Topic: Emergency Provisions

Question : ‘National emergency is a means to ensure governance when the national security is threatened’. Discuss with instances from Indian polity?

Ans. A country faces threats to its security both from outside and inside. Union Government requires additional powers to deal with such situations called emergencies. In a federal government, the need for such emergency provisions is even greater as federal government, by virtue of sharing powers with the provincial (state) governments, enjoys relatively limited powers. Part XVIII of the Constitution (Articles 352 — 360) deal with emergency. Thus, emergency refers to a pattern of governance when the national security is threatened.
Members of the Constituent Assembly believed that “the danger of a grave emergency arising in this country is not merely theoretical; it is very real”. In the words of Alladi Krishnaswami Ayyar, “we are in grave and difficult times”. They were convinced of the need for a strong Centre which could effectively deal with emergency situations.

Indian Constitution recognizes three types of emergency

1. National emergency (Art. 352)

2. Financial Emergency (Art. 360)

3. State Emergency or President’s rule or Central Rule (Art.356)

National Emergency

Following are the features of the national emergency

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• It can be imposed under Art. 352

• If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened.

• three grounds are given based on which emergency can be imposed: war or external aggression or armed rebellion

• President may declare national emergency in respect of the whole of India or part of the territory

• Proclamation may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger.

• Union Cabinet consisting of the Prime Minister and other Ministers of Cabinet rank should communicate the same in writing to the President. This provision ensures that Prime Minister, without the approval of the Union Cabinet can not recommend

• Parliament should ratify the proclamation by special majority, within a month. Special majority is two thirds of the members present and voting which is not less than half of the total membership of the House (“total membership” means the total number of members comprising the House irrespective of whether there are vacancies or absentees on any account).
  If any such proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of one month and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.

In short, if the Lok Sabha can not ratify it within 30 days for any reason, the proclamation must be passed by Rajya Sabha in 30 days and by Lok Sabha within 30 days after its first meeting.

• After being ratified by both the Houses, emergency will last for 6 months from the date of ratification by the latter of the two houses.

• It can be extended by Parliament, at a time for six months and as many times as necessary. Ratification by each House by special majority is required for extension by six months each time.

• Lok Sabha has the power to initiate proceedings for the discontinuation of the emergency. A notice in writing signed by not less than one-tenth of the total members Lok Sabha can be issued with ‘the intention to move a resolution for disapproving the continuance in force of emergency. It should be addressed to the Speaker, if the House is in session; or to the President, if the House is not in session. A special sitting of the House shall be held within fourteen days from the date on which such notice is received for the purpose of considering the resolution for discontinuance. If the resolution is passed by a simple majority, emergency stands discontinued.

The 44th Amendment Act in 1978 replaced the expression ‘internal disturbance’ with armed rebellion’. Armed rebellion, according to the Supreme Court poses a threat to security of the country while internal disturbance does not Emergency can be imposed only when there is a threat to national security.

War is declared by the country formally. But before the declaration of war, there can be external aggression that requires declaration of emergency due to threat to security. Therefore, both the grounds are provided by the original Constitution for declaration of emergency.

Effect of Proclamation of Emergency

Emergency renders the Union Government more powers to deal with a threat to national security in the following way:

Executive Sphere

On the executive front, the country becomes a unitary system. The executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised. In normal times, such directions are to be confined to certain matters only like maintenance of railways, promotion of Hindi etc.

Legislative Sphere

On the Legislative front, life of Lok Sabha/Assembly can be extended by a period of one year at a time by Parliament. New Lok Sabha has to be constituted within. Six months after the emergency ceases. In 1976, the life of Lok Sabha was extended by one year when emergency was in force.
Union-state legislative relations can be suspended in favour of the Parliament. That is, Parliament gets concurrent power to legislate on any item in the State List. However, such laws made by the Parliament on State List subjects can be in force for not more than 6 months after the emergency has ended. States continue to enjoy power to make laws on the same subjects. If there is any repugnancy, doctrine of federal supremacy ensures that federal laws will prevail. State assembly, as implied above, continues to exist.

President can promulgate ordinances for any state when Parliament is not in session. It is a power that the President is given by virtue of the fact that his ordinance making power is coexistensive with that of the legislative power of the Parliament.

The executive and the legislative impact outlined above applies to not only the state that is under emergency but to other states as well. It may be recalled that emergency can be imposed in the whole or part of the country as may be necessary.

Financial Sphere

As far as the federal fiscal framework is concerned, according to Arttile 354, the President may direct that all or any of the provisions of Articles 268 to 279- relating to taxes and duties and how they are imposed, collected and appropriated by the central and state governments be modified. In effect, the share of the states in tax revenues that are divisible may be affected. The grants that some states receive may also be affected. President’s Orders should be tabled in the Parliament. However, no such order can last beyond the financial year in which emergency ends.

Question : Bring out the difference between Arti. 358 and Article 359 from the viewpoint of its impact on Fundamental Rights.

Ans. On Fundamental Rights, the impact is the following:
Article 358 says that suspension of provisions of Article 19 takes place automatically during emergency if the proclamation is on grounds of war or external aggression and not armed rebellion.
Article 359 needs to be separately invoked with Presidential order. It says enforcement of any Fundamental. Right can be suspended except Arts.20 and 21. President should specify that the suspension of the enforceability of the Fundamental Right is in connection with the emergency. Every such order must be laid before each House of Parliament.

The differences between Art.358 and 359 are the following:

• Art. 358 has limited scope — only Art.19 is affected. Art.359 has a larger scope- it may impact on any Fundamental Right except Art.20 and 21

• Art. 358 comes into operation automatically while Art.359 needs to be specially invoked by the President

• Parliament does not have to be informed of restrictions on FRs under Article 358, while there is a need to table the President’s Orders in the Parliament under Art.359.

• Art.358 is applicable to only emergency declared on grounds of war or external aggression (external emergency) while Art. 359 covers both external and internal emergency (armed rebellion).

• Suspension under Art. 358 of Art. 19 is for the full duration of the external emergency while Art. 359 may suspend enforcement of a FR for a shorter period that the duration of emergency.

• Art.358 applies to the entire country while Art. 359 may apply to the whole or part of country.

 44th Constitution Amendment Act and emergency laws

Due to the oppressive way in which emergency powers were used during 1975-77 period when emergency was in operation in the country on grounds of internal disturbance, the 44th Constitution Amendment Act 1978 made the following amendments in the national emergency law in order to minimize its scope for abuse-

• Replacement of internal disturbance with armed rebellion

• Union Cabinet should recommend to the President (Cabinet is the highest class of ministers among the Union Council of Ministers)

• Recommendation should be in writing

• Ratification should be in 1 month and not two months as earlier and

• By special majority and not simple majority as earlier

• Emergency can be extended by a period of six months at a time by a resolution passed to that effect by each House of the Parliament. Earlier, there was no need to extend and the emergency was allowed to continue till it was ended by the executive

• Lok Sabha is given special power to discontinue emergency and

• Enforceability of Art. 20 and 21 can never be suspended under Art.359. Emergency was imposed in the country thrice since the Constitution came into effect and lasted for periods as shown below:-

• Between 26 October 1962 to 10 January 1968 due to China’s aggression. It was in operation when Pakistan attacked India in 1965.

• Between 3 December 1971 to 21 March 1977 due to external aggression by Pakistan.

• Between 26 June 1975 to 21 March 1977 due to internal disturbances.

The last two impositions were revoked simultaneously in 1977. The need for the 1975 imposition even as the earlier imposition was continuing was felt as the Government perceived internal threat to national security and send the message that it was committed to keeping national security at any cost.

Question : In light of the fiscal profilgacy by the Union Government, do you think that, this is the right moment to impose financial emergency in the country?

Ans. There are times when a country’s financial conditions may be in serious turmoil requiring extra powers for the Union Government to correct the situation. Such additional emergency powers are given during financial emergency to the Union Government under Art. 360. Art. 360 says 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 is threatened, he may proclaim financial emergency. The proclamalion needs to be approved by resolutions of both Houses of parliament within 2 months by a simple majority.
If any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months and if are solution approving the proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the people.

Financial emergency, once imposed can last till it is revoked.

During the emergency, the executive authority of the Union shall extend to giving of directions to any State to observe such canons of financial propriety as may be specified in the directions. Any such direction may include a provision requiring

• The reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State

• A provision requiring all Money Bills or related Bills be reserved for the consideration of the President after they are passed by the Legislature other State.

President may issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts.
The country so far did not have financial emergency though conditions of severe economic crisis did prevail in the year 1990-91 and earlier.

President’s Rule

There are times when the State Government can not be carried on in line with the provisions of the Constitution. It may be necessary to proclaim President’s rule in the state under such conditions. Such imposition may be the logical outcome of the duty conferred on the Union Government under Art .355:

Art 355

It shall be the duty of the Union 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.
Under Art.355, the following steps are generally taken

• Dispatching Central forces

• Deployment of armed forces

If the constitutional governance can not be established in a state in spite of the above steps, President’s rule may be resorted to by the Union Government.
It is to be mentioned that invocation of Article 355 is not necessarily the first step towards dismissal of a government under Art.356. Art.356 may not be resorted to if the above steps work.

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