An emergency is ‘a sudden or unforeseen situation demanding immediate action.’ There exists a threat to the democratic political system of the country. The head of the state assumes extraordinary powers and the government transform into a unitary one at the central level. In such an event, if the President is satisfied that there exists such instability, he has the power to proclaim emergency.
The emergency provisions are mentioned under Part XVIII of the constitution from Article 352 to 360. This feature has been borrowed from the German constitution. There are primarily three types of emergency provisions provided under the constitution:
- National emergency- Article 352
- Breakdown of Constitutional Machinery- Article 356
- Financial Emergency- Article 360.
The President has the power under Article 352 to proclaim the imposition of a national emergency wholly or partly in India on the written advice of the Cabinet. It is imposed in the event of any external threat of war, armed rebellion or any other threat which poses a grave danger to the integrity, sovereignty and safety of India. By the 44th Amendment Act, 1978, ‘armed rebellion’ was added to the provision.
The proclamation of emergency must be approved by both the houses of Parliament within a month by a special majority (a majority of the total membership of the house and not less than two-thirds of members present and voting.)
However, if the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution takes place during the period of one month without approving the proclamation, then the proclamation survives until 30 days from the first sitting of Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it.
It cannot be implemented for more than six months after which it needs to be renewed by a special majority of the Parliament. It can be revoked either by the President through a proclamation or when the Lok Sabha passes a resolution with majority expressing disapproval with the state of emergency.
Implementation of national emergency is not immune to Judicial Review. In Minerva Mills Ltd. and Ors. v. Union of India and Ors. (AIR 1980 SC 1789), it was held that the basic doctrine to the constitution cannot be affected and hence the implementation can be challenged on the grounds of malafide or if there are no relevant facts warranting such implementation.
1. Fundamental Rights: On the imposition of emergency, all six fundamental rights remain suspended. Under Article 358 of the constitution, the rights guaranteed under article 19 remain suspended. Under the 44th Amendment, article 19 can only be imposed in the case of external aggression and not armed rebellion. Under Article 359, the President is authorized to suspend, by order, the right to move any court for the enforcement of Fundamental Rights during a National Emergency. Thus, remedial measures are suspended and not the Fundamental Rights. However, there are two exceptions, Article 20 and Article 21 pertaining to Right to life and Personal liberty cannot be suspended as was held in the ADM Jabalpur v. S.S. Shukla (1976 AIR 1207) case.
2. State governments are not dismissed, they continue to operate, but are brought under the effective control of the center, which assumes the power to give instructions to state government, which shall abide by such directions.
3. State legislatures continue to operate and legislate, but parliament assumes concurrent legislative power on state subjects and a law such enacted by parliament, shall cease to operate at the expiry of six months after the revocation of national emergency, to the extent of incompetency.
4. President can suspend the distribution of financial resources between center and states and center can make use of any national resource to fight the cost on the basis of which, emergency is declared.
5. Term of the Lok Sabha can be extended: During the declaration of emergency, the term of the Lok Sabha can be extended for one year at a time, however, it cannot continue after six months from the revocation of emergency. The same rule may be applied to Legislative Assembly or any state.
National emergency has been imposed thrice-
- The first proclamation was issued in October 1962 on account of Chinese aggression in the NEFA.
- The second proclamation was made in December 1971 in the wake of the attack by Pakistan.
- Even when the emergency was in operation, the third proclamation of National Emergency was made in June 1975 by the Indira Gandhi government on the pretext of controlling internal disturbances.
As per Article 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 this Constitution. If this duty fails then, under Article 356, if president is satisfied on the report of governor or otherwise that there exists a great emergency where the administration of the state cannot be continued in accordance with the provisions of constitution, can dismiss state government and take over the state administration on to himself and declare that parliament will enact law on behalf of state legislature.
This is commonly referred to as President’s rule as the President himself may assume all or any of the powers and functions of the government and state. Except for the state of Chhattisgarh and Jharkhand, all other states have had President’s rule imposed upon them.
The duration for such an emergency is two months after which it needs to be ratified by the Parliament. The Proclamation will cease to exist after six months after which it can again be extended for another 6 months. Thus, president’s rule normally continues for one year. Earlier there was a provision to add two more years under special circumstances making it 3 years in total, however, now onwards one year is the set maximum limit.
- The state administration is directly placed under the president. The governor of the concerned state acts in accordance with the instructions issued by the Union government.
- The Vidhan Sabha of the state along with the Council of Ministers may be dismissed. The president can also keep the Assembly and the Council in suspended animation. (The house cannot perform any functions or exercise its powers).
- The union Government has powers to make decision on the matters included in the State list and the annual budget of the state would be presented before the Parliament.
- The first incidence of President’s Rule was in Punjab in 1951.
- In 1997, the Union Cabinet recommended President’s Rule in Uttar Pradesh following acts of violence in the Vidhan Sabha. The president did not feel the need to denote it as a breakdown of constitutional machinery so he returned the recommendation.
- The most recent imposition has been on Puducherry on 25 February, 2021. The congress government resigned due to loss of majority and had to resign, in the absence of any other party claiming majority, the state was placed under the rule.
Under article 360 of the constitution, 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 thereof is threatened, he may by a Proclamation make a declaration to that effect. Hence whenever central government expect any financial risk to Indian economy then financial emergency can be invoked.
The proclamation has to be laid down before both the houses and is valid for two months unless approved by resolutions of both houses of Parliament. There is no defined period of Financial Emergency and is up to central government/president .To approve it, more than half of the total members need to vote in favour of it. If any such Proclamation is issued at a time when the Lok Sabha has been dissolved the Rajya Sabha shall approve it, it ceases to exist thirty days after reconstitution.
Order of passing Financial Emergency can be challenged in supreme court to check constitutional rights of central government. Court may understand the situations whether it was appropriate to invoke financial emergency and pass suitable order.
- The president may appoint a Finance Commission to suggest methods to get out of financial crisis. He may adopt suitable measures to restore financial stability in light of recommendations of the commission.
- The central government can control financial transactions of states which were in the hands of states and shall also controls taxes and relating matters to overcome economic crises.
- Central government gets the right to cut salary and allowances of Central or State government Employees including judges of the Supreme Court and High Courts.
- All financial/Money bills will be submitted before the President for his consideration and the states may be ordered to submit such bills to him for his assent.
Financial emergency has never been proclaimed in India.
Bhavya JhaLegal Content Writer, Law Giri
Bhavya is a student of NLIU, Bhopal.