Emergency Provisions in the Indian Constitution

Introduction to Emergency Provisions

The Indian Constitution, found in Part XVIII (Articles 352 to 360), contains special provisions to enable the Central Government to deal with extraordinary situations that threaten the sovereignty, unity, integrity, security, and democratic political system of the country. These provisions allow the federal structure to temporarily become unitary, granting the Union government enhanced powers to address crises effectively. The concept of emergency provisions has been influenced by the Government of India Act, 1935, and the Weimar Constitution of Germany.

Types of Emergencies

The Indian Constitution provides for three types of emergencies:

1. National Emergency (Article 352)
2. President's Rule or State Emergency (Article 356)
3. Financial Emergency (Article 360)

1. National Emergency (Article 352)

This type of emergency can be declared when the security of India or a part of it is threatened by:

• War: An actual armed conflict between nations.
• External Aggression: Use of armed force by a foreign power without formal declaration of war.
• Armed Rebellion: An organized armed uprising within the country (this term replaced "internal disturbance" by the 44th Amendment Act of 1978 to prevent misuse). The President can proclaim an emergency even before the actual occurrence of war, external aggression, or armed rebellion, if there is an imminent danger.

Approval and Duration:

• The proclamation must be approved by both Houses of Parliament by a special majority within one month from its date of issue.
• If approved, it continues for six months. It can be extended indefinitely for periods of six months each, with repeated parliamentary approval by a special majority.
• If the Lok Sabha is dissolved during this one-month period without approving the proclamation, the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has approved it.

Effects of National Emergency:

• Centre-State Relations:
  • Executive: The Union government can give directions to any state on any matter.
  • Legislative: Parliament gains the power to make laws on any subject included in the State List. These laws cease to operate six months after the emergency ends.
  • Financial: The President can modify the provisions regarding the distribution of revenues between the Union and the States.
• Life of Lok Sabha and State Legislative Assemblies:
  • The normal term of the Lok Sabha can be extended by law for one year at a time, for any length of time beyond its normal term, but this extension cannot continue beyond six months after the emergency ceases to operate.
  • Similarly, the term of a State Legislative Assembly can also be extended.
• Fundamental Rights:
  • Article 358: Automatically suspends the six Fundamental Rights guaranteed by Article 19 (freedom of speech, assembly, etc.) only when the National Emergency is declared on the grounds of war or external aggression. These rights are restored automatically once the emergency ends.
  • Article 359: Empowers the President to suspend the right to move any court for the enforcement of Fundamental Rights (except Articles 20 and 21 - protection in respect of conviction for offences and protection of life and personal liberty) through a Presidential Order. This suspension is for the period specified in the order or until the emergency ceases.
  • The 44th Amendment Act (1978) specifically clarified that Articles 20 and 21 cannot be suspended during any emergency.

Revocation:

• The President can revoke the proclamation at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval.
• The Lok Sabha can also pass a resolution by a simple majority disapproving the continuation of the emergency. If such a resolution is passed, the President must revoke the emergency.

Instances of National Emergency:

National Emergency has been declared thrice in India:

• October 1962: During the Indo-China War (continued till 1968).
• December 1971: During the Indo-Pakistan War (continued till 1977).
• June 1975: On the ground of "internal disturbance" (declared by Indira Gandhi, lasted till 1977). This led to significant criticism and subsequently, the 44th Amendment Act changed "internal disturbance" to "armed rebellion" to prevent such misuse.

2. President's Rule (Article 356 & 365)

Popularly known as 'President's Rule' or 'State Emergency' or 'Constitutional Emergency'.

• Article 356: Empowers the President to proclaim President's Rule if he is satisfied (based on a report from the Governor or 'otherwise') that a situation has arisen where the government of a state cannot be carried on in accordance with the provisions of the Constitution.
• Article 365: If a state fails to comply with any directions from the Union, the President can hold that a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.

Approval and Duration:

• The proclamation must be approved by both Houses of Parliament by a simple majority within two months from its date of issue.
• If approved, it remains in force for six months. It can be extended for a maximum period of three years with parliamentary approval every six months.
• Beyond one year, the extension requires two conditions to be met:
  1. A National Emergency must be in operation in the whole of India, or in part of the state.
  2. The Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held due to difficulties.

Effects of President's Rule:

• The President can take over all or any of the functions of the state government and powers vested in the Governor or any other executive authority in the state.
• The President can declare that the powers of the state legislature shall be exercisable by or under the authority of Parliament.
• The President can make any other incidental or consequential provisions necessary for giving effect to the proclamation.
• During President's Rule, the High Court's powers are not suspended.

Judicial Review:

• The 38th Amendment Act (1975) made the President's satisfaction in declaring President's Rule final and beyond judicial review. However, the 44th Amendment Act (1978) restored judicial review.
• In the S.R. Bommai case (1994), the Supreme Court ruled that the President's power to issue a proclamation under Article 356 is not absolute and is subject to judicial review. The Court also held that the burden of proving that the state government cannot be carried on in accordance with the Constitution lies with the Union.

Instances:

President's Rule has been imposed numerous times (over 100 times) in various states, often leading to political controversy.

3. Financial Emergency (Article 360)

Empowers the President to proclaim a Financial Emergency if he is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of its territory is threatened.

Approval and Duration:

• The proclamation must be approved by both Houses of Parliament by a simple majority within two months from its date of issue.
• Once approved, it continues indefinitely until it is revoked. There is no maximum period prescribed for its operation.

Effects of Financial Emergency:

• The executive authority of the Union extends to giving directions to any state to observe canons of financial propriety.
• The Union can direct states to reduce the salaries and allowances of all or any class of persons serving in the state, including High Court judges.
• The President can direct the reduction of salaries and allowances of all or any class of persons serving the Union, including Supreme Court judges.
• Money bills or other financial bills passed by the state legislature can be reserved for the President's consideration.

Instances:

A Financial Emergency has never been declared in India so far.

Key Points and UPSC Relevance:

• Unitary Features: During an emergency, India's federal structure transforms into a unitary one, centralizing power. This unique characteristic was highlighted by Dr. B.R. Ambedkar.
• 44th Amendment Act, 1978: This amendment brought significant changes to emergency provisions to prevent their misuse, particularly in light of the 1975 emergency. Key changes include:
  • Replacing "internal disturbance" with "armed rebellion" for National Emergency.
  • Requiring the President to proclaim National Emergency only on the written recommendation of the Union Cabinet.
  • Restoring judicial review of emergency proclamations.
  • Protecting Articles 20 and 21 from suspension during any emergency.
• Role of Cabinet: After the 44th Amendment, the President can declare a National Emergency only on the written advice of the Cabinet (not just the Prime Minister).
• Judicial Scrutiny: While emergency provisions are necessary for stability, their potential for misuse is significant. The Supreme Court has, through various judgments (e.g., Minerva Mills case, S.R. Bommai case), asserted its power of judicial review over emergency proclamations, ensuring they are not based on mala fide intentions or extraneous grounds.
• Importance: These provisions are crucial for safeguarding the nation's security, integrity, and constitutional order during unforeseen crises. However, a delicate balance must be maintained between national security and the protection of fundamental rights and federal principles.