The versatility of conventional peace-time federalism adapted to an emergency scenario is a remarkable aspect of the Indian Constitution. In the view of farmers of the Constitution, in an emergency, the Centre should have overriding powers to control and direct all aspects of administration and legislation throughout the country. Proclamation of an emergency is a significant issue as it interrupts the ordinary constitutional structure and adversely impacts people’s rights. Therefore, a proclamation should only be made in extraordinary circumstances, not just to maintain an exceptionally unpopular administration as happened in June 1975, when an emergency was declared on the ground of internal disturbance without there being adequate justification for the same.
The emergency provisions in Arts. 352 and 356 have been extensively amended by the Constitution (Forty-fourth Amendment) Act, to introduce several safeguards against abuse of power by the executive in the name of emergency. Amendments have thus been made by the Forty-fourth Amendment to the emergency provisions of the Constitution to make repetition of the 1975 situation extremely difficult, if not impossible.
Meaning of Emergency
In India, a state of emergency is a period of administration that can be declared by the President of India in severe crises. The President, with the advice of the cabinet of ministers, has the authority to override many provisions of the Indian Constitution that safeguard citizens’ Fundamental Rights. These provisions enable the Central Government to efficiently respond to any unexpected event. The rationale for incorporation is to protect the country’s sovereignty, unity, integrity, and security, as well as the democratic political system and the Constitution.
Definition of Emergency
According to the Black Law’s Dictionary, “Emergency is a situation which requires quick action and immediate notice, as such a situation causes a threat to the life and property in the nation. It is a failure of the social system to deliver reasonable conditions of life.”
Types of Emergency
Part XVIII of the Indian Constitution, from Articles 352 to 360, contains the emergency provisions. The Constitution provides for three sorts of emergencies. The President of India has the authority to impose all three kinds of Emergencies. The notion of an emergency was derived from Germany’s Weimar Constitution. The three categories are as follows:
- National Emergency
- President’s Rule
- Financial Emergency
1. National Emergency
A national emergency can be declared based on war, external aggression, or armed rebellion. When a national emergency is proclaimed based on ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is proclaimed on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’.
Article 352 of the Indian Constitution deals with ‘Proclamation of Emergency’ or ‘National Emergency’, under which the president can declare a national emergency when the security of India or a part of it is threatened by war or external aggression, or armed rebellion.
In Article 352(1) the President may issue a declaration by proclamation if he is “satisfied” that there is a serious emergency when the security of India or any portion of it is under threat, either by war or external aggression, or armed rebellion. Such an announcement may be issued on the entire or portion of the Indian territory as indicated in the proclamation.
A proclamation issued under Art. 352(1) may be varied or revoked by a subsequent proclamation [Art. 352(2)].
The 44th Amendment has introduced a clause, viz., Art. 352(3), to the effect, that the President shall not issue a proclamation of emergency [under Art. 352(1)], or a proclamation varying the same unless the Union Cabinet’s decision that such proclamation may be issued has been communicated to him in writing.
Every proclamation issued under Art. 352(1) is to be laid before each House of Parliament [Art. 352(4)]. It ceases to operate (except when it is a proclamation revoking the previous proclamation) at the expiration of one month unless, in the meantime, it has been approved by resolutions of both Houses of Parliament [Art. 352(4)].
Another significant safeguard introduced by the 44th Amendment is to lay down that a resolution approving the proclamation of emergency has to be passed by each House by a majority of the total membership of each House and not less than two-thirds of the majority of the members present and voting in each House [Art. 352(6)].
Art. 352(5) indicates that the proclamation authorized in the second resolution will be effective for six months and will cease to operate after that period unless it is revoked.
The Supreme Court decided in the Minerva Mills case (1980) that a declaration of national emergency might be challenged in court on the grounds of malafide or that the declaration was based on entirely extraneous and irrelevant evidence.
The national emergency of 1975 demonstrates the judiciary’s weaker or darker phase. Cases such as Indira Gandhi v. Raj Narain and A.D.M Jabalpur v. Shiv Kant Shukla demonstrate a flaw in the legal system. Both cases fail to acknowledge people’ Fundamental Rights in times of emergency. There was a need to modify the mechanism, which was accomplished in the case of Kesavananda Bharati v. State of Kerala.
2. President’s Rule
Article 356 addresses State Emergency or President’s Rule in the State. According to it, when a state fails to comply with or carry out any order from the center, the President has the authority to declare that a situation has developed in which the state’s government cannot be carried out following the provisions of the constitution.
The proclamation of President’s Rule must be approved by both houses of parliament within two months of issuance. The President’s Rule will be in effect for six months at first. It may thereafter be extended for three years with parliamentary approval, every six months.
In the S.R. Bommai case, a nine-member bench of the supreme court interpreted the extent of Article 356, which also provides for the installation of President’s Rule in the States under strict conditions.
These included determining if objective conditions exist that make it impossible to carry out governance in the state where the proclamation was issued, and the procedure must be authorized by both Houses of Parliament before court review is considered.
2. Financial Emergency
Article 360 deals with “Provisions as to Financial Emergency.” The president may declare a financial emergency if he believes that a situation has emerged that jeopardizes India’s financial stability or credit, or any portion of its territory.
If the proclamation of Financial Emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. Once approved by both houses of Parliament, the Financial Emergency remains in effect permanently until it is repealed.
The provisions for financial emergencies are laid down in Article 360. If the President is satisfied that a situation has developed that threatens India’s financial stability or credit, or any portion of it, he may proclaim that effect [Art. 360(1)]. When such a proclamation is in effect, the Centre may provide instructions to any State to follow such canons of financial property as may be stated in the directions. It may also issue such further directives as the President deems necessary and appropriate for the purpose [Art. 360(3)]. Any such directives may provide for a decrease in the salaries and allowances of all or any class of persons serving in the State [Art. 360(4)(a)(i)].
The Center may ask that any money bills or financial bills involving expenditures from the State Consolidated Fund be deferred for review by the President after being enacted by the State Legislature [Art. 360(4)(a)(ii)].
The President may also make directives to reduce the salaries and allowances of Union employees, including Supreme Court and High Court judges [Art. 360(4)(b)].
A proclamation issued according to Art. 360(1) may be revoked or amended by a succeeding proclamation [Art. 360(2)(a)], and it must be laid before each House of Parliament [Art. 360(2)(b)]. The proclamation expires after two months unless it is approved by resolutions of both Houses of Parliament [Art. 360(2)(e)].
The fundamental rights of persons provided judicially by the constitution of India may be infringed during the time of the emergency to exercise the power. The legitimacy of the measures must be examined to prevent policy advantages and to allow political interest to take place. Despite the abuse of emergency powers, the situation in India still plays an essential role, although in the country it is still contentious.
- Black Law’s Dictionary
- Minera Mills v. Union of India, AIR 1980 SC 1789
- S. R. Bommai v. Union of India, AIR 1994 SC 1918
- Indira Nehru Gandhi vs. Shri Raj Narain & Anr., AIR 1975 SC 2299
- A.D.M Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
This article has been written by Banya Mahapatra from Madhusudan Law University, Cuttack, Odisha.