Emergency provision under Indian Constitution

Emergency provision under Indian Constitution

Author-Naveena K., Chettinad School of Law

INTRODUCTION

The Indian Constitution[1] has the features of both federal and unitary, Emergency provisions are the unitary features. During the emergency situations the central government holds the power and it will demand the states to do the functions .Constitution of India Part XVII deals with the Emergency provisions[2] Article 352 to 360 these provisions enables the Central government to meet any abnormal situations effectively.

Three  types of Emergency

  1. (Art 352)- National Emergency
  2. (Art 356)- State Emergency
  3. (Art 360)-Financial Emergency

The President has the power to imposing the all three emergencies. During this emergencies period the Fundamental rights has been suspended except Art 20 and 21. The kind of Political System is Federal during normal time and unitary during emergency.

In this article, lets see about the Types of Emergencies,Ground of Proclamation of emergencies,Procedures of parliamentary approval and duration of emergencies,Revocation of emergencies, effects of emergencies and the related case laws and some doctrines.

Keywords(Minimum5):Constitution,National Emergency, State Emergency,Financial Emergency,War, External aggression, Proclamation, Judicial Review, President.

TYPES OF EMERGENCIES

National Emergencies- Due to war ,external aggression or armed rebellion

State Emergencies   –    Due to failure of constitutional machinery in states.

Financial Emergencies- Unexpected situations that impact Financial stability.

NATIONAL EMERGENCIES

President of India can declare the national emergencies in the situation were the security of India or a part of India threatened by the war or armed rebellion or external aggression, before their actual occurrences. Emergency declared on external aggression known as external emergency,

Emergency declared on armed rebellion known as internal emergency. A period of emergency may be proclaimed for the entire nation or just a part of it.

Grounds of national emergencies:

  1. War- When a country declares war against India and violence by armed forces
  2. External aggression – When country attack the country without any formal declarations of war
  3. Armed rebellion-When a group of individuals rebel against the government and cause destruction of property and life.

Procedure for Proclamation of Emergency

President can proclaim a national emergency only after receiving the recommendation from the cabinets ,means only on the concurrence of the cabinets not merely on the PM.

44th amendment 1978 introduced  safeguards to eliminate any possibilities of PM alone taking the regards.

“Minervamills Case[3]”

The Supreme Court ruled that there is no barrier to   Judicial review of the validity of a Presidential Proclamation. Thus, the Proclamation of Emergency can be challenged in court on the grounds of malafide, or the proclamation was founded entirely on false and irrelevant

Parliamentary approval and duration:

Originally the Proclamation of emergency was 2 month for approval by 44th amendment it has been reduced to 1 month.

The Proclamation must be approved by both the house of Parliamentary within 1 month of date of issue. If the  Loksabha has been dissolved during the 1 month without approving the proclamation. After the reconstitution of loksabha the proclamation survives until 30 days from the 1st sitting.

Once the parliament approved proclamation of emergency it shall remain in force for period of 6 months from the date of passing. Further extension of emergency beyond period of 6 months ,for about every six months approval of parliament is needed

Every resolution approving POE ,& continuance must be done by either house of parliament by special majority process.

Revocation of Emergency:

  • The President can revoke the emergency at any time , the parliamentary approval is not required.If the loksabha passes the resolution to disapproving its continuation the President must revoke the Proclamation.
  • 1/10 of the loksabha members should give a written notice to the speaker if the house in session , if houses in not in session to the President .Special sitting is held within 14 days of notice for the purpose of considering a resolution disapproving the continuation of proclamation.
Disapproval of proclamation Continuation of proclamation
Resolution passed by Loksabha Resolution passed by both house
Adopted by simple majority Adopted by special majority

 

Effects of Proclamation of emergency

1.Centre state relations:

Extension of Center’s Executive Power(353):
During national emergency the power of the central extends, Central can direct the any state regarding manner which extends the power. State executive will not suspended .Central has complete control.

Legislative(353 (b)) : During the national emergency centre can make law on state subjects, although the legislative power of states does not suspended. The law made by the parliament on the states subject during emergency becomes inoperative in 6 months.

Financial Controls (354): President can make changes in distribution of revenues between centre& states, thus president can either reduce or cancel the transfer of finances.

  1. Effect of life of loksabha and the State assembly( 83 (2)):

During national emergency the term of loksabha has been extended beyond five years.

and state legislative assembly can also have their extension of term.

  1. Effect of Fundamental rights:

There is no need of separate order to be passed to suspend the Fundamental Rights.The six Fundamental rights enshrined in Art 19 gets automatically suspended if the national emergency had been issued.

Art 358 and Art 359 describes the effects of national emergency.

ARTICLE 358 ARTCLE 359
l   Fundamental Right guaranteed by Article 19 completely on Suspension.

l  Automatically suspends

l  Art 19 suspends up-to the emergency exists

I

l  Extends to entire country

 

l  Operates in case of external emergency

 l  Suspension of  Other  Fundamental Rights (except 20 ,& 21)

l  On the Presidents declaration of specified fundamental rights suspends.

l  Fundamental rights suspended for the period specified by President.

l  It may extends to entire country or the part of it.

l  Operates in case of  both external and internal emergency.

MakkanSingh vs State of Punjab[4]

Suspension of right to move court for the enforcement of Art 14,21,22, under the Proclamation of emergency during Indo-China war has been challenged.

The SC ruled that the rights were suspended only for those who were legally detained, not those who were unfairly detained under the Prevention Detention Law. The Supreme Court stated that if a citizen’s imprisonment was mala fide, he would not be deprived the right to petition the court for a writ of habeas corpus.

M Jabalpur vs S.Shukla[5]

The Supreme Court ruled in the case  that during national emergency an individual moving to the Court for enforcement of Fundamental rights is suspended. also, including right to life and liberty.

PRESIDENTS RULE

Presidents rules can be also termed as “Constitutional Emergency” or “ State Emergency”

Grounds of Impositions:

Art 356 -According to the President, there is a situation where the Governor cannot carry out the duties of the State Government in accordance with the provisions of the Constitution.

Art 365 -Whenever State fails to comply with order of Centre the Presidents rule will arise.

Parliamentary Approval and Duration:

Proclamation of imposing President’s rule ,both the house of parliament must approve within 2 months  from the date of its issuance.

At the time of proclamation loksabha dissolves or dissolution take places during the time period of 2 months , then the proclamation survive for about 30 days from the first sitting of loksabha after its reconstitution. Rajyasabha should approves it in the mean time

Proclamation operates on period of six months, it can be extended only up to 3 years not beyond that. Every 6 months Parliament approval is required by simple majority.

44th amendment[6]– 2 Condition must be fulfilled to extended the President’s rule for 6 months.

  1. National Emergency operates in India, may be imposed in whole of territory or party of state.
  2. If there is report submitted that elections in the state assembly is not possible.

Revocation:

The revocation do not require the approval of both the houses, The President can revoke at any time. This occurs when the leader of political party indicating the majority support for him in the assembly.

SR bommai vs UOI[7]

This case decided by the Supreme court of India, that the President’s Rule is subject to Judicial Review. Court can question and enquire about the grounds for imposing the Presidents rule. SC laid down the rules regarding Presidents rule  ,listed below;

  • President do not have an absolute power to dismiss the State Government.
  • President should use the power only after the approval of Parliament, until then president can suspend only the Legislative Assembly.
  • In case of Proclamation does not get approval by the both houses, it lapses after the 2 months and the dismissed government is revived. Suspended legislative assembly get reactivated.
  • These provisions should use only in the exceptional circumstances.
  • President’s Rule can be imposed on ground if the State Governor work against Secularism.
  • This provision under eye of judicial review it will the prevent arbitrariness.

Effect of President’s Rule :

  • The President will taken up the functions of State he become the deciding authority, and the power vested to governor.
  • The decisions will be taken by Parliament instead of a State Assembly.
  • During Presidents Rule the power of high court remains same. President cannot suspend the power of High Court.
  • President can also suspend the constitution provision relates to state if it is necessary.
  • President can also dismisses the State council of minister headed by CM. The State Administration can be carry out by the Governor on behalf of President.

FINANCIAL EMERGENCIES

Article 360 of Indian Constitution  says about the Financial Emergencies. This can be imposed by President on the approval of Parliament. 38th Amendment [8] states that the President’s declaration of a financial emergency is final and conclusive, and can be challenged in court on any grounds. This was subsequently repealed by the 44th Amendment Act of 1978, which stated that the president’s satisfaction is subject to judicial review.

Ground of imposition:

Art 360- Allows the President to declare a financial emergency in India if the country’s financial stability is threatened.

Approval and Duration :

  • The Proclamation of emergency it should be approved by the Both the houses of Parliament on on simple majority within in the 2 months from the date of issuance.
  • The loksabha dissolve during the period of 2 months without approving, after the reconstitution of loksabha from the 30 days of first sitting it must be approved. Rajyasabha should approve in its mean time.

Revocation:

The emergency can be revoked by the president at any time. No maximum period is prescribed, for the continuation of emergency parliamentary approval is not needed.

Effects of Financial Emergency:

The center’s executive jurisdiction extends to directing any state to follow such financial propriety standards.

There is the reduction of salaries and allowances for the person serving in state.

The president may reserve the money bill and financial bill  for considerations

The salary and allowances of the person serving in the Union ( Judges of SC & HC)also reduced.

Criticisms

  • President act as a dictator
  • The democratic foundation of the constitution will be shattered, and fundamental rights will become meaningless.
  • The federal nature of the constitution reduces and the union emerges all powerful.
  • The Union executive will have the exclusive power of state.
  • State Financial autonomy will be nullified.

There are some doctrines to be discussed in the Emergency Provision.

  • Doctrine of Sovereignty :The executive head of the state (President) has an power to declare the Emergency in certain situations. This is to protect the Sovereignty,unity, integrity, security of Constitution of India.
  • Doctrine of Unitary State : The federal structure becomes unitary when the emergency situation arises, the central government taken the power state government should comply with the law made by centre.
  • Doctrine of Judicial Review: Judicial review ensures that constitutional rights are upheld even during emergencies by acting as a check on possible abuses of emergency powers.

CONCLUSION & COMMENTS

India is a quasi federal country it is federal structure with unitary features, when it comes to the situation of emergency the President may Proclaim the emergency with the approval of both houses of Parliament, There are procedures for the approval and revocation of Emergencies. President do not hold the absolute power on the Emergencies. The fundamental rights of the citizen also suspended during the emergency , the fundamental rights and period are specified by the President. The Emergency provision under Judicial review to prevent the arbitrariness and malafide intention.

REFERENCES

Books / Commentaries / Journals Referred
Constitution Law of India: Dr.J.N Pandey
Indian Polity : M.Laxmikanth

Online Articles / Sources Referred

  1. Emergency provisions. (n.d.). Drishti IAS. Retrieved March 16, 2024, from https://www.drishtiias.com/to-the-points/Paper2/emergency-provisions
  2. Prep, B. E. (2023, October 17). BYJU’S exam prep. BYJU’S Exam Prep. https://byjusexamprep.com/upsc-exam/emergency-provisions-in-indian-constitution
  3. Team, C. (2022, October 19). ClearIAS. ClearIAS. https://www.clearias.com/emergency-provisions/

Cases Referred

  1. Minerva mills vs UOI
  2. SR Bommai vs UOI
  3. Makkan Singh vs State of Punjab
  4. D.M Jabalpur vs S.Shukla

Statutes Referred

    1. Constitution of India 1949

[1] Enact on Nov 26  1949, enforcement on Jan 26 1950

[2] Influenced by  the country Germany

[3] AIR 1980 SC 1789

[4] AIR 1964 SC 381

[5] AIR 1976 SC 1207

[6] 44th amendent act 1978

[7] 1994 3SCC 1

[8] 1975

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