Emergency Provisions Notes - Frontier IAS
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Emergency Provisions Notes - Frontier IAS
Emergency Provisions are very important as far as the Indian Polity UPSC Prelims Syllabus is concerned. Not only UPSC but other states civil services exams like HCS, RAS, UPPSC, etc, also ask questions from Emergency Provisions in the Indian Constitution. So, it becomes very important for the civil services aspirants to have in-depth knowledge of various provisions related to the National Emergency, President's Rule, and Financial Emergency. In this article, you will find every detail related to the Indian Constitution Emergency Provisions.
- Art. 352-360 in Part XVII of the Constitution deals with the emergency provisions.
- During an emergency situation, the federal structure is converted into a unitary one without a formal amendment of the Constitution.
- 3 kinds of emergencies:
- Emergency due to war, external aggression, or armed rebellion (Art. 352). This is known as ‘National Emergency’.
- Emergency due to the failure of the constitutional machinery in the states (Art. 356). This is known as ‘President’s Rule’ or ‘State Emergency’ or ‘Constitutional Emergency’.
- Financial Emergency due to a threat to the financial stability or credit of India (Art. 360).
Grounds of Declaration
- Under Art. 352, the President can declare a national emergency even before the actual occurrence of war or external aggression, or armed rebellion, if he is satisfied that there is an imminent danger.
- When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. If it is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’.
- A proclamation of national emergency may be applicable to the entire country or only a part of it. The 42nd Amendment Act, 1976 enabled the President to limit the operation of national emergency to a specific part of India.
- The original Constitution mentioned the word ‘internal disturbance’. When the government led by Mrs Indira Gandhi in 1975 declared an Emergency on the ground of ‘internal disturbance’ after her election to Lok Sabha was declared void by Allahabad High Court, 44th Amendment Act substituted ‘internal disturbance’ with ‘armed rebellion’.
- The President can proclaim a national emergency only after receiving a written recommendation from the cabinet.
- The declaration of a national emergency is subjected to judicial review.
- The national emergency has been proclaimed three times so far- external emergency in 1962 (India-China war) & in 1971 (India-Pakistan war) and an internal emergency in 1975 by the Indira government.
Parliamentary Approval and Duration
- Initially, the Proclamation shall remain in force for 1 month.
- During this time, the cabinet has to get it approved by the Parliament.
- Every proclamation made under Art. 352 (except a Proclamation revoking the previous Proclamation) should be laid before each House of Parliament and must be approved by them with a special majority.
- If Parliament fails to approve such a Proclamation, then it ceases to be in operation on the expiry of one month after the Proclamation is made.
- If Parliament approves such a Proclamation, then it will be in force for 6 months from the date on which it was approved by Parliament, unless revoked earlier.
- It can be approved by Parliament any number of times, but not beyond 6 months at a time.
- If the Lok Sabha stands dissolved before giving approval to the Proclamation, then Rajya Sabha needs to approve it within 1 month and thereafter should be ratified by Lok Sabha within 30 days of the date on which the Lok Sabha first sits.
Revocation of Proclamation
- The Proclamation of emergency may be revoked by the President by another Proclamation at any time during its continuance. Such a proclamation need not be approved by the Parliament.
- However, if the Lok Sabha disapproves a Proclamation of emergency or its continuance, the President is bound to revoke the emergency. If not less than 1/10th of the members of Lok Sabha issue a notice with the intention of disapproving an emergency, to the President of the Lok Sabha is not in session, or to the Speaker if the Lok Sabha is in session, a special sitting of the Lok Sabha shall be held within next 14 days for the purpose of considering such a resolution.
Resolution of disapproval vs. resolution approving continuance of a proclamation
- The first one is required to be passed by the Lok Sabha only, while the second one needs to be passed by both the Houses of Parliament.
- The first one is to be adopted by a simple majority only, while the second one needs to be adopted by a special majority.
Changes Made by 44th Amendment Act, 1978
- It introduced the expression “armed rebellion” in place of “internal disturbances” as the third ground for the proclamation of national emergency under Art. 352.
- It made the approval of the whole cabinet necessary which must be communicated to the President in writing to proclaim an emergency. Before, the President could proclaim an emergency on the oral advice tendered by the Prime Minister.
- Before the act, a Proclamation issued by the President had to be approved by the Parliament within 2 months after the Proclamation is made. Now it must be approved within 1 month. Once approved, earlier it could remain in force for an indefinite period. But after the act, it can remain in force for 6 months only. Before, the approval needed a simple majority, but presently it needs a special majority.
- Under Art. 358, before this act came into force, the Fundamental Rights enumerated under Art. 19 were automatically suspended. After this act, under Art. 358, Article 19 is suspended only when an emergency is declared on the basis of war or external aggression.
- After this act, during an emergency, enforcement of the rights conferred by Art. 20 and 21 cannot be suspended.
Effects of National Emergency
The consequences of a national emergency can be grouped into 3 categories:
- Effect on the Centre-state relations-
- Effect on the life of Lok Sabha and State assembly
- Effect on the Fundamental Rights-
- Suspension of Fundamental Rights under Art. 19
- Suspension of other Fundamental Rights
- While a Proclamation of emergency is in operation, the President is empowered to issue directions to States in the manner in which their executive power is to be exercised.
- In normal times, the President has the power to give directions to States only on some matters like maintenance of communication, protection of railways, etc.
- But during the operation of emergency, he can issue directions to States on all matters.
- When a Proclamation of emergency is in operation, Parliament can enact laws on subjects under the State List, which become inoperative 6 months after the emergency has ceased to operate.
- The Legislature of State is not suspended, but the distribution of legislative powers between the Union and the State is suspended for the duration of the emergency.
- During the emergency, President can issue ordinances on the state subjects also, if Parliament is not in session.
- The President may, when a proclamation of emergency is in operation, modify the provisions of the Constitution relating to the distribution of financial resources between the Centre and the states (Art. 269-279).
- Such an order of the President shall not have an effect beyond the financial year in which the Proclamation of the emergency ceases to be operative.
- The order of the President is subject to the approval of Parliament. Parliament can also levy any tax which ordinarily falls in the State List (Art. 250).
Effect on the Life of the Lok Sabha and State Assembly
- Parliament is empowered to extend by law, the life of the Lok Sabha beyond the 5-year term for a period not exceeding 1 year at a time, but in any case not exceeding 6 months after the Proclamation of emergency has ceased to be in operation.
- The life of State Legislative Assemblies can also be extended by law by Parliament in a similar manner (Art. 172).
Effect on the Fundamental Rights
Suspension of Fundamental Rights under Art. 19
- According to Art. 358, when a proclamation of national emergency is made, the six Fundamental Rights under Art. 19 are automatically suspended.
- The State is freed from the limitations imposed by Art. 19.
- The citizens cannot move the courts for the enforcement of Fundamental Rights under Art. 19.
Suspension of other Fundamental Rights
- The President, under Art. 359, may by order, suspend the operation of any of the other Fundamental Rights when an emergency declared on grounds of war or external aggression or armed rebellion is in force.
- Such order has to be laid for approval before each house of the Parliament.
- The Fundamental Rights guaranteed under Art. 20 (Protection in respect of conviction of offenses) and Art. 21 (Right to life and personal liberty) cannot be suspended.
Effects of National Emergency: Article 358 Vs Article 359
The similarity between Art. 358 and Art. 359
- Both provide immunity from challenge to only those laws which are related to the Emergency and not other laws.
- The executive action taken only under such a law is protected by both.
- Art. 355 imposes a duty on the Centre to ensure that the government of every state is carried on in accordance with the provisions of the Constitution. In the performance of this duty, the Centre takes control over the government of a state under Art. 356 in case of failure of constitutional machinery in the state. It is known as President’s Rule.
Grounds of Impositions
- Art. 356 empowers the President to issue a proclamation if he is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the provisions of the Constitution. The President can act either on a report of the governor of a state or otherwise too.
- Art. 365 states that whenever a state fails to comply with or to give effect to any direction from the Centre, it will be lawful for the President to 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.
Parliamentary approval and duration
- A Proclamation issued under Art. 356 will initially be operational for 2 months.
- Within this period it must get approved by each House of Parliament.
- A Proclamation so approved unless resolved earlier will be in operation for 6 months.
- The Proclamation can be extended by the Parliament for 6 months each time by the approval of both Houses.
- Every resolution approving the proclamation of President’s Rule or its continuation can be passed by either House of the Parliament only by a simple majority.
- A Proclamation issued under Art. 356, can be in force normally for a maximum period of 1 year only at a stretch.
- However, it can be extended by a resolution of Parliament beyond 1 year period but in any case not beyond 3 years from the date of issue of Proclamation, on 2 conditions-
- An Emergency under Art. 352 exists and
- the Election Commission certifies that there are difficulties in holding general elections to the Legislative Assembly of the State concerned.
- If Lok Sabha dissolves during any such period of 6 months without a resolution approving the continuation of Proclamation but the same has been approved by the Rajya Sabha, then the new Lok Sabha will have to approve the resolution of Proclamation within 30 days of its first sitting in the House, otherwise, the Proclamation will automatically expire.
Consequences of President’s Rule
The President acquires the following powers during the imposition of President’s Rule-
- He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state.
- He can declare that the powers of the state legislature are to be exercised by the Parliament.
- He can take all other necessary steps including the suspension of the constitutional provisions.
- The State Legislative Assembly may be suspended or dissolved by the President.
- When the Legislative Assembly of the State is suspended during President’s Rule, it is often reported as under “Suspended Animation” because the Assembly is in existence and all MLA’s retain their membership, however, they do not function to legislate. Once the Assembly is dissolved, the membership is dissolved too and the State will go for fresh election soon.
When the state legislature is suspended or dissolved
- The Parliament can delegate the power to make laws for the state to the President or to any other authority specified by him in this regard.
- The Parliament or in case of delegation, the President or any other specified authority can make laws conferring powers and imposing duties on the Centre or its officers and authorities.
- The President can authorise, when the Lok Sabha is not in session, expenditure from the state consolidated fund pending its sanction by the Parliament.
- The President can promulgate, when the Parliament is not in session, ordinances for the governance of the state.
Changes made by 42nd and 44th Amendment Acts
- The 42nd Amendment Act amended Art. 356 and provided that the approval of Parliament was for 1 year at a time.
- The 44th Amendment Act provided that beyond 1 year, the President’s Rule Can be extended by 6 months at a time if it fulfils the 2 conditions specified before.
Article 356 and Judicial Review
Since there had been many instances of blatant misuse of Art. 356, the Supreme Court in S.R Bommai & others vs. UoI 1994 case held that the Constitution envisages President’s Rule as an exceptional measure which shall be used subject to the following conditions:
- The power vested in the President under Art. 356 is not absolute but open to judicial scrutiny.
- The validity of Proclamation under Art. 356(1) is judicially reviewable only on three grounds: Whether the Proclamation was issued on the basis of any material, Whether the material was relevant & Whether the Proclamation was a mala fide exercise of power.
- Art. 74(2)(advice tendered by ministers not to be enquired into any court) is not a bar against the security of the material on the basis of which the President had arrived at his ‘satisfaction.
- The entire burden of proof lies on the Union to prove that the material for recommending the Proclamation did in fact exist and it is relevant. The material may be the report of the Governor or other than the report.
- The Centre, before invoking Art. 356 against a State should as far as possible, issue a show-cause notice to the ‘erring’ State giving at least 7 days time to reply to the notice. Only when the Centre is not satisfied with the State’s reply, it will be justified in imposing the President’s rule in the State.
- Art. 356(3) is intended to be a check on the powers of the President. Therefore, the President will not be justified in dissolving the Assembly till at least both the Houses of Parliament approve of the Proclamation.
- The question of State government losing the confidence of the Legislative Assembly should be decided on the floor of the House and until that is done the ministry should not be unseated.
- Art. 356 shall be invoked by the President on the ground of breakdown of constitutional machinery and not administrative machinery. Ignoring the directions of the Centre, violating the principles set out in the Constitution like secularism, on the part of State CoMs amount to the breakdown of constitutional machinery. If the State CoM fails -to maintain law and order, implement welfare measures, extend good governance to the people then it amounts to the breakdown of administrative machinery.
- When a new political party assumes power at the Centre, it will not have the authority to dismiss ministries formed by other parties in the states.
- The Court enjoys the power to reconstitute an illegally dissolved Assembly and restore a dismissed government. However, it is open for the Court to mould the relief suitably.
Article 352 Vs Article 356
Cases of Proper and Improper Use
Based on the report of the Sarkaria Commission on Centre-state relations, the Supreme Court in Bommai case (1994) enlisted the situations where the exercise of power under Art. 356 could be proper or improper.
Proper Situations to impose President’s Rule
- In the case of ‘Hung Assembly’.
- Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a coalition ministry commanding a majority in the assembly.
- Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry commanding a majority in the assembly.
- Where a constitutional direction of the Central government is disregarded by the state government.
- Internal subversion where, for example, a government is deliberately acting against the Constitution and the law.
- Physical breakdown where the government wilfully refuses to discharge its constitutional obligations endangering the security of the state.
- Where a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.
- Where the governor makes his own assessment of the support of a ministry in the assembly and recommends imposition of President’s Rule without allowing the ministry to prove its majority on the floor of the Assembly.
- Where the ruling party enjoying majority support in the assembly has suffered a massive defeat in the general elections to the Lok Sabha.
- Internal disturbances not amounting to internal subversion or physical breakdown.
- Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.
- Where the state government is not given prior warning to rectify itself except in case of extreme urgency leading to disastrous consequences.
- Where the power is used to sort out intra-party problems of the ruling party, or for a purpose irrelevant to the one for which it has been conferred by the Constitution.
Grounds of Declaration
- Art. 360 empowers the President to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credibility of India or any part of its territory is threatened.
- The 44th Amendment Act provided that the satisfaction of the President is subject to judicial review (before, the 38th Amendment Act made the satisfaction of the President not subject to judicial review).
Parliamentary Approval and Duration
- A Proclamation under Art. 360 will remain in force for 2 months unless, before the expiry of that period, it is approved by both Houses of Parliament by a simple majority.
- Once approved, it is in force till it is revoked by the President.
- If Lok Sabha dissolves during any such period of 2 months without a resolution approving the continuation of Proclamation but the same has been approved by the Rajya Sabha, then the new Lok Sabha will have to approve the resolution of Proclamation within 30 days of its first sitting in the House.
There is no maximum period prescribed for the operation of a Financial Emergency and repeated Parliamentary approval is not required for its continuation.
Effects of Financial Emergency
- The executive authority of the Centre extends-
- To directing any state to observe such canons of financial propriety as are specified by it; and
- To directions as the President may deem necessary and adequate for the purpose.
- Any such direction may include a provision requiring-
- The reduction of salaries and serving in the state; and
- The reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the state.
- The President may issue directions for the reduction of salaries and allowances of -
- All or any class of persons serving the Union; and
- The judges of the Supreme Court and the high court.
Criticism of the Emergency Provisions
- The federal character of the Constitution will be destroyed and the Union will become all-powerful.
- The powers of the State- both the Union and the units- will entirely be concentrated in the hands of the Union executive.
- The President will become a dictator.
- The financial autonomy of the state will be nullified.
- Fundamental rights will become meaningless and, as a result, the democratic foundations of the Constitution will be destroyed.
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