One of the most important and the chief characteristics of the Indian constitution relates to the enormous emergency powers vested in the Union Executive. Since a Federal government involves division of power, it is generally considered to be a weak government. In order to overcome pitfalls of contingency situation the constitution concentrates the emergency powers in the Centre. It empowers the President to promulgate three kinds of emergencies;

(1)        Emergency caused by threat to the security of India by war or external aggression or armed rebellion (Art. 352).

(2)        Emergency caused by the failure of constitutional machinery in a State (Art. 356); and

(3)        Financial Emergency (Art.360).

The expression, “Proclamation of Emergency” as used in the Constitution refers to emergency of the first kind or National Emergency under Art. 352. The second kind of emergency under Art. 356 is popularly known as the “ President’s Rule”. The third kind of emergency proclaimed under Art. 360 is called “Financial Emergency”.

National Emergency

If the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened whether by war or external aggression or armed rebellion, he may proclaim a state of emergency for the whole of India or a part there of. A Proclamation of Emergency can be made by the President even before the actual occurrence of war or External aggression or armed rebellion, if he is satisfied that there is an imminent danger. Such a Proclamation of Emergency can be varied or revoked by the President subsequently. The President can issue a Proclamation of Emergency or vary is, only when the decision of the Union Cabinet is conveyed to him in writing. The Proclamation of Emergency made by the President under Art. 352 is subject to the judicial review and its constitutionality can be questioned in a court of law on grounds of malafide.

Every Proclamation made under Art.352 excepting a proclamation revoking the previous Proclamation should be laid before both the Houses of the Parliament and must be approved by them within one month after the Proclamation is made, by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. If the Parliament in operation on the expiry of one month after the Proclamation is make. If the Parliament approves such a Proclamation is made. If the Parliament approves such a Proclamation, then it will be in force, unless revoked earlier, for six months from the date on which it was approved by the Parliament. It can be approved by the Parliament any number of times, but not beyond six months at a time. However, if the Lok Sabha disapproves a Proclamation of emergency or its continuance, the President shall revoke the proclamation of Emergency. If not less than one-tenth of the members of the Lok Sabha issue a notice with the intention of disapproving a Proclamation of Emergency, to the President, if the Lok Sabha is not session or to the Speaker if the Lok Sabha is in a session, a special sitting of the Lok Sabha shall be held within fourteen days for the purpose of considering such resolution.

The constitutional (44th Amendment Act) 1978 has introduced a number of safeguards in Art. 352. These are:

(1)    Prior to the 44th Amendment Act 1978, a proclamation of Emergency can be issued on the grounds of war or external aggression or internal disturbances. The expression  “Internal disturbances” is a vague one, and could be misused by the Executive. The Act, therefore, has introduced the expression” armed rebellion” in place of “internal disturbances”.

(2)    Earlier to the Act, the President could proclaim and emergency on the oral advice tendered by the Prime Minister, as it happened in 1975. Now the approval of the whole Cabinet is essential and it must be communicated to the President in writing.

(3)    Before the Act became effective in 1978, a Proclamation issued by the President must be approved by the Parliament within two months after the Proclamation is made. Now it must be approved within in a month. Once approved, earlier, it could remain in force for an indefinite period. But after the Act, it can be in force for six month only. The approval was to be on the basis of simple majority, but at present it needs a special majority.

(4)    There was no Parliamentary control, once a Proclamation of Emergency was approved by it. But now a special sitting of the Lok Sabha can be held for the purpose of considering disapproval.

(5)    Under Art. 358, before the 44th Amendment Act came into force, the Fundamental Rights enumerated under Art. 19 were automatically suspended, whether the national emergency proclaimed was on the basis of war or external aggression or internal disturbances. But after the Act, under Art. 358, Art. 19 is automatically suspended only when an emergency is declared on the basis of war or external aggression and not on the basis of armed rebellion. This means that art. 19 cannot be suspended during an emergency if it is proclamation the basis of armed rebellion.

(6)    After the 44th Amendment Act., during an emergency, Art. 20 and 21 cannot be suspended. Prior to the Act. Any or all the Fundamental Rights can be suspended when an emergency was in force.

Effects of proclamation of emergency

The effect of a Proclamation of Emergency is the emergency of a full-fledged unitary Government. Its effect can be studied under the following heads; (1) Executive; (2) Legislative; (3) Financial, and (4) an Fundamental rights.

Executive

While a Proclamation of Emergency is in operation, the President is empowered to issue directions to the States as to the manner to which their executive power is to be exercised. In normal times, the President has the power to give directions to States only on certain matters like maintenance of communication, protection of railways etc. But during the operation of emergency he can issue directions to States on all matters. The administration, therefore, will be converted into a unitary system.

Legislative

While a Proclamation of Emergency is in operation, the Parliament can enact laws even on subjects enumerated under the State List. The Legislatures of the State are not suspended, but the distribution of legislative powers between the Union and the States in suspended for the duration of the emergency. The Parliament is also empowered to extend, by law, the life of the Lok Sabha beyond the five year term for a period not exceeding six months after the Proclamation of Emergency has ceased to be in operation. The life of the State Legislative Assembled can also be extended by law by the Parliament in a similar manner.

Financial

The President may, when a Proclamation of Emergency is in operation, modify the provisions of the constitution relating to the distribution of financial resources between the Centre and the States. Such an order of the President shall not have effect beyond the financial year in which the Proclamation of the Emergency ceases to be operative. The order of the President is subject to the approval of the Parliament.

On fundamental rights

Art. 358 states that as soon as a Proclamation of Emergency is issued on grounds of war or external aggression (but not on the ground of armed rebellion) the six fundamental rights enumerated under Art. 19 are automatically suspended. The State is freed from the limitations imposed by Art. 19. The citizens cannot move the courts for the enforcement of fundamental rights enumerated under Art. 19.

Further, the President, under Art. 359,may be order suspend the Operation of any of the other fundamental rights when an Emergency declared on grounds of war or external aggression or armed rebellion is in force. However, the fundamental rights guaranteed under Art. 20 and 21 cannot be suspended even when a national emergency is in force. It is to be noted that under Art.359, only the operation of the fundamental rights is suspended and not the fundamental rights as such. But under Art. 358, Art. 19 is suspended.

Emergency caused by the failure of constitutional machinery in a state

Art.356 says that if the President, on receipt of a report from the governor of a State or otherwise, is satisfied that a situation has arisen is which the Government of the State cannot be carried on in accordance with the provisions of the constitution, he may issue a Proclamation. By that proclamation;

(1)    The President may assume to himself all or any of powers vested in the Governor.

(2)    The President may declare that the power of the legislature of the State shall be exercisable by the Parliament.

The President cannot, however, assume to himself, any of the powers vested in a High Court or suspend the operation of any provisions of the Constitution relating to the High Court.

Parliament can confer on the President the power to make laws for the State. Parliament may also authorize the President to delegate such power to any other authority as specified by him. If the Lok Sabha is not in session, the President may authorize expenditure from the consolidated Fund of the State, pending sanction of such expenditure by Parliament.

It is to be noted that under that under that Art. 356 the President acts on a report or the Governor or otherwise. This means that the President can act even without the Governor’s report.

A proclamation issued under Art. 356 must be laid before each House of the Parliament. It will cease to operate at the expiry of two months unless before that period it has been approved by both the Houses of the Parliament. A proclamation so approved shall, unless revoked, be in operation for six months from the date the issue of the proclamation. It can be approved by the Parliament for a further period of six months. A Proclamation issued under Art.356, can therefore, be in force normally for a maximum period of one year only at a stretch. However, it can be extend by the Parliament beyond one year period but in any case not beyond three years from the date of issue of proclamation, if:

(i)      A proclamation of emergency under Art.352 is in operation in whole of India or in the whole or any part of the State at the time of passing of such resolution, and

(ii) The Election Commission certified that the continuance in force of the proclamation beyond one-year period is necessary on account of the difficulties in holding general elections to the Legislative Assembly of the State concerned.

The 42nd andthe 44th Amendment Acts In Relation To Art.356

The 42nd Amendment Act amended Art. 356 and provided that the approval of the Parliament was for one year at a time. But the 44th Amendment Act 1976 restored the original period of approval of the Parliament to six months at a time. The original Constitution did not impose any condition for the extension of the proclamation under Art.356 beyond one-year period. Earlier it could be extended by Parliament to a maximum period of three years, subject to approval of six months at a time. But the 44th Amendment Act has imposed two conditions for the continuation of the proclamation beyond the one-year period, as discussed earlier.

Art. 356 and judicial review

 In a landmark judgement the Supreme Court in March 1994 held that the power of the President in issuing a Proclamation of emergency in a State is subject to judicial review to the extent of:

(i)      Examining whether it was issued on the basis of any relevant material at all or

(ii)   Whether the material was relevant or

(iii)    Whether the proclamation was malafide exercise of power.

Another important principle paid down by the Court is that the power of dissolving a State Legislative Assembly can be exercised by the President only after the proclamation is approved by both Houses of Parliament.

Difference between arts.352 and 356

Under Article 352 the Statement machinery cannot be suspended. The State Legislature and the State Executive continue to function. The only effect is that the Centre gets concurrent powers of legislation and administration in State matters. Under Art.352 the relationship of all the States with the Centre undergoes a change, while under Art. 356 the relationship of only the State with the Centre is affected.

The imposition of the president's rule on the states: some facts

For the first time, the President's rule was imposed on Punjab on 20.6.1951, which was in force till 17.4.1952.

The longest duration of the President's Rule in a State was also in the State of Punjab i.e., from 11.5.1987 to 25.2.1992.

The number of times the President's Rule was imposed on Sites during the tenure of different Prime Ministers is given below :

The number of times, the President's Rule was imposed on different States is given below:  The figures in bracket indicate the number of times the President's Rule was imposed.

Andhra Pradesh (2), Assam (4), Bihar (6), Gujarat (4), Haryana (3); Himachal Pradesh (2); Jammu & Kashmir (2); Karnataka (4); Kerala (9); Madhya Pradesh (3); Maharashtra (01);, Manipur (7); Mizoram (2); Punjab (9); Rajasthan (4); Sikkim (2); Uttar Pradesh (7); Tripura (2); Tamil Nadu (4); Tripura (2); Uttar Pradesh (7); West Bengal (4); Meghalaya (01); Pondicherry (6).

Kerla and Punjab are the States where the President's Rule was imposed for maximum number of times i.e., nine times in both States.

The States where the President's Rule was imposed for minimum number of times, are Maharashtra, Meghalaya and Arunachal Pradesh i.e., one time in each.

The shortest duration of the President's Rule was in Karnataka. It was only for seven days from 10.10.1990 to 17.10.90.

Financial emergency

Art. 360 states that if the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory there of is threatened, he may by a proclamation make a declaration to that effect. During the period any such Proclamation is in operation, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions. Any such directions may also include: -

(i)      A provision requiring the reduction of salaries and allows of all or any class of person serving a State of the Union.

(ii)     A provision requiring all Money Bills or other financial Bills to be reserved for the consideration of the President after they are passed by the Legislature of the State.

A proclamation issued under Art.360 will remain in force for two months, unless before the expiry of the period both the Houses of the Parliament approve it. Once approved it is in force till it is revoked by the President. No emergency under Art.360 has been declared so far.

Other facts

State emergency was first time imposed in Punjab in 1952 followed by PEPSU in 1954 and Andhra Pradesh in 1954

National emergency has been proclaimed three times so far in 1962, 1971, 1975

Financial emergency has not been declared so far.

Key terms

Armed rebellion: One of the grounds for the declaration of national emergency under Article 352 substituted in place of internal disturbance by 44^th. Amendment of the Constitution.

External Aggression: Literally refers to a war or war like situation, putting the country under the thread of an external attack; a ground for the imposition of national emergency.

Promulgation: To declare to the public at large.

Failure of Constitutional machinery: A ground for the imposition of President’s rule in a State that can have multifarious connotations right from a party less state that could form the Government to a disregard to the directions of the Central government on the part of a State.

President’s Rule: Simply refers to Center’s rule or control over the entire legislative and executive machinery of a State. Referred to as Governor’s rule in the State of J&K.

Malafide: Wrong intention, based not on actual facts and circumstances, but on any extraneous consideration.

Canons of financial propriety: Rules governing the observance of strict financial discipline as well as economy.