Emergency Provision

HoP = House of People or Lok Sabha
CoS = Council of State of Rajya Sabha
CoM = Council of Mnister

The term Emergency is not described in constitution or any statue but the proclaimation of emergency has been provided under the Constitution of India. 

Proclamation, continuation, discontinuation
  1. President and cabinet provisions: (a) Art 352 emergency can be proclaimed even before the actual occurrence of any such disturbance. (b) It has to be conveyed in writing by the cabinet to the president.
  2. Parliamentary provisions: (a) It has to be laid down in the parliament and has to be approved within one month of the proclamation by both the houses with a special majority. If the HoP is dissolved when the proclamation was issued then the proclamation may survive for one month after the reconstitution of the house provided it has been approved by the CoS within one month of the issue of proclamation. After the approval it will get a fresh lease of 6 months. (b) It can be continued only by a resolution passed by special majority in each of the houses after the expiry of 6 months. (c) It can be discontinued by a resolution passed by a simple majority in HoP. For the purpose of convening such a special sitting of HoP, ≤ 10% of members of the house may give a notice to the speaker (when the house is in sitting) or the president (when the house is not in sitting). Such a sitting shall be convened within 14 days.
  3. Judiciary provisions: Proclamation of emergency is subject to judicial review on ground of malafides. 
Fundamental Rights
  1. As soon as emergency under Art 352 is proclaimed on any grounds, the right to move to the courts for enforcement of any right under Art 19 is suspended. (Art 359) 
  2. If the emergency under Art 352 is on grounds of war or external aggression only (and not internal armed rebellion), the freedoms under Art 19 shall be suspended or cease to exist. (Art 358)
  3. So as soon as emergency is proclaimed (under external aggression or war) the state shall be freed from limitations imposed by Art 19. So citizens will have no protection against violation of Art 19 either during the emergency or after the emergency for excesses committed during emergency under external aggression or war. But if the emergency is under internal armed rebellion then after it is revoked citizens can move to the courts for cases of violation during the emergency.It reinstates as soon as emergency is revoked.
  4. Art 358 comes into operation automatically to suspend Art 19 under external aggression or war. But Art 359 has to be explicitly invoked in the presidential order.
  5. Art 358 also relates to suspension of other FRs (except Art 20 and 21) under war or external aggression. But the list of other FRs to be suspended should be present in the presidential order.
  6. Art 20 and 21 can’t be suspended under any case. And any person can move to a court at any time for enforcement of Art 20 and 21.
  7. Neither Art 358 or 359 shall have any effect if the law used against the citizens to punish them doesn’t refer to such provisions which are effective under the times of emergency.

Financial Provisions

  1. Art 352 emergency: A presidential order may direct that for a period not extending beyond the financial year in which the current proclamation ceases to operate, all or any provisions regarding the distribution of taxes and the grants may be suspended. Any such order is subject to approval by the parliament. (Art 354)
  2. Art 360 emergency: Union can direct the state to observe canons of financial austerity, reduce salaries and reserve for presidential consideration all money and financial bills.
Term of HoP(Lok Sabha)
  1. The normal term of HoP may be extended during an emergency (under Art 352) by an act passed by parliament itself. Such an extension can’t be made for > 1 year at a time and in any case can’t continue beyond 6 months from the day emergency ends. (Art 83)

State Administration

  1. State legislatures or governments will not be suspended and retain all their powers. But the union parliament and executive gain concurrent power over all matters in the state list as well.
  2. Any such law made by the parliament in its temporary acquired concurrent jurisdiction shall cease to have effect from 6 months after the revocation of the emergency.

Art 356 Proclamation

  1. Such a proclamation shall be for 2 months. It has to be approved by both houses of the parliament with simple majority within the 2 months. If the HoP is dissolved the proclamation has to be approved by HoP within 30 days of its reconstitution. In the meantime it has to be approved by the CoS.
  2. The duration of the proclamation can be extended to maximum of 6 months at a time by passing resolutions in both houses of the parliament. 
  3. Maximum extension can be 3 years. But if the extension has to be > 1 year, then the election commission has to certify that it is not possible to conduct free and fair elections and emergency under Art 352 is under operation for any part of the sate.
  4. It is subject to judicial review.
State Administration
  1. Parliament may delegate the legislative authority of the state to president or any other body or may even keep it to itself.
  2. President can promulgate ordinances and authorize expenditure from the consolidated fund of state when the parliament is not in operation. Such ordinances and authorizations have to be ratified by the parliament later.

SR Bommai Case

  1. The Proclamation under Article 356(1) is not immune from judicial review. The Supreme Court or the High Court can strike down the Proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds.
  2. The power conferred by Article 356 upon the President is a conditioned power. It is not an absolute power. The existence of material – which may comprise of or include the report(s) of the Governor – is a pre-condition. The satisfaction must be formed on relevant material.
  3. Though Art 74(2) prevents the CoM advise to the president from being challenged in court, there is no bar on the court scrutinizing the material based on which the president formed his satisfaction. Article 74(2) merely bars an enquiry into the question whether any, and if so, what advice was tendered by the Ministers to the President. It does not bar the Court from calling upon the Union Council of Ministers (Union of India) to disclose to the Court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice. The entire burden of proof that the material was relevant and there was no malafide intention would be on CoM.
  4. In such a situation, the Government has to go. There is no room for holding that the President can take over some of the functions and powers of the State Government while keeping the State Government in office. There cannot be two Governments in one sphere.
  5. As far as possible, union must issue a warning to the erring state and give it sufficient time to recover.
  6. Since the proclamation has to be approved by the parliament within 2 months, until such a ratification the legass shall not be dissolved.
  7. Failure to provide good governance and failure of law and order amounts to breakdown of administrative machinery and not contitution machinery and hence is not a valid ground for invoking Art 356.

Justified Use of Art 356 

  1. State Government creating disunity or disaffection among the people to disintegrate the democratic social fabric.
  2. Where a State Government fails to comply with the directions issued by the Union even after warnings.
  3. Where the State Government fails to meet an extraordinary situation, e.g. an outbreak of unprecedented violence, great natural calamity, etc., which failure would amount to an abdication of its governmental power.
  4. Danger to national integration or security of the State.

Improper Use of Article 356

  1. A situation of maladministration. This power is not meant to be exercised for the purpose of securing good government.
  2. Where in a situation of ‘internal disturbance’, not amounting to or verging on abdication of its governmental powers by the State Government, all possible measures to contain the situation by the Union in the discharge of its duty, under Article 355, have not been exhausted.
  3. The President gives no prior warning or opportunity to the State Government to correct itself. Such a warning can be dispensed with only in cases of extreme urgency.

Art 352 vs Art 356

  1. State legislature and executive: Continue under Art 352 but suspended under Art 356.
  2. Delegation of legislative powers by the parliament: Under Art 352, parliament can’t delegate the legislative power to any other body, but in Art 356 it can delegate such powers to president or any other body.
  3. Maximum limit: 3 years under Art 356 but nothing under Art 352.

Leave a Comment