CHAPTER 25 – EMERGENCY PROVISIONS

 

EMERGENCY PROVISIONS

(ARTICLE 352 – 360)

 

 

PART XVIII – EMERGENCY PROVISIONS (ARTICLE 352 – 360)

 

In this part, we will not mention the exact wording of the original Articles, as that might be quite confusing due to use of constitutional language and jargons. As such, we have presented the Articles under this Part, in an easy to understand language, although we have tried our best to keep the language as close to the original articles.

 

 

NATIONAL EMERGENCY (ARTICLE 352 – 355)

 

 

ARTICLE 352

 

PROCLAMATION OF NATIONAL EMERGENCY

  1. The President may proclaim a National Emergency if he 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. When the national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as External Emergency. On the other hand, when it is declared on the ground of ‘armed rebellion’, it is known as Internal Emergency. Originally, the Constitution mentioned ‘internal disturbance’ as the third ground for the proclamation of Emergency. However, since the term ‘internal disturbance’ is subjective and can be applied to wide range of situations as happened during the imposition of National Emergency in 1975, the 44th Constitutional Amendment Act (1978) substituted the word ‘internal disturbance’ with the word ‘armed rebellion’.
    • A proclamation of Emergency, declaring that the security of India or any part of the territory thereof is threatened by war or external aggression or armed rebellion may be made before the actual occurrence of such a war or external aggression or armed 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. The Constitution does not specify if this power of the President to revoke Emergency in force through subsequent proclamation is discretionary or not. Such a proclamation for revocation of Emergency in force, however would not need approval of Houses of the Parliament.
  3. The President shall proclaim Emergency only on the written recommendation from the Union Cabinet consisting of the Prime Minister and Cabinet Ministers of the Union Government. This means that the Emergency can be declared only on the concurrence of the Union Cabinet, and not merely on the advice of the Prime Minister.
  4. Every Proclamation issued under this article shall be laid before each House of Parliament and shall be approved within one month from the date of its issue.
    • If the proclamation of emergency is issued at a time when Lok Sabha stands dissolved, or dissolution of Lok Sabha happens within one month of such proclamation without approving it, the proclamation will stay valid for a period of one month from the date of first sitting of Lok Sabha after its reconstitution. 
  5. If approved by both the Houses of the Parliament, the proclamation of Emergency shall stay valid for a period of six months, and can be extended for an indefinite period, with the approval of the Parliament, every six months. Before the 44th Constitutional Amendment Act (1978), Emergency once approved could stay in operation as long as the Cabinet desired. 
  6. Every resolution approving the proclamation or continuance of Emergency must be passed by either House of Parliament by a simple 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. Before the 44th Constitutional Amendment Act (1978), any resolution approving the proclamation or continuance of Emergency could be passed by either House of Parliament by a simple majority of the total membership of that House.
  7. A proclamation of emergency may be revoked by the President at any time if the Lok Sabha passes a resolution on this behalf by a simple majority. Rajya Sabha has no role in revocation of a national emergency in force.
  8. The Constitutional Amendment Act (1978) also provided that where one-tenth of the members of the Lok Sabha give a written notice to the Speaker (when the Lok Sabha is in session) or to the President (when the Lok Sabha is not in session) for the revocation of the proclamation of Emergency in force, a special sitting of the Lok Sabha 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 President has 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 (1) and such Proclamation is in operation.

 

 

ARTICLE 353

 

EFFECT OF THE PROCLAMATION OF NATIONAL EMERGENCY ON CENTRE- STATE RELATIONS

  1. EXECUTIVE – During a national emergency, the executive power of Centre extends to giving directions to a state on ‘any’ matter. In normal times, the executive power of Centre extends to giving directions to a state on certain specified matters only.
  2. LEGISLATIVE – During a national emergency, the Parliament can make laws regarding any of the matters specified in the state list too. Although the legislative power of the states regarding matters specified in the state list are not suspended, their legislative power becomes subject to the overriding legislative power of the Parliament. It is to be noted that during emergency, even the President can legislate through ordinances over the matters specified in the state list if the Parliament is not in session. Such laws made by the Parliament or the President, over state subjects, become inoperative on the expiration of six months after the national emergency has ceased to operate. 

 

 

ARTICLE 354

 

EFFECT OF THE PROCLAMATION OF NATIONAL EMERGENCY ON DISTRIBUTION OF FINANCIAL RESOURCES BETWEEN CENTRE AND THE STATES

During a national emergency, the President can modify the constitutional distribution of finances between the centre and the states. Such modifications shall continue till the end of the financial year in which such national emergency ceases to operate. Every such order of the President has to be laid before both the Houses of the Parliament.

 

 

ARTICLE 355

 

DUTY OF THE UNION TO PROTECT THE STATES AGAINST EXTERNAL AGGRESSION AS WELL AS INTERNAL DISTURBANCE

It shall be the duty of the Union to protect every state against external aggression and internal disturbance, and to ensure that the government of every state is carried on in accordance with the provisions of this Constitution.

 

 

CONSTITUTIONAL EMERGENCY (ARTICLE 356 – 357)

 

 

ARTICLE 356

 

EMERGENCY IN CASE OF FAILURE OF CONSTITUTIONAL MACHINERY IN THE STATE

  1. The President may proclaim Constitutional Emergency if he, on receipt of a report from the Governor of a state, 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. During such a time of Constitutional Emergency imposed on a state, the President may –
    1. assume to himself, all or any of the executive functions of the Government of the state, and all or any of the powers of the Governor or any body or authority in the state other than those of the Legislature of the state.
    2. declare that the powers of the Legislature of the state shall be exercisable by the Parliament. The President, therefore, either suspends or dissolves the state Assembly. 
      • Provided that nothing in this clause shall authorise the President to assume to himself any of the powers of the High Court of the state, 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 of the President. Such a proclamation does not require any approval from the Parliament.
  3. A proclamation imposing Constitutional Emergency under this article shall be laid before each House of Parliament and must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation imposing Constitutional Emergency is imposed at a time when Lok Sabha stands dissolved or if the Lok Sabha gets dissolved within two months period from the issue of such a proclamation without approving it, then the proclamation stays valid until 30 days from the first sitting of the Lok Sabha, after its reconstitution, provided that Rajya Sabha approves it in the mean time.
  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. It can be extended for a maximum of three years, with Parliamentary approval needed every six months.
  5. The 44th Constitutional Amendment Act (1978) put a restriction on the power of the Parliament to extend the proclamation of Constitutional Emergency in a state beyond one year. Thus, it provided that the Constitutional Emergency can be extended beyond a period of one year only if –
    1. a proclamation of National Emergency under Article 352 is in operation in the whole of India, or in the whole or any part of the state.
    2. the Election Commission certifies that the general elections to the Legislative Assembly of the concerned state cannot be held on account of difficulties.
  6. Every resolution approving the proclamation of Constitutional Emergency needs to be passed by both the Houses of Parliament only by a simple majority of the members present and voting. Thus, the ruling party in Lok Sabha, which has majority in Rajya Sabha too, can use this provision, for political manipulations since such resolutions for imposing Constitutional Emergency in states ruled by some other party, would be easily passed by both the Houses of the Parliament.
  7. In SR BOMMAI case, the Supreme Court has ruled that Constitutional Emergency under Article 356 is subject to Judicial Review. Since, the President takes decision only on the advice of Union Council of Ministers, mala fide intentions of the Union government cannot be ruled out to topple a state government led by a party other than its own. Although the advice rendered to the President by the Union Council of Ministers is not subject to judicial review, the material on the basis of which such advice is rendered to the President is subject to judicial review. If the court finds that the advise rendered is malafide, and not in sync with the information contained in such a material, it may declare such an advice, and hence the Constitutional Emergency, as null and void. The court also ruled that –
    1. before making such a proclamation, the state Government should be given adequate opportunity to represent itself.
    2. neither the President nor the Governor of the state shall take any decision that is irreversible unless the proclamation of Constitutional Emergency is approved by the Parliament. Hence, the legislature of the state must not be dissolved unless the proclamation of Constitutional Emergency is approved by the Parliament.
    3. in cases where the state is grappling (struggling) with law and order situation, the Union Government must provide all resources at its disposal to help the state, before it imposes Constitutional Emergency in the state.
    4. the following cases must not be considered as failure of Constitutional machinery –
      1. Stringent financial crisis in the state.
      2. Rampant corruption in the state.
      3. Poor performance of the ruling party of the state in Lok Sabha elections.
      4. Political crisis within the ruling party.
Point of difference Article 352 Article 356
1. Application In situations of war, external aggression or armed rebellion. In situation of failure of constitutional machinery in a state.
2. Effect No authority to the Centre to suspend the Constitution in a state. The state legislature ceases to function.
3. Effect on Fundamental  Rights affects Fundamental Rights Does not affect Fundamental Rights.
4. Centre-State Relationship the relationship of all the states with the Centre changes. the relationship of only one state, where the action is taken, changes with respect to the Centre.
5. Proclamation Approved by the Parliament within 1 month and thereafter every 6 months and there is no maximum duration prescribed Approved by the Parliament within 2 months and thereafter every 6 months, and the maximum period that it remains in force is 3 years.

 

 

ARTICLE 357

 

EXERCISE OF LEGISLATIVE POWERS DURING CONSTITUTIONAL EMERGENCY ON A STATE

  1. During proclamation of Constitutional Emergency in a state,
    1. It shall be competent for the Parliament to delegate the power to make laws over the state subjects to the President or any other authority specified by him in this regard.
    2. It shall be competent for the Parliament, or the President, or any other authority in whom such power to legislate over state subjects is vested, to make laws conferring powers and imposing duties upon the Union government or its officers.
    3. It shall be competent for the President to authorise expenditure from the Consolidated Fund of the state, when the Parliament is not in session. However such authorisation shall be subject to approval by the Parliament once it reconvenes again for the session.
  2. Any law made by the Parliament, or the President, or any authority in whom such power to legislate over state subjects is vested during proclamation of Constitutional Emergency in a state, shall continue in force until altered or repealed or amended by a competent Legislature or other authority of the state, after the Proclamation has ceased to operate in the state.

 

 

EFFECT OF NATIONAL EMERGENCY ON FUNDAMENTAL RIGHTS  (ARTICLE 358 – 359)

 

Articles 358 and 359 describe the effect of National Emergency on the Fundamental Rights. 

Article 358 Suspension of Fundamental Rights guaranteed by Article 19.
Article 359 Suspension of other Fundamental Rights (except those guaranteed under Article 20 and 21.

 

 

ARTICLE 358

 

SUSPENSION OF PROVISIONS OF ARTICLE 19 DURING EMERGENCIES

  1. When a proclamation of National Emergency is made on grounds of war or external aggression, the Fundamental Rights guaranteed under Article 19 stand automatically suspended. However, the Fundamental Rights guaranteed under Article 19 are not suspended when such Emergency is made on grounds of armed rebellion. 
  2. When the National Emergency ceases to operate, the Fundamental Rights guaranteed under Article 19 automatically get revived and come into force. However, there shall be no remedy for acts committed by the State during such an Emergency, even if such acts abridged the Fundamental Rights guaranteed under Article 19 of the Constitution.

 

 

ARTICLE 359

 

SUSPENSION OF ENFORCEMENT OF FUNDAMENTAL RIGHTS

  1. Where a Proclamation of Emergency is in operation, the President may by order declare suspension of –
    1. the right to move to any court for the enforcement of such rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order. Thus, the President can either suspend the right to move to any court for the enforcement of either all of the rights mentioned in Part III of the Constitution, or a part thereof.
    2. all proceedings pending in any court for the enforcement of the rights so mentioned.
      • Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, is satisfied that the security of India or any part of its territory is threatened by activities in the territory where such Proclamation of Emergency is in operation.
  2. The State may make laws depriving its people of such rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order. However, such laws shall cease to operate as soon the proclamation of emergency ceases to operate. However, there shall be no remedy for acts committed by the State during such an Emergency, even if such acts abridged the Fundamental Rights suspended during this period under Article 359.
  3. Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.

 

DIFFERENCE BETWEEN ARTICLE 358 AND 359

Article 358 Article 359
Freedoms given by Article 19 are suspended automatically under this Article as soon as the emergency is proclaimed under Article 352. Fundamental rights are not suspended automatically it has to be done by a presidential order. Right to move courts is suspended for the period of emergency or until the period specified in the Presidential order.
Article 19 is suspended for the whole period of emergency.  Article 19 may be suspended for a part of the period of emergency. 
Effective all over the country. May be confined to an area.
It operates only in case of emergency on the ground of threat to the security of the country because of war or external aggression. It operates in any emergency proclaimed under Article 352

 

 

FINANCIAL EMERGENCY (ARTICLE 360)

 

 

ARTICLE 360

 

FINANCIAL EMERGENCY

  1. The President may proclaim Financial Emergency if he 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.
  2. A proclamation of Financial Emergency under Article 360 –
    1. may be revoked or varied by a subsequent Proclamation of the President. Such a proclamation does not require any approval from the Parliament.
    2. shall be laid before each House of Parliament and must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation imposing Constitutional Emergency is imposed at a time when Lok Sabha stands dissolved or if the Lok Sabha gets dissolved within two months period from the issue of such a proclamation without approving it, then the proclamation stays valid until 30 days from the first sitting of the Lok Sabha, after its reconstitution, provided that Rajya Sabha approves it in the mean time.
    3. once approved by the Parliament shall remain in operation unless revoked.
  3. During the period when Financial Emergency 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, during the period when Financial Emergency is in operation –
    1. the directions from the Union government may include –
      1. 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.
      2. a provision requiring all Money Bills or Financial Bills of a state (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.
    2. the President may 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.

 

 

PART XIX – EFFECT OF THE FAILURE OF A STATE TO COMPLY WITH DIRECTIONS FROM THE UNION (ARTICLE 365)

 

 

ARTICLE 365

 

EFFECT OF THE FAILURE OF A STATE TO COMPLY WITH DIRECTIONS FROM THE UNION

Where any state has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall 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 this Constitution.

 

 

KEY FACTS

 

  1. During a national emergency, the Parliament by law, extend the life of the Lok Sabha beyond its normal term of five years, by extension of one year a time. However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate. For e.g. the term of the fifth Lok Sabha (1971-1977) was extended two times by one year at a time. Exactly, the same provisions exist for the state Assembly.
  2. The Financial Emergency has so far never been imposed in India.