs of the State, while the State authorities continue to function as ever before. Art. 356, however, enables the Union to suspend the State legislature altogether and the State executive in whole or in part.
 The provisions of Art 356 make serious inroads into the federal principle embodied in the Constitution.

It was, however, considered necessary by the framers of our Constitution because of unique problems that confronted them and which did not exist in the traditional type of a federation where the Central and regional governments stand independent of each other within their respective spheres. This extraordinary power should, therefore, be used only under exceptional circumstances.

Proclamation of (a) National Emergency, (b) President’s Rule and (c) Financial Emergency

The effects of the emergency fall under four heads

  1. executive,
  2. legislative,
  3. financial, and
  4. fundamental rights.

Under an emergency the executive power of the Union Government extends to giving directions to any State on any matter.

During a national emergency the life of the Lok Sabha can be extended by one year at a time and beyond six months after the proclamation has ceased to exist.

During an emergency the legislative competence of Parliament is widened to make laws on subjects in the state list even though the state legislatures may be functioning.

During the emergency the President will have the power to modify the provisions relating to the allocations of financial relations between the Union and the States subject to the approval of Parliament.

During the national emergency the President can deprive the citizens of their fundamental rights.

When a State comes under President’s rule, the President assumes all functions and power exercised by the government and the Governor of the State.

The State Legislature is suspended or dissolved and the powers of the legislature are exercised by Parliament. No effect is seen on fundamental rights.

The Constitution has provision for financial emergency. It states 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 country is threatened, he may proclaim such an emergency.

The consequences of such a declaration are that the President can through directions compel a state to observe principles of financial propriety. This declaration cannot be challenged in a court of law.

National Emergency 

Procedure Proclamation

Art. 352 provides that, if the President is satisfied that a grave situation exists, whereby the security of India or any part of India is threatened, either by war or external aggression or armed rebellion, he may make a proclamation of emergency in respect of the whole of India or any part of the country. A proclamation of emergency can be made even before the actual occurrence of events contemplated in Art. 352.

The proclamation of the emergency can be revoked by a subsequent proclamation under Art. 352 (2).

Art 352 (3) says that the president shall not issue a proclamation unless the decision of the Union Cabinet (i.e. Council including only the Prime Minister and Cabinet ministers) that such a proclamation may be issued has been communicated to him in writing.

Art 352 (4) provides that every proclamation issued should be laid before both the Houses of Parliament. It would cease to be in effect unless it is approved by resolution of both Houses of Parliament within 30 days.

Termination

Proclamation under Art 352 may come to an end in following ways:

  1. On the expiry of one month from the issue unless it is approved by resolution of both Houses of Parliament before the expiry of that period. When the resolution is passed by the Rajya Sabha and the Lok Sabha is dissolved, or not in session, the proclamation must be approved within 30 days from the date at which the Lok Sabha first sits.
  2. It will at the end of 6 months from the date of the resolution unless Parliament passes a fresh resolution for its continuance. The duration of emergency can be extended by 6 months at a time.
  3. A resolution approving the proclamation must be approved by a majority of the house and the major-ity of not less than two-thirds of its members present and voting.
  4. The President must issue a proclamation of revocation any time the Lok Sabha disapproves of the issue or continuance of the proclamation.

Revocation 

The procedure for moving disapproval resolution is discussed in Art. 352 (8). A notice signed by not less than one-tenth of the total members of the Lok Sabha must be given, indicating their intention to move a resolution for disapproving the continuance of a proclamation of emergency, to the Speaker if the House is in session; or to the President if the House is not in session. A special sitting of the House must be held within 14 days from the date of receipt of such notice to consider the resolution. If passed by a majority not less than two-thirds of the members of the House present and voting, the President would be obliged to revoke the proclamation.

Judicial Review

According to 42nd Amendment Proclamation under Art. 352 was immune from judicial review. However, 44th Amendment has removed this immunity.Thus now constitutionality of the proclamation can be questioned in a Cour t on the ground of mala fides.

Amendments in Art. 352

Art. 352 has been amended in several respects by the 42nd and 44th amendment so as to minimise the charges of abuse of power to declare emergency.

  1. ‘Internal disturbance’ has been replaced by ‘armed rebellion’ in order to delimit the wide connotation of ‘internal disturbances’.
  2. Proclamation of emergency would not be issued by the President unless communicated by the Cabinet in writing.
  3. The proclamation of emergency should be approved within one month as against the previous provision of two months.
  4. The emergency ceases to operate if not approved by parliament within six months after it is proclaimed and once endorsed by the House.
  5. Fundamental rights under Art. 20 and 21 are enforceable; special provisions have been made even with respect to those fundamental rights whose enforcement can be suspended. 
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