Emergency Provisions - Indian Polity and Governance | Polity and Constitution (Prelims) by IAS Masters - UPSC PDF Download

EMERGENCY PROVISIONS

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

1. National emergency(Art.352)
2. Financial Emergency( Art.360)
3. State Emergency or President’s rule or Central Rule(Art.356)

National Emergency

Following are the features of the national emergency

• It can be imposed under Art.352
• If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened
• three grounds are given based on which emergency can be imposed: war or external aggression or armed rebellion
• President may declare national emergency in respect of the whole of India or part of the territory
• Proclamation may be made before the actual occurrence of war or of any such aggression or rebellion, if fhe President is satisfied that there is imminent danger..
• Union Cabinet consisting of the Prime Minister and other Ministers of Cabinet rank should communicate the same in writing to the President. This provision ensures that Prime Minister, without the approval of the Union. Cabinet can not recommend. When the advice is given in writing, it is also open to judicial review. When the highest ranking class of Union Ministers recommend, it carries greater credibility.
• Parliament should ratify the proclamation by special majority, within a month. Special majority is two thirds of the members present and voting and a majority of the total membership of the House ("total membership" means the total number of members comprising the House irrespective of whether there are vacancies or absentees on any account).

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.)

• After being ratified by both the Houses, emergency will last for 6 months from the date of ratification by the latter of the two houses.
• It can be extended at a time for six months and as many times as necessary.
• Lok Sabha has the power to initiate proceedings for the discontinuation of the emergency. Lok Sabha can issue a notice in writing signed by not less than one-tenth of the total members with the intention to move a resolution for disapproving the continuance in force of emergency, ft should be addressed
• 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 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

1. On the executive front, the country becomes a unitary system. The executive power of the Union shall extend to giving of directions to any State as to the manner in which the executive power thereof is to be exercised. In normal times, such directions are to be confined to certain matters only like maintenance of railways, promotion of Hindi etc.
2. On the Legislative front, life of Lok Sabha/Assembly can be extended by a*period of one year at a time.New Lok Sabha has to be constituted within 6 months after the emergency ceases, if the normal life of Lok Sabha has expired. Distribution of Union-state legislative powers can be suspended in favour of the Parliament. That is, Parliament gets concurrent power to legislate on any item in the State List. If there is any repugnancy, doctrine of federal supremacy ensures that federal laws will prevail. State assembly however, continues to exist.
3. As far as the federal fiscal framework is concerned, according to Art.354, the President may direct that all or any of the provisions of Articles 268 to 279 ( division of revenues etc) be modified . Such orders should be tabled in the Parliament However, no such order can last beyond the financial year in which emergency ends.
4. On Fundamental Rights, the impact is given below.

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.

Comment

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 44^th Amendment Act 1978, the Lok Sabha initiative is also provided.

44^th Amendment and Emergency

The 44^th Constitution made the following amendments in the national emergency law in order to minimize its scope for abuse

1. replacement of internal disturbance with armed rebellion
2. Union Cabinet should recommend to the President( Cabinet is the highest class of ministers among the Union Council of Ministers. The word Cabinet is found in no other Article of the Constitution.)
3. In writing
4. Ratification should be in 1 month and not tvJo months as earlier and
5. by special majority
6. Lok Sabha is given special power to discontinue emergency and
7. Art.20 and 21 can never be suspended in their enforcement

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.

Financial Emergency

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.

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

1. despatching Central forces
2. deployment armed forces

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

1. assume to himself all or any of the functions of the Government of the State other than the Legislature of the State;
2. declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.

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

1. President assumes the executive powers of the State government
2. Confers on the Parliament the powers of thostate legislature _:
3. Parliament can authorize the President or his nominee to legislate for the state when it is not in session
4. For the President to authorise when the House of the People is not in session, expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament.

Jharkhand 2013

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

• After elections, a hung assembly results and no clear winner emerges and there is no possibility of a coalition government
• The leader of a party with relative majority refuses to form Government- the party has the largest number of seats but not enough
• Party in power loses majority and there is no alternative( as in the Jharkhand case give above)
• The party in power loses majority and refuses to step down
• Armed rebellion in the state
• State government does not comply with the directions of the Centre( Art.365)

Sarkaria Commission on Union-States Relations recommended in 1987 that:

1. President’s.rule should be the last resort
2. Governor's report should be a speaking document
3. dissolution of the assembly should not be done till the proclamation is ratified
4. In order to make judicial review more concrete, a constitutional amendment should be made to provide that the material facts and grounds on which Article the promulgation is made should be made an integral part of the Proclamation issued under that Article. This would also make the control of Parliament over the exercise of this power by the Union Executive more effective.
5. majority of the political party should be tested on the floor oftthe assembly.

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

• Art.356 is within the scope of judicial review
• secularism is a basic feature of the Constitution and its violation by a State government makes it liable to be dismissed under Art.356.
• Governor's report or any other authentic report should be the basis for the proclamation
• Art.74.2 says that Union Cabinet can withhold its recommendations to President from courts under the provision of confidentiality. But when President's rule is recommended and imposed, the recommendation needs to be produced in the apex court, if the Court so directs, so that the court can establish mala fides, if any
• dissolution of the Assembly should not be resorted to until the proclamation is ratified by the Parliament
• if mala fides are proved, dissolution of the assembly may be reversed and the dismissed government can be reinstated

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

1. erring state should first be warned
2. Governor's report should be a speaking document
3. instead of two months, proclamation needs to be ratified only within a month
4. special majority should be necessary for ratification.

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

• The charge that the Constitutional Governance of the State failed is not established beyond doubt
• Warnings, directives and eliciting seeking from thfe State should have preceded the option of President’s rule being recommended.
• The Rabri Devi ministry enjoyed majority in the Assembly and could not be ignored.
• Parliament should discuss the matter.
• Other States with worse conditions were spared the same recommendation.
• The President further mentioned that the parliamentary passage of the proclamation was in doubt as the ruling coalition had differences within and it did not have majority in RS.

NCRWC (national Commission to Review the Working of the Constitution) recommendations

• Article 356 should not be deleted but it must be used sparingly and only as a remedy of the last resort.
• The Governor’s report should be a “speaking document”, containing a precise and clear statement of all material facts and grounds, on the basis of which the President may take the decision
• amend Article 356 - in line with the Supreme Court's judgment in S.R. Bommai vs Union of India (1994) - to ensure that the State Legislative Assembly is not dissolved before the proclamation is approved by the Parliament

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 .

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.