A novel feature of the Indian Constitution is the way in which the normal peace-time federalism, can be adopted to an emergency situation. The framers of the Constitution felt that, in an emergency, the Centre should have overriding powers to control and direct all aspects of administration and legislation throughout the country. The Indian Constitution envisages three types of emergencies-
(1) Emergency arising from a threat to security of India or any part of its territory;
(2) Failure of Constitutional Machinery in a State;
(3) Financial Emergency.
(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.
Explanation.-A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.
(2) A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation.
(3) The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated to him in writing.
(4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or the dissolution of the House of the People takes place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation under clause (4):
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause:
Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People.
(6) For the purpose of clauses (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting.
(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.
(8) Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (l) or a Proclamation varying such Proclamation,-
(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.
(9) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or armed rebellion] or imminent danger of war or external aggression or armed rebellion, whether or not there is a Proclamation already issued by the President under clause (l) and such Proclamation is in operation.
1. National Emergency.-
Under article 352(1), if the President is satisfied that a grave emergency exists whereby the security of India or any Part thereof is threatened, whether by war, or external aggression, or armed rebellion, he may, by proclamation, make a declaration to that effect, such a proclamation may be made in respect of the whole of India, or such part of the Indian Territory as may be specified in the proclamation. Article 352(1) thus means that the proclamation need not extend to the whole of India. It may be restricted to a part of the Indian territory. A proclamation of emergency under article 352(1) may be made before the actual occurrence of war, external aggression or armed rebellion.
In 1978, article 352 was amended by the 44th Constitutional amendment so as to minimise the chances of abuse of power to declare emergency.
(1) The 'internal disturbance was replaced by the 'armed rebellion'.
(2) A proclamation of emergency will not be issued by the President unless a recommendation of the Council of Ministers to that effect is communicated to him in writing.
(3) The proclamation of emergency must be approved within one month instead of two months.
(4) A proclamation of emergency ceases to operate automatically at the expiry of six months and can be continued beyond that period only on approval by a resolution of both Houses of Parliament every six months.
(5) The President shall revoke a proclamation of emergency on a resolution of the House of the People to that effect and for that purpose a special sitting of House can be called at a 14 days' notice by one-tenth of the total members of that House.
(6) The enforcement of Fundamental Rights in articles 20 and 21 cannot be suspended at all.
(7) Article 19 now remain unaffected if the ground of proclamation is only armed rebellion and not war or external aggression.
Minerva Mills Ltd. v. Union of India, MANU/SC/0075/1980 : AIR 1980 SC 1789: (1980) 2 SCC 591: 1980 Ker LT 573: 1980 UJ (SC) 727. It has been held that there is no bar to judicial review of the validity of a proclamation of emergency issued by the President under article 352(1). Merely because a question has a political complexion, it is no ground why he could shrink from performing its duty under the Constitution if it raises an issue of constitutional determination. The court's power is limited only to examining whether the limitations conferred by the Constitution have been observed or not.
Consequences of the Proclamation of emergency.-
These are the following consequences of the Proclamation of emergency-
(1) Extension of Centre's executive power.-According to article 353, during the operation of a proclamation of emergency the executive power of the Union extends to giving of directions to any State as to the manner in which the executive power of the State is to be exercised. The 42nd Amendment Act, made a consequential change in article 353 following the amendment made in article 352. It provides that the executive power of the Union to give directions under clause (a) and the power to make laws under clause (b) shall also extend to any State other than State where emergency is in force, if the security of India or any part of the territory is threatned by activities in or in relation to that part of the territory of India in which the proclamation of emergency is in operation.
(2) Parliament empowered to legislate on State Subjects [article 353(b)].- While the proclamation of emergency is in operation, the Union Parliament is empowered to make laws with respect to any of the matter in the State List. The distribution of legislative power is thus fundamentally changed during emergency.
(3) Centre empowered to alter distribution of revenue between the Union and the State (Article 354).-The President may, while a proclamation of emergency is in operation by the order after the financial arrangement between the State and the Union as provided in articles 268 to 279. Every such order is to be laid before each House of Parliament and will come to an end by the end of the financial year in which the proclamation of emergency cease to operate.
(4) Extension of life of Lok Sabha [Article 83(2)].-While the proclamation of emergency is in operation, the President may extend the normal life of the Lok Sabha by a year each time upto a period not exceeding beyond six months after proclamation cease to operate.
(5) Duty of the Union to Protect State (article 355).-Article 355 imposes a duty on the Union to protect every State against external aggression and internal disturbance and ensure that the Government of every State is carried on in accordance with the provision of the constitution. Article 355 thus imposes the following two obligations on the Central Government:
(1) The duty to protect States from internal disturbance and external aggression.
(2) The duty to see that Government of every State is carried on in accordance with the provisions of the Constitution.
(6) Suspension of Fundamental Rights Guaranteed by article 19.-
Article 358 provides for suspension of the six freedoms guaranteed to the citizens by article 19 of the Constitution. It says that a proclamation of emergency is in operation nothing in article 19 shall restrict the power of the State to make any law or to take any executive action abridging or taking away the rights guaranteed by article 19 of the Constiution.
(7) Suspension of right of enforcement of fundamental rights (article 359).-Article 359 empowers the President to suspend the right to enforce fundamental right guaranteed by Part III of the Constitution. It says that while the proclamation of emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the fundamental rights as may be mentioned in the order (except articles 20 and 21) and all proceedings pending in any court for the enforcement of such rights shall remain suspended for the period during the proclamation is in force or for such further period as may be specified in order.
2. Provisions in case of failure of constitutional machinery in States (article 356).-
(1) If the President, on receipt of report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation-
(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State:
Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.
(3) Every Proclamation under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation:
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years:
Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People:
Provided also that in the case of the Proclamation issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab, the reference in the first proviso to this clause to "three years" shall be construed as a reference to five years.
(5) Notwithstanding anything contained in clause (4), a resolution with respect to the continuance in force of a Proclamation approved under clause (3) for any period beyond the expiration of one year from the date of issue of such proclamation shall not be passed by either House of Parliament unless-
(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and
(b) the Election Commission certifies that the continuance in force of the Proclamation approved under clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned:
Provided that nothing in this clause shall apply to the Proclamation issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab.
Articles 356 and 357 provides for meeting a situation arising from the failure of the constitutional machinery in a State, if the President, on receipt of a report from the Governor of a State or otherwise, 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 may by proclamation-
(a) Assume to himself all or any of the functions of the State Government, or the powers of the Governor, or any body or authority in the State other than the State Legislature.
(b) Declare that the powers of the State Legislature are to be exercised by Parliament.
(c) Make such incidental provisions as may appear to him to be necessary or desirable for giving effect to the provisions of the proclamation, the President may even suspend in the whole or in part the provisions of the Constitution relating to any body or authority in the State.
S.R. Bommai v. Union of India, MANU/SC/0444/1994 : (1994) 3 SCC 1: AIR 1994 SC 1918: 1994 AIR SCW 2946: JT 1994 (2) SC 215: (1994) 2 SCR 644. The court held that secularism is a basic feature of the Constitution and any State Government which acts against that ideal can be dismissed by the President. It was held that in matters of religion the State has no place. No political party can simultaneously be a religious party as well as political party. The court has laid down the following guidelines-
(1) Presidential proclamation dissolving a State Legislative Assembly is subject to judicial review.
(2) If a State Government works against secularism, President's rule can be imposed.
(3) No wholesale dismissal of opposition ruled State Governments when a new political party assumes power at the Centre.
(4) if President's rule is imposed only on political consideration the court can even restore the assembly.
(5) Imposition of President's rule and dissolution of State Assembly cannot be done together.
(6) State Assembly can be dissolved only after Parliament approves Central rule.
(7) The Supreme Court or High Court can compel the Union Government to disclose material on whose basis President's rule is imposed on a State.
(8) The power of the President under article 356 is a constitutional power, it is not an absolute power. The existence of material is a pre-condition to form the satisfaction to impose the President's rule.
3. Financial Emergency (Article 360)
(1) If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.
(2) A Proclamation issued under clause (1)-
(a) may be revoked or varied by a subsequent Proclamation;
(b) shall be laid before each House of Parliament;
(c) shall cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
(3) During the period any such Proclamation as is mentioned in clause (1) is in operation, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose.
(4) Notwithstanding anything in this Constitution-
(a) any such direction may include-
(i) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State;
(ii) a provision requiring all Money Bills or other Bills to which the provisions of article 207 apply to be reserved for the consideration of the President after they are passed by the Legislature of the State;
(b) it shall be competent for the President during the period any Proclamation issued under this article is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.
Article 360 makes provisions concerning financial emergency. If the President is satisfied that a situation has arisen whereby the financial stability or credit of India, or any part thereof, is threatened, he may by a proclamation make a declaration to that effect.
When such a proclamation is in operation, the centre can give directions to any State to observe such canons of financial propriety as may be specified in the directions. It may also give such other directions as the President may deem necessary and adequate for the purpose. Any such directions may provide for the reduction of salaries and allowances of all or any class of persons serving in the State.
The 44th Amendment makes article 360 self-contained. It provides that the proclamation of financial emergency will cease to be in operation at the expiry of two months unless it has been approved by both Houses of Parliament. Such a proclamation may be revoked or varied by the President by a subsequent proclamation. But if the Lok Sabha is dissolved during the period of two months and resolution is approved by the Rajya Sabha, but not by the Lok Sabha the proclamation shall cease to operate at the expiry of 30 days from the date on which the new Lok Sabha sits unless before the expiry of 30 days a resolution approving proclamation is passed by the Lok Sabha.
The duration of a proclamation of financial emergency will be in operation for two months and unless approved by President it shall cease to operate at the expiry of two months' period.
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