Emergency Provisions in India

Context:

The Emergencies Act has been invoked for the first time in Canada. Canadian people have been protesting for almost three weeks against a vaccination rule that required truckers to be vaccinated in order to cross the Canada-US border or be quarantined after returning. The protests have had an effect on Canada’s economy as well as its relations with the US. Read full news

Emergency Provisions in India

The meaning of emergency under the constitution is different from its meaning in dictionary. Emergency in constitution means abnormal situation which calls for urgent remedial action, whereas the dictionary meaning of emergency that it is a situation when it poses of immediate risk. During an emergency, India possesses unitary functionality. That’s why Dr. B. R Ambedkar declared the Indian Federal structure special because throughout an emergency it becomes fully unitary. In an emergency, the mechanism becomes a unitary trait as the constitutional apparatus fails.

In emergency it is a responsibility of government to prepare for the entire crisis with all the measures require to safeguard its people. As India being a democratic nation the president is given the authority to proclaim emergency at the time of severe crisis. The president proclaim emergency after he is satisfied after advice and discussion with the council ministers. Article 352 to 360 of the constitution deals with the emergency.

The India had faced national emergency three times. Whenever there is a threat in the constitutional machinery or threat to the nation or financial creditability of India is threatened then the president of India can proclaim emergency in any part of India

Three times a state of emergency has been declared in India since independence.

• The first State of emergency was imposed during the  India-China war between 26 October 1962 to 10 January 1968, it was the time when “the security of India” was declared as being “threatened by external aggression”.
• The second State of emergency was also proclaimed during the Indo-Pakistan war between 3 to 17 December 1971, later it was extended with the third proclamation that was imposed by Prime Minister Indira Gandhi on 25th June 1975. This ‘emergency’ was imposed because of the perceived threat of internal disturbance. 
• The third Emergency ended as dramatically as it had begun, resulting in a defeat of the Congress in the Lok Sabha elections of 1977.
• Financial Emergency has never been declared in India so far.

Constituent Assembly debate over Emergency Provisions

Between August 1949 and October 1949, members of the Constituent Assembly debated the Draft Constitution’s emergency provisions – Draft Articles 275 to 280A (Articles 352 to 360). During these often heated debates, members invoked the constitutional provisions and political experiences of other countries. In total, 12 countries were brought up with the United Kingdom being the most referred to, followed by the United States, Germany and Myanmar.

During a discussion around Draft Article 280 (Article 359), H.V. Kamath accused the Drafting Committee of plagiarising the United Kingdom’s Emergency Powers Act, 1920  in a ‘dishonest fashion’.  He further added that the provision was ‘dangerous’ and India should do better and not worse than the British government which did not suspend the right to constitutional remedies even during the Second World War.

Responding to critics of Draft Article, T. T. Krishnamachari invoked the historical context of the Emergency Powers Act, 1920 and argued that this type of a provision was meant to ‘meet one purpose namely that all our efforts all these years spent in Constitution making may not go in vain and those people who will be in power in the future would be adequately empowered to save the Constitution.’

On 16^th October 1949, Ambedkar introduced Draft Article 280A (Article 360) that dealt with financial emergency. This provision, Ambedkar said, was inspired by the United States’ National Recovery Act, 1933 which was passed as a measure to mitigate the economic consequences of the Great Depression. However, Ambedkar continued, this Act was struck down by the United States Supreme Court. To avoid such a situation in India, Ambedkar wanted the Indian Constitution to explicitly give special powers to the government to tackle any financial emergency – and keep the Supreme Court at bay. 

Ambedkar once again invoked the American Constitution when Pandit Kunzru, during a discussion around Draft Article 278 (Article 356), claimed that there was no Constitution in the world that allowed the Central government declare an emergency in the event of the failure of the constitutional machinery in a State.

While discussing Draft Article 275 (Article 352) that dealt with the promulgation of emergency, H.V. Kamath warned the Assembly about the German experience: Hitler used emergency provisions in the Weimar Constitution to establish a dictatorship. Kamath also brought up Germany to support the Drafting Committee’s decision to insert ‘external aggression’ in Draft Article 275 (Article 352); In the Second World War, Germany invaded Poland without a formal declaration of war.

Owing to the conditions that contributed to a decline in foreign currency reserves and branches, the country’s financial position was also drastically declining. Dr. Ambedkar decided to prevent any legal complications and Art. 360 of the Constitution was thus introduced.

Continuing his Germany centric comparative constitutional history, Kamath argued for strong safeguards against the misuse of emergency powers by the executive. He invoked Article 48 of the Weimar Constitution that provided for the President to notify parliament on all actions taken during an emergency. Also, the Weimar Constitution made it incumbent on the President to revoke emergency if parliament demanded such a measure. Expressing his disappointment over the absence of such a provision in the Indian Constitution, Kamath ended by saying that ‘…unfortunately, we who Profess to build a Sovereign Democratic Republic in India have no use for such safeguards. We trust the executive implicitly. God grant that our trust be justified…”.

Types of emergency in the Indian Constitution

The State may override the different individual freedoms in the presidential state of emergency and enforce those federal standards in Section XVIII of the Constitution.

Article 352 to Article 360 of the Indian Constitution allows for emergency arrangements.

• National emergency (Article 352)
• State emergency (Article 356)
• Financial emergency (Article 360)

A. National Emergency (Article 352):

This emergency provides that if the president is satisfied that a grave emergency exists whereby the safety of India or any part of India is threatened, either by war or external aggression or armed rebellion, he may make a Proclamation of Emergency in respect of the whole of India or any part of it as may be specified in the proclamation.

A proclamation of emergency can be made even before the actual occurrence if the president is satisfied that there is imminent danger of war, or external aggression, or armed rebellion. Thus, actual occurrence of events mentioned in Art. 352 is not essential. An imminent danger of war, or external aggression, or armed rebellion is adequate for the proclamation of emergency.

The president shall not issue a proclamation without consulting the union cabinet (i.e., the council of ministers and the prime minister) such a proclamation may be issued has been communicated to him in writing. This means that the emergency will be declared only on the conformity of the cabinet, and not merely on the advice of the prime minister.

In Minerva Mills Ltd V. Union of India,
The Court held that there is no bar or limitation to judicial review of the validity of a proclamation of emergency issued by the president under Art. 352. This proclamation of emergency can be challenged in a court on the basis of mala fide or for the declaration that was wholly extraneous and irrelevant facts or is absurd or perverse.

However, the word satisfaction used in Art. 352 does not mean the personal satisfaction of the president, but it is the satisfaction of the cabinet. The power to declare emergency can be exercised by the president only on the recommendation of the council of ministers.

Parliamentary Approval and Duration:
Prior to the 44th Amendment Act of 1978, a proclamation of emergency could remain in force for 2 months in the first instance, but once approved by parliament the emergency could remain in force for indefinite period of time as long as the executive wanted it to continue. The 44th Amendment has curtailed the power of the executive to extend the operation of emergency unnecessarily.

After the 44th Amendment a proclamation of emergency could remain in force in the first instance for 1 month, such a proclamation if approved shall remain in force for the period of six months unless revoked earlier. The resolution approving the proclamation must be passed by both the houses of parliament by special majority that is by majority of the total members of each house and also by a majority of not less than 2/3 of the members present and voting in each house.

For the further continuance of emergency beyond the period of six months approval by parliament would be required every six months. If the proclamation is issued at the time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes places during the period of six months without approving the proclamation, then the proclamation remains until 30 days from the first sitting of the Lok Sabha after its reconstruction.

Revocation of National Emergency:

A proclamation of emergency may be revoked by the president any time by a subsequent proclamation, that proclamation does not require any parliamentary approval. The president shall revoke a proclamation if the Lok Sabha passes a resolution disapproving it or disapproving its continuance, where a notice in writing signed by not less than 1/10th of the total number of members of the Lok Sabha. The notice should be given:

1. to the speaker, if the lower house is in session, or
2. to the president, if the house is not in session; a special sitting of the Lok Sabha shall be held within 14 days from the date on which such notice is received by the speaker or by the president for the purpose of considering the resolution.

A resolution of disapproval is different from a resolution approving the continuation of a proclamation in the following two ways:

1. 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.
2. The first one is to be done by a simple majority only, while the second one needs to be done by a special majority.

Effects of National Emergency:

A proclamation of emergency has drastic and wide-ranging effects on the political system of the government.
The consequences can be grouped into three categories:

• Effect on the Centre – State relations,
• Effect on the life of Lok Sabha and State Assembly, and
• Effect on the Fundamental Rights.

1. Effect on the centre & state relations: While a proclamation of emergency is in force, the centre & state relations undergo basic changes. This is headed under:
   1. Executive:
      During a national emergency, the executive power of the centre extends to directing any state regarding the way in which its executive power is to exercised. In normal times, the union can give executive directions to a state only on certain specified matters. Thus, the state government are brought under the complete control of the centre, though they are not suspended.
   2. Legislative:
      During a national emergency, the parliament is empowered to make laws on any subject-matter mentioned in the state list. Though the legislative power of a state legislature is not suspended, it becomes subject to the overriding power of the parliament. The laws made by the parliament on the state matters will not be functioning after the emergency ceases to operate. 
   3. Financial:
      While a proclamation of national emergency is in process, the president can either reduce or cancel the transfer of finances from centre to the state. Every such order of the president has to be laid before the both houses of parliament.
       
2. Effects on the life of the Lok Sabha and State Assembly:
   While a proclamation of National emergency is in process, the life of Lok Sabha is also extended beyond its normal term (5 years) by a law of parliament for one year at a time. However, this extension cannot continue beyond a period of 6 months after the emergency has ceased to operate. Similarly, the parliament may extend the normal tenure of a state legislative assembly (5 years) by one year each time. During a national emergency subject to a minimum period of six months after the emergency has ceased to operate.
    

Effect on the fundamental rights:

Articles 358 and 359 sets out the effect of a National emergency on the fundamental rights. Article 358 deals with suspension of the elemental rights guaranteed by Article 19. While Article 359 deals with the suspension of other fundamental rights except guaranteed by Article 20 and 21.

1. Suspension of fundamental rights:
   According to Article 358, when a proclamation of national emergency is formed the six fundamental rights under Article 19 are automatically suspended. No separate order for their suspension is required.
   The 44th Amendment Act of 1978 restricted the scope of Art. 358 providing that the six fundamental rights under Art. 19 will be suspended only if the National emergency is asserted on the ground of war or external aggression and not on the ground of armed rebellion.
    
2. Suspension of other fundamental rights:
   As per Article 359, the president is authorized to suspend the right to move any court for the enforcement of fundamental rights during the National emergency. In other words, the fundamental rights are not suspended as such, but only their enforcement.
   The suspension of enforcement relates to only those fundamental rights that are as per the presidential order.

B. State Emergency (Art 356):

It says that the president can act on report of the Governor or otherwise is satisfied that a situation has arisen in which the state government is unable to perform its duty in accordance with the provisions of the constitution, he may issue a proclamation. This concludes that the president can also act even without the Governors report.

Art 355 justifies it by saying that the centre is obliged to ensure that the government of the state is carried on in accordance with the provisions of the Indian constitution. In that circumstance, proclamation by president is called proclamation due to the failure of constitutional machinery in state.

By that proclamation:

1. The president may assume to himself all or any of the powers vested in the Governor or exercised by him to anybody or authority in the state.
2. The president may declare that the powers of the legislature of the state shall be exercised by or under the authority of parliament.
3. The president may make such consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of proclamation.

The president cannot assume to himself any of the powers vested in high court or suspend the operation of any provisions of the constitution relating to the high court.

Parliamentary Approval and Duration:

A proclamation shall laid before each house of parliament for approval and shall remain operational for two months, after the expiry of this period the proclamation ceases to operate.
If the proclamation is issued at the time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes places during this period of 2 months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstruction.

If the proclamation is approved by the parliament it will remain in operation for six months. Parliament may extend the duration of proclamation for 6 months at a time. No proclamation shall remain in force more than 3 years, after the expiry of the maximum period of 3 years neither the parliament nor the president shall have power to continue a proclamation and the constitutional machinery must be restored to the state.

Judicial Guidelines for imposing Presidents Rule:

In S.R. Bommai V. Union of India,
Facts:

1. On Dec 15, 1992 president rule was imposed in three BJP ruled-states Madhya Pradesh, Himachal Pradesh, and Rajasthan and assemblies were dissolved on the ground that these states were not implementing sincerely the ban imposed by the centre on religious organisation.
    
2. The main grounds on which the government had been dismissed were that the chief ministers of these states had connections with an organisation which had been banned, and secondly, that these governments had encouraged the Kar Sevaks to go to Ayodhya. Thus, the premise was mere suspicion that they might refuse to enforce the ban. There were no proof that they were not following the directions of the centre.

Held:

1. The dismissal of the governments in Madhya Pradesh, Himachal Pradesh and Rajasthan in the wake of the Ayodhya incident of Dec 6, 1992 was valid and imposition of the presidents rule in these states was constitutional.
2. Secularism is a basic feature of the constitution and any state government which acts against that ideal can be dismissed by the president.
3. It was held that in matters of religion the state has no place. No party can simultaneously be a non-secular party as well as political party.

C. Financial Emergency (Art 360)

It empowers the president to proclaim a financial emergency if he is satisfied that a situation has arisen, where the financial stability or constancy or credit of India or any part of its territory is threatened. In other words, it means whenever the president is contended that the economy of India is in danger, he may proclaim this emergency.

Parliamentary Approval and Duration:

A proclamation declaring financial emergency must be approved by both the houses of parliament within two months from the date of its issue, it survives until 30 days from the first sitting of Lok Sabha after its reconstruction if at the time of proclamation, the Lok Sabha was dissolved or the dissolution of Lok Sabha was taking place. Once the proclamation is approved by both the houses of parliament the financial emergency continues indefinitely, its time is unspecified till it is revoked. The repeated parliamentary approval is not required for its continuation like other two emergencies.

A resolution approving the proclamation of financial emergency can be passed by either house of parliament only by a simple majority, i.e., a majority of the members present and voting of the house. It can be revoked by the president anytime by a subsequent proclamation. Those proclamation does not require the parliamentary approval.

Effects of Financial Emergency:

The implications of the financial emergency are:

1. The president may reserve all the money bills or financial bills after they are passed by the state legislature for maintaining financial constancy and the credit of the nation.
2. The president may issue directions for the reduction of salaries and allowances of:
   1. all or any class of persons serving in the state;
   2. all or any class of persons serving the union and;
   3. the judges of the supreme court and the high court.

Thus, during the proclamation of the financial emergency, the union acquires full control over the states in financial matters.

Criticism of Financial Emergency:

1. The federal character of the constitution will be destroyed and therefore the union will become all powerful.
2. The powers of the state will entirely be given to the union executive.
3. The president will become a dictator.
4. The financial autonomy of the state will become invalidate.
5. Fundamental rights will become meaningless and due to which the democratic foundations of the constitution will be destroyed.

Changes Made By 44th Amendment

Origin and background

“An emergency proclamation seems to be a very serious issue since it infuriates the normal structure of the Constitution and negatively impacts individual freedom. Consequently, such a declaration should only be issued in exceptional conditions and not simply to keep an unsympathetic governing party from its office. In June 1975, an emergency in connection with internal disturbance was proclaimed without sufficient justification.” This was done by the Commission. The 1975 declaration was based on internal disturbances, which were the most problematic because there was a widespread violation of basic rights for the people.

Many people are placed without justification in pre-trial detention. The 44th amending act on the emergency constitutional provisions, therefore, made it even more difficult, if not extremely difficult, to re-examine the circumstance 1975 in light of those amendments.

The forty-fourth amendment

The 44th amendment considerably changed the Constitution’s emergency provisions so that the executive did not harm it as Mrs. Indira Gandhi did in 1975. It also re-established some changes made by the 42nd amendment. In this amendment, there are key elements:

• The “armed rebellion” as defined in Art 352, replaced the internal disturbance.
• The Cabinet shall inform the Cabinet in written work of the decision to declare an emergency.
• Houses shall be issued an emergency declaration within such a month.
• The residences should be re-approved every six months to proceed with the urgent situation.
• The urgency can be annulled by a simple majority of the houses present and voting in this regard by adopting settlement. Such a resolution may be moved by one-10 house members.
•  Article 358 provides that only war and external violence and not armed insurrection shall be put in abeyance by Article 19. In addition, any statute that contradicts Article 19 needs to repeat the relation with Article 358. If they break Article 19, some other laws can also be questioned.
•  Article 359, stipulates that the freedom to transfer courts shall not be revoked unless they have violated Section III, but Articles 20 and 21 will not be included.
•  Brought back from 6 to 5 years the term Lok Sabha.

Proclamation under Article 352

Article 352(1) stipulates that if a President is pleased with danger to the protection of Srilanka or any part respectively, he or she will perform an emergency decree. Here, however, it has sometimes been asked whether another President’s happiness is fair or not.

In this respect, the Supreme Court has held that it was a political issue and not a legal concern in the case of Bhut Nather v. State of West Bengal. The 38th amendment to the Constitution attached to Article 352, in order to make the position more clear, to Article 352, clause 5, which states that the President’s ‘fulfillment’’ as alluded to in Article 352(1) and (3) means ‘final and definitive’ and that “no court of law can question.” However, the 44th amendment to Article 352(5), later added by the 38th constitutional amendment, repealed the misuse of those competencies during the 1975 emergency later after Democratic governance.

It is then the Supreme Court that needs to determine, as a final, non-justiciable, or for such purposes as a matter of judicial review, whether to treat the President’s ‘fulfillment’ by issuing or amending an immediate declaration.

It should also be pointed out here that throughout the case of Minerva Mills, Judge Bhagwati claimed that it can not be ruled out in the scope of judicial review if his precedence proclamation an emergency in compliance with Article 352 extended his judgment or behaving outside his jurisdiction or acting arbitrarily in declaring an emergency.

Proclamation under Article 356

The susceptibility to judicial scrutiny of the declaration in compliance with Article 356 is beyond doubt because powers are conditional upon Article 356(1). The Person is empowered to investigate whether the provision has been met in its exercise of the right of judicial review. In fact, the debate is over the nature and degree of judicial review. 

It is evident from the choices made in the case of Rajasthan state v. Union of India and the case of Bommai that a uniform law cannot apply in all the cases and is bound to differ based on the issue, the essence of the right as well as other variables.

However, the nature of pleasure will still be doubted if it is conceivable on the premises that it is ‘mala fides’ or found on the completely alien and meaningless ground. “In the Supreme Court decision in the State of Madhya Pradesh v. Bharat Singh, the importance of judicial review in the matter protected by Article 356 is also stressed because, at this time, only the declaration was in effect, it was not prohibited from enacting a law that had been enacted before an Emergency Proclamation, as extremely contrary to the constitution.”

A judgment of seven judges of the Constitutional Bench of the Supreme Court dismissed the petition by a majority verdict and stated that the center’s move to settle the three sittings under Article 356 was constitutionally legitimate, according to Article 356(1) first tackled in Rajasthan state v. Union of India. The Supreme Court rejected this petition by a unanimous decision.

The High Tribunal dwells thoroughly on its authority to recognize the legitimacy of the President’s Emergency Declaration in the Minerva Mills and other cases c. Union of India and others. In this case, the Court noted among others that, only because it deals with political questions, it really does not fail to exercise its constitutional obligation. At the very same level, it should limit itself to investigating the details and conditions of presidential satisfactory involvement in the case of an emergency or whether the legislative provisions of Article 352 were respected in a decree declaration.

Thereby we can infer confidently that the Presidential Proclamation is subject to judicial review, albeit limited, in compliance with Article 356. A key feature of the background of the Indian Constitution was perhaps the most recent case which determined the degree to which the President placed the ‘Presidential law’ on the Declaration and strengthened the legal situation surrounding the President’s subjective satisfaction.

The Supreme Court here boldly defined the framework and limits in which Article 356 was to operate. It is very evident, following the verdict in the SR-Bommai case of the Supreme Court, that Article 356 has an absurdity in control, and should be enforced as the final solution when it is obvious that a state’s unsolvable problem and democratic structure has failed” said Soli Sorabjee, eminent jurist and former Attorney General of India.

Conclusion

Emergency provisions were amended under the Constitution for the security of the country and for the protection of its people but these provisions delegates excessive power to the Executives. This affects the federal character of the Constitution, and the union becomes all powerful. Although, the need for Emergency provisions is understood but there are some changes required in the mechanism so that there is no violation of fundamental rights of the citizens and there is no misuse of the powers vested to the executives for their political purposes.

Article Source: M Laxmikant

Mains Questions:

Q). Examine the conditions under which emergency can be proclaimed under Article 352 of the Constitution. Point out the safeguards against undue prolongation of the emergency.

Q). To what extent the Supreme Court has put a check on motivated and arbitrary dismissal of State governments by the Centre under Article 356? Refer to caselaw.

Q). What is the meaning of ‘failure of constitutional machinery in a ‘State’? To what extent is the satisfaction of the President in this regard subject to review
by the courts? Discuss.

Q). When can the President’s Rule be imposed under Article 356 of the Constitution? Is there any need to amend Article 356? What will be your suggestion in this regard?

Q). 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. Elucidate.

Q). Doctrine of Prospective Overruling.

Q). What restrictions have been imposed by the Constitutional Amendment (44th) to check misuse of proclamation of emergency? Discuss

Q). Examine how National Emergency of 1975 affected India as a democracy. Also, discuss the constitutional safeguards that were put in place in its aftermath to prevent the misuse of Emergency provisions in future. (250 words)

Q). Discuss the emergency provisions enshrined in the Indian Constitution. Have they been the same since beginning? Examine.

Q). Discuss various situations in which proclamation of President’s Rule is made, the constitutional and legislative provisions to be met before proclaiming such Rule

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