Emergency Provisions

Emergency Situations and National Emergency

Core Concept / Definition

The chapter begins by noting that the Constitution of India is federal in nature with a unitary bias: it has characteristic features of a federation, while the Centre is more powerful than the States. The Constitution-makers drafted emergency provisions in the context of Partition, communal riots and the problem of merger of princely states, including Kashmir. The purpose was to equip the Central Government with necessary authority when the security and stability of the country were threatened by internal or external threats.

Three extraordinary or crisis situations are envisaged: first, war, external aggression or a threat of the same, or internal disturbances amounting to armed rebellion; second, a situation in which the government of a State cannot be carried on according to the Constitution; and third, danger to the credit or financial stability of the country. The President may issue proclamations with varying consequences.

National Emergency — Article 352

National Emergency is the emergency caused by war, external aggression or armed rebellion. The President of India may proclaim it if satisfied that the situation is very grave and the security of India or any part of it is threatened or likely to be threatened by war, external aggression or armed rebellion. The President may also proclaim it on the ground of a threat of war or aggression.

According to the 44th Amendment, the President can declare such an emergency only when the Cabinet recommends it in writing. The proclamation must be approved by both Houses of Parliament by an absolute majority of the total membership of the Houses and a two-thirds majority of members present and voting within one month; otherwise it ceases to operate. Where the Lok Sabha is dissolved or not in session, the Rajya Sabha may approve it within one month, followed by Lok Sabha approval within one month of the beginning of its next session.

Approval, Continuation and Revocation

Once approved by Parliament, the National Emergency remains in force for six months from the date of proclamation. To continue beyond six months, another prior resolution must be passed by Parliament. Thus, the chapter says it can continue indefinitely while the required parliamentary approval continues. If the situation improves, the President may revoke the emergency by another proclamation.

The 44th Amendment also provides that ten per cent or more members of Lok Sabha can requisition a Lok Sabha meeting and, in that meeting, disapprove or revoke the emergency by a simple majority. In that case it immediately becomes inoperative.

Examples Given in the Chapter

Effects of National Emergency

Core Effects

The declaration of National Emergency has far-reaching effects on the rights of individuals and the autonomy of States. The chapter identifies the following consequences:

1. The federal form changes into a unitary form. The authority of the Centre increases and Parliament can make laws for the entire country or any part of it even on subjects in the State List.
2. The President can issue directions to States regarding the manner in which their executive power is to be exercised.
3. During the emergency, Lok Sabha can extend its tenure by one year at a time. The extension cannot continue beyond six months after the proclamation ceases. State Assemblies can also have their tenure extended in the same manner.
4. The President may modify provisions regarding distribution of revenues between the Union and the States.
5. Fundamental Rights under Article 19 are automatically suspended and the suspension continues until the end of the emergency. According to the 44th Amendment, freedoms in Article 19 can be suspended only when the proclamation is on the ground of war or external aggression.

Significance and Constitutional Change

The chapter therefore states that National Emergency not only suspends the autonomy of the States but also converts the federal structure into a unitary one. At the same time, it describes emergency powers as necessary because they equip the Union Government with vast powers to deal with abnormal situations.

The circumstances prevailing during 1975–77 led to changes in the emergency provisions. The chapter states that the 44th Amendment was passed on 30 April 1979 to strengthen the democratic features of the Constitution and protect citizens’ rights even during National Emergency.

Failure of Constitutional Machinery and President’s Rule

Core Concept — Article 356

It is the duty of the Union Government to ensure that a State is governed in accordance with the Constitution. Under Article 356, the President may issue a proclamation if, on receiving a report from the Governor or otherwise, he is satisfied that a situation has arisen in which the Government of the State cannot be carried on smoothly according to the Constitution. This is called a proclamation on account of the failure or breakdown of constitutional machinery, popularly known as President’s Rule.

Approval and Duration

The proclamation must be placed before both Houses of Parliament. Approval must be given within two months, otherwise the proclamation ceases to operate. If approved, it remains valid for six months at a time. It may be extended for another six months but not beyond one year, except that it can continue beyond one year when a National Emergency is already in operation or the Election Commission certifies that the election to the State Assembly cannot be held.

Examples and Controversy

The chapter states that this type of emergency has been imposed in most States at one time or another. It records 1951 as the first such use in Punjab and notes that Kerala was put under President’s Rule in 1957. It also gives examples of controversial uses, including the dismissal of nine Congress State governments in 1977 by the Janata Government at the Centre and the dismissal of Janata State governments in 1980 after Congress returned to power. The chapter says that in both instances there was no failure of constitutional machinery and actions were taken on political grounds.

In 1986, emergency was imposed in Jammu and Kashmir due to terrorism and insurgency. The chapter states that President’s Rule had been imposed more than a hundred times in various States, but after 1995 the provision was rarely used.

Effects of President’s Rule

1. The President can assume all or any functions of the State Government or vest them in the Governor or another executive authority.
2. The President may dissolve the State Legislative Assembly or suspend it, and may authorize Parliament to make laws on behalf of the State Legislature.
3. The President may make incidental or consequential provisions necessary to give effect to the proclamation.

Safeguards and Federal Relations

The chapter says that misuse of Article 356 has made the provision controversial. It records that the Sarkaria Commission recommended that Article 356 should be used only as a last resort, that the State Legislative Assembly should not be dissolved unless Parliament approved the proclamation, and that all possibilities of forming an alternative government should first be fully explored. The chapter also records the Supreme Court’s Bommai decision that the Assembly may not be dissolved until the proclamation has been approved by Parliament.

Financial Emergency

Core Concept — Article 360

Financial Emergency is the third type of emergency and is provided under Article 360. If the President is satisfied that the financial stability or credit of India or any part of it is in danger, he may declare a Financial Emergency. Like the other emergency proclamations, it must be approved by Parliament. Both Houses must approve it within two months.

Once proclaimed, Financial Emergency can continue as long as the situation demands and may be revoked by a subsequent proclamation.

Effects of Financial Emergency

Three Emergency Provisions — Exam Synthesis

Three Types and Their Constitutional Basis

Common Approval Pattern

The concluding section states that each type of emergency is proclaimed by the President on the written advice of the Union Cabinet. National Emergency must be approved by both Houses within one month, while the other two types must be approved within two months. National Emergency and President’s Rule, once approved, continue for six months from proclamation and require a subsequent prior parliamentary resolution for continuation beyond six months. Financial Emergency continues for as long as required.

Overall Assessment in the Chapter

The Emergency Provisions give the President sweeping powers to deal with abnormal and extraordinary situations. The chapter cautions that misuse can lead to subversion of democracy, yet says that the actual working of the Constitution over more than five decades demonstrated that emergency powers were generally used in the interest of the country, with a few cases where political considerations were involved. It concludes that, despite misuse in some States, there is broad consensus that emergency provisions still have a role under the conditions prevailing in India.