A country faces threats to its security both from outside and inside. Union Government requires additional powers to deal with such emergencies. In a federal government, the need for such emergency provisions is even greater as federal government, by virtue of sharing powers with the' provincial ( state) governments, enjoys relatively limited powers. Part XVIII of the Constitution (Articles 352-360) deal with emergency.
Members of the Constituent Assembly believed that "the danger of a grave emergency arising in this country is not merely theoretical; it is very real". In the words of Alladi Krishnaswami Ayyar , "we are in grave and difficult times". They were convinced of the need for a strong Centre which could effectively deal with emergent situations.
Indian Constitution recognizes three types of emergency
Following are the features of the national emergency
If the Lok Sabha can not ratify it within 30 days for any reason, the proclamation must be passed by Rajya Sabha in 30 days and by Lok Sabha within 30 days after its first meeting1..
( If any such 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 and if a 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 thirty 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 thirty days a resolution approving the Proclamation has been also passed by the House of the People.)
A special sitting of the House shall be held within fourteen days from the date on which such notice is received for the purpose of considering such resolution. If the resolution is passed by a simple majority, emergency stands discontinued.
Effect of Proclamation of Emergency
Rendering the Union Government more powers to deal with a threat to national security involves the following
Fundamental Rights and national emergency
Art.358 and 359 are relevant. Art. 358 says that suspension of provisions of Article. 19 automatically takes place during emergency if the proclamation is on grounds of war or external aggression and not armed rebellion. Art.358 comes automatically into effect with the proclamation. Such suspension may be made for any part of India that is not under Emergency when any other part is under emergency.
Art. 359 needs to be separately invoked with Presidential order. It says that enforcement of any Fundamental Right can be suspended except Arts.20 and 21. President should specify that the suspension is in connection with the emergency. Every such order must ,as soon as it is made, be laid before each House of Parliament.lt lasts for such period as the president may specify during the period of emergency- that is, it need not last for the full period of emergency unlike Art.358.lt may apply to the whole or a part of the country- that part where the emergency is in force.
The Supreme Court in 2012 observed that it had permitted violation of the fundamental rights of citizens during the 1975 Emergency. It took the view that the majority decision of a five- member Constitution bench upholding the suspension of fundamental rights during Emergency in the ADM Jabalpur V Shivakant Shukla case (1976) was erroneous.
The majority opinion was that in view of the Presidential order under Article 359(1) of the Constitution, no person has the locus standi to move for any writ petition under Article 226 before a high court for Habeas Corpus or any other writ to enforce any right to personal liberty of a person detained under the then law of preventive detention (MISA) on the ground that the order is illegal or malafide or not in compliance with the Act.
The Bench pointed out that in the 4:1 ruling that it was Justice Khanna who gave a dissenting judgment by holding that "under Article 226 under which the high courts can issue writs of Habeas Corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the high court to issue writs in the nature of habeas corpus during the period of Emergency."
However, Art.359 reads as follows: “ Suspension of the enforcement of the rights conferred by Part 111 during Emergencies... Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except articles 20 and 21)] as may be mentioned in the order ...shall remain suspended.”
Revocation of Emergency
Emergency may end when the President revokes it with-a proclamation on the advice of the Union cabinet. As mentioned above, since the 44th Amendment Act 1978, the Lok Sabha initiative is also provided.
44th Amendment and Emergency
The 44th Constitution made the following amendments in the national emergency law in order to minimize its scope for abuse
The above changes were made by the Janata Government in 1978 as the experience of national emergency imposed in 1975 was resented and it was thought that the terms of national emergency should be made more stringent and less open to abuse.
Emergency was imposed in the country when China attacked India (external aggression) in I962(by S. Radhakrishnan) and was lifted in 1968. It was again imposed when Pakistan launched war on India in 1971 ( by President VV Giri). In 1975, on grounds of internal disturbance, emergency was imposed . President Fakhruddin Ali Ahmed declared a State of Emergency upon the advice of the Prime Minister, Mrs. Gandhi on 26 June I975.The two impositions were revoked in 1977. The need for the 1975 imposition was felt as the Government perceived internal threat to national security. While the effect of the two emergencies- 1971 and 1975 was the same, the political message was different. The 1975 emergency gave the government legitimacy to suspend rights.
Provisions regarding financial emergency are contained in Art.360 to deal with crises that destablise the economic condition of the country either from internal sources or because of external shocks. 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 is threatened, he may proclaim financial emergency. The proclamation needs to be approved by resolutions of both Houses of parliament within 2 months. Majority required is simple.
If any such 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 two months and if a 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 thirty 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 thirty days a resolution approving the Proclamation has been also passed by the House of the people. Financial emergency , once imposed can last till it is revoked.
During the emergency, the executive authority of the Union shall extend to giving of directions to any State to observe such canons of financial propriety as may be specified in the directions. Any such direction may include a. provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State; a provision requiring all Money Bills or related Bills be reserved for the consideration of the President after they are passed by the Legislature of the State; issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.
The country so far did not have financial emergency though conditions of severe economic crisis did prevail in the year 1990-91.The economic situation of the country in 2013 has also deteriorated on internal and external fronts and there are suggestions in some quarters that Art.360 be invoked.
Proclamation of President’s rule in a state may become-necessary if the state can not be governed in accordance with the Constitutional provisions. Such imposition is the logical outcome of the duty conferred on the Union Government under Art.355.
It is the 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 the Constitution.
Under Art.355, the following steps are generally taken i . sending fact finding teams to the States in question
It is to be mentioned that invocation of Article 355 is not necessarily the first step towards dismissal of a government under Art.356. It, in fact can be a warning to the erring State and be preventive in nature.
President's Rule: Art.356
If the President, on receipt of report from the Governor of the 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, the President may
Powers vested in the High Court are unchanged.
The state legislative assembly may be suspended or dissolved,depending upon the circumstances. If the President believes that the Assembly can be revived and there will be a political coalition that can form a government, suspension is the course of action. Or, it may be dissolved.
The proclamation is to be ratified by the parliament within 2 months.
The Prockjtnation ceases to operate on the expiration of a period of six months from the date of issue of the Proclamation: Extension by a period of six months at a time is possible but President's rule cannot last for more than 3 years.
If the President's rule has to be extended by more than one year, two conditions must be met:
• a Proclamation of 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, and*
• the Election Commission certifies that the central rule should continue due to the difficulties in holding elections.
Once these two conditions are met, it can be extended six months at a time fill a limit of 2 years. Already, it lasted for 1 year. That is, the total period for which it can last through extensions is 3 years, though conditionally. The idea is that an internal problem related to one state should be amenable to a solution within 3 years.
Effects of President’s rule
Jharkhand was put under President's rule in January 2013 and the assembly placed under suspended animation after the Chief Minister Arjun Munda of the BJP resigned as his ministry was reduced to a minority-after JMM withdrew support.The promulgation was approved by both Houses of Parliament in the Budget session. Assembly was not yet dissolved by June 2013.By July 18, the first six month period ends. Either it has to be extended by another six months or elections are to be held by dissolving the assembly.
When President’s rule imposed or what is constitutes 'failure of the Constitutional machinery’?
“Failure of the Constitutional machinery” is not found in the Constitution as a term. However, if the state cannot be governed in accordance with the Constitution, President’s rule may be recommended by the Governor. Practically, it may involve the following situations
Sarkaria Commission on Union-States Relations recommended in 1987 that:
S.R. Bom mai Vs. Union of India case judgement
S.R. Bommai Vs. Union of India case judgement (1994) of the apex, court is a land mark judgement in relation to Art.356 as it aims to minimise the partisan application of the provisions. The judgement was delivered partly as a response to the challenge to the imposition of President's rule in four states- UP, HP, MP and Rajasthan after the Babri mosque destruction in December 1992.Important points of the judgement
Significance of the Bommai judgement
The background of the verdict was that the Article was used indiscriminately. Art.356 was used more than 100 cases and in many cases, it appeared to be of doubtful constitutional validity and was largely politically motivated. That power was exercised to dismiss the State Governments controlled by a political party opposed to the ruling party at the Centre. The Supreme Court laid down standards according to which the centre’s power under Art.356 is to be exercised. In short, Bommai judgement made Art.356. liable to judicial .review; Union Cabinet accountable and made exereise of powers under Art.356 more responsible.
Inter-State Council (Art.263) also made some recommendations in this regard
In 1998, President of India returned for reconsideration the recommendation of the Council of Ministers to impose President rule in Bihar. The points raised by the President are noteworthy
NCRWC (national Commission to Review the Working of the Constitution) recommendations
Bihar assembly dissolution case 2006
The Bihar assembly was dissolved in May 2005 after the declaration of President’s rule in March 2005 when the elections in February 2005 did not throw up a clear winner - hung assembly. The decision was challenged in the Supreme Court which delivered the verdict in 2006 with an indictment of the Governor for not discharging Constitutional duties with a sense of objectivity and impartiality. The apex court saw political motives in the actions of the Governor - to prevent the formation of government by one political party. It further observed that the Union Cabinet should have verified the authenticity of the report of the Governor. When the Governor asserted correctness of his actions on the basis of the need to curb defections, the apex court ruled that it was not the duty of the Governor to prevent defections. Speaker of the Assembly is Constitutionally vested with such duties. Governor ‘s duty was to swear in the party with majority .
Art.356 in recent times *
In recent years, the checks on the Art. 356 have emerged from
Punchhi Commission recommends that there should be provision in the Constitution for localized emergency- under Arts.352 and 356 - wherein a part of the State can come under emergency/President’s rule. 2. The commission has proposed “localising emergency provisions” under Articles 355 and 356, contending that localised areas — either a district or parts of a district — be brought under Governor’s rule instead of the whole state.Such an emergency provision should however not be of duration of more than three months.