Emergency Provisions in the Indian Constitution | Constitutional Law - CLAT PG PDF Download

 Emergency Provisions in the Indian Constitution 

•  Definition of Emergency:  According to Black's Law Dictionary, an emergency is the failure of a social system to provide reasonable living conditions. It refers to sudden circumstances that require immediate action by public authorities with special powers.
•  Dr. B.R. Ambedkar's Perspective:  Dr. B.R. Ambedkar noted that the Indian Federation is unique because it can transform into a unitary system during emergencies. The Indian Constitution allows the federal government to assume unitary powers when necessary.
•  Federal vs. Unitary Government:  Emergency provisions can shift India from a federal to a unitary system. However, such measures should be a last resort, as they impact the federal structure.

 Types of Emergencies in India 

•  National Emergency:  Declared under Article 352 of the Constitution.

 National Emergency 

Article 352 of the Indian Constitution addresses the concept of  national emergency  . This type of emergency is declared when there is a serious threat to the security of India or any part of its territory due to war, external aggression, or armed rebellion. The President can impose such an emergency based on a written request from the Council of Ministers, headed by the Prime Minister, when they believe there is an imminent danger.

 Proclamation and Duration 

• Every proclamation of national emergency must be laid before both Houses of Parliament.
• If not approved by Parliament within one month, the proclamation will cease to operate.
• Once approved, the emergency can continue for a period of six months, unless revoked by the President.
• To extend the emergency beyond six months, a resolution must be passed by a two-thirds majority in both Houses of Parliament.

 Powers During Emergency 

• During a national emergency, the central government gains  executive, legislative, and financial powers  .
• The  state legislature  remains in place but is limited in its powers.
• Under Article 250 of the Constitution, the Union government can legislate on subjects in the  State List  .
• All fundamental rights, except Articles 20 and 21, are suspended.
• Under Article 359, the President can suspend the right to approach the courts for the enforcement of fundamental rights during the emergency.

 Historical Instances 

• National emergency has been imposed in India three times:
• In  1962  due to Chinese aggression.
• In  1971  during the Indo-Pak war.
• In  1975  on grounds of internal disturbances.

 Failure of Constitutional Machinery in State 

Article 256 of the Indian Constitution deals with the  failure of constitutional machinery in a state  , commonly known as  President's rule  . If the President, based on the Governor's report or other evidence, is convinced that the government in a state cannot function according to constitutional provisions, they may impose state emergency.

 Declaration of Emergency 

• The President can declare a state of emergency based on the Governor's report or their own assessment.
• There are instances where the President may act without a report from the Governor. For example, in  1991  , President Venkataraman imposed emergency in  Tamil Nadu  despite not receiving a report from the Governor.

 Judicial Review and Proclamation 

• Initially, state emergency was  immune from judicial review  due to the 42nd Amendment.
• However, the 44th Amendment allowed for the  legality of President's rule  to be challenged.
• The proclamation of state emergency must be laid before each House of Parliament.
• If both Houses do not approve it, the emergency will cease after two months.
• The duration of the proclamation can be extended by six months with approval from both Houses of Parliament.
• Beyond one year, the proclamation can only continue if the  Election Commission  certifies that elections cannot be held in the state.

 Consequences of State Emergency 

• The President assumes all  executive powers  of the state.
• The state administration is run by the President or a person appointed by them, usually the Governor.
• The state assembly is either  dissolved or suspended  , but MLA's retain their membership.
• Parliament can make laws on subjects in the  State List  and only passes the state budget.
• The state High Court functions independently.
• The President can also issue  ordinances  in the state.

 Historical Grounds for State Emergency 

• Past instances of state emergency in India often cite grounds such as  breakdown of law and order  ,  political instability  ,  corruption  , and  maladministration  .

 Judicial Oversight Cases 

• In the case of  Rameshwar Prasad v. UOI  (Bihar Assembly Dissolution Case), the court held that the presidential proclamation dissolving the Bihar state assembly under Article 356 was unconstitutional due to extraneous and irrelevant grounds. The court found that the state governor misled the central government in recommending the dissolution of the assembly.
• In the historic case of  S.R. Bommai v. UOI  , a full bench of the Karnataka High Court expressed differing opinions regarding the imposition of President's rule in Karnataka. While in some states, the court concluded that the imposition was unconstitutional and would have restored the original position, the specific circumstances in Karnataka led to a different legal interpretation.

 Financial Emergency 

Under Article 360 of the Constitution, the President has the authority to declare a financial emergency if there is a threat to the financial stability or credit of India or any part of its territory. This declaration must be presented to both Houses of Parliament and will expire after two months unless approved by a resolution from both Houses.

During a financial emergency, the Union's executive authority can issue directions to any state to follow specific financial propriety standards. This may include reducing salaries or allowances for state officials, as well as for those involved in Union affairs, including judges of the High Court and Supreme Court. India has never experienced a financial emergency.

 Federalism and Emergency Powers 

• Federalism, as described by Dicey, is seen as a weaker form of government due to the division of power between the Centre and the units. However, modern federations have strengthened this system by allowing the federal government to assume greater powers in times of internal or external emergencies.
• The Indian Constitution grants the Union extraordinary powers during different types of emergencies, enabling it to function with the strength of a unitary system when necessary.
• The emergency provisions in the Indian Constitution are a unique feature that empowers the Centre to take extensive measures to address special situations. During an emergency, the Centre can assume full legislative and executive control over any state and can also restrict or suspend citizens' freedoms.

Difference between Article 352 and Article 356

 Effects of National Emergency 

The declaration of National Emergency impacts both individual rights and state autonomy in the following ways:

 1. Shift from Federal to Unitary System 

• The most significant effect is the transformation of the  federal structure  into a  unitary system  .
• The authority of the  Central Government  increases, allowing  Parliament  to make laws for the entire country or specific regions, even on subjects listed in the  State List  .

 2. Presidential Powers 

• The  President of India  gains the power to issue  directions to states  regarding the exercise of their executive powers.

 3. Extension of Tenure 

• During an emergency, the  Lok Sabha  can extend its tenure by up to  one year at a time  .
• However, this extension cannot exceed  six months  after the emergency proclamation ends.
• The same rules apply to the  tenure of State Assemblies  .

 4. Modification of Revenue Distribution 

• During an emergency, the  President  can modify the  provisions for revenue distribution  between the Union and the States.

 5. Suspension of Fundamental Rights 

• Fundamental Rights under  Article 19  are automatically suspended during the emergency.
• This suspension remains in effect until the end of the emergency.
• However, according to the  44th Amendment  , the freedoms listed in  Article 19  can only be suspended in cases of war or external aggression.

In summary, the declaration of a national emergency not only suspends the autonomy of states but also transforms India's federal structure into a unitary one. Despite this, such a measure is deemed necessary as it empowers the Union Government with extensive authority to address abnormal situations.

 Effects of State Emergency 

 1. Assumption of Functions: 

• The  President  can take over any or all functions of the State Government.
• Alternatively, the President can delegate these functions to the  Governor  or another executive authority.

 2. Legislative Actions: 

• The President has the power to dissolve the  State Legislative Assembly  or suspend it.
• The President may also allow  Parliament  to make laws on behalf of the State Legislature.

 3. Incidental Provisions: 

• The President can make any necessary incidental or consequential provisions to implement the objectives of the proclamation.

 Effects of Financial Emergency 

When a Financial Emergency is declared, it can lead to several significant consequences:

 1. Central Government Intervention 

• The Union Government gains the authority to issue  directions to states  regarding financial matters.

 2. Salary Reductions 

• The President can instruct states to reduce the  salaries and allowances  of all or specific categories of government employees.

 3. Reservation of Money Bills 

• The President may require states to  reserve all money bills  for consideration by Parliament after they are passed by the State Legislature.

 4. Central Government Salary Adjustments 

• The President can also direct reductions in the  salaries and allowances  of Central Government employees, including Judges of the Supreme Court and High Courts.

 Effects of Proclamation of Emergency on the Fundamental Rights 

• Federal laws will take precedence over state legislation.
• The Union can govern areas usually managed by states, such as policing.
• The Union gains control over taxation and budgetary processes.
• During a financial emergency, the Union has the final say on financial acts approved by state legislatures.

 Suspension of Fundamental Rights 

• The Union can suspend some or all fundamental rights guaranteed by Part III (Articles 12 to 35) of the Constitution.
• The right to challenge the suspension of these rights (the right to constitutional remedies) may also be suspended.
• However, Articles 20 and 21, which govern rights to personal liberty, right to silence, freedom from double jeopardy, and freedom from unlawful arrest and detention, cannot be suspended.
• Individuals who believe their rights under these articles have been unlawfully suspended can challenge the suspensions in court.

 State Legislative Functions 

• The Union can dismiss the legislative functions of a state legislature and impose federal law for up to six months.
• This suspension can be renewed indefinitely by Parliament until the Election Commission of India certifies that free and fair elections can be held to reconstitute the legislature.
• Any order regarding these actions must be passed by Parliament "as soon may be after it is made."

Difference between Article 358 and Article 359

In the case of Makhan Singh v. State of Punjab, hon'ble Supreme Court distinguished between Articles 358 and 359 as below:

 Changes Made By 44th Amendment 

 Background:  The proclamation of emergency is a serious matter as it disrupts the normal functioning of the Constitution and negatively impacts people's rights. Therefore, it should only be issued in exceptional circumstances and not merely to remove an unpopular government. This was seen in June 1975 when an emergency was declared on the grounds of internal disturbance without adequate justification. The 1975 proclamation was controversial because it led to widespread violations of fundamental rights, drastic press censorship, and the unjustified preventive detention of many individuals. In response to these events, the 44th Amendment Act made changes to the emergency provisions of the Constitution to prevent a repetition of the 1975 situation.

 Changes Made by 44th Amendment to Emergency Provisions 

•  Article 352  was amended to make the proclamation of emergency due to  armed rebellion  more difficult.
•  Article 356  was amended to restrict the imposition of President's Rule in states.
•  Article 360  was amended to limit the scope of financial emergency.

 Key Changes in Emergency Provisions 

• Introduced a  new ground for emergency  proclamation under Article 352: "armed rebellion."
• Allowed for  immediate enforcement  of laws during a national emergency without the need for prior approval.
• Expanded the scope of  Article 356  to include cases of "failure of constitutional machinery in the state."
• Provided for  greater parliamentary oversight  in the imposition of President's Rule.

 The 44th Amendment 

The 44th Amendment brought significant changes to the emergency provisions in the Constitution, aiming to prevent abuse by the executive, as seen during Indira Gandhi's tenure in 1975. It also reversed some alterations made by the 42nd Amendment. Here are the key points of the 44th Amendment:

 Key Changes: 

•  Terminology Update:  "Internal disturbance" was changed to "armed rebellion" in Article 352.
•  Cabinet Communication:  The Cabinet must communicate the decision to proclaim an emergency in writing.
•  Parliamentary Approval:  The proclamation of emergency must be presented to both Houses of Parliament within one month.
•  Periodic Review:  To continue the emergency, it must be re-approved by both Houses every six months.
•  Revocation Process:  Emergency can be revoked by a simple majority resolution in both Houses. 1/10 of the members can initiate such a resolution.
•  Article 358 Adjustments:  Article 19 will be suspended only during war or external aggression, not armed rebellion. Laws violating Article 19 must link to Article 358.
•  Article 359 Clarification:  Suspension of the right to approach courts for Part III violations excludes Articles 20 and 21.
•  Lok Sabha Term:  The Lok Sabha term was reverted from 6 to 5 years.

 Judicial Interpretation: 

• In the case of  Bhut Nath v. State of West Bengal  , the Supreme Court deemed the issue a political question, not subject to judicial scrutiny.
• The  38th Amendment  added clause 5 to Article 352, clarifying the 'satisfaction' of the president as  "final and conclusive,"  not subject to court challenge.
• However, the  44th Amendment  revoked this provision, allowing the Supreme Court to review the president's satisfaction in proclaiming or varying an emergency.
• Justice Bhagwati, in  Minerva Mills  , noted that the court could review the president's decision in proclaiming an emergency under Article 352.