Emergency Provisions

Contained in Part XVIII of the Constitution - Articles 352 to 360. Enable Central Government:

To meet any abnormal situation . To effectively to safeguard the sovereignty, unity, integrity and
security of the country, and the Constitution.

• To become all powerful and take the total control of the State.

It converts the federal structure into a unitary one without a formal amendment of the Constitution.

This is a unique feature of the Indian Constitution.

Types of Emergencies in India

Article 352

An emergency due to war, external aggression or armed rebellion.

AKA "Proclamation of Emergency" or "National Emergency"

Article 356

AKA "Presidents Rule"

An Emergency due to the failure of the constitutional machinery in the states. NOTE: Emergency word
NOT used in constitution in this Article.

Or

"State Emergency" Or "Constitutional Emergency"

Article 360

Financial Emergency due to a threat to the financial stability or credit of India.

Grounds When?

Who can declare?

1. WAR

PRESIDENT

AKA "External Emergency"

2. External Aggression

Threat/Actual occurrence

• Satisfaction of (Actually of CABINET)

Can be challenged on malafides (Minerva Mills Case, 1980)

• Written Recommendation of CABINET (44th Amendment, 1978) NOT ONLY PM's decision now.

Imminent danger On security of India or A PART THEREOF)

3. Internal Armed Rebellion

"Internal Emergency"

Changed from Internal Disturbance in 44th Amendment, 1978

ONLY UPON ACTUAL OCCURANCE

Article 352 : 'Cabinet' as the council consisting of the Prime Minister and other ministers of the Cabinet
rank.

Approval and Duration

Must be approved by both the Houses of Parliament within one month from the date of its issue.
Originally two months, but reduced by the 44th Amendment Act of 1978.

However, if the Lok Sabha dissolved until 30 days from the first sitting of the Lok Sabha after its
reconstitution, provided the Rajya Sabha has in the meantime approved it.

If approved by both the Houses of Parliament, the emergency continues for six months, and can be
extended to an indefinite period with an approval of the Parliament for every six months.

- 44th Amendment Act of 1978. If the dissolution of the Lok Sabha takes place during the period of six
months without approving further continuance.

Approval by Houses - Special Majority

(a) a majority of the total membership of that house, and (b) a majority of not less than two-thirds of the
members of that house present and voting.

- 44th Amendment Act of 1978.

Revocation

• May be revoked by the President at any time by a subsequent proclamation

• Doe not require the Parliamentary approval !!

Further, the President must revoke a proclamation if the Lok Sabha passes a resolution disapproving its
continuation.

- 44th Amendment Act of 1978. One-tenth of the total number of members of the Lok Sabha

Give a written notice to the Speaker or to the President (if the House is not in session),

A special sitting of the House to be held within 14 days by 44th Amendment Act of 1978.
Approval Be passed by the both Houses of Parliament

Revocation Lok Sabha only

Special majority

Simple majority only

On CENTER State Relationship

Centre becomes entitled to give executive diretions to a state on 'any matter- Complete Control

The Parllament can make laws on 'any subject mentioned in Stale List- State

LEegislatures are Not suspended: -law valid for six month after revocation

Prez can issue ordinance on state Subject

President can modify thE constitutional

Distribution of revenues-till end of financial year-to be laid down in Parliament

On life of LOK SABHA and Leg Assemblies

LS may be extended by a law of Parliament for one year at a time- infinitely-but max six month of
revocation the Parliament may extend the normal tenureof a statelegislative assembly by one year each

time infinitely-but max six month of revocation-by law of Parliament

On Fundamental Rights Article 358,

the six Fundamental Rights under Article 19 are automatically suspended.

No separate order for suspension is required.

the state can meke any law or any executive action abridging the six FRS ofArticle 19

Article 359

•The President to suspend the right to move any court for the enforcement of fundamental Rights
during a NationalEmergency

No suspension of F. Rights Only thase FRs that are specified In the Presidential Order.

More about Article 358

When the National Emergency ceases to operate, Article 19 automatically revives. : No remedy lies for
anything done during the Emergency even after the Emergency expires - cannot be challenged in courts
Restriction of 44th Amendment Act of 1978

a)Not on the ground of armed rebellion.

b)Only those laws which are related with the Emergency are protected from being challenged

c) The executive action taken only under such a law is protected.

More about Article 359

The FRs not suspended, but only their enforcement. O Relates to only those Fundamental Rights that
are specified in the Presidential

Order. Suspension could be for entire period or shorter period as mentioned in the order. Extend to the
whole or any part of the country To be laid before each House of Parliament for approval. The State
can make any law or can take any executive action abridging the specified FRs. When the Order ceases,
any law so made, to the extent of inconsistency with the specified FRs, ceases.

Distinction between Article 358 and 359

Article 19 only

Any - those suspended by the Presidential Order.

Automatically suspends with proclamation

Needs Presidential Order-only empowers Prez to suspend

External and Internal National Emergencies

Only in case of External Emergency (External Aggression or War)

Suspends for entire duration of Emergency

Suspends for a period specified

Extends to the entire country

Extend to the entire country or a part of it.

Article 355 A duty on the Centre to ensure that the government of every state is carried on
in accordance with the provisions of the Constitution.

• Exercise of this duty - Centre takes over the government of a state under Article 356 in case of failure
of constitutional machinery in state.

Popularly known as 'President's Rule' or 'State Emergency' or

Constitutional Emergency'. Grounds

Article 356

If President is satisfied

On report of Governor/ Otherwise too

Failure of constitutional machinery) that government of a state cannot be carried on in accordance with
the provisions of the Constitution

Article 365

If President holds

That state failed to comply with or to give effect to any direction from the Centre

(Failure of constitutional machinery) that government of a state cannot be carried on in accordance with
the provisions of the Constitution

Approval and Duration

• Must be approved by both the Houses of Parliament within two months from the date of its issue.

• If approved - continues for six months.

• It can be extended for a maximum period of three years with the approval of the Parliament, every six
months.

If dissolved within six months without approval, then until 30 days from the first sitting of the Lok Sabha
after its reconstitution, provided the Rajya Sabha has in the meantime approved its continuance.

• Every resolution approving can be passed only by a simple majority.

Approval and Duration

The 44th Amendment Act of 1978

Restraint on the power of Parliament to extend a proclamation of President's

Rule - beyond one year.

President's Rule can be extended by six months at a time only when the:

1. National Emergency in operation in the whole of India, or in the whole or any part of the state; and

2. the Election Commission must certify that the general elections to the

legislative assembly of the concerned state cannot be held on account of difficulties.

Revocation
A proclamation of President's Rule may be revoked by the President

At any time by a subsequent proclamation.

Such a proclamation does not require the parliamentary approval

Effects of President's Rule PRESIDENT'S POWER 1. He can take up the functions of the state government
and powers vested in the governor or any other executive authority in the state. 2. He can declare that
the powers of the state legislature are to be exercised by the Parliament. 3. He can suspend of the
constitutional provisions relating to any body or authority in the state. 4. The President dismisses the
state council of ministers headed by the

chief minister.

Effects of President's Rule PRESIDENT'S POWER 1. The state governor, on behalf of the President,
carries on the state administration with the help of the chief secretary of the state or

the advisors appointed by the President. 2. This is the reason why known as the imposition of
‘President's Rule' in a state. 3. The President either suspends or dissolves the state legislative

assembly. 4. The Parliament passes the state legislative bills and the state budget.

Effects of President's Rule PARLIAMENTARY POWERS

1. The Parliament OR delegated authority can make laws conferring powers and imposing duties on the
Centre. 2. The Parliament can delegate the power to make laws for the state to the President or to any
other authority specified by him in this regard. 3. The President can authorize expenditure from the
state consolidated fund pending its sanction by the Parliament, and 4. The President can promulgate,
when the Parliament is not in session, ordinances for the governance of the state.

More about President's Rule

•A law made by the Parliament or President etc. continues to be operative even after the President's
Rule.

•The period is not co - terminous with the duration of the proclamation.

•But it can be repealed or altered or re-enacted by the state legislature.

•However, the President cannot assume to himself the powers vested in the concerned state high court
or suspend the provisions of the Constitution relating to it.

National Emergency

Only when the security of India or a Part - threatened by war, external aggression or armed rebellion.
President's Rule

When the government of a state cannot be carried on in accordance with the provisions of the
Constitution.

The state executive and legislature continue to The state executive is dismissed and the state function
- only the Centre gets concurrent powers of legislature is either suspended or dissolved – the
administration and legislation in the state.

President administers the state through the governor and the Parliament makes laws for the state –
complete assumption by Centre.

Parliament cannot delegate the same to any other body or authority - has to do it by its own.

Can delegate the power to make laws for the state to the President or to any other authority specified
by him- generally Prez+ MPs of that state.

Comparison of Article 352 & Article 35

National Emergency

President's Rule

No maximum period prescribed for its operation - can be continued indefinitely with the approval of
Parliament for every six months.

Maximum period prescribed - three years.

Thereafter normal constitutional machinery must be restored in the state.

The relationship of the Centre with all the states undergoes a modification.

The relationship of only the state under emergency with the Centre undergoes a modification.

Must be passed by a special majority. Affects fundamental rights of the citizens.

Can be passed only by a simple majority. No effect on Fundamental Rights of the citizens.

LS can revoke

LS - no role in revocation

Mis/Use of Article 356

• Imposed on more than 100 occasions, that is, on an average twice a year.

• Mostly, imposed in an arbitrary manner for political or personal reasons.

• Has become one of the most controversial and most criticized provision of the

Constitution. 44th Amendment, 1978- President's satisfaction subject to Judicial Review.

For the first time, imposed in Punjab in 1951.

1977 - Janata Govt - 9 Congress Ruled states I 1980-Congress resumes power-9 Janata Govt ruled states.
1992-Congress - 3 BJP Ruled states - on the grounds of

favoring religious organizations. Bihar imposed it numerous times.

Mis/Use of Article 356

• SR Bommai case (1994)

• The Supreme Court upheld the validity of 1992 proclamation on the ground

that secularism is a 'basic feature of the Constitution.

But, the court did not uphold the validity of the imposition of the President's Rule in Nagaland in 1988,
Karnataka in 1989 and Meghalaya in 1991 imposed for political reasons.

• Dr BR Ambedkar, hoped that power conferred by Article 356 remains a 'dead

letter' - and used only as a measure of last resort.

The presidential proclamation - subject to judicial review.

• The satisfaction of the President must be based on relevant material. Can be struck down - if based on
irrelevant or extraneous grounds or if found to be malafide or perverse. Court can restore the
dismissed state government and revive the state legislative assembly

• Burden lies on the Centre to justify the President's Rule.

• The court cannot go into the correctness of the material or its adequacy but can see its relevancy.

SR Bommai case (1994) Guideline S

• The SLA be dissolved only after the Parliament has approved proclamation - until such approval is
given, the President can only suspend the assembly. In case the Parliament fails to approve the
proclamation, the assembly would get reactivated.

The state government should continue until losing the confidence of the legislative assembly on the
floor of the House. New political party at the Centre will not have the authority to dismiss ministries of
other parties in the states.

• The power under Article 356 is an exceptional power and should be used only occasionaly.

Proper Use of President's Rule - Bommai Cusco 1. No party secures a majority, that is, 'Hung Assembly'.
2. Party having a majority in the assembly declines to form a ministry and the governor cannot find a
coalition ministry commanding a majority in the assembly. 3. Where a ministry resigns after no-
confidence and no other party willing or able to form a ministry. 4. Where a Central direction
disregarded by the state government. 5. Internal subversion - state deliberately acting against the
Constitution and the law or fomenting a violent revolt. 6. Physical breakdown where the government
wilfuly refuses to discharge its constitutional obligations – security of state threatened.

Improper Use of President's Rule – Bommai Case 1. The governor recommends without probing the
possibility of forming an alternative ministry. 2. Governor by own recommends - without allowing the
ministry to prove its majority on the floor.
3. Where the ruling party enjoying majority support in the Assembly has suffered defeat in the general
elections to the Lok Sabha. 4. Internal disturbances not amounting to internal subversion or physical
breakdown. 5.On the grounds of maladministration in the state etc. OR without warning. 7. Where the
power is used to sort out intra-party problems of the ruling party.

Article 360 empowers the President to proclaim a Financial

Emergency if he is satisfied that the financial stability or credit of India or any part of its territory is
threatened.

• The 38th Amendment Act of 1975 made the satisfaction of the president in declaring a Financial
Emergency final and beyond Judicial Review. But, this provision was subsequently deleted by the 44th
Amendment Act of 1978 implying that the satisfaction of the President is not beyond judicial review.

Approval and Duration

• Must be approved by both the Houses of Parliament within two months from the date of its issue.

• If the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of
two months without approval – then 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 the Houses of Parliament, the Financial Emergency continues indefinitely till it
is revoked. This implies two things:

1. No maximum period prescribed for its operation; and

2. No repeated parliamentary approval for its continuation.

• Passed by either House of Parliament only by a simple majority

Revocation

• A proclamation of Financial Emergency may be revoked by THE PRESIDENT

• At anytime by a subsequent proclamation.

• Such a proclamation DOES NOT require the

Parliamentary approval.

Effects of Financial Emergency

1. The executive authority of the Centre extends

(a) to directing any state to observe such canons of financial propriety as are specified by it;

(b) to directions as the President may deem necessary and adequate for the purpose. 2. Any such
direction may include a provision requiring

(a) the reduction of salaries and allowances of all or any class of

persons serving in the state; and (b) the reservation of all money bills or other financial bills for the
consideration of the President after they are passed by the legislature of the state.

Effects of Financial Emergency The President may issue directions for the reduction of

salaries and allowances of: (a) all or any class of persons serving the Union; (b) the judges of the
Supreme Court and the high court. The Centre acquires full control over the states in financial

matters. No Financial Emergency has been declared so far, though there was a financial crisis in 1991.