The Emergency Provisions in India

Chapter 1 Introduction- An Analysis of the Emergency Provisions in the India. It is the President who can proclaim an emergency when he receives in writing a decision of the Union Cabinet to that effect. Ours being a parliamentary system, the President could proclaim emergency only when advised by the Council of Ministers through the Prime Minister. This provision was said to have been misused by the Prime Minister, in 1975 when the President was advised to make a proclamation of emergency on the ground of disturbance. In order to minimize the chances of abuse of power to declare emergency and to ensure that a proclamation of emergency is issued only after due consideration, Article 352 was amended by the Constitution (44th Amendment) Act 1978. After the 44th Amendment, it is provided that the President can make a proclamation declaring emergency only when he receives in writing the decision of the Union to this effect. Grounds for Proclamation of an emergency. A proclamation to emergency maybe made on the ground of war, external aggression or internal disturbance.

The expression “internal disturbance” is too vague and wide. It may cover a minor disturbance of law and order or even a political agitation. With the view to exclude the possibility of an emergency being proclaimed on the ground of internal disturbance of any nature, minor or grave, the 44th Amendment has substituted the expression “internal disturbance” by the expression armed rebellion. Thus, after the 44th Amendment, a proclamation of emergency maybe issued on any of the following grounds: (a) war (b) external aggression or (c) armed rebellion. However actual occurrence of war, external aggression or armed rebellion is not a condition precedent. Such a proclamation maybe made by the President even before the actual occurrence of the above events, when the President is satisfied that there is current danger of war, external aggression or armed rebellion.[i] War: The term war may mean the existence of violent struggle between two countries through the application of armed forces. When there is a formal declaration of an attacker from one country against another there exists “war” between the two countries and the winning country dictates according to its whim. External Aggression: The expression external aggression has many definitions such as unilateral attacks with force by any one state against another state without formal declaration of war.

Such unilateral acts of force so long as they are not answered by similar hostile acts by the other side, constitute external aggression. Publication of a Proclamation: Article 352 does not prescribe any particular mode in which a proclamation should be published in order to come into operation. According to Article 352(1) the President may make a proclamation of emergency only when he is satisfied as the existence of a threat to the security of India, or a part thereof.

Thus, the question whether security of India is threatened or not lies on the subjective satisfaction of the President acting on the advice of the Cabinet. The question has arisen from time to time whether the satisfaction of the President is justifiable or not. In Bhutnath v State of West Bengal[ii] the Supreme Court refusing to hold the continuance of the emergency under Article 352 is ‘void’. To put the matter beyond the shadow of any doubt, the Constitution (38th Amendment) Act, 1975 amended the Constitution by adding Clause 1 to Article 352 which declared that the “satisfaction” of the President mentioned in Article 352 shall be final conclusive and cannot be challenged in any court on any grounds. Also, it was stated that the Supreme Court will not be entertaining any question on any ground when an Emergency is declared in the state as stated in Clause (1) or the continued operation of such proclamation. The satisfaction of the President in declaring the emergency under Article 352 were thus sought to be placed beyond the ken of judicial scrutiny.[iii] In Bhut Nath[iv] that was the view taken by the Supreme Court when it was said that the proclamation of emergency was not a justiciable issue but was a political matter in substance.

The amendment sought to put this judicial view in the form of a constitutional provision list the Courts might change its opinion at some future date. Now the 44th Amendment of the Constitution has repealed Article 352(5). The position has this restored to what it was before the 38th Amendment Act. It is therefore for the Supreme Court to decide whether it will treat the satisfaction for the President to issue a proclamation of emergency or to vary it or to conceive it as final and non judiciable or as being subject to judicial review on some grounds. Since the passage of the 44th Amendment Act of the Constitution, the question of judicial review of the President to declare or not to declare an emergency has not arisen as no emergency has been declared after 1975. In Minerva Mills[v], however Bhagwati, J., did express the view that whether the President in proclaiming the emergency under Article 352 has applied his mind, or acted outside his powers or acted malafide in proclaiming the emergency could not b excluded from the scope of judicial review. Bhagwati, J., also observed that the 38th Amendment which barred from being called into question in a court could be declared unconstitutional as being violative of the basic structure of the Constitution. Further after the Supreme Court decision in Bommai[vi] by Bhagwati, J., in Minerva Mills. [vii]held that the Constitution seeks to control the exercise of the power of proclamation of an emergency in two ways: (a) The President must act on the advice of the Central Cabinet and not in his own subjective satisfaction and not on the advice of the Prime Minister alone. Thus the effective way to declare an emergency lies in the Cabinet. (b) the democratic control over the executive power in respect of proclaiming an emergency has been strengthened in so far as parliamentary approval is necessary for the proclamation immediately after it is made and then after every 6 months.[viii] But the safeguards may prove tenuous in practice because the government enjoys the support of the majority party and the Cabinet functions on the principle of Collective responsibility. A strong willed Prime Minister may dominate his cabinet as well as the party and thus mobilize support for the emergency even though in effect there may be no need for the same. It appears essential that a limited judicial review of the exercise of the power to proclaim emergency remains available.

This extra parliamentary check is extremely important for safeguarding democracy in the country.[ix] When a Proclamation of emergency under Article 352(1) is declared the following drastic consequences follow: (a) there is a transformation in the behavior of the Indian federalism. The normal fabric of the Centre-State relations undergoes a fundamental change. Parliament makes laws with respect to any matter in the state list and such a law operates till six months after the proclamation ceases to operate [Article 250]. It thus means that the normal peace time distribution of legislative powers is practically suspended so far as Parliament is concerned. The State legislatures continue to function as usual and may make any law in their assigned areas viz the List II and III but Parliament becomes empowered to legislate even in the exclusive state sphere as a result of the Proclamation of emergency. Parliament can meet the emergency by any passing any law that it may regard necessary without being trammeled by the scheme of distribution of powers.[Article 250(1)] and a Central law would override a State law even with respect to a matter in the State List [Article 251]. Article 359 states during emergencies, the enforcement of the rights under Article 20 and 21 cannot be suspended. The life of a law enacted by Parliament during the proclamation of emergency ceases to operate on the expiry of six months and the normal scheme of distribution legislative powers is fully restored. [x] (b) Further the Centre becomes entitled to give directions to a state as to the manner in which it is to exercise its executive power [Article 353(a)]. Since Parliament can make a law even in the exclusive state field it means that the Centre can give directions even in the area normally allotted to the State.

Parliament may confer powers and impose duties upon the Centre or its officers and authorities even though the law pertains to a matter not in the Union List [Article 353(b)]. a) When an emergency is declared not in the whole of India but only in a part of India, the executive power of the Centre to give directions and the power of the Parliament to make laws as mentioned above, extent not only to the State in which the territory under emergency lies, but also to any other state if and so far as the security or any part of the territory thereof is threatened by activities or in relation to the part of the territory of India in which the proclamation of Emergency is in operation[Proviso to Article 352]. This provision means that in such a case, directions may be issued by the Center to the States which are not included in the Proclamation of Emergency. This provision has been inserted in the Constitution in order to make emergency effective in the area where it has been imposed by restricting undesirable activities in the adjoining areas. Miscreants could not be allowed to take advantage of the fact that the Proclamation does not relate to a particular spot where such activities are for the time being, being carried on. b) While the Proclamation of emergency is in operation, the President may direct that any provision (Articles 268 to 279) relating to the distribution of revenue between the Centre and the states, subject to any changes which he thinks fit. This provision frees the Centre from its obligations to transfer revenue to the States so that its own financial capacity remains unimpaired to deal with the emergency. An order suspending distribution of revenue is to be laid in the two Houses of Parliament and it would remain in force beyond the end of the financial year whereby the proclamation of emergency comes to an end. c) During an emergency, Parliament can also levy any tax which ordinarily falls in the State list [Article 250]. Thus, although the State Governments continues to operate the Central Government becomes omnipotent and the normal distribution of legislatives, executive and taxing powers and the scheme of distribution of revenue between the Centre and the States are all undone so far as the Centre is concerned. The reason is that during an emergency the Centre’s financial need becomes greater than its peace time commitments and therefore the normal financial arrangements between the Centre and the States cannot continue to function. d) As has already been pointed out, during the proclamation of an emergency the life of the Lok Sabha comes to an end, this provision enables the same to be extended for the period of emergency. e) Parliament may by law extend the life of State legislature by one year each while an emergency persist in a state , subject to a maximum period of six months after the emergency ceases to operate [Proviso to Article 172]. f)The proclamation of an emergency also effects the Fundamental Rights. Article 358 states that during an Emergency of the six freedoms guaranteed to the citizens of India by Article 19 of the Constitution would be suspended and the State can make any law or to take any executive action abridging or taking away the rights guaranteed by Article 19 of the Constitution. The first imposition of the President’s rule under Article 356 came in June 1951 when the Punjab Government was superseded despite its enjoying majority support in the Assembly.

The real motivation was said to have been the need to resolve internal Congress Party differences. Again, in July, 1959 the Communist Government in Kerala faced the axe even though it had the full confidence of the State Assembly.

The step was necessitated to protect the democratic principles of the Constitution which were believed to be violated by the Communist Government.[xi] In 1967, without losing the confidence of the Assembly, the then Haryana Government was dismissed and President’s rule imposed. Large scale defections, instability of government, political corruption etc were mentioned as the grounds. The most bizarre use of Article 356 was when on a single day, on 30 April, 1977 following results of general election to Lok Sabha, as many as nine State Governments ruled by the congress were taken over by the Jananta Government in New Delhi. Similarly, following the results of mid-term elections to Lok Sabha in January, 1980, proclamations under Article 356 were again issued on 17 February in respect of nine Non-Congress ruled States.

Following the demolition of Babri Masjid on 6 December, 1992, President’s rule was imposed on four BJP ruled States. In Bommai [xii], the Supreme Court held the exercise of power under Article 356 was subject to judicial review, if the Court found the imposition of President’s rule unconstitutional, it could order restoration of the dismissed State Ministry and revival of the dissolved Assembly. However, in the case of Karnataka and some other States where fresh elections had taken place and new governments formed, the Court did not order restoration of the old Assembly and Government, even though the proclamation was found to be unconstitutional. In the case of BJP states, proclamation was held to be unconstitutional on the ground that secularism was a basic feature of the Constitution and any government that acts against principal of secularism violates the Constitution and Article 356 can be invoked against it. In 1999, President’s rule was imposed in Bihar under Article 356 on the grounds of serious failure of law and order. The BJP led Union government could get the proclamation approved by the Lok Sabha but failed in the Congress majority Rajya Sabha. The proclamation had to be revoked and Bihar government restored.[xiii] In the years 1997 and 1998, the Union Government headed by Gujral and Vajpayee respectively, advised the President to take over the administration of U.P. and Bihar on grounds like corruption, bad government, failure of law and order, spread of violence, defections and crime even though both the State Governments enjoyed the confidence of the their respective houses. The Union Cabinet reiterated its advice and the President accepted it. President’s rule under Article 356 was proclaimed in U.P. on 9 March, 2002 on the ground that the public verdict in the general election was fragmented and no party was able to satisfy the governor of a stable majority. The most recent controversies were the developments in the three States of Goa, Jharkhand and Bihar, 2005. The Supreme Court had declared the unconstitutionality of the dissolution of the Bihar Assembly while simultaneously allowing the election process for a new Assembly to continue.[xiv] Also on 28 February, 2014 an Emergency was declared in Andhra Pradesh, when the Indian Parliament passed the Andhra Pradesh Reorganisation Bill, which was meant to carve out a separate Telangana state. Also on 14 February, 2014 in Delhi President’s Rule was imposed when Arvind Kejiriwal resigned as Chief Minister after failing to table the Jan Lokpal Bill in the Delhi Assembly. Article 355 imposes a twofold duty on the Centre 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 the Constitution. Article 360 states that when the President is satisfied that situation has arisen whereby the financial stability or credit of India or part of the territory thereof is threatened, he may make a declaration to that effect.

The 44th Amendment makes Article 360 self contained. Such a Proclamation can be revoked or varied by the President by a subsequent Proclamation. But if the Lok Sabha is dissolved during that period of two months and resolution is approved by the Rajya Sabha, but not approved by the Lok Sabha the Proclamation shall cease to operate at the expiry of the thirty days a resolution approved by the Lok Sabha is passed by the Lok Sabha.[xv] During the period when such a proclamation is in operation, the executive power of the Central government shall extend to giving directions to any State specified in the direction and deemed necessary by the President for maintaining financial stability and the credit of the state. Such direction may include reduction of salaries and allowances including the judges of the Supreme Court and High Courts.

The period of financial emergency will be in operation for two months and unless approved by President, it shall end at the expiry of the two months period. The Constitution of India is unique in respect that it contains a complete scheme for speedy readjustment of the peace time governmental machinery in movements of natural peril. The provisions may appear to be particularly in a Constitution which professes to be built upon an edifice of fundamental rights and democracy. But the provisions must be must be studied in the light of India’s past history. India had her past glorious days whenever the Central power grew weak. It is far well that the Constitution guards against the forces of disintegration. Events may take place threatening the very existence of the State and if there are no safeguards against such eventualities, the State together with all that is desired to remain basic and innumerable will be swept away. ENDNOTES

[i] Professor Narendra Kumar, Eight Edition, 2011, Constitutional a Law of India, Pages 972-973. [ii] Bhutnath v State of West Bengal, 1974 AIR 806, 1974 SCR (3) 315. [iii] Professor Narendra Kumar, Eight Edition, 2011, Constitutional a Law of India, Pages 975. [iv] Minerva Mills v Union of India & Ors, 1980 AIR 1789, 1981 SCR(1)226. [v] S.R.Bommai v Union of India, 1994 AIR 1918. [vi] S.R.Bommai v Union of India, 1994 AIR 1918. [vii]Minerva Mills v Union of India & Ors, 1980 AIR 1789, 1981 SCR(1)226. [viii] T.K.Tope , Constitutional Law of India, Third Edition, p. 1028. [ix] T.K.Tope , Constitutional Law of India, Third Edition, p. 1029. [x] T.K.Tope , Constitutional Law of India, Third Edition, p. 1029. [xi] S.R.Bommai v Union of India, 1994 AIR 1918. [xii] S.R.Bommai v Union of India, 1994 AIR 1918. [xiii] Dr.Subhash C. Kashyap, Constitutional Law of India, Article 226A-End, Evaluation, Review and Reforms. Volume 2, p.2228. [xiv] Dr.Subhash C. Kashyap, Constitutional Law of India, Article 226A-End, Evaluation, Review and Reforms. Volume 2, p.2229. [xv] Dr.J.N.Pandey, The Constitutional Law of India, 49th Edition, 2012, p775-778.

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