Emergency Provisions in the Indian Constitution

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This article is authored by Pankhuri Pankaj, a 3rd-year student pursuing BA-LLB (Hons.) from Vivekananda Institute of Professional Studies, affiliated to GGSIPU. She is currently interning with Lexpeeps. This article summarises certain key provisions of “Emergency Provisions” in the Indian Constitution and is qualified in its entirety by reference to the Constitution of India.

INTRODUCTION

In the words of the Black Law’s Dictionary, an emergency can be understood as a ¨situation which requires quick action and immediate notice as such a situation causes a threat to the life and property in the nation¨. According to it, a situation of emergency arises due to the failure of the government machinery which demands immediate action from the authority. 

While carefully laying down the constitution for the country the wise constitution-makers of the country made sure to have the back of the country even during the crisis of an emergency. Even though the country India is well known for its harmonious working as a quasi-federal nation, it assumes an entirely Unitary role under the constitution in case of an emergency.

The provisions for National Emergency have been laid down from Article 352 to 360 in the Constitution of India. These Articles Prescribe the following:

  • Article 352: Proclamation of Emergency or National Emergency.
  • Article 353: Effect of Proclamation of Emergency.
  • Article 354: Application of provisions relating to the distribution of revenues while a proclamation of emergency is in operation
  • Article 355: Duty of the Union to protect States against external aggression and internal disturbance
  • Article 356: Provisions in case of failure of constitutional machinery in State.
  • Article 357: Exercise of legislative powers under Proclamation issued under Article 356.
  • Article 358: Suspension of provisions of article19 during Emergencies.
  • Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies. 
  • Article 360: Provisions as to Financial Emergency.

NATIONAL EMERGENCY 

The provision for declaring National Emergency has been provided under Article 352 of the Constitution of India. It provides that if the president is satisfied that there exists a grave situation, wherein the security of the country is threatened on the grounds of wars, external aggression or armed rebellion, he can proclaim emergency to that effect.

Here, the term ¨War¨ is used to describe a situation where a country declares a formal war against India and a violent struggle using armed forces breaks down, in such a case the President of India can impose the National Emergency.

When the term ¨External Aggression¨ is used, it is used to indicate a situation when a country unilaterally attacks India without any formal declaration of war. If such a situation terrorizes the nation then the President of India can impose National Emergency.

The term ¨Armed Rebellion¨ is used to describe when a group of people rebel against the present government which will lead to the destruction of lives and property. In such a case as well the President can impose a National Emergency.

The term ¨Armed Rebellion¨ was incorporated through the Forty-Fourth Amendment Act, 1978 after substituting the term ¨Internal Disturbance¨.

Under this provision an emergency can be declared over the whole territory of India or any part of it and an emergency can be declared by the President only if written advice is received by the cabinet. 

It is necessary to acquire a special majority, of 2/3rd present and voting members, to approve an emergency resolution. This proclamation has to be approved by both the houses of the parliament within one month from the date of issuance or else the proclamation shall cease to exist. In case the Lok Sabha dissolves without approving the proclamation, then it has to be approved by the lower house within the first thirty days of its reconstitution, and the Rajya Sabha should approve the resolution in the meantime. 

Once this resolution is approved then the emergency can operate for a time period of six months and this time can be further extended for a longer duration subject to approval after every six months. It is important to note that there is no maximum limit till which a National Emergency can be extended. 

During a National Emergency the rights guaranteed under Article of the constitution get suspended under Article 358 and other Fundamental Rights, except Article 20 which deals with protection in respect of conviction from offences and Article 21 which deals with the protection of life and personal liberty, get suspended too under Article 359 of the Constitution.

In case of a National Emergency, the State Governments falls under the direct control of the Central Government and has to work as per the directions of the Central Government. 

The President may suspend the distribution of financial resources between the centre and the states and he assumes power over the objects of the State List but this power ceases to exist on the revocation of the emergency or after the passage of 6 months. 

A National Emergency has been imposed a couple of times in the territory of India, which includes:

  • The emergency was imposed for the first time during the Indo-China war by the then President, Shri. Sarvepalli Radhakrishnan, in October 1962
  • The emergency imposed during the Indo-Pakistan war by the then President of India, Mr. V. V. Giri, from December 3, 1971 to March, 21, 1977. This war lasted for a total of 11 days and was considered the shortest war in the world but at the same time, the third emergency got imposed. 
  • The third emergency imposed by the then Prime Minister, Mrs. Indira Gandhi, with the consent of the President, Mr. Fakhruddin Ali Ahmed, due to clash between the Legislature and Judiciary in the nation. This emergency lasted for 19 months from June 25, 1975 to March 21, 1977.

The power to disapprove a resolution of national emergency has been entrusted with the Lok Sabha and it can, at any time, disapprove the operation if not less than 1/10th members of the Lok Sabha submit in writing to the speaker if the house is in session, or to the president, then a special session of Lok Sabha shall be convened with 14 days and if the resolution is passed then the President will have to revoke the National Emergency implemented.

STATE EMERGENCY

Article 356 of the Constitution of India has laid down the provisions for imposing a State Emergency. It states that the President of India can impose a State Emergency, also known as President´s Rule, and become the executive head of the state if he is satisfied with the report of the Governor of the state which elaborates the failure of the Constitutional machinery of the state. 

In case a State Emergency is imposed, the administrative machinery of the state gets transferred to the Union and the Governor of the state starts working under the name of the President who becomes the executive head of the state. During this period, the State Legislative Assembly may be suspended or dissolved and the Parliament presumes the role to make laws over the 66 subjects dealt with in the State List and every money bill needs to be referred to the President first while all the State Legislative Assembly ministers get barred from performing any functions. 

The imposition of a State Emergency may extend from 6 months to a maximum of 3 years, subject to extension of the period if it gets approved by both the House of Parliament within two 2 months from its date of issuance or it shall cease to exist. In case the Lok Sabha dissolves when the proclamation was issued, then the resolution has to be approved within 30 days from the day the lower house reconstitutes, and the Rajya Sabha must approve the resolution in the meantime.

It is important to note that the functions of the State Judiciary do not get affected by the imposition of a State Emergency and it shall continue to act independently, which shall include entertaining petitions against the Presidential Rule, if any. This particular provision was discovered in depth when in 2016, the Congress Government decided to approach the High Court of Nainital against the State Emergency imposed in the state. In this case, the High Court gave its verdict in the favour of the Congress Government and their government was restored in the state. Afterwards, the judgement was upheld by the Supreme Court of India as well.

In India, State Emergency has been imposed 126 times in total, under different circumstances like:

  • When the prescribed law and order was not being followed in the state.
  • In cases of failure to elect a Chief Minister by the Legislature of the State.
  • When the coalition government in the state collapses.
  • In case of postponement in the state election due to justified reasons

For the longest time, a President’s Rule was imposed in the state of Jammu and Kashmir, which has always been a target for many external elements, for a period of six years and 264 days from January 19, 1990 to October 9, 1996, to control the situation in the state which was facing a military threat from Pakistan.

Another State Emergency to look at is the President’s Rule imposed in Punjab for a time period of 4 years and 259 days to control the situation created due to the Khalistan Commando Forces which were involved in the genocidal attacks on the Hindu.

Some landmark judgements that one should consider while discussing Article 356 are:

  1. The case of State of Rajasthan and Ors. v. Union of India (AIR 1977 SC 1361), where imposing state emergency continuously as an arbitrary act was considered. The court held that the court holds no power to review the proclamations passed under Article 352, and due to this reason imposing State Emergency continuously becomes arbitrary.
  2. In the case of S.R. Bommai v. Union of India (AIR 1994 SC 1918), the Supreme Court held that under Article 356 the President holds restricted powers and they are subjected to judicial review as well. So, the Supreme Court holds the power to declare an emergency void even if it receives the approval of both the Houses of Parliament.

FINANCIAL EMERGENCY

Article 360 provided under Part XIII of the Constitution of India deals with provisions to declare a Financial Emergency in the territory of India. Under this section, it has been stated that, if the President of India is satisfied that a situation of financial instability has come up in the country or any part of the country then he can proclaim a Financial Emergency. 

During a Financial Emergency, the Parliament of India possesses the power to cut the budgets given to the states and reduce the allowances or the salaries of the employees working under the Center or the State Government.

To impose a Financial Emergency it is important that the resolution needs to get the approval of both the Houses of the Parliament or else the emergency imposed shall cease to operate after two months, from the date of issuance. In case within two months the Lok Sabha dissolves, then it is important that the proclamation has to be approved within thirty days from the first day of seating after it reconstitutes, and the Rajya Sabha must approve the resolution in the meantime.

So far Article 360 has never been implemented in India, however, the country had a close call in 1990 but thankfully the situation was brought under control by the Government of India after the New Economic Policies were launched by Dr. Manmohan Singh and in July of 1991 the Reserve Bank of India pledged tonnes of Gold with the Bank of England and the Union Bank of Switzerland to raise $400 Million.

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