Emergency Provisions in the Constitution of India

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Emergency In the Indian Constitution

The Constitution of India provides Emergency Provisions. Three kinds of Emergencies have been mentioned in the Constitution. They are:

National Emergency

Article 352 of the Constitution speaks about National Emergency. According to it the President may make a Proclamation of Emergency in respect of whole or any part of India, if he is satisfied that a grave emergency exists which threatens the security of India or any part of India by War or External Aggression or Armed Rebellion[i].  Such Proclamation of Emergency can be made even before the event mentioned in Article 352 has actually occurred, provided the President is satisfied that there is the danger of a war, external aggression or rebellion.

Emergency cannot be declared merely on the advice of the Prime Minister. The President must be communicated in writing regarding the Emergency by the Union Cabinet including the Prime Minister and the Ministers of Cabinet Rank appointed under Article 75.

Duration 

Before the 44th Amendment, a Proclamation of Emergency could remain in force for 2 months. However, with the approval of the Parliament an emergency could remain in force indefinitely. With the coming of the 44th Amendment the power of the Executive to continue the emergency indefinitely has been curtailed. According to this amendment, a proclamation of emergency may remain in force for 1 month in the first instance. With the approval of the Parliament it shall remain in force for 6 months, provided it is not revoked earlier. Such resolution must be passed by either House of the Parliament by Special Majority. In order to continue the emergency beyond 6 months, approval is required after every 6 months. Suppose during the issuance of proclamation of emergency, the Lok Sabha has been dissolved or its dissolution takes place within the above said 1 month period. The Lok Sabha has not approved the proclamation but the Rajya Sabha has approved it. Such a proclamation shall not operate after 30 days from the date on which the Lok Sabha sits after fresh election.

Revocation of Proclamation of Emergency 

If the Lok Sabha passes a resolution for disapproval or disapproval of continuance of a Proclamation, the President shall revoke it. A written noticed has to be signed by not less than 1/10 of the total members of Lok Sabha with an intention to disapprove the continuance of Proclamation of Emergency and be given to the Speaker if the House is in session or to the President if the House is not in session. From the date on which the notice is received, a Special sitting of the Lok Sabha shall be held within 14days and such resolution shall be considered.

Territorial Extent of Proclamation 

The President may make a Proclamation of Emergency in respect of the whole India or any part of India as required.

Effects of Proclamation of Emergency

The following are the effects of Proclamation of emergency:

  • Extension of Executive Powers of the Centre – According to Article 353 the executive power of the Union extends to give direction to the State regarding the manner in which the State shall exercise its executive powers.
  • According to Article 353 (b) the Union Parliament can make laws regarding matters in the State List.
  • According to Article 354 the Centre has the power to alter the distribution of revenue between the Union and the State
  • According to Article 83(2) the President may extend the normal life of the Lok Sabha by a year each time up to a period not more than 6 months after the Proclamation ceases to operate.
  • According to Article 358 the fundamental rights under Article 19 shall be suspended. However, the fundamental rights under Article 20 and Article 21 cannot be suspended.

Duty of the Union to protect the States

During the Proclamation of Emergency, it is the duty of the Union to protect the states from disturbance and external aggression. The Union shall see that the State Government works according to the provisions of the Constitution.

State Emergency

According to Article 356, on receiving a report from the Governor of a State or otherwise if the President is satisfied that there is a situation in which the Government of a State cannot be carried in accordance with the provisions of the Constitution, he may issue a Proclamation.

Duration 

When a Proclamation is issued under Article 356, it shall be laid before each House of the Parliament. It shall remain in operation for 2 months unless before the expiry of that period it has been approved by both Houses of the Parliament according to Clause (3) of Article 356. Suppose during the issuance of proclamation of emergency, the Lok Sabha has been dissolved or its dissolution takes place within the above said 2 months period. The Lok Sabha has not approved the proclamation but the Rajya Sabha has approved it. Such a proclamation shall not operate after 30 days from the date on which the new Lok Sabha meets after the reconstruction unless before the expiry of 30days it has also been passed by the Lok Sabha. On being approved by the Parliament, the Proclamation will remain in operation for 6 months. The duration of emergency can be extended for 6 months at a time but any Proclamation cannot remain in operation for more than 3 years.

Revocation 

A Proclamation of State Emergency can be revoked by a subsequent Proclamation.

Effects

The following are the effects of State Emergency:

  • The President may assume himself all the powers that are exercisable by the Governor to anybody in the State.
  • It shall be declared by the President that the Legislative powers of the State shall be exercised by or under the authority of the Parliament.
  • The President may make provisions which are necessary to serve the purpose of the Proclamation.

However, during such a situation the powers vested in High Courts do not get vested in the President. 

Financial Emergency

According to Article 360 if the President is satisfied that there is a situation where the financial stability of India or any part of the territory is threatened; a Proclamation of Financial Emergency may be issued.

Duration

The Proclamation of Financial Emergency shall cease to operate after 2 months unless it has been approved by both the Houses of the Parliament. Suppose during the issuance of proclamation of emergency, the Lok Sabha has been dissolved or its dissolution takes place within the above said 2months period. The Lok Sabha has not approved the proclamation but the Rajya Sabha has approved it. Such a proclamation shall not operate after 30 days from the date on which the new Lok Sabha sits unless before the expiry of 30days a resolution approving proclamation is passed by the Lok Sabha.

Revocation

A Proclamation of Financial Emergency can be revoked by a subsequent proclamation.

Effects

The following are the effects of Financial Emergency:

  • The executive authority of the Union extends to give directions to the State as necessary for the maintenance of financial stability.
  • It may include provisions for reduction of salaries and allowances of all or any class of persons serving in the State. This includes Judges of High Court and Supreme Court.
  • The Money Bills shall be reserved for the approval of the President.

Cases

Minerva Mills Ltd. vs. Union of India[ii]

In this case it was held that there is no bar to judicial review regarding validity of a Proclamation of Emergency issued by the President mentioned in Article 352. It refers to the satisfaction of the Cabinet, not the personal satisfaction of the President.

State of Rajasthan vs. Union of India[iii]

Proclamation of State Emergency was issued in the year 1977. The Assemblies of 9 States namely Rajasthan, Madhya Pradesh, Uttar Pradesh, Punjab, Bihar, Himachal Pradesh, Odisha, West Bengal and Haryana were dissolved. President Rule was imposed because the Assemblies in these States no longer represented the wishes of the electorate. In this case it was held that the ‘satisfaction’ of the President as mentioned under Article 356 cannot be questioned. Such satisfaction can be on the basis of a material other than the Governor’s Report.

Frequently Asked Questions

1. What is the difference between Article 352 and Article 356?

Under Article 352 the State Legislature and Executive continue to function but the Centre gets the concurrent powers of legislation and administration in the matters of the State. Under Article 356, the State Legislature is dissolved and the executive as well legislative power is vested in the Centre.

Under Article 352, the relationship between the Centre and all the States go through a change but in case of Article 356 the relationship between the Centre and the State in which Presidents Rule is applied undergo a change.

2. From which Constitution has the emergency provision been borrowed?

Emergency provision has been borrowed from the Constitution of Germany.

3. Which Fundamental Right remains suspended during emergency?

Article 19 of the Constitution which provides the fundamental freedoms remain suspended during emergency.

4. Which Fundamental Right cannot be suspended during emergency?

According to the 44th Amendment of 1978 Article 20 and Article 21 cannot be suspended during emergency.

Edited by Madonna Jephi

Approved & Published – Sakshi Raje

Reference

[i]44th Amendment Act, 1977

[ii]Minerva Mills Ltd. V Union of India, AIR 1980 SC 1789

[iii]State of Rajasthan V Union of India, AIR 1977 SC 1361