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EMERGENCY PROVISIONS[1]
(Part XVIII Art. 352- 360).
QUESTION BANK.
- 1. Discuss the provisions in the Indian Constitution in relation to “the Emergency’.
Q.2. What are the different types of emergencies that may be proclaimed under the Indian Constitution? What is the effect of proclamation of emergency on fundamental rights and fundamental freedoms?
Q.3. What is the proclamation of emergency and its duration of operation? State the effects of emergency on centre-state relations and on fundamental rights.
Q.4. What are the consequences of proclamation of emergency?.
Q.5. Discuss the scope of emergency powers of President. Can emergency be imposed in a part of State?
Q.6. Explain the various types of emergencies envisaged by the Constitution of India and examine the use and abuse of Art. 356 by Centre with reference to decided case law.
Q.7. Write in full the meaning and the scope of Emergency and explain the suspension of
Fundamental Rights under emergency.
SYNOPSIS
- INTRODUTION.
- NATIONAL EMERGENCY (Art. 352).
Effects of national emergency-
- Suspension of fundamental rights (Art. 358 and 359).
- Extension of Center’s Executive Power (Art. 353 (a)).
- Parliament to legislate on the state subjects (Art. 353 (b)).
- Extension of the life of the Lok-Sabha (Art. 83 (2)).
III. STATE EMERGENCY OR EMERGENCY ON FAILURE OF CONSTITUTIONAL MACHINERY (Art. 356).
- a) Conditions for declaration-
- b) Misuse of Art. 356-
- c) Duration of Proclamation (Art. 356 (3)).
- d) Effects of State Emergency.
- i) Executive Powers.
- ii) Legislative Powers.
- FINANCIAL EMERGENCY (Art. 360) –
a)Duration of the emergency.
- b) Effects of Financial emergency.
I. INTRODUCTION:-
A proclamation of emergency is a very serious matter as it disturbs the normal fabric of the federal Constitution and makes it more Unitary. Moreover, it adversely affects individuals’ rights.
Part XVIII of the Constitution, containing Art. 352 to 360, deals with ‘emergency provisions’. The Constitution provides for three types of emergencies as follows.
II. NATIONAL EMERGENCY[2] (Art. 352):-
Art. 352 provides that if the President is satisfied that a grave emergency exists, whereby the security of India or any part of India has been threatened 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 thereof.
Such a proclamation may be made before the actual occurrence of war, external aggression or armed rebellion[3]. The ground ‘armed rebellion’ is inserted by the 44th Amendment, substituting ‘internal disturbance’. Now, mere ‘internal disturbance’ does not allow the President to proclaim an emergency under this article unless there is armed rebellion threatening the security of India or any part of it.
President shall not issue a proclamation of National Emergency or order varying such proclamation or revoking it unless the decision of the Union Cabinet (i.e. the Council consisting of the Prime Minister and other Ministers of the Cabinet rank) has been communicated to him in writing. This means the emergency can not be declared only on the advice of the Prime Minister (as was done by the Prime Minister Mrs Indira Gandhi in June 1975) but on the concurrence[4] of the cabinet. In fact, to avoid the proclamation of emergency only on the advice of the Prime Minister is substituted by the advice of the cabinet.
The proclamation of emergency should be laid before each House of Parliament. If not approved by resolution of both Houses, it shall cease to be in operation after one month. However, if approved, it can continue for the next six months.
Effects of national emergency:-
Following are the consequences of the proclamation of National emergency.
1. Suspension of fundamental rights[5] (Art. 358 and 359):-
The immediate effect of the emergency proclamation is a suspension of Fundamental Rights guaranteed under Art. 19 of the Constitution. President, however, can suspend other fundamental rights except for Art. 20 and 21 (Art. 359).
In Makhan Singh v. the State of Punjab[6].
Facts—Makhan Singh and others were detained under the Defence of India Act of 1962. They applied to the High Court, alleging that they were detained improperly and illegally and that detention under the Defence of India Act violated their fundamental rights under Art. 14, 21, and 22.
Held– High Court dismissed their petition. The court held that the Presidential order issued under Art. 359 created a bar, preventing them from moving to the High Court[7].
2. Extension of Center’s Executive Power[8] (Art. 353 (a)):-
While a proclamation of emergency is in operation, the executive power of the Union extends to the giving of directions to any State as to how its executive powers are to be exercised.
3. Parliament to legislate on state subjects[9] (Art. 353 (b)):-
While the emergency proclamation is in operation, the Parliament is empowered to make laws concerning any matters enumerated in the State List. The state’s law-making power is not suspended during the emergency. The state can make laws, but it is subject to the overriding power of the parliament.
4. Extension of the life of the Lok-Sabha[10] (Art. 83 (2)):-
The Lok-Sabha normally continues for five years. However, the said period be extended by passing a law by the Parliament. However, such a period cannot be extended beyond one year at a time. While the Proclamation has ceased to operate, Lok-Sabha cannot be continued by the law of Parliament beyond six months.
III. STATE EMERGENCY OR EMERGENCY ON FAILURE OF CONSTITUTIONAL MACHINERY[11] (Art. 356):-
a) Conditions for declaration[12]:-
According to Art. 356, the President, upon receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government cannot be carried on (i.e., the Constitutional machinery has failed). He may issue a proclamation for taking over the Government. This emergency, therefore, is also called a Presidential rule[13].
Under Art. 355, it is the duty of the Central Government to see that the Government of every State is carried on in accordance with the provisions of the Constitution. It is this duty in the performance of which the Center takes over the Government of a State under Art. 356 in case of failure of Constitutional machinery in the State.
b) Misuse of Art. 356[14]:-
‘Failure of Constitutional Machinery’ is a subjective term; therefore, it has been misused by the Central Government to achieve political ends by dissolving popular governments of another party. Since the commencement of the Constitution, the President’s rule has been imposed on more than a hundred occasions. In most cases, it has been imposed in the circumstances where a stable ministry could not be formed, e.g. in Punjab in 1951, in Pepsu in 1953, in Andra Pradesh in 1954, in Travancore- Cochin in 1956, etc.4.
Invocation of Presidential rule in situations mentioned above becomes necessary and, at some times, even inevitable. But the use of Art. 356 becomes very controversial[15] It is questionable when the governments in the state with majority support (in the state legislature) are dismissed from office without proper reasons. E.g. In 1959, the President’s rule was imposed in Kerala under peculiar circumstances. The Communist Ministry was dismissed because it had lost the people’s confidence, although it enjoyed the confidence of the Legislature. The Central Government justified the emergency in Kerala on the grounds that there was widespread agitation against the State Government and that the Government had failed to control it. Janta Party’s Central Government dissolved nine assemblies of the Congress Party. In 1980, the Congress Party dissolved[16] another nine State Governments of other parties.
c) Duration of Proclamation[17] (Art. 356 (3)):-
A proclamation issued under Art. 356, shall be laid before each ‘House of the Parliament and shall remain in operation for ‘two months’ unless, before the expiry of that period, it has been approved by both Houses of the Parliament’. Any such Proclamation may be revoked[18] or varied[19] by subsequent Proclamation. The maximum period for which a proclamation can remain in operation is 3 years from the date of its issue under Cl. (1) of Art. 365.
d) Effects of State Emergency[20]:-
i) On Executive Powers[21]:-
During an emergency under Art. 356, the Governor’s executive powers are transferred to the President, who exercises these powers on the advice of the Council of Ministers of the Union.
ii) Legislative Powers[22]:-
When the proclamation of emergency is in existence under Art. 356 (1), Parliament exercises powers of State Legislatures. In such a situation, Parliament can confer the President the power to make laws for the State. In addition, Parliament may authorise the President to delegate such powers to any other authority as specified.
Such a law passed by the Parliament, the President, or other authority shall remain in force until it is altered, repealed, or amended[23] by the competent authority.
In S. R. Bommai v. Union of India [24].
Facts– Bhartiya Janta Party challenged its governments’ dismissal in M.P., Rajasthan and Himachal Pradesh after the Ayodhya incident on Dec. 6, 1992. The reason was that the B.J.P. was alleged to have participated in the demolition of Babri Masjid.
The Supreme Court held that ‘secularism’ is a basic feature of the Constitution, and the President can dismiss any state Government that acts against that ideal. It further held that the State has no place in matters of religion. No political party can simultaneously be a religious party and a political party.
There has been a consistent demand for the abolition of Art. 356, to avoid its misuse for dismissal of popular governments of other parties in the State. But it has so far not been abolished, and I think it is not necessary to abolish Art. 356 because the era[25] started nowadays is of the coalition government (i.e. Government of different parties) in the Centre as well as in the States; therefore, such coalition government[26] lays check on misuse of Art.356 for political purpose[27].
IV. FINANCIAL EMERGENCY[28] (Art. 360):-
Art. 360 provides that if the President is satisfied that a situation has arisen whereby the financial stability or credit[29] of India or part of the territory thereof is threatened, he may be a proclamation[30] to make a declaration to that effect. This emergency has not so far been applied in practice.
a) Duration of emergency:-
The proclamation of financial emergency shall cease to operate at the expiry of two months unless both Houses of Parliament have approved it. Such proclamation may be revoked or varied by the President at any time by a subsequent proclamation. But if the Lok-Sabha is dissolved within two months from the proclamation of emergency, In that case, the emergency 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 the proclamation is passed by the Lok-Sabha.
b) Effects of Financial emergency:-
When such proclamation is in operation, the executive authority of the Union shall extend to give directions to any state-
- To observe such rules of financial propriety as may be specified in the directions and be deemed necessary by the President for maintaining financial stability and the credit of the State.
- To reduce salaries and allowances of all or any class of persons serving in a state, including the Judges of the Supreme Court and the High Courts.
- To reserve all Money or Finance Bills for the consideration of the President after the Legislature of the State passes them.
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[1] आणीबाणी संबंधी तरतूदी
[2] राष्ट्रीय आणीबाणी
[3] युद्ध, आक्रमण, सषस्त्र उठाव
[4] एकमत/सहमत
[5] मुलभूत अधिकारांची तहकूबी
[6] AIR 1964 SC 381.
[7] In Maharashtra State v. Prabhakar (AIR 1966 SC 424).
The Supreme Court Held- that if a person was deprived of his personal liberty not under the Defence of India Act, or any rule made there under but the contravention thereof, his right to move the said courts in that regard would not be suspended.
In Ram Manohar Lohia v. State of Bihar. (AIR 1966 SC 740).
The Supreme Court Held- that the order of detention under the Defence of India Rules illegal on the ground that the order of detention was inconsistent with the conditions laid down in the Defence of India Rules.
Facts- Dr. Ram Manohar Lohia was detained by an order of District Magistrate to whom the power was delegated by the Government under S. 40 (2) of the Defence of India Act, 1962. The order stated that the D. M. was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the “public safety and the maintenance of law and order” it was necessary to detain him. The expression used “for this purpose” under the Defence of India Rules was “public safety and maintenance of public order”.
- M. Pathak vs. Union of India (AIR 1978 SC 803)
Facts: There was a settlement between the Employees of LIC and LIC of India in 1971 regarding the payment of Bonus. In 1977 the emergency was proclaimed. During the period of that Emergency, the Central Government had passed an Act “The LIC Modification of Settlement) Act, 1978 with an intention to in affect the settlement. The employees of LIC contended that the Centre had no right to pass such an Act suppressing their right to receive bonus, which was one of their Fundamental Right. The Central Government contended that it was authorised to pass such Act under Emergency Provisions.
Held- The Supreme Court opined that the Articles 14 and 19 shall not be suspended during emergency, but only their operation would be suspended during emergency. As soon as the Emergency lifted out, Articles 14 and 19 come into life, and would strike down any legislation, which would have been invalid. The declaration of validity was stayed during the emergency. It did not mean that the settlement was washed away. As soon as the emergency is lifted, the settlement would revive.
A.D.M. Jabalpur vs. Shukla (AIR 1976 SC 1207)
Facts: The Respondant was detained under Section 3 of MISA in Emergency period. Some Habeas Corpus petitions were filed under Art. 226 and 32. High Court opined that the High Court had authority whether the order was mala fide or bona fide. The State appealed.
Held- The Supreme Court by a majority 4:1 opined that no person had any locus standi (legal status) during the period of emergency.
[8] केंद्र सरकारच्या कार्यकारी/प्रषासकीय अधिकाराचा विस्तार
[9] राज्य सूचीतील विशयावर कायदा करण्याचा संसदेचा अधिकार
[10] लोकसभेच्या कार्यकालात वाढ
[11] राष्ट्रपती राजवट किंवा घटनात्मक यंत्रणेच्या अपयषाबद्दल आणीबाणी
[12] आवश्यक अटी
[13] In State of Rajasthan v. Union of India. (AIR 1977 SC 1361).
Supreme Court Held- that the ‘satisfaction’ of President under Art. 356 could not be questioned. The President doesnot act only on the report of the Governor but on otherwise. This means that the satisfaction can be based on material other than Governor’s report.
[14] क्लम 356 चा गैरवापर
4 In 1961 in Orissa, in 1964 in Kerala. in 1967 in Rajasthan, in 1968 in Uttar Pradesh, West Bengal, Bihar and Punjab, in 1966 in Bihar, in West Bengal for the Second time, in 1970 on the resignation of Sri Ajay Mukherjee, Chief Minister of the United Front Ministry, in U. P. second time in 1970 when the Chief Minister Mr. Charan Singh refused to resign when he had lost the majority, he had advised the Governor to dismiss 14 Ministers of his Cabinet in the BKD Congress Coalition Ministry. In Oiissa Second time in 1971, when the Chief Minister resigned and his advice for dissolution of Assembly was not accepted by the Governor, in Mysore in 1971, in Gujarat in 1971, in Punjab fourth time in 1971, in Tripura in 1971, in Bihar in 1971. in Andhra Pradesh in 1973, in Orissa for die third time on March 3, 1973 when the Chief Minister Nandini Satpathi had to resign due to defection, in 1973 it was imposed in Manipur owing to defection. In 1973 President rule was imposed in U. P. when the Chief Minister Mr. Karnia Pati Tripathi had to resign due to the moral responsibility to the Ministry of the Pojice revolt. In 1974, the President rule was imposed in Gujarat due to student’s agitation demanding dissolution of Assembly. In 1975 it was imposed in Uttar Pradesh to solve party disputes, in 1976 it was imposed in Tarnil Nadu on the ground that according to the Governor’s report, the Tamil Nadu Government had disregarded the direction of the Central Government in relation to the emergency and misused the emergency powers. The report also said that D. M. K. Ministry had by a series of acts of mal-administration. Corruption and misuse of power for achieving partisan ends set at naught all canons of justice and equity which are hallmark of democratic administration. The action of the Centre could not be called as democratic because the ministry enjoyed the full confidence of the Legislature as well as the confidence of the people. In 1981, President Rule was imposed in Manipur following the resignation of the Congress-i Ministry as a result of defection. On October 22, 1981, the President rule was imposed in Kerala following resignation of the left front ministry headed by Mr. Nayanar because it was reduced to minority due to the withdrawal of the support by one of its constituents, On March 20, 1982 the President rule was imposed in Assam following the resignation of the 65 days old ministry of Congress-I led by Mr, K. C. Gogai as a result of defection. On March 15, 1982 this Article was invoked in Kerala when the Congress-I led ODE. Ministry to Mr. Karuna Karan was reduced to minority due to defection. In June, 1983, the President rule was imposed in the Union Territory of Pondicherry following resignation of Congress-I Ministers in D. M. K. led Coalition Government.
In 1967 in Haryana, and in 1973 in Nagaland the President rule was imposed due to defections in 1966in Punjab and Haiyana and in Goa.
In 1976, Gujarat and Orissa. In 1976, in Orissa like Uttar Pradesh, this Article was invoked, to solve party disputes.
[15] वादग्रस्त
[16] बरखास्त करणे
[17] आणीबाणीचा कालावधी
[18] रद्द करणे
[19] बदल करणे
[20] राष्ट्रपती राजवटीचे परिणाम
[21] कार्यकारी अधिकार
[22] कायदेविशयक अधिकार
[23] बदल, रद्द व दुरुस्ती
[24] AIR 1990 Kant. 5.
[25] कालखंड
[26] आघाडी सरकार
[27] Attempt to invoke President rule in Bihar is revoked by Parliament.
President’s Rule was imposed in Bihar and Rabri Devi Government was dismissed after the two successive massacres of Dalits by the members of Ranvir Sana. The Governor S.S. Bhandari on September 1998 recommended for the imposition of the President’s Rule in the State on the ground that there was a complete breakdown of law and order in the State. The Cabinet recommended dismissal of the Rabri Devi Government and imposition of President’s Rule under Art. 356. The President disagreed with the recommendation and returned it to the Cabinet for reconsideration. But the same was again sent to him, this time the President has to sign the proclamation as the Constitution obliged him to give his assent if the Cabinet sends it back after reconsideration. The President’s Rule was approved by the Lok Sabha. However, the BJP lead coalition Government was in minority in the Rajya Sabba and the Congress Party which enjoyed majority in the Rajya Sabba has decided to oppose it. As a result the Government did not go to the Rajya Sabba and revoked the President Rule in Bihar on March 12. 1999.
[28] आर्थिक आणीबाणी
[29] आर्थिक स्थैर्य व पत
[30] घोषणा