Ques.

1 : 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 Presidents rule or Central Rule (Art.356)
National Emergency

Following are the features of the national emergency

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 Article

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. Presidents Orders should be tabled in the Parliament. However, no
such order can last beyond the financial year in which emergency ends.

Ques. 2 : Bring out the difference between Art. 358 and Art.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 Presidents 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 one 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 Chinas 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.

Ques. 3 : In light of the fiscal profligacy 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 countrys 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 proclamation 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.
Presidents 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
Presidents 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 inspite of

the above steps, Presidents 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.
of the Constitution. Critically examine the statement.

Ans. If the President, on receipt of report from the Governor of the State or
otherwise, is satisfied that a situation has arisen in which the government of

the State cannot be carried on in accordance with the provisions of the

Constitution, the President may

Assume to himself all or any of the functions of the Government of

the State other than the Legislature of the State;
Declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament.

Powers vested in the High Court are not affected at all.

The state legislative assembly may be suspended or dissolved, depending

on the circumstances. If there is a substantial amount of life of assembly
left, the Government may suspend the assembly expecting a solution to the
crisis and revive the assembly later. If not, assembly may be dissolved.
The proclamation is to be ratified by each one house of the parliament
within 2 months provided that if any such Proclamation is issued at a time
when the House of the People is dissolved or the dissolution of the House
of the People takes place during the period of two months referred to in this
clause, 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.
The Proclamation ceases to operate on the expiration of a period of six
months from the date of issue of the Proclamation. Extension by Parliament
by a period of six months at a time is possible but Presidents rule can not
last for more than 3 years, under any circumstances.
If the Presidents rule has to be extended by more than one year, two
conditions must be met

A Proclamation of Emergency is in operation, in the whole of India or,

as the case may be, in the whole or any part of the State, at the time
of the passing of such resolution
The Election Commission certifies that the central rule should
continue due to the difficulties in holding elections.

The two conditions were introduced by the Amendment Act in 1978 to

make the extension of Presidents rule difficult so that it could not be
extended for partisan reasons.
Effects of Presidents rule

State Assembly may be suspended or dissolved

President assumes the executive powers of the State government
President may confer on the Parliament the powers of the state
legislature
Parliament may make laws for the state. Such laws continue even
after the Presidents rule ends. State Legislature can delete or amend
the laws.
Parliament can authorize the President or his nominee to legislate for
the state when it is not in session
President, when the House of the People is not in session, may
authorize expenditure from the Consolidated Fund of the State
pending the sanction of such expenditure by Parliament
President may promulgate ordinance for the state when the
Parliament is not in Session.

Meaning of failure of the Constitutional machinery

Any of the following circumstances may constitute failure of the

Constitutional machinery

After elections, a hung assembly

results and no clear winner emerges

The leader of a party with relative majority refuses to form Government

Party in power loses majority and there is no alternative.
The party in power loses majority and refuses to step down
Armed rebellion in the state and the state can not be run according to the
provisions of the Constitution
State government does not comply with the directives of the Centre (Art .365).

It is clear that under some of the conditions described above, there is

scope for abuse of the Constitutional, provisions. For example, deciding
which party or coalition has to be invited to form the government; or
whether the ruling party/coalition enjoys majority or not etc.
Ques. 5 : Bring out the viewpoints of various committees and
commissions on the abuse of Article 356. Will these
recommendations be useful in checking the abuse of Article 356?
Ans. Sarkaria Commission on Union-States Relations recommended in
1987 that

Presidents rule should be the last resort

Governors report should be a speaking document
Majority of the political party should be tested on the floor of the
assembly so that there is categorical clarity.
Dissolution of the assembly should not be done till the proclamation
is ratified

A constitutional amendment should be made requiring the production

of the material facts and grounds on which the promulgation is made.
It should be made an integral part of the Proclamation issued under
that Article. It will make judicial review more concrete control of
Parliament over the exercise of this power by the Union Executive
more effective.

S.R. Bommai Vs. Union of India

S.R. Bommai Vs. Union of India case judgement (1994) of the apex court is
a land mark judgement in relation to Art.356 as it aims to minimise the
abuse of the powers under Art. 356. The judgement was delivered partly as
a response to the challenge to the imposition of Presidents rule in four
states- UP, HP, MP and Rajasthan after the Babri mosque destruction in
December 1992. Important points of judgement.

Art.356 is within the scope of judicial review

Secularism is a basic feature of the Constitution and its violation by a
State government makes it liable to be dismissed under Art.356.
Governors report is not the only basis for the Central Government
action. Any other, authentic report may be the basis for the
proclamation
Dissolution of the Assembly should not be resorted to until the
proclamation is ratified by the Parliament
Art.74(2) provides for confidentiality to the advice of the Union
Cabinet rendered to the President. Such advice should be produced
in the court, if the court so directs, so that the court can establish
mala fides, if any. If malafides are proved, dissolution of the
assembly may be reversed and the dismissed, government can be
reinstated Significance of the Bommai judgement.

The background of the verdict was that the Article was used without
justification many times. Art. 356 was invoked more than 100 times so far
and in many cases, it appeared to be of doubtful constitutional validity. That
power was exercised to dismiss the State Governments controlled by a
political party opposed to the ruling party at the Centre. The Supreme Court
laid down standards according to which the centres power under Art. 356
is to be exercised.
In short, Bommai judgement made Art.356 liable to judicial review; Union
Cabinet accountable and made exercise of powers under Art.356 more
responsible.
Inter-State Council and Art. 356

Inter-State Council (Art.263) made following recommendations in this

regard

Erring state should first be warned

Governors report should be a speaking document
Instead of two months, proclamation needs to be ratified only within a
month
Special majority should be necessary for ratification.

In 1998, President of India returned for reconsideration the recommendation of the Council of
Ministers to impose President rule in Bihar. The points raised by the President are

The charge that the Constitutional Governance of the State failed is

not established beyond doubt
State should have been warned before the option of Presidents rule
was thought of
The Rabri Devi ministry enjoyed majority in the Assembly and could
not be ignored.
Parliament should discuss the matter.
Other States with worse conditions were spared the same
recommendation.

NCRWC and Art. 356

NCRWC (2002) quotes from the Constituent Assembly debates; Sarkaria

Commission report; SC verdict in the Bommai and other cases and says
that the Art.356 should be used sparingly and as a last resort. The NCRWC
report says that Presidents rule was imposed in 13 cases even though the
Ministry enjoyed a majority support in the Legislative Assembly. These
cover instances where provisions of Article 356 were invoked to deal with
intra-party problems or for considerations not relevant for the purpose of
that article. The NCRWC recommendations are

Article 356 should not be deleted but it must be used sparingly and
only as a remedy of the last resort and after exhausting other options
like giving directives to the State concerned.
The Governors report should be a speaking document, containing
a precise and clear statement of all material facts and grounds on the
basis of which the President may take the decision.
In case of political breakdown making it necessary to invoke Article
356, before issuing a proclamation there under, the concerned state
should be given an opportunity to explain its position and redress the
situation, unless it is against security of state, or defence of the
country to do so.
Amend Article 356 - in line with the Supreme Courts judgment in
S.R. Bommai vs Union of India (1994) to ensure that the State
Legislative Assembly is not dissolved before the proclamation is
approved by the Parliament.

Bihar Assembly Dissolution Case 2006

The Bihar assembly was dissolved a few weeks after the declaration of
Presidents rule in 2005 when the elections earlier in 2005 did not throw up
a clear winner producing a hung assembly. The decision was challenged in
the Supreme Court which delivered the verdict in 2006.with an indictment
of the Governor for not discharging Constitutional duties with a sense of
objectivity and impartiality. The apex court saw political motives in the
actions of the Governor to prevent the formation of government by one
political party.
Art.356 in Recent Times

In recent years, the checks on the Art. 356 have emerged from the
following

Supreme Court bringing Art.356 under judicial review

Coalition Partners not being in agreement about the desirability or
political correctness of dismissing state governments without
justification
Sensitization of the Government due to the regional parties
ascendancy
Need for cooperative federalism in the new milieu of liberalization
and globalization
Coalition governments not having majority in Rajya Sabha
Presidential objections to abuse of Art.356 as was seen in 1998
when K R Narayanan returned the advice of the Union Cabinet

Art. 365

Article 365 says that where any State has failed to comply with, or to give
effect to, any directions given in the exercise of the executive power of the
Union under any of the provisions of this Constitution, it shall be lawful for
the President to hold that a situation has arisen in which the Government of
the State cannot be carried on in accordance with the provisions of this
Constitution It is linked to Articles 26 and 257 which provide for Union
Government giving directions to States in the administrative (executive)
sphere as states in Administrative relations in Part XL. If the directions of
the Union Government are not followed by a State, it amounts to a situation
in which the government of the State cannot be carried on in accordance
with the provisions of the Constitution. Such a state can be brought under
central rule under Art.365.
Differences between Article 352 and Article 356

While the two Articles address emergency situations at the national and
state levels and change the normal provisions of constitutional governance;
there are differences between the two as shown below-

Art. 352 addresses threat to national security while Art. 356

addresses issue of breakdown of Constitutional governance in a
state.
Proclamation of national emergency needs parliamentary ratification
in one month while for Presidential rule promulgation, it is 2 months.
Proclamation of national emergency needs ratification by special
majority while Proclamation of Presidents rule needs ratification by
simple majority.
National emergency can last till the threat is removed while
Presidents rule can not list for more, than 3 years.
When national emergency is in operation, State assembly continues
to be in operation while during Presidents rule, the assembly can be
suspended or dissolved.
Art. 352 has restrictive impact on FRs while Art.356 has no impact
whatsoever on FRs.