Arts. 352 to 360 of Part XVIII of the Indian Constitution deal with the emergency provisions.
The Constitution provides for three types of abnormal conditions calling for emergency provisions. These are: (i) national emergency—due to war, external aggression or armed rebellion (Art. 352); (ii) failure of the constitution consists of provisions for both normal and exceptional times. The framers did not shut their eyes to the contingencies wherein the normal federal principle would not only fail to hold relevance but may become counter productive to the very cause of our federal polity. Thus our Constitution stands as an admixture of both types of provisions fit to deal with all eventualities Emergency provisions reflect the arrangement to deal with such exceptional or abnormal conditions of the country.
The expression ‘Proclamation of Emergency’ is used in the Constitution to refer to Proclamation under Art. 352.
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.
Proclamation under Art 352 may come to an end in following ways:
(i) 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 proclama-
tion must be approved within 30 days from the date at which the Lok Sabha first sits.
(ii) 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.
(iii) A resolution approving the proclamation must be approved by a majority of the house and the majority of not less than two-thirds of its members present and voting.
(iv) The President must issue a proclamation of revocation any time the Lok Sabha disapproves of the issue or continuance of the proclamation.
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.
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 Court 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.
(i) ‘Internal disturbance’ has been replaced by ‘armed rebellion’ in order to delimit the wide connotation of ‘internal disturbances’.
(ii) Proclamation of emergency would not be issued by the President unless communicated by the Cabinet in writing.
(iii) The proclamation of emergency should be approved within one month as against the previous provision of two months.
(iv) The emergency ceases to operate if not approved by parliament within six months after it is proclaimed and once endorsed by the House.
(v) 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.
Effects of proclamation of Emergency
(i) Extension of the Centre’s executive power (Art. 353): During an emergency, the executive power of the Union extends to giving directions to any state as to the manner of exercising its executive power.
So although the state government will not be suspended, it will be under the complete control of the Union executive and the administration of the country during the Proclamation will function as under a unitary system with local sub-divisions.
(ii) Parliament empowered to legislate on state subjects [(Art. 353 (b)]: While an emergency is in operation, the Union Parliament is empowered to make laws with respect to any matter in the state list.
Thus though the Proclamation will not suspend the State Legislature, it will suspend the distribution of legislative powers between the States and the Union.
(iii) Centre empowered to alter distribution of revenue between the Union and States (Art. 354): The President may, while an emergency is in operation, by order, alter the financial arrangement between the States and the Union as provided in Art. 268-279.
Every such order is to be laid before each House of Parliament and will come to an end by the end of the financial year in which the proclamation ceases to operate.
(iv) Extension of the Lok Sabha [Art. 83(2)]: While an emergency is in operation, the President may extend the normal life of the Lok Sabha by a year each time up to a period not exceeding beyond six months after the emergency ceases to operate.
(v) Suspension of Fundamental Rights: Art. 358 provides for the suspension of the six freedom guaranteed to the citizen by Art. 19 while an emergency is in operation on grounds of war or external aggression.
(vi) Suspension of the enforcement of rights conferred by Part III: Art. 359 empowers the President to suspend by an Order, the right to move the Courts for the enforcement of any of the fundamental rights guaranteed under Part III (except Art. 20 and 21) when an emergency is in operation on grounds of war, external aggression or armed rebellion. All proceedings pending in any court for the enforcement of such rights remain suspended, by Order of the President, during the emergency. Art 359 (1a) provides that nothing in Part III shall restrict the power
of the State to make any law or to take any executive action.
Emergency Powers Used so Far
Emergency was declared for the first time in October 1962 during the Chinese attack on (NEFA) India. It was revoked in January 1968. The second emergency was declared in December 1971 when Pakistan attacked India undeclared. This emergency continued till March 1977. The third emergency was declared in June 1975 on the ground of internal disturbance which also continued in operation till March 1977. However, after 1978 it was not possible to issue a proclamation of emergency on the ground of internal disturbance, short of an armed rebellion, for the worked “internal disturbance” have been substituted by the words “armed rebellion” by the 44th Amendment Act, 1978.
Failure of the Constitutional Machinery in a State
Art. 355 says that it shall be the duty of the Union to protect every state 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 Constitution. According to Art 356 the President is empowered to make a Proclamation when he is satisfied that the government of a state cannot be carried on in accordance with the provisions of the Constitution, either on receipt of report from the Governor of a state or otherwise. Such proclamation may also be made by the president when any state has failed to comply with, or to give effect, any directions given by the Union in the exercise of its executive power to the State. By such proclamation the President may: (i) assume to himself all or any of the functions of the government of the state and of the Governor; and (ii) declare that the powers of the State Legislature shall be exercisable by or under the authority of Parliament.
The President cannot, however, assume to himself any of the powers vested in the High Court. Art. 356 (2) says that any such proclamation can be revoked or varied by a subsequent proclamation.
As a result of the suspension of the State Legislature by such Proclamation: (i) Parliament shall delegate the power to make laws for the state to the President or any other authority specified by him; (ii) The President shall authorise, when the Lok Sabha is not in session, expenditure from the Consolidated fund of the State pending the sanction of such expenditure from Parliament, (iii) The President shall promulgate Ordinances for the administration of the State when Parliament is not in session (Art. 357).
Every proclamation issued under Art. 356 shall be laid before each House of Parliament, except in the case of revoking a previous proclamation within two months. If the Rajya Sabha has approved the resolution and the Lok Sabha is dissolved within these two months without its vote on the matter, the proclamation must get the Lok Sabha’s approval within 30 days of its first sitting after reconstitution.
An emergency must be re-endorsed every six months, but cannot last longer than three years.
Use of Power under Art. 356
The Sarkaria Commission on Centre-State relations recommended rare use of Art. 356. Even the makers of the Constitution envisaged this provision to ‘remain a dead letter’. But against this, in independent India this has been used for over 100 times.
The power to declare a proclamation is an extraordinary power of the Centre to meet a political breakdown in any of units of the federation which might affect the national strength. It is one of the coercive powers at the hands of the centre to maintain the democratic form of government, and to prevent factional strikes from paralysing the governmental machinery, in the states. However, in reality it has acted as a drastic coercive power which has nearly broken the normal federal polity.
The Supreme Court in S.R. Bommai case has upheld that the Courts possess the power to review the Proclamation under Art. 356 to examine (i) whether the material was relevant; (iii) whether it was issued mala fide. It has made it clear that Art. 356 cannot be invoked for superseding a duly constituted ministry and dissolving the Assembly on the sole ground that in the elections to the Lok Sabha, the ruling party in the State suffered a massive defeat.
The decision of the court also reflects that the Legislative Assembly cannot be dissolved before the proclamation is approved by both Houses of parliament.
If the court holds the proclamation to be invalid then in spite of the fact that it has been approved by the parliament, the court has the power to restore, in its discretion, status quo ante, i.e. the court may order that the dissolved ministry and Assembly will be revived.
Difference between Art. 356 and Art. 352
(i) National emergency (Art. 352) is proclaimed in the case of threatened security of the country owing to war, external aggression, armed rebellion. But the proclamation under Art. 356 is made in the event of breakdown of the constitutional machinery due to any reasons, besides war or armed rebellion.
(ii) A national emergency does not empower the Centre to suspend the State Legislature
or state Executive. But in case of Proclamation due to failure of the constitutional machinery, the state Legislature would be suspended and the executive power of the state would be assumed by the President in whole, or part (also called President’s rule).
(iii) In a national emergency, parliament can legislate in respect of state subjects only by itself, but in a proclamation under Art. 356 it can delegate its power to legislate for the state to the President or to any other authority specified by him.
(iv) Proclamation under Art. 356 may be extended to three years, but a national emergency may be continued for six months, by each resolution of Parliament approving its continuance, so that the Proclamation may be continued indefinitely as long as Proclamation is not revoked or Parliament does not stop to make resolutions approving its continuance.
(v) In a national emergency, the relationship of all states with the Centre undergoes a change; under art. 356, the relationship of only the state concerned is affected.
Art, 360 (1) provides that, if the president is satisfied that the situation has arisen whereby India’s financial stability or credit or of any part of its territory is threatened, he may by a proclamation declare a financial emergency.
Such an emergency would, like a national emergency, ordinarily remain in force for two months, unless it is approved by resolution of both Houses of Parliament.
Effects of financial emergency
(i) The executive authority of the Union extends to the giving of direction to any state to observe such canons of financial propriety as may be specified in the provision.
(ii) Such direction may include provisions required to reduce the salaries or allowances of state government servants. Also, it may include provisions requiring all money bills or other financial bills to be reserved for the consideration of the President.
(iii) The President shall be competent to issue directions for the reduction of salaries and allowances of Union government servants including the Judges of Supreme Court and the High Court.
Financial emergency has never been imposed in India. in any language other than English
Authorised translations (central laws) Act, 1973
In 1973, Parliament enacted the Authorised Translations (Central Laws) Act, 1973, to provide that when a Central law is translated into a regional language (other than Hindi) and published in the Official Gazette, under the authority of the President, such translation shall be deemed to be the authorised translation thereof in such language.
Art. 394A was inserted into the Constitution by the 58th Amendment Act, 1987 in order to give effective authority to Constitution of India translated into Hindi.
Languages recognised by the constitution
Eighth Schedule of the Indian Constitution recognises 18 languages. These are Assamese, Bengali, Hindi, Urdu, Marathi, Gujarati, Punjabi, Sanskrit, Kashmiri, Telegu, Tamil, Malayalam, Kannada, Oriya, Sindhi, Konkani, Nepali and Manipuri. Sindhi was added by the Twenty-first Constitutional Amendment Act, 1967, Konkani, Manipuri and Nepali were added by the Seventy first amendment Act, 1992.
The Constitution provides special directives not only in respect of official language but also other regional languages of India so as to protect the interests of the linguistic minorities.
Hindi, as the official language, is to be promoted and developed by the Union so that it may serve as a medium of expression for the diverse cultures of India. The Union is further directed to strive for enriching Hindi with forms, style and expressions used in other regional languages of India and by giving importance to Sanskrit, (Article 351).
"While we want this Constitution to be as solid and permanent as we can make it, there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop the nation's growth, the growth of a living, vital, organic people.... in any event, we could not make this Constitution as rigid that it cannot be adapted to changing conditions," so said India's first Prime Minister Jawaharlal Nehru on the nature of the Indian Constitution.
Part XX, Art. 368 of the Constitution provides three methods of amendment of different parts of the Constitution. These are
(i) By Simple Majority: Certain parts of the Constitution are open to amendment by simple majority of the members of the House present and voting. These include:
To introduce bills pertaining to Arts. 4 and 169, a precondition is that there should be a presidential recommendation to introduce such bills and the State Legislative Assembly concerned should have passed resolution to that effect.
(ii) By Special Majority: Certain other parts of the Constitution can only be amended by a special majority i.e. a majority of the total members of the House as well two-thirds majority of the members present and voting. (Total membership' means the strength of the House, 'present and voting' means those who vote for a 'yes' or 'no', Abstention' has no value and that mode of vote is not counted in special majority voting.) Parts III and IV of the Constitution, which deal with the Fundamental Rights and Directive Principles respectively belong to this category.
(iii) By both Special Majority and Ratification of the State. Changes in certain articles cannot be sought without ascertaining special majority and ratification by the required number of states. The following are the articles and subjects concerned:
The Constitution does not provide any time for the state's ratification. The resolution by the legislatures of one half of the states and passage of the bill from the House of Parliament prepares the bill for Presidential assent. Thus the Constitution stands amended.
According to Art. 368, an amendment may be initiated only by the introduction of a Bill for the purpose in either House of Parliament. When the Bill is passed in each House by a majority (i.e. more than 50 per cent) of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent. When the President gives his assent, the Constitution stands amended in accordance with the terms of the Bill. But, as pointed out earlier, in the case of certain amendments, ratification by the legislatures of not less than one-half of the States by resolutions to that effect is required before the amending Bill is presented to the President for assent.
The amending process of the Indian Constitution shows India has an edge over other Constitutions in certain vital aspects. The procedure for amendment must be classed as "rigid" in so far as it requires a special majority and, in some cases, a, special procedure prescribed for ordinary legislation.
All the same the procedure is not as complicated or difficult as in the USA or in any other rigid Constitution. Unlike the position in few other countries (which provide for a separate body for amending the constitution), our Constitution vests constituent power upon Indian Parliament. The State Legislature cannot initiate any bill or proposal for amendment of the Constitution. The proposal for amendment must originate only in the Lok Sabha or Rajya Sabha. Article 108 provides that if there is a disagreement between the two House of Parliament regarding the passage of a Bill, the deadlock may be resolved by the joint session of Parliament.
Major Constitutional Amendments
The Constitution of India has been subjected to as many as eighty three amendments since it was framed. Some of the important constitutional amendments are discussed as follows:
The Constitution (First Amendment) act, 1950: The Act provided for several new grounds of restrictions to the right to freedom of speech and expression and the right to practise any profession or to carry on any trade as contained in Article 19 of the Constitution. These restrictions related to public order, friendly relations with foreign State or incitement to an offence in relation to the right to freedom of speech, etc. It also added Ninth schedule.
The Constitution (Fourth Amendment) Act, 1955: Article 31(2) of the Constitution was amended to assert the power of the State in the area of compul-
sory acquisition and requisitioning of private property. Article 31 A of the Constitution was also amended to extend its scope to cover welfare legislation like abolition of zamindaris, proper planning of urban and rural areas and for effecting a full control over the mineral and oil resources of the country.
The Constitution (Seventh Amendment) Act, 1956: Article 334 was amended to extend the period of reservation of seats for Scheduled Castes and Scheduled Tribes and to the Anglo-Indian community by nomination in Parliament and in the State Legislature for a further period of ten years.
The Constitution (Tenth Amendment) Act, 1961: This Act amended Article 240 and the First Schedule in order to include areas of Dadra and Nagar Haveli as Union Territory.
The Constitution (Twelfth Amendment) Act, 1962: This amendment sought to include Goa, Daman and Diu as a Union Territory and to amend Article 240 for the purpose.
The Constitution (Thirteenth Amendment) Act, 1962: This added a new Article 371 A to make special provisions in respect of the state of Nagaland in pursuance of an agreement between Government of India and the Nagaland People's Convention.
The Constitution (Fourteenth Amendment) Act, 1962: By this Act Pondicherry was included in the First Schedule as a Union Territory, and this Act has also enabled the creation of Legislature by parliamentary law for Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry.
The Constitution (Sixteenth Amendment) Act, 1963: The words "the sovereignty and integrity of India" were added in Clauses (2), (3) and (4) of Article 19.
The Constitution (Nineteenth Amendment) Act, 1966: This amendment was made to abolish the election tribunals and transfer the work of election petitions to the High Courts.
The Constitution (Twenty-first Amendment) Act, 1967: By this Amendment Sindhi language was included in the Eighth Schedule.
The Constitution (Twenty-second Amendment) Act, 1969: This Act was enacted to facilitate the formation of a new autonomous State of Meghalaya within the State of Assam.
The Constitution (Twenty-sixth Amendment) Act, 1971: It abolished the privy purses and privileges of the former rulers of the princely States.
The Constitution (Thirty-first Amendment) Act, 1973: This Act increased the strength of Lok Sabha from 525 to 545 members.
The Constitution (Thirty-fifth Amendment) Act, 1974: It conferred on Sikkim the status of an associate State of India.
The Constitution (Thirty-sixth Amendment) Act, 1975: The Act made Sikkim a full-fledged State (22nd State) of the Indian Union.
The Constitution (Thirty-eighth Amendment) Act, 1975: This Act was enacted during the period when the proclamation of internal emergency, made on June 25, 1975, was in operation. Declaration of emergency by the President and the promulgation or Ordinances by the President, Governors and Administrative Heads of UTs, were made non-justiciable.
The Constitution (Thirty-ninth Amendment) Act, 1975: By this Act, disputes relating to the election of the President, Vice President, Prime Minister and Speaker are to be determined by parliamentary law.
The Constitution (Thirty-Fortieth Amendment) Act, 1976: This Act provide for vesting in the Union of such subjects as mines, mineral and other things of value lying in the ocean within the territorial waters of the continental shelf or the exclusive economic zone of India. The Act also provided that the limits of territorial waters, the continental shelf, the exclusive economic zone and the maritime zones of India shall be as specified from time to time by or under any law made by Parliament.
Under this amendment the Directive Principles of the State Policy have been given precedence over Fundamental Rights wherever they come into conflict. Linked with this, prevention or prohibition of antinational activities takes precedence over Fundamental Rights.
Certain fundamental duties to be observed by all citizens are laid down. Non-compliance with or refusal to observe the duties shall be punishable by law.
The number of seats in the Lok Sabha and the State Assemblies which are based on population shall remain frozen as in the 1971 census till 2000 AD.
Proclamation of Emergency may be made applicable to any part of the country (instead of the whole country). Similarly emergency can be lifted from any part of the country while it remains in force in other parts.
No court can question the competence of Parliament to amend the Constitution in any manner.
The President of India shall, in the exercise of his functions act in accordance with the advice tendered by the Council of Ministers. In other words, thePresident's liability to act in accordance with the advice of the Council of Ministers has been made virtually mandatory.
The Constitution (Forty-fourth Amendment) Act, 1978: The right to proper ty which had been the occasion for more than one amendment of the Constitution was deleted as a fundamental right and it was made only as a legal right. It was, however, ensured that the removal of the right to property from the list of Fundamental Rights would not affect the right of minorities to establish and administer educational institutions of their choice.
The Constitution (Fifty-second Amendment) Act, 1985: This Amendment is a great step in successful working of Parliamentary democracy. The amendment effected by a Bill popularly called AntiDefection Bill, was to curb defection by disqualification.
The Constitution (Fifty-third Amendment) Act, 1986: Conferred full Statehood on Mizoram.
The Constitution (Fifty-fifth Amendment) Act, 1986: Conferred full Statehood on Arunachal Pradesh.
The Constitution (Fifty-sixth Amendment) Act, 1987: It sought to take a special provision for the setting up of the new State of Goa. Consequently, Daman and Diu were separated from the former to form a Union Territory.
The Constitution (Sixty-first Amendment) Act, 1990: It amended the Art. 338 thus providing for the constitution of a National Commission for Scheduled Castes and Scheduled Tribes consisting of a Chairperson and five other Members who shall be appointed, by the President by warrant under his hand and seal.
The Constitution (Sixty-ninth Amendment) Act, 1991: Delhi made National Capital Territory Region.
The Constitution (Seventy-first Amendment) Act, 1992: Eighth Schedule of the Constitution was amended to include Konkani, Manipuri and Nepali as Official Languages of the Indian Union.
The Constitution (Seventy-third Amendment) Act, 1992: Got Presidential assent in April 1993 after ratification by the required number of States, provides constitutional guarantee for the formation of a three-tier model Panchayati Raj, inserted Part IX containing Arts. 243, 243A to 243-O and the Eleventh Schedule in the Constitution.
The Constitution (Seventy-Fourth Amendment) Act, 1992: Inserted Part IX A containing Arts. 243P to 243ZG, and the Twelfth Schedule enumerating the power and functions of urban local bodies. The Act, provides for the formation of Municipal Panchayats, Municipal Council and Municipal Corporation.
The Constitution (Seventy-fifth Amendment) Act, 1993: It amended Art. 323B and added a new clause (h) providing for establishment of tribunals for rent control cases.
The Constitution (Seventy-sixth Amendment) Act, 1994: Raised the reservation quota of government jobs and seats for admission in the educational institutions in favour of socially and educationally backward classes to 69 percent in Tamil Nadu. This Act has been included in the Ninth Schedule to exempt it from the preview of judicial scrutiny.
After numerous Parliamentary acts and judicial deliberations coupled with debates among the jurists the amending power of parliament has taken a concrete shape. Various cases have led to the striking off of many clauses of the amendments that were seen by the jurists as unconstitutional.
The debate on Parliament's right to abridge, abrogate or amend the fundamental rights started in 1951 itself. Shakri Prasad vs Union of India challenged the validity of the first Constitution Amendment Act, especially Art. 31-b. The supreme court upheld the rights of Parliament to amend the Constitution including the fundamental rights, vide art. 368.
The Sajjan Kumar case reaffirmed the previous judgement of the apex court. However, the Golak Nath case, by a precarious majority of 6:5, overruled the earlier decisions. The court in this case upheld the primacy of Part III over Art. 368.
The 24th Amendment Act (1971) tried to restore the amending rights of Parliament vis-a-vis the fundamental rights. By inserting subsection (1) in Art.
368 it accorded unlimited power to Parliament to amend 'any' provision of the Constitution in accordance with law.
Controversy erupted again in the Kesavanand Bharati case, in which the Supreme Court, while overruling the Golak Nath case judgement and upholding the validity of the 24th Amendment Act, decided that Art. 368 gives Parliament the power to amend any part of the Constitution but parliament did not have the right to 'alter the basic structure or framework of the Constitution'. The 42nd amendment went a step ahead to exclude judicial review upon Parliament's power to amend the Constitution. This change was, however, then struck down by striking down clauses (4)-(5) of Art. 368.
Though the Supreme Court has refused to reveal its List of basic features of the Constitution the following list may be drawn up after examining many important judgments on various cases, e.g. Indira Gandhi vs Raj Narain, Minerva Mills case, etc.
(i) Supremacy of the Constitution; (ii) Rule of law; (iii) Principle of Separation of Powers; objectives specified in the Preamble to the Constitution; (iv) Judicial review: Art. 32; (v) Federalism; (vi) Secularism; (vii) Sovereign, democratic, republican structure; (viii) Freedom and dignity of the individual; (ix) Unity and integrity of the Nation; (x) Principle of equality, not ever feature of equality, but the Quintessence of equal justice; (xi) 'Essence' of other Fundamental Rights in Part III; (xii) concept of social and economic justice— to build a welfare State; (xiii) Part IV in toto; (xiv) balance between Fundamental Rights and Directive Principles; (xv) Parliamentary system of government; (xvi) Principle of free and fair elections; (xvii) Limitations upon the amending power conferred by Art. 368; (xviii) Independence of the judiciary; (xix) Effective access to justice; (x) Powers of the Supreme Court under Arts. 32, 136, 141, 142.