Emergency Provisions under Constitution of India

The Emergency provisions are enumerated in Part XVIII of the Constitution of India, from Articles 352 to 360. The situation of Emergency arises when the failure of the Constitutional machinery takes place in the state. During Emergency, the Central Government becomes the nucleus of power, and the state governments come under the full control of the Union. The Constitution of India framed federal structure in nature, but according to needs of times and circumstances it can be both unitary as well as federal. In times of Emergency it works as a unitary system- it is considered as the unique feature of the Constitution of India. The rationale behind providing these provisions is to protect the sovereignty, integrity, unity and security of the democratic government system as well as the Constitution.

Under the Constitution of India, Emergency Provisions are of three types :-

1. National Emergency (Article 352):- Takes place due to war, external aggression or armed rebellion (internal disturbance).[1]
2. State Emergency (Article 356):- Takes place when the failure of the Constitutional machinery in the States are anticipated. It is called the ‘President’s Rule’.
3. Financial Emergency (Article 360):- Takes place when there is a threat to the financial security or credit of India.

National Emergency

National Emergency can be announced by the President under Article 352 when the security of India or any part thereof is threatened by a war or external aggression or armed rebellions. If  President is satisfied that there is danger forthcoming, he can state a national emergency even before the happening of war or external aggression or armed rebellion.[2] The announcement of national emergency may be appropriated to the entire country or any part of it. The 42nd Amendment Act of 1976 authorised the President to have the power to restrict the functioning of a national emergency to a particular part of the country.

If the announcement of National emergency is based on the account of malafide or irrelevant facts, then this can be challenged in a court.

 Effects of National Emergency

1. Centre – State Relations:- All the executive and legislative powers are exercised by the centre after the proclamation of emergency takes place.
2. Fundamental Rights:- When national emergency comes into existence, fundamental rights under Article 19 are automatically suspended, and no separate order is required for their suspension.

 National emergencies have been announced in 1962, 1971 and 1975.

State Emergency

It is the duty of the Centre given under Article 355 to ensure that every state government carries on its functioning in accordance with the provision given by the Constitution of India. If the failure of Constitutional machinery takes place in a state, it is the duty of the centre to take over the government of State under Article 356.

The President’s rule can be imposed under Article 356 on the two grounds:-

1. Article 356 :- President is satisfied that a situation has arisen in which the state government is unable to carry in obedience with the Constitution, and either on a report given by the State or even without the given report of the Governor of State.
2. Article 365 :- When states do not act with the command of the Centre, it will be lawful that the President takes the situation in his hand to maintain the stability of the Government.

Significance of President’s Rule

President holds the following extraordinary powers when President’s rule is imposed in a State:-

1. All the functions of state government and powers of governor as well as other executive authorities can be exercised by the President.
2. Powers of the state legislation are performed by the Parliament.
3. He also has the power to suspend the constitution provisions which are associated with an authority or any part in a state.

The President dismisses or suspends the powers of the state legislation headed by the Chief Minister. The declaration of emergency must be approved by both the houses of Parliament within two months from the date of issue. It can be extended for a maximum period of three years, but after six months an approval of both the houses is required. President’s rule may be revoked at any time by the President, and there is no need for approval in Parliament.

In 1950, President’s rule was inflicted in more than 125 instances, which means two times in one year due to political or personal reasons which were arbitrary in nature. It was criticized and became the most controversial provision under the Constitution.

First time, President’s rule was urged in Punjab in 1951.

In ‘Bommai case’, 1994 [3] the Supreme Court upheld the validity of declaration, on the ground that secularism is a basic feature of the Constitution.

Dr. B.R. Ambedkar stated in constituent assembly that the drastic power granted under Article 356 would prevail ‘a dead letter’, and would be used only as a measure of last resort.[4]

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Financial Emergency

The President proclaims a financial emergency under Article 360, if he is satisfied that circumstances have arisen due to the financial security or credit, and any part of the territory is threatened.

The declaration is final and conclusive by the satisfaction of the President, and it is not questionable in any court of law.[5]

Financial emergency is necessary to be approved by both the houses of Parliament within two months from the date of its issue. Once it has been approved by both the houses, it remains in force till it is revoked. No maximum period has been  prescribed for its operation and repeated parliamentary approval is also not required for its continuance.

Significance of Financial Emergency

1. The Executive authority of the centre may direct the state to observe the financial standards which are specified in directions.
2. The reduction in salary and allowances of all the people which are serving in a state.
3.  The financial matters of a state are fully controlled by the centre.
4. All money bills and financial bills would be passed by the President himself.

Although a financial crisis took place in 1991, a Financial emergency has not been declared till now.

Effects on Fundamental Rights during the Proclamation of Emergencies in a Territory

Fundamental rights can be suspended automatically during the declaration of national emergency. Under Article 19, all the six freedoms are suspended, and no separate order is required for their suspension.

Article 20 and Article 21 are not suspended during emergency in any case.

Comparison between National Emergency and President’s Rule

1. National Emergency can be declared only when the security of India is threatened by war, external aggression, and armed rebellion; whereas President’s rule can be proclaimed when the state government is unable to carry in obedience with the provision of the Constitution.
2. During the operation of national emergency, the Constitution gives power to the state executive and legislature to carry on the functioning as exercised by the state. Centre gets concurrent powers of administering and legislation in state; whereas in the President’s rule all the powers of state legislature and executive are dismissed or terminated. The President manages all the functions of state through the Governor of state and Parliament makes the laws for the state. All the powers are vested in the Central government.
3. In national emergency, no definite period is prescribed for its operation. It can be continued until the president revokes it himself but if it takes place for an indefinite period of time, the approval of Parliament in every six months is required; whereas President’s rule can be in operation for a maximum 3 years and when it completes its duration, normal machinery of the Constitution is restored in the state.
4. Every purpose for the operation of Emergency must be passed in parliament by a special majority; whereas every determination for the operation of the president’s rule can be passed by a simple majority.
5. Fundamental rights get affected when the National emergency is in force; whereas in the President’s rule fundamental rights are relatively less affected.
6. National emergency can be revoked only by the resolution in Lok sabha whereas President’s rule can be revoked only by himself.

Criticism of Emergency Provisions

1. The Union becomes more powerful, as the federal structure of the Constitution is destroyed due to emergency, and the state loses its powers.
2. President acts as a dictator during the emergency.
3. State autonomy in the matter of money bill and financial bill is nullified.
4. Fundamental rights are suspended during the proclamation of emergency (except Article 20 and Article 21) which destroys the foundation of the Constitution.

Suggestions

1. It is suggested that the President should make a committee of members as per his concern in which the Prime minister, State Governor, council ministers and other opposition members are there for the consultation of any matter related to Constitutional machinery.
2. Judicial review is for the protection of territory from the emergency provisions and sufficient grounds should be there for imposing the emergency.

Conclusion

In the Constitution of India, the emergency provisions are provided only for the stability and security in the nation. These provisions should not be used arbitrarily for gaining political power, and do not intend to create the disturbance between the centre and state. The purpose for emergency provisions is only to prevent the constitutional machinery. As when any emergency is held, then it affects the federal structure of the Government and converts it into unitary government.

REFERENCES

[1] ‘Armed Rebellion’ inserted by the 44th Amendment Act of 1978, by replacing the ‘original disturbance’.

[2] The Constitution (Thirty Eighth Amendment) Act, 1975.

[3] S.R. Bommai v. Union of India, AIR 1994 SCC (3) 1.

[4] Constituent Assembly Debates, Vol.IX , P 133 & 177.

[5] Supra note 3.

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BY AMREEN ANWAR | GALGOTIAS UNIVERSITY GREATER NOIDA