Introduction

Articles 352 to 360 are emergency powers of the centre. These are given to deal with exceptional circumstances like war or rebellion. The powers were influenced by the German constitution. They turn India’s federal structure into a unitary one without amendment to the constitution.

Types of Emergencies

Constitution handles three types of emergencies national, constitutional and financial.

1. National Emergency [Article 352]:

      This can be declared due to war / external aggression [external emergency] or armed rebellion [internal emergency]. A proclamation can be issued by the president on different grounds. It can be issued when an already existing proclamation is in force too.

It can apply to the entire country or apart.

It can be declared even before an actual occurrence if the president is satisfied with the imminent threat.

The president can declare this only after the written recommendation of the entire cabinet.

A proclamation can be subject to judicial review.

A proclamation must be approved by both houses within one month by a special majority. This extends the life of an emergency by six months at a time. This can be done infinite times.

If Lok Sabha is dissolved then the approval of proclamation or extension of its life can be done by Rajya Sabha.  The proclamation survives till 30 days after the first sitting of the newly reconstituted Lok Sabha.

A proclamation can be revoked by the president anytime [this doesn’t need parliament ratification]. Also, Lok Sabha can force a revocation by disapproving it with a simple majority. Thus Rajya Sabha has no role in revocation.

Effects of national emergency:

The centre can issue executive directions to states on any matter. However, state governments aren’t suspended. Parliament can make laws on matters in the state list.

If parliament isn’t in session president can pass ordinances on state list matters.

Parliament can also confer powers and duties on the centre and its authorities to carry out tasks under its extended jurisdiction. Such legislative actions become inoperative within 6 months of the emergency ceasing to operate. Such laws apply even to states where the emergency isn’t imposed.

President can modify the distribution of revenues between the centre and states till the end of the financial year when an emergency is over. Such orders have to be laid before parliament.

Parliament by law can extend the term of Lok Sabha and state legislative assembly by 1 year at a time [any number of times]. This becomes inoperable by the end of 6 months of emergency ends.

Under article 358, all fundamental rights under Article 19 i.e. Right to Freedom, are automatically suspended when a proclamation of national emergency on external grounds [not armed rebellion] is declared. This action applies to the whole country, not apart.

Any law can be passed that violates these rights but not any other, such a law can’t be invalidated till the emergency is operative. Any action as per laws also remains above judicial remedy even after the emergency is revoked.

Under article 359 a presidential order can be passed disallowing people from seeking a judicial remedy to enforce other fundamental rights i.e. article 14-32 that are specified in that order [ except article 20&21: the right to life and liberty] for a specific period only.

The rights remain in force but the right to seek remedy is suspended. The state can make laws abridging the fundamental rights mentioned in the order such laws can’t be challenged in court. Any executive action under such laws is also protected. The presidential order has to be approved by both houses. Article 359 is available even during a national emergency on armed rebellion. The presidential order can apply to the whole country or apart.

Presidents rule:

When the constitutional machinery breaks down in a state, the president’s rule is imposed by the centre. This can be proclaimed if the president is satisfied that the governance of a state can’t be carried out in accordance with the constitution.

In this case, the president can act with or without the governor’s report. Also when a state doesn’t follow any directive from the centre, the president’s rule can be imposed.

Parliament has to approve the proclamation within two months in both houses by a simple majority. The rule can be extended by 6 months at a time for a maximum of 3 yrs.

If Lok Sabha is dissolved Rajya Sabha can approve it but Lok Sabha has to approve too within 30 days of the first sitting after it’s been reconstituted.  Beyond the first year, the president’s rule can be extended 6 months at a time only if a national emergency is proclaimed in the country or any part of the state.  The election commission certifies that elections can’t be held in the state.

President’s proclamation can be revoked by the president anytime [this doesn’t need parliament’s approval]. Parliament on its own can’t revoke the president’s rule.

It also doesn’t affect fundamental rights or powers of the high court. All legislative and executive power of the states is assumed by the president and the state executive is dismissed and the legislature is dissolved or suspended.

Governor acts as the president’s agent and works with the help of the chief secretary or advisors appointed by the centre. Parliament can assume legislative powers by itself or delegate them to the president or other authority. It can make laws on state list matters for the state only. President can issue ordinances on state list matters or make expenditures from the state budget if parliament is not in session.

A presidential proclamation imposing a president’s rule is subject to judicial review.

Miscellaneous Provisions

• • The FEDERAL government, according to Bryce, means weak government because it involves a division of power.

• • Every modern federation, however, has sought to avoid this weakness by providing for the assumption of larger powers by the federal government whenever unified action is necessary by reason of emergent circumstances, internal or external.

• • But while In countries like the United States this expansion of federal power takes place through the wisdom of judicial interpretation, in India, the Constitution itself provides for conferring extraordinary powers upon the Union in case of different kinds of emergencies.

• • As has been stated earlier, the Emergency provisions of our Constitution enable the federal government to acquire the strength of a unitary system whenever the exigencies of the situation so demand.

• • Though the Proclamation will not suspend the Stat« Legislature. it Will suspend the distribution of legislative powers between the Union and the State, so far as the Union is concerned,-so that the Union Parliament may meet the emergency by legislation over any subject as may be necessary as if the Constitution were unitary.

Uses of Emergency Powers

• • The first Proclamation of Emergency under Art. 352 was made by the President on October 26, 1962, in view of the agency Powers. Chinese aggression in the NEFA. It was also provided by a Presidential Order, issued under Art. 359, that a person arrested or Imprisoned under the Defence of India Act would not be entitled to move any Court for the enforcement of any of his Fundamental Rights under Art. 14, 19 or 21. This Proclamation of Emergency was revoked by an order made by the President on January 10, 1968.

• • The second Proclamation of Emergency under Art. 352 was made by the President on December 3, 1971, when Pakistan launched an undeclared war against India.

• • A Presidential Order under Art. 359 was promulgated on December 25, 1974, in view of certain High Court decisions releasing some detenus under the Maintenance of Internal Security Act, 1971 for smuggling operations.

• • This Presidential Order suspended the right of any such detenu to move any Court for the enforcement of his fundamental rights under Arts. 14, 21 and 22, for a period of six months or during the continuance of the Proclamation of Emergency of 1971, whichever expired earlier.

• • Though there was a ceasefire on the capitulation of Pakistan in Bangladesh in December 1971, followed by the Shimla Agreement between India and Pakistan, the Proclamation of 1971 was continued owing to the persistence of the hostile attitude of Pakistan.

• • It was thus in operation when the third Proclamation of June 25, 1975, was made.

• • While the two preceding Proclamations under Art. 352 were made on the ground of external aggression, the third Proclamation of Emergency under Art. 352 was made on June 25, 1975, on the ground of “internal disturbance”.

• • The “internal disturbance”, which was cited in the Press Note relating to the Proclamation. was that ‘certain persons have been inciting the Police and the Armed Forces against the discharge of their duties and their normal functioning. Both the second and third proclamations were revoked on 21st March 1977

Art. 352 v/s 356, S.R.Bommais case

• • The Proclamation in case of failure of the constitutional machinery differs from a Proclamation of ‘Emergency’ on the following points:

• • (I) A Proclamation of Emergency may be made by the President only when the security of India or any part thereof is threatened by war, external aggression or armed rebellion.

• • A Proclamation in Arts. 352 and 356 respect of the failure of the constitutional machinery may compared be made by the President when the constitutional government of State cannot be carried on for many reasons, not necessarily connected with war or armed rebellion.

• • When a Proclamation of Emergency is made, the Centre shall get no power to suspend the State Government or any part thereof.

• • The State Executive and Legislature would continue in operation and retain their powers.

 

• • All that the Centre would get are concurrent powers of legislation and administration of the State.

 

• • But under a Proclamation in case of failure of the constitutional machinery, the State Legislature would be suspended and the executive authority of the State would be assumed by the President In whole or in part is why it is popularly referred to as the imposition of the Presidents rule

• • (ill) Under a Proclamation of Emergency, Parliament can legislate in respect of State subjects only by itself; under a Proclamation of the other kind, it can delegate its powers to legislate for the State,-to the President or any other authority specified by him.

• • (iv) In the case of a Proclamation of failure of constitutional machinery, there is a maximum limit to the power of Parliament to extend the operation of the Proclamation, namely, three years

• • But in the case of a Proclamation of Emergency; it may be continued for a period of six months by each resolution of the Houses of Parliament approving its continuance so that if Parliament so approves, the Proclamation may be continued indefinitely as long as the Proclamation is not revoked or the Parliament does not cease to make resolutions approving its continuance

• • It is clear that the power to declare a Proclamation of failure of constitutional machinery in a State has nothing to do with any external aggression or armed rebellion

• • It is an extraordinary power of the Union to meet a political breakdown in any of the units of the federation [or the failure by such Unit to comply with the federal directives (Art. 365)] which might affect the national strength.

• • It is one of the coercive powers at the hands of the Union to maintain the democratic form of government, and to prevent factional strifes from paralysing the governmental machinery, in the States.

• • The importance of this power in the political system of India can hardly be overlooked in view of the fact that it has been used not less than 108 times during the first 50 years of the working of the Constitution (till March 2001).

• • From the foregoing history of the use of the power conferred upon the Union under Art. 356, it is evident that It Is a drastic coercive power which takes neady the substance away from the normal federal polity prescribed by the Constitution.

• • It Is, therefore, to be always remembered that the provision for such drastic power was defended by Dr Ambedkar in the Constituent assembly on the plea that the use of this drastic power would be a matter of the last resort:

• • The judgment of the Supreme Court in the Rajasthan case also did not lay down the Law correctly.

• • In view of S.R. Bommai’s case (nine-judge Bench) the comments have been replaced by the law as declared by the Supreme Court, which affirms the Author’s view.

• • In S.R. Bommai’s case, the Court has clearly subscribed to the view of Power under Art. 356 must be used as a last resort to meet rarely.

• • The exigencies of special situations. The Court quoted the Sarkaria Commission Report to give examples of situations when such power should not be used.

• • It made it dear that Art 356 cannot be invoked for superseding a duly constituted ministry and dissolving the Assembly on the ground that in the elections to the Lok Sabha, the ruling party in the State suffered a massive defeat

• • After Bommai’s case, it Is settled that the Courts possess the power to review the Proclamation on the grounds mentioned above.

• • This will surely have a restraining effect on the tendency to use the power on flimsy grounds.

• • In S.R. Bommai’s case it has been pronounced that till the Proclamation is approved by both Houses of Parliament, it Is not permissible for the President to take any irreversible action

• • Hence the Legislative Assembly of a State cannot be dissolved before the Proclamation Is approved by both Houses of Parliament

• • If the Court holds the Proclamation to be invalid then in spite of the fact that it has been approved by the Parliament, the Court may order that the dissolved Ministry and Assembly will be revived

• • Some of the situations which do not amount to the failure of constitutional machinery are given below.

• • They are based on the report of the Sarkaria Commission and have the approval of the Court in S.R. Bommai’s case.

• • (1) a situation of maladministration in a State, where a duly constituted ministry enjoys the support of the Assembly.
• (2) where a Ministry resigns or is dismissed on losing majority support and the Governor recommends imposition of President’s Rule without exploring the possibility of installing an alternative government.
• (3) where a Ministry has not been defeated on the floor of the House; the Governor on his subjective assessment recommends supersession and imposition of President’s Rule.
• (4) wherein general elections to the Lok Sabha the ruling party in the State has suffered a massive defeat.
• (5} where there is the situation of internal disturbance but possible measures to contain the situation of the Union in the discharge of its duty under Art. 355, have not been exhausted.
• (6) where no prior warning or opportunity is given to the State Government to correct itself In cases where directives were issued under Arts. 256, 257 etc.
• (7) where the power is used to sort out intra-party problems of the ruling party.
• (8) the power cannot be legitimately exercised on the sole ground of stringent financial exigencies of the State.
• (9) the power cannot be invoked merely on the ground that there are serious allegations of corruption against the Ministry.
• (10) exercise of the power for a purpose extraneous or irrelevant to those which are permitted by the Constitution would be vitiated by legal mala fides.

• • A proper occasion for use of this power would, of course, be when a Ministry resigns after defeat in the Legislature and no other Ministry Proper occasions commanding majority in the Assembly can at once be formed.

• • Dissolution of -the Assembly may be a radical solution, but, that being expensive, a resort to Art 356 may be made to allow the state of flux in the Assembly to subside so as to obviate the need for dissolution, if possible.

• • A similar situation would arise where the party having a majority declines to form a Ministry and the Governor fails in his attempt to find a coalition Ministry.

• • The provision in Art. 365 relates to the failure of a State Government to carry out the directives of the Union Government which the latter has the authority under the Constitution to issue (e.g., under Arts. 256, 257). The Union may also issue such a directive under the Implied power conferred by the latter part of Art. 355, “to ensure that the government of every State is carried on in accordance with the provisions of this Constitution”.

 

• • The only change that the 44th Amendment Act, 1978 has made in this Article is to limit the duration of a Proclamation made under Art. 356 to a period of one year unless a Proclamation of Emergency under Art. 352 is in operation and the Election Commission certifies that it Is not possible to hold elections to the Legislative Assembly of the State concerned immediately, in which case, it may be extended up to three years, by successive resolutions for continuance being passed by both Houses of Parliament

• • It Is to be noted that the foregoing amendment has not specified any conditions or circumstances under which the power under Art. 356 can be used.

• • Hence, in the light of the Rajasthan decision, no legal challenge could be offered when Mrs Gandhi repeated the Janata experiment in February 1980, in the same nine States, on the same ground, viz., that the Janata Parry, which was in power In those States, was routed In the Lok Sabha election.