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Laxmikanth Summary: Emergency Provisions | Indian Polity for UPSC CSE PDF Download

The articles incorporated into the Indian Constitution serve as instruments that endow the Central government with the authority to proficiently navigate crises, with the overarching goal of safeguarding the nation's sovereignty, unity, integrity, and democratic foundations. In times of emergencies, a pivotal transformation takes place wherein the Central government assumes a commanding role over the states. This temporary restructuring of the federal framework effectively morphs it into a unitary system, all achieved without the necessity for a formal amendment—a distinctive and noteworthy attribute within the Indian Constitution. Dr. B.R. Ambedkar, a key architect of the Constitution, astutely recognized and highlighted this unique feature for its remarkable adaptability. It allows the constitutional structure to seamlessly oscillate between federal and unitary modes, contingent upon the prevailing circumstances and exigencies, thereby reflecting the Constitution's dynamic and responsive nature.

The Emergency provisions (Articles 352 to 360)

The Constitution outlines three types of emergencies:

  1. National Emergency (Article 352): Declared during war, external aggression, or armed rebellion. Commonly referred to as 'National Emergency,' it is officially termed a 'proclamation of emergency.'

  2. President's Rule (Article 356): Declared due to the failure of the constitutional machinery in states. Also known as 'State Emergency' or 'Constitutional Emergency,' although the term 'emergency' is not used in the Constitution for this situation.

  3. Financial Emergency (Article 360): Declared in response to a threat to India's financial stability or credit.


Emergency Provisions in the Indian ConstitutionEmergency Provisions in the Indian Constitution

National Emergency                                    

Grounds of Declaration                                   

  • Article 352: National Emergency

    1. President's power to declare during war, external aggression, or armed rebellion.
    2. Can act in the face of imminent danger.
    3. Different proclamations for war, aggression, rebellion, or imminent danger.
    4. Added by 38th Amendment Act of 1975.

  • Types of National Emergency

    1. 'External Emergency' for war or external aggression.
    2. 'Internal Emergency' for armed rebellion.

  • Geographical Scope

    1. Proclamation can apply to the entire country or a specified part.
    2. 42nd Amendment Act of 1976 allows limiting the operation.

  • Grounds for Emergency

    1. Originally 'internal disturbance,' changed to 'armed rebellion' by 44th Amendment Act of 1978.

  • Presidential Declaration

    1. Requires a written recommendation from the cabinet.
    2. Introduced by 44th Amendment Act of 1978 for collective decision-making.

  • Judicial Review

    1. Initially immune by 38th Amendment Act of 1975, later removed by 44th Amendment Act of 1978.
    2. Minerva Mills case (1980): Can be challenged based on malafide, irrelevant facts, or absurdity.
 

Parliamentary Approval and Duration

  • Emergency Proclamation Approval:

    1. Must be approved by both Houses within one month (reduced from two months by 44th Amendment Act of 1978).
    2. If Lok Sabha dissolves, survives until 30 days from the first sitting of the reconstituted Lok Sabha if Rajya Sabha approves.

  • Duration and Extension:

    1. Approved emergency lasts six months, extendable with Parliament's approval every six months.
    2. Periodical approval introduced by 44th Amendment Act of 1978, replacing indefinite continuation at Executive's discretion.
    3. If Lok Sabha dissolves without approval, survives until 30 days from the first sitting of the reconstituted Lok Sabha, if Rajya Sabha approves.

  • Approval Requirements:

    1. Requires special majority: (a) majority of total membership, and (b) two-thirds majority of members present and voting.
    2. Special majority introduced by 44th Amendment Act of 1978, replacing previous simple majority requirement.

Revocation of Proclamation

  • Revocation of Emergency Proclamation:

    • President can revoke by subsequent proclamation without parliamentary approval.

  • Parliamentary Control Introduced by 44th Amendment Act of 1978:

    • President must revoke if Lok Sabha passes a resolution disapproving continuation.
    • Before the amendment, President could revoke without Lok Sabha's control.

  • Special Sitting of Lok Sabha:

    • Introduced by 44th Amendment Act of 1978.
    • One-tenth of Lok Sabha members can request a special sitting within 14 days to consider a resolution disapproving proclamation continuation.

  • Resolution of Disapproval:

    • Different from a resolution approving continuation.
    • Passed by Lok Sabha only (not both Houses).
    • Adopted by a simple majority (not a special majority).

Question for Laxmikanth Summary: Emergency Provisions
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What are the three types of emergencies outlined in the Indian Constitution?
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Effects of National Emergency

  1. Centre-State Relations:

    • Executive Power: Centre can direct states on 'any' matter, bringing states under complete control without suspension.
    • Legislative Power: Parliament empowered to legislate on any State List subject, suspending normal distribution of legislative powers between Centre and states.
      • State legislatures continue but are subject to Parliament's overriding power.
      • Laws made by Parliament on state subjects become inoperative six months after the emergency ends.
    • Financial Power: President can modify revenue distribution between Centre and states, affecting financial transfers. Modifications last until the end of the financial year after the Emergency ceases.

  2. Ordinances and Extended Jurisdiction:

    • President can issue ordinances on state subjects during emergency if Parliament is not in session.
    • Parliament can confer powers and duties on the Centre beyond the Union List to implement laws made under extended jurisdiction during National Emergency.

  3. Applicability Across States:

    • The 42nd Amendment Act of 1976 extends executive and legislative consequences to any state, not just the one where the Emergency is in operation.

  4. Financial Modification Oversight:

    • President's orders modifying financial distribution must be laid before both Houses of Parliament.

Declaration of National EmergencyDeclaration of National Emergency

Effect on the Term of Lok Sabha and State Assembly:

  1. Lok Sabha Extension: During National Emergency, Lok Sabha's term can be extended beyond the normal five years by Parliament's law, one year at a time (for any length), up to six months after the Emergency ends.
  2. State Assembly Extension: Similarly, state legislative assembly's normal tenure (five years) can be extended by one year at a time during a National Emergency, subject to a maximum period of six months after the Emergency ceases.

Effect on Fundamental Rights:

  1. Article 358: Deals with the suspension of Fundamental Rights guaranteed by Article 19 during a National Emergency.
  2. Article 359: Addresses the suspension of other Fundamental Rights (excluding those guaranteed by Articles 20 and 21) during a National Emergency.

Suspension of Fundamental Rights under Article 19:

  • Article 358 Scope:
    1. During National Emergency, Article 19 Fundamental Rights automatically suspended.
    2. State free from Article 19 restrictions, allowing legislation or executive actions limiting these rights.
    3. Laws or actions inconsistent with Article 19 cannot be challenged during the Emergency.
    4. Article 19 automatically revives after the Emergency ends, but no remedy for actions taken during the Emergency.
    5. The 44th Amendment Act of 1978 narrowed Article 358's scope:
      1. Applies only during National Emergency declared due to war or external aggression (not armed rebellion).
      2. Only laws related to the Emergency are protected, and executive actions under such laws.

Suspension of Other Fundamental Rights under Article 359:

  • Article 359 Authority:
    1. President authorized to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency.
    2. Fundamental Rights are theoretically alive, but enforcement is suspended.
    3. Suspension limited to rights specified in the Presidential Order.
    4. Order can extend to the entire country or part, for the duration of the emergency or a specified shorter period, subject to parliamentary approval.
    5. The 44th Amendment Act of 1978 restricted Article 359:
      • President cannot suspend the right to move the Court for enforcement of fundamental rights guaranteed by Articles 20 and 21 (protection in conviction for offences and right to life and personal liberty).
      • Only laws related to the Emergency are protected, and executive actions under such laws are shielded from challenges after the Order expires.

Differences Between Articles 358 and 359

Differences Between Articles 358 and 359:

  1. Scope of Fundamental Rights:

    • Article 358 applies only to Fundamental Rights under Article 19.
    • Article 359 extends to all Fundamental Rights whose enforcement is suspended by the Presidential Order.

  2. Automatic Suspension:

    • Article 358 automatically suspends Article 19 Fundamental Rights when the emergency is declared.
    • Article 359 empowers the president to suspend the enforcement of specified Fundamental Rights but does not automatically suspend any right.

  3. Emergency Types:

    • Article 358 operates only in External Emergency (war or external aggression), not in Internal Emergency (armed rebellion).
    • Article 359 operates in both External and Internal Emergencies.

  4. Duration of Suspension:

    • Article 358 suspends Article 19 Fundamental Rights for the entire duration of Emergency.
    • Article 359 suspends enforcement for a period specified by the president, either the entire Emergency duration or a shorter period.

  5. Geographical Scope:

    • Article 358 extends to the entire country.
    • Article 359 may extend to the entire country or a part of it.

  6. Rights Excluded from Suspension:

    • Article 358 suspends Article 19 completely.
    • Article 359 does not empower the suspension of enforcement of Articles 20 and 21.

  7. Nature of Suspended Rights:

    • Article 358 enables the State to make laws or take executive actions inconsistent with Article 19 rights.
    • Article 359 enables the State to make laws or take executive actions inconsistent with the rights suspended by the Presidential Order.

Similarity Between Articles 358 and 359:

  • Both provide immunity from challenge only to laws related to the Emergency and not to other laws. Similarly, executive actions taken under such laws are protected by both provisions.

Question for Laxmikanth Summary: Emergency Provisions
Try yourself:
What is the difference between Article 358 and Article 359 in the context of a National Emergency?
View Solution
                                             

Declarations Made So Far

Instances of National Emergency:

  • Proclaimed three times: 1962, 1971, and 1975.

Details of Proclamations:

  1. 1962 Emergency:

    • Proclaimed due to Chinese aggression in the NEFA (now Arunachal Pradesh).
    • In force from October 1962 to January 1968.

  2. 1971 Emergency:

    • Proclaimed in December 1971 following an attack by Pakistan.

  3. 1975 Emergency:

    • Proclaimed in June 1975 on the ground of 'internal disturbance.'
    • Criticized for misuse of Emergency powers.
    • Revoked in March 1977.

Nature of Proclamations:

  • First two (1962 and 1971) due to 'external aggression.'
  • Third (1975) due to 'internal disturbance' caused by incitement against police and armed forces.

Aftermath of 1975 Emergency:

  • Controversial, with widespread criticism of power misuse.
  • Congress Party lost in the 1977 Lok Sabha elections; Janata Party came to power.
  • Shah Commission appointed to investigate Emergency circumstances.
  • Commission did not justify the Emergency.
  • 44th Amendment Act of 1978 enacted to introduce safeguards against Emergency misuse.

President's Rule

Grounds of Imposition

Article 355 and President's Rule (Article 356):

  1. Article 355 Duty:

    • Centre obligated to protect states against external aggression and internal disturbance.
    • Ensures state governments operate in accordance with the Constitution.

  2. President's Rule (Article 356):

    • Imposed when constitutional machinery in a state fails.
    • Also known as 'State Emergency' or 'Constitutional Emergency.'

  3. Grounds for Proclamation (Article 356):

    1. Article 356 Ground:
      • President empowered to proclaim when satisfied that the state's government cannot function according to the Constitution.
      • President can act based on the governor's report or without it.
    2. Article 365 Ground:
      • President can proclaim if a state fails to comply with or give effect to any Centre direction.
      • Declares a situation where the state's government cannot operate as per the Constitution.

President`s RulePresident's Rule

Parliamentary Approval and Duration

President's Rule Approval and Duration:

  • Approval Process:

    1. Proclamation must be approved by both Houses of Parliament within two months.
    2. If Lok Sabha is dissolved during the two-month period, the proclamation survives until 30 days from the first sitting of the reconstituted Lok Sabha, with Rajya Sabha approval.

  • Duration and Extension:

    1. President's Rule continues for six months, extendable up to a maximum of three years with Parliament approval every six months.
    2. If Lok Sabha dissolves during the six-month period without approval, the proclamation survives until 30 days from the first sitting of the reconstituted Lok Sabha, given Rajya Sabha approval.

  • Approval Mechanism:

    1. Resolutions approving President's Rule or its continuation require a simple majority in either House.

  • Restriction on Extension (44th Amendment Act of 1978):

    • Extension beyond one year requires:
      1. National Emergency proclamation in operation across India or the concerned state.
      2. Election Commission certification that legislative assembly elections face difficulties.

  • Revocation of President's Rule:

    1. President can revoke the proclamation at any time through a subsequent proclamation.
    2. Revocation does not require parliamentary approval.

Consequences of President's Rule

Extraordinary Powers During President's Rule:

  1. Assumption of Functions:

    • President can take up state government functions and powers vested in the governor or any other executive authority.

  2. Parliamentary Exercise of State Legislature Powers:

    • President can declare that state legislature powers are to be exercised by Parliament.

  3. Necessary Steps and Constitutional Provisions:

    • President can take all necessary steps, including suspending constitutional provisions related to any state body or authority.

Implementation During President's Rule:

  • Dismissal of state council of ministers led by the chief minister.
  • State governor, acting on behalf of the President, administers the state with the assistance of the chief secretary or advisors appointed by the President.

State Legislative Assembly:

  • President either suspends or dissolves the state legislative assembly.
  • Parliament passes state legislative bills and the state budget.

During Suspension or Dissolution:

  1. Parliament can delegate law-making power for the state to the President or any specified authority.
  2. Parliament, or in case of delegation, the President or specified authority, can make laws conferring powers and duties on the Centre or its officers.
  3. President can authorize state consolidated fund expenditure when Lok Sabha is not in session, pending Parliament sanction.

Post-President's Rule:

  • Laws made by Parliament or the President remain operative even after President's Rule.
  • Period of law effectiveness not limited to the proclamation duration.
  • State legislature can repeal, alter, or re-enact such laws.

Use of Article 356

There were many controversies Surrounding Article 356:

  • Since 1950, President's Rule has been imposed over 125 times, often in an arbitrary manner for political or personal reasons.
  • Criticized as one of the most controversial provisions of the Constitution (Article 356).
  • First imposed in Punjab in 1951, and subsequently applied to most states.
  • After the 1977 elections, the Janata Party imposed President's Rule in nine states where the Congress Party was in power.
  • In 1980, the Congress Party, upon returning to power, imposed President's Rule in nine states on similar grounds.
  • In 1992, President's Rule was imposed in three BJP-ruled states by the Congress Party, citing non-compliance with a Centre-imposed ban on religious organizations.
  • The Bommai case (1994) upheld the validity of President's Rule based on secularism but did not support its imposition in specific cases.
  • Dr. B.R. Ambedkar hoped that Article 356's drastic powers would remain a 'dead-letter' and be used as a last resort, but subsequent events proved otherwise.
  • H.V. Kamath commented that while Dr. Ambedkar is dead, the Articles remain very much alive, portraying the unintended consequences of Article 356.

Question for Laxmikanth Summary: Emergency Provisions
Try yourself:
What is the difference between Article 358 and Article 359 in the context of a National Emergency?
View Solution
                                                        

Scope of Judicial Review

Judicial Review of President's Rule (Article 356):

  1. The 38th Amendment Act of 1975 made the President's satisfaction in invoking Article 356 final, but the 44th Amendment Act of 1978 removed this provision, allowing for judicial review.

  2. In the Bommai case (1994), the Supreme Court established key principles:

    • Presidential proclamation for President's Rule is subject to judicial review.
    • President's satisfaction must be based on relevant material; it can be challenged if based on irrelevant, extraneous, malafide, or perverse grounds.
    • The Centre bears the burden of proving the existence of relevant material justifying President's Rule.

  3. The Court cannot assess the correctness or adequacy of the material but can verify its relevance to the action.

  4. If the Court deems the proclamation unconstitutional, it can reinstate the dismissed state government and revive the state legislative assembly.

  5. State legislative assembly dissolution should follow Parliament's approval of the presidential proclamation. Until approved, the president can only suspend the assembly. If Parliament rejects the proclamation, the assembly reactivates.

  6. Secularism is a 'basic feature' of the Constitution, allowing action under Article 356 against a state government pursuing anti-secular politics.

  7. The state government's loss of legislative assembly confidence should be determined on the House floor before unseating the ministry.

  8. A new central government lacks authority to dismiss state ministries formed by other parties.

  9. Article 356 is an exceptional power, meant for special situations and occasional use.

Cases of Proper and Improper Use

Proper Exercise of Power under Article 356 (According to Sarkaria Commission and Bommai Case):

Proper Situations:

  1. 'Hung Assembly' after general elections.
  2. Majority party refuses to form a ministry, and coalition options fail.
  3. Ministry resigns after assembly defeat with no alternative majority.
  4. Disregard of constitutional direction from the Central government.
  5. Internal subversion, deliberate violation of the Constitution, or fomenting violent revolt.
  6. Physical breakdown where the government refuses constitutional obligations, risking state security.

Improper Situations:

  1. Ministry resignation without exploring alternative ministry formation.
  2. Governor recommends President's Rule without allowing the ministry to prove majority.
  3. Ruling party facing a massive defeat in Lok Sabha elections.
  4. Internal disturbances not reaching subversion or physical breakdown.
  5. Maladministration, corruption allegations, or financial difficulties.
  6. No prior warning to the state government for self-correction, except in extreme urgency.
  7. Use of power for intra-party issues, or extraneous and irrelevant purposes beyond constitutional mandate.
The document Laxmikanth Summary: Emergency Provisions | Indian Polity for UPSC CSE is a part of the UPSC Course Indian Polity for UPSC CSE.
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FAQs on Laxmikanth Summary: Emergency Provisions - Indian Polity for UPSC CSE

1. When can a National Emergency be imposed?
Answer: A National Emergency can be imposed in India when the security of the country or a part thereof is threatened by war, external aggression, or armed rebellion.
2. What are the effects of a National Emergency?
Answer: During a National Emergency, the central government gains the power to make laws on subjects under the State List, the Parliament can override the distribution of revenue between the Union and the states, and fundamental rights can be suspended except for those related to life and personal liberty.
3. What are the features of President's Rule?
Answer: President's Rule, also known as State Emergency, is imposed in a state when there is a failure of constitutional machinery. It results in the suspension of the state government and the President takes over the administration with the help of the Governor.
4. What is the effect of President's Rule?
Answer: During President's Rule, the state legislature is either dissolved or kept in a suspended animation, and the Governor becomes the head of the state. The President's Rule can last up to six months, with extensions if necessary.
5. Has a Financial Emergency ever been imposed in India?
Answer: No, a Financial Emergency has never been imposed in India since its independence. This provision has not been invoked till date.
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