EMERGENCY PROVISIONS

EMERGENCY PROVISIONS: Crisis Management in Indian Polity

To prepare for Indian Polity for any competitive exam, aspirants have to know about Emergency provisions. It gives an idea of all the important topics for the IAS Exam and the polity syllabus (GS-II.). This is an essential portion of the polity. As IAS aspirants, you should be thorough with the Emergency provisions. In this article, you can read all about the Emergency provisions for the polity and governance segments of the UPSC syllabus.

“Democracy is not what happens at elections, but what happens in – between”.

Emergency provisions have been inserted to deal with extraordinary situations such as war or an armed rebellion. The constitution mentions three types of emergencies viz National Emergency, President’s rule and Financial Emergency. Emergency affects Centre-State relations and the Fundamental Rights of the citizens. 

Constitutional Dynamics in Crisis: Emergency Provisions in Indian Governance

• Emergency provisions spanning from 352 to Art. 360 in Part XVIII.
• During the emergency, the Central Government gets extraordinary powers and all states honinto total control of the Centre.

• Emergency converts the federal structure into a unitary one without a formal amendment of the Constitution – a unique feature of the Indian Constitution.
• Emergency provisions are borrowed from the Of India Act 1935

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Rationale and Impact of India’s Emergency Provisions

• Emergency provisions serve as a protective ring around the fragile republic system.

• To safeguard the sovereignty, unity, integrity and security of the country, the democratic political system, and the Constitution.
• Historical accounts have indicated that any sign of weakness of the Central government HAS led to Balkanization and disintegration of the Union.
• To deal with unforeseen situations arising in case of any exigencies, where the national interest and unity is threatened.

1. National Emergency under Article 352: Powers, Grounds and Implications in India

According to Article 352, “President can impose emergency if he agrees that a grave security threat exists whereby the security of India, or of any part of her territory is threatened whether by war, external aggression, or armed rebellion, he/she can declare emergency rule in the whole of India or on any part of the Indian Territory.” 

National Emergency Declarations: External and Internal threats examined through Constitutional dimensions-

• External Emergency – Declared on the ground of ‘war’ or ‘external aggression’.

• Internal Emergency – Declared on the ground of ‘armed rebellion’.
• President can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion.
• 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.
• A proclamation of national emergency may be applicable to the entire country or only a part of it. (Enabled by 42nd Amendment Act of 1976)
• 44th Amendment Act of 1978 substituted the words “armed rebellion” for “internal disturbance” (This was done with an intent to eliminate the vagueness associated with the word internal disturbance and controversies surrounding it during the declaration in the year 1976)
• The President can invoke a national emergency only after receiving a written recommendation (only on the concurrence) from the Cabinet. – Added by 44th amendment act 1978 as an additional safeguard against abuse or misuse.

Parliament’s Authority and Emergency Provisions in Shaping National Emergency Declarations:-

• Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority (By a simple majority of Parliament before 44th Amendment Act of 1978)
• Proclamation of Emergency must be approved by both the Houses of Parliament within one month (Two months in case of Article 356 and 360) from the date of its issue. (reduced from 2 months to 1 month by the 44th Amendment Act of 1978).
• 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 first sitting of the newly reconstituted Lok Sabha. Provided , the Rajya Sabha has, in the meantime, approved it.
• If approved by both the Houses of Parliament, the emergency continues for six months, and can be extended to an indefinite period with Parliamentary approval for every six months (added by the 44th Amendment Act of 1978)
• Before that, the emergency, once approved by the Parliament, could remain in operation as long as the Executive (cabinet) desired (This was changed with due passage of the 44th Amendment act).

44th Amendment and Mechanisms for Curtailing Emergency Powers in India

• Emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.
• President must revoke a proclamation if the Lok Sabha passes a resolution disapproving its continuation (Added by the 44th Amendment Act of 1978).
• Where one-tenth of the total number of members of the Lok Sabha give a written notice to the Speaker (or to the president if the House is not in session), a special sitting of the House should be held within 14 days for the purpose of considering a resolution disapproving the continuation of the proclamation (44th CAA 1978).
• Disapproval of proclamation is to be adopted by a simple majority only and required to be passed by the Lok Sabha only.

Effects of National Emergency: Extension of Lok Sabha and State Assembly Tenures

Effect on the Life of the Lok Sabha and State Assembly

• The life of the Lok Sabha may be extended beyond its normal term (five years) by a law of Parliament for one year at a time for any length of time. This extension cannot continue beyond a period of six months after the emergency has ceased to operate.g. Fifth Lok Sabha (1971–1977).
• Parliament may extend the normal tenure of a state legislative assembly (five years) by one year each time (for any length of time) during a national emergency. This extension cannot continue beyond the maximum period of six months after the Emergency has ceased to operate.

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Impact of National Emergency Provisions on the Suspension and Restoration of Fundamental Rights in India

Impact of National Emergency Provisions on Centre-State Relations in India

Constitutional Comparisons: Differences Between Article 358 and Article 359 in India

National Emergency Declarations: Historical Events, Constitutional Dynamics and the Role of Emergency Provisions in India

• This type of Emergency has been proclaimed three times so far– in 1962, 1971 and 1975.

• The first proclamation – in October 1962 on account of Chinese aggression in the NEFA and was in force till January 1968. Hence, a fresh proclamation was not needed at the time of war against Pakistan in 1965. (on the ground of ‘external aggression’)
• The second proclamation – in December 1971 in the wake of attack by Pakistan. This was declared on the grounds of ‘external aggression’.
• The third proclamation – in June 1975. Both the second and third proclamations were revoked in March 1977. This was declared on the grounds of ‘internal disturbance’.

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Emergency Provisions Safeguards Post-44th Amendment Act 1978 for Democratic Resilience

• “Internal disturbance” replaced by “armed rebellion”.
• Written advice by cabinet instead of by only the PM.
• Special majority for ratification of emergency.
• Lok-Sabha can initiate action for premature termination.
• Repeated approval after every six months, unlike one year earlier.
• In the case of Minerva Mills vs Union of India it has been held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under Article 352(1). However, the court’s power is limited only to examining whether the limitations conferred by the Constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.
• Control of Lok Sabha in revocation of emergency (Earlier, proclamation could be revoked by the president on his own and the Lok Sabha had no control in this regard).

Complexities of Emergency Provisions, Freedom, and Authoritarian Legislation in Contemporary India

• The 44th amendment act has effectively insulated us against the imposition of Art.352 on baseless, irrational and non-objective grounds.
• Freedom of speech and expression has become a major victim. Suppression of these democratic rights ensured even without invoking emergency.
• Tradition of oppression taught us that state emergency is rule rather than exception.
• Yet the government is becoming more authoritarian and armed themselves with draconian and archaic colonial legislation –E.g. Sedition, AFSPA, PoTA, TADA.

2. PRESIDENT’S RULE (ART.356) in Indian States with Emergency Provisions

• 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 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.
• First, the President’s Rule was imposed in Punjab in 1951.
• Since 1950, the President’s Rule has been imposed on more than 125 occasions, that is, on an average twice a year.
• Maximum times imposed in Manipur (10 times) followed by UP (9 times)

The Interplay of Articles 355, 356 and Emergency Provisions in President’s Rule with the Constitutional Mandate and Crisis Management

• 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.
• 356 – Provisions in case of failure of constitutional machinery in states.
  • President’s Rule can be proclaimed under Article 356 on two grounds –
  • 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 the state or otherwise too.
  • 365 – says 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.

Operation of President’s Rule with Emergency Provisions

• A proclamation imposing President’s Rule must be approved by both the Houses of Parliament within two months from the date of its issue.
• Proclamation will survive until 30 days from the first sitting of the Lok Sabha after its reconstitution, if the proclamation is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation. Rajya Sabha has in the meantime approved it.
• If approved by both the Houses of Parliament, the President’s Rule continues for six months. It can be extended for a maximum period of three years with the approval of the Parliament, every six months.
• If the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuation of the President’s Rule, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved its continuance.
• Every resolution approving the proclamation or its continuation can be passed by either House of Parliament only by a simple majority.
• Beyond one year, the President’s Rule can be extended by six months at a time only when the following two conditions are fulfilled (44th CAA 1978) :-
  • A proclamation of National Emergency should be in operation in the whole of India, or in the whole or any part of the state.
  • The Election Commission must certify that the general elections to the legislative assembly of the concerned state cannot be held on account of difficulties.

Revocation Process of President’s Rule under Emergency Provisions

• A proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require the parliamentary approval.

Consequences of President’s Rule and Emergency Provisions on State Functionality

• The President dismisses the state council of ministers headed by the chief minister. The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of the state or the advisors appointed by the President.
• The President either suspends or dissolves the state legislative assembly. The Parliament passes the state legislative bills and the state budget.
• President 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 relating to anybody or authority in the state.

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WHEN THE STATE LEGISLATURE IS THUS SUSPENDED OR DISSOLVED:

• 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 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.

Sarkaria Commission Recommendations on the Prudent Use of Article 356 in State Governance

• Provision should be used sparingly and as a measure of last resort.
• Warning should be issued to erring govt with opportunity to rectify.
• Governors should explore all possibilities of forming an alternative course.
• The presidential proclamation imposing President’s Rule is subject to judicial review.
• The satisfaction of the President must be based on relevant material.
• Burden lies on the Centre to prove that relevant material exists to justify the imposition of the President’s Rule.
• The court cannot go into the correctness of the material or its adequacy but it can see whether it is relevant to the action.
• If the court holds the presidential proclamation to be unconstitutional and invalid, it has power to restore the dismissed state government and revive the state legislative assembly if it was suspended or dissolved.
• The state legislative assembly should be dissolved only after the Parliament has approved the presidential proclamation.
• Secularism is one of the ‘basic features’ of the Constitution. Hence, a state government pursuing anti-secular politics is liable to action under Article 356.
• The question of the state government losing the confidence of the legislative assembly should be decided on the floor of the House.
• Where 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 power under Article 356 is an exceptional power and should be used only occasionally to meet the requirements of special situations.

Article 356: Distinguishing Between Proper and Improper Use – Learnings from Sarkaria Commission and Bommai Case

Based on the report of the Sarkaria Commission on Centre-state Relations (1988), the Supreme Court in Bommai case (1994) enlisted the potential situations where the exercise of power under Article 356 could be proper or improper.

Strengthening Democratic Governance: NCRWC Recommendations for Transparent State Administration and Legislative Proceedings

• Warning must be given to state governments, reasonable and fair opportunity to correct its administration.
• Proclamation must clearly specify the reasons and grounds for imposition.
• Floor test must be mandatory to prove majority.
• Grounds for dissolving assembly or keeping it in suspension must be specifically mentioned.

Emergency Provisions in India: A Comparative Study of National Emergency (Article 352) and President’s Rule (Article 356)

3. Financial Emergency (Art. 360) Mechanism: Judicial Review, Parliamentary Approval and Duration of Operation

• 360 more or less follows the pattern of what is called the National Recovery Act of the United States passed in 1933.

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Safeguarding Fiscal Stability with Judicial Monitoring

• 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 credit of India or any part of its territory is threatened.
• the 44th Amendment Act of 1978 made the satisfaction of the president subjected to judicial review. (Judicial review is part of basic structure of constitution)

Parliamentary approval and duration of operation

• A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months (One month in case of Article 352) from the date of its issue.
• Proclamation will survive until 30 days from the first sitting of the Lok Sabha after its reconstitution, if the proclamation is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation. Rajya Sabha has in the meantime approved it.
• Once approved by both the Houses of Parliament, the Financial Emergency continues indefinitely (no maximum period) till it is revoked.
• No repeated parliamentary approval is required continuation.
• A resolution approving the proclamation of financial emergency can be passed by either House of Parliament only by a simple majority (a majority of the members of that house present and voting)

Revocation of Financial Emergency: Power of the President and Parliamentary Supervision

• A proclamation of Financial Emergency may be revoked by the president at any time by a subsequent proclamation.
• Such a proclamation does not require parliamentary approval.

Financial Emergency in India: Implications on Executive Authority and Fiscal Policies

In India, no Financial Emergency has been declared so far, though there was a financial crisis in 1991.

• Executive authority of the Centre extends to the giving of directions to any state to observe such canons of financial propriety as may be specified in the directions and such other directions to any state as the President may deem necessary and adequate for the purpose.
• Any such direction may include a provision requiring –
  • the reduction of salaries and allowances of all or any class of persons serving in the state;
  • the reservation of all money bills (Art. 110) 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
  • The judges of the Supreme Court and the High Court.
• During the operation of a financial emergency, the Centre acquires full control over the states in financial matters.

Critiquing India’s Emergency Provisions

Some members of the Constituent Assembly gave following reasoning against the incorporation of emergency provisions in the Constitution –

• Destruction of the federal character of the Constitution and the Union will become all powerful.
• Encroachment in the states domain – The powers of the units of federation will entirely be concentrated in the hands of the Union executive.
• Dictatorship of the President and cabinet.
• The financial autonomy of the state will be null and void.
• Negation of the Fundamental rights and resultantly, the democratic foundations of the Constitution will be destroyed.

• Misuse of power to suppress dissent – E.g. 42nd amendment act 1976.
• ‘The emergency financial provisions pose a serious threat to the financial autonomy of the States.’ – H.N. Kunzru

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Advocating the Inclusion of Emergency Provisions in the Indian Constitution

• ‘The very life-breath of the Constitution’ – Sir Alladi Krishnaswami Ayyar.
• They would work as a ‘safety-valve’ and thereby help in the maintenance of the Constitution. – Mahabir Tyagi

There are times when a nation is unexpectedly and suddenly overtaken by events and forces, which seriously endanger its security and the lives of its citizens. Such situations may require that individual liberties of the citizens be temporarily suspended in order to cope with the dangers confronting the nationBasic difference between three emergencies

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