Emergency Provisions Under Constitution Of India
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Abstract

Emergency Provisions Under Constitution Of India

Part XVII, Article 352 to Article 360 Of Indian Constitution

May 21, 2020

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Article 352 

Provides that if the President is satisfied that a grave emergency exists whereby security of India or any part thereof is threatened by war or external aggression or armed rebellion, he may by proclamation make a declaration to that effect in respect of whole of India or such part of the territory thereof as may be specified in the proclamation.

Actual occurrence of War, external aggression or armed rebellion is not necessary for proclamation of such emergency, it can be made even before the actual occurrence of it if the President is satisfied of Imminent danger of aforesaid conditions. [Explanation to Article 352]

The expression “armed rebellion” was substituted in place of term “internal disturbance” by the 44th Constitutional Amendment Act, 1978

Territorial Extent

The emergency can be proclaimed either for whole of the India or any part of the country.  – this provision established by 42nd Amendment Act – before this emergency could be proclaimed for whole of India not any part thereof.

Revocation of Proclamation

Art. 352(2) provides that a proclamation may be varied or revoked by President by subsequent proclamation

Recommendation by Union Cabinet


Satisfaction of President under Art. 352 is not personal satisfaction of him but the satisfaction of Union cabinet.

President will issue or vary the proclamation of emergency only when the decision of Union cabinet is communicated to him in writing that such proclamation may be issued or varied. [Article 352(3)]
Imp. Note. – Almost everywhere in constitution, the term ‘council of ministers’ is used but only in Art. 352(3) the term “Union Cabinet” is used. (Union cabinet consist of Prime Minister and Council of Ministers of Cabinet Rank appointed under Article 75)

Approval by Parliament

The proclamation of emergency must be laid before each House of the Parliament and it shall cease to operate at the expiration of 1 month unless before the expiry of one month it is approved by resolution by both Houses of Parliament.

Before 44th Amendment Act, this period was of 2 months

If the proclamation of emergency is issued at time when Lok Sabha is dissolved or dissolution takes places within 1 month of proclamation without approving the Proclamation but proclamation has been approved by Rajya Sabha - then proclamation will have to be approved by the Lok Sabha within 30 days from the date of first sitting of new Lok Sabha. If it does not approve within said 30 days then the proclamation shall cease to operate.

The resolution approving the proclamation must be passed by special majority of both the houses of Parliament. [Art. 352(6) – majority of total membership of that house (more than 50%) and by majority of not less than 2/3 of members present and voting]

Duration of Emergency


Case 1 – if Proclamation of Emergency is not approved by Parliament, it can remain in force for 1 month

Case 2 – Proclamation of emergency once approved by the Parliament shall remain in force for the period of 6 months unless revoked earlier from the date of passing second resolution approving the proclamation by later house.

For continuance of emergency beyond 6 months approval by Parliament would be required every 6 months. Before 44th amendment act, proclamation once approved by Parliament would remain in force for indefinite period as long as the executive wanted it to continue.

No maximum duration fixed.

Power of Lok Sabha to pass resolution for discontinuance of emergency

Art. 352(7) : President shall revoke a proclamation if the Lok Sabha passes a resolution disapproving the continuance in force of such proclamation.

Procedure – Art. 352 (8) – where a written notice signed by not less than 1/10th  of total members of Lok Sabha has been given to –

1-The Speaker, if the House is in session; or
2- The President, if the House is not in session

A special sitting of Lok Sabha shall be held within 14 days from the date of receipt of notice.

No role of Rajya Sabha in revocation of proclamation of Emergency

Art. 352(9): The President can issue different proclamation on different grounds whether or not any other proclamation is in operation or not.

Effect of Proclamation of Emergency

1.Art. 353(a): The Executive power of Centre shall extend to giving directions to the States as to the manner in which executive power is to be exercised.

2.Art. 353(b): The Parliament shall have power to make laws conferring powers and imposing duties with respect to any matter in state list.
Imp. Note. – Law making power of state is not suspended rather state list becomes concurrent list on which both Centre & state can make laws.

3.Art. 354: Union’s power to alter distribution of Revenue between Union and States

President may, by order direct that all or any provisions of Article 268 to 279 shall have effect subject to such exceptions and modifications as he thinks fit.

Such order may be in effect for such period as be specified but not extending in any case beyond the expiration of the financial year in which such proclamation ceases to operate.

Every such order must be laid before each house of the Parliament as soon as may be.

4.Extension of Life of the House of the People

Art. 83(2) provides that while proclamation of emergency is in operation, the Parliament, by law may extend the ordinary period of House of People (5 years)for a period not exceeding 1 year at a time.

In case proclamation has ceased to operate – such period shall not extend beyond 6 months

5.Suspension of Fundamental Rights

a.Suspension of Fundamental Rights under Article 19

Fundamental Rights guaranteed under Art. 19 becomes suspended automatically as soon as the emergency is proclaimed by President on the ground of War or external aggression.

Imp Note- If emergency is proclaimed on ground of armed rebellion such right do not get suspended. [44th Amendment Act]

According to this Article – the provisions of Article 19 shall not restrict the power of State to make any law or take any executive action abridging or taking away fundamental rights guaranteed by Art. 19. 

As soon as the proclamation ceases to operate, the provisions of Article 19 becomes automatically revived. 

On revival, the law inconsistent with Art. 19 becomes inoperative to the extent of inconsistency but the act or omission under such law before it so ceases to have effect will be valid and not illegal. Thus, no action will lie against any act or omission by state in contravention of Art. 19 during emergency even after emergency ceases to exist.

Art. 358(2): 

Protection of aforesaid provision will not be available 

To any law which does not contain a recital to the effect that such law is in relation to the proclamation of emergency in operation when it is made; or

To any executive action taken otherwise than under a law containing such a recital.

Makhan Singh v. State of Punjab & State of M.P. v. Bharat Singh

“Supreme Court held that Art. 358 does not validate a legislative provisions which were invalid before proclamation of Emergency.”

Bennet Coleman and Company v. Union of India

“If the Law enacted prior to proclamation of emergency has been valid, the proclamation of emergency does not invalidate it.”

b. Art. 359: Suspension of enforcement of Fundamental Rights by the order of President


While Proclamation of emergency is in operation, the President may by order declare that right to move any court for enforcement of such Fundamental Rights as may be mentioned in the order (except Art. 20 & 21)[44th Amendment Act] and

•all proceedings pending in any court for enforcement of such fundamental right shall remain suspended 

•for period (i) during which proclamation is in force or (ii) such shorter period as may be specified in order.

•Such order may be issued to the whole or any part of territory of India [Art. 359(2)]

•Such order shall be laid before each house of parliament as soon as possible [art. 352(3)]

•If any law is made by State or any executive action is done, it cannot be challenged on ground that it is violative of Fundamental Right mentioned in such order.(even after such order ceases to operate)    
         
Protection of aforesaid provision will not be available 

•to any law which does not contain a recital to the effect that such law is in relation to the proclamation of emergency in operation when it is made; or

•to any executive action taken otherwise than under a law containing such a recital.

Article 358 vs Article 359

1- FR under Art. 19 becomes suspended automatically as soon as proclamation of emergency is made under Article 358 while Any FR except Art. 20 & 21 can be suspended by the order of President under Article 359

2- The FR is suspended under Article 358 while Only enforcement of FR is suspended under Article 359

3- Suspension of FR continues for entire period of emergency under Article 358 while Suspension of FR may either for entire period of emergency or for shorter period as is specified in order by President under Article 359.

4- Enforcement cannot be done even after emergency ceases under Article 358 while Enforcement can be done when suspension of enforcement ceases under Article 359

A.D.M. Jabalpur v. Shivkant Shukla (1976) – Habeas Corpus Case

Supreme Court held that during the proclamation of emergency rights under Art. 21 can also be suspended and no person shall have any locus standi for enforcement of such rights.

44th Constitutional Amendment Act provided that President cannot suspend enforcement of rights contained in Article 20 and 21

Minerva Mills Ltd. v. Union of India

Supreme Court held that Judicial review of validity of proclamation of emergency issued by President can be made. The Court cannot go into question of correctness or adequacy of facts and circumstances on which satisfaction of President is based. The Power of Court is limited to examine whether limitations conferred by Constitution have been observed or not. If the satisfaction of President is absurd, malafide, perverse or no satisfaction at all then it would be liable to be challenged in court of law.


Instances of declaration of National Emergency

1. October 1962 – on account of Chinese aggression in the North East frontier agency – in force till January 1968 (no need of fresh proclamation at time of war against Pakistan in 1965)

2. December 1971 –  war against Pakistan
3. When previous emergency was in operation – third proclamation was made in June 1975 on ground of Internal Disturbance. Both second and third proclamation were revoked in March 1977  

Covid-19 Pandemic & National Emergency 

Change to the nature of Article 352 appears to have curtailed the ability of the State to act directly through the Constitutional Framework to remedy a situation such as the COVID pandemic. The Sarkaria Commission, set up in the year 1983 to study and suggest improvements in the Centre-State relationship, had an occasion to study the contours of Article 352. In dealing with the concept of 'internal disturbance' and the amendment thereof to the words 'armed rebellion', the Commission opined, that 

'The scope of the term 'internal disturbance' is wider than 'domestic violence'. It conveys the sense of 'domestic chaos', which takes the colour of a security threat from its associate expression, 'external aggression'. Such a chaos could be due to various causes. Large-scale public disorder which throws out of gear the even tempo of administration and endangers the security of the State, is ordinarily, one such cause.
Such an internal disturbance is normally man-made. But it can be Nature-made, also. Natural calamities of unprecedented magnitude, such as flood, cyclone, earth-quake, epidemic, etc. may paralyse the government of the State and put its security in jeopardy.'

Therefore, it appears that the word 'internal disturbance' had been knowingly left open ended by the framers of the Constitution to ensure that it covers within its sweep, various disturbances of varying degrees and scope, including, both man made and natural disasters, as also epidemics. Due to the fear of possible misuse (which the Supreme Court has repeatedly held would not be a ground to strike down a law), the Government of the day, curtailed its own powers in an Emergency situation, which curtailment has come to haunt us today. The breadth of the powers of Article 352, as it stands today, do not allow for declaring the COVID pandemic an 'Emergency' and this is the reason that the Central Government could not have invoked it. There is in this country today, no war, no external aggression or armed rebellion.

Art. 355: Duty of the Union to protect the States

This article imposes following obligation on the Union:
1.To protect every state against External Aggression and Internal Disturbance
2.To ensure that government of every state is carried on in accordance with Constitution.

Article 356: Failure of Constitutional machinery of State or State Emergency

According to this article, the President Rule may be declared by President by issuing a proclamation if he is satisfied on the receipt of report from Governor or otherwise that a situation has arisen in which Government of State cannot be carried on in accordance with Constitution.
This provision empowers president to fulfill duty imposed under Art. 355.
Effects –
1. The president may assume to himself all or any functions of State Govt.
And all or any power vested in Governor or any body or any authority in state other than State Legislature 

2. President may declare that power of State Legislature shall be exercisable by or under the authority of Parliament.

3. The President may make such incidental or consequential provisions as may appear to him necessary or desirable to give effect to objects of Proclamation
It may also include provisions for suspending in whole or part the operation of any provisions of Constitution relating to any body or authority in the State.     

4. Art. 357(1)(a): Parliament can confer the power on President the power of State Legislature to make laws and also authorize President to delegate such powers.

5.Art. 357(1)(c): If House of People is not in session the President may authorize expenditure from the consolidated fund of the State pending sanction of such expenditure by the Parliament.
The President cannot assume to himself any of the powers vested in or exercisable by High Court or suspend operation of any provision of Constitution related to High Court.

Approval by Parliament


Art. 356(3): Proclamation issued under this Article shall be laid before each house of Parliament and shall remain in force for 2 months unless before the expiry of that period it is approved by both houses of parliament.

In this case the approval is required by Simple majority i.e. more than 50% of members present and voting.

If such proclamation is issued at a time when Lok Sabha is dissolved or dissolution takes place within two months of proclamation without approving it but proclamation has been approved by Rajya Sabha then it will have to be approved within 30 days from date of first sitting of newly constituted Lok Sabha else it will cease to operate.

Duration of Proclamation

Without approval of Parliament – 2 months

With approval of Parliament (unless revoked) – 6 months from date of issue of such proclamation. [in Art. 352 it was from date of approval] – 44th Amendment Act – prior to it – 1 year ::: originally in constitution – 6 months – made 1 year by 42nd Amendment ]

For further continuance of State emergency it must be approved by parliament every 6 months

No such proclamation shall remain in force for period longer than 3 years.

Art. 356(5): A resolution for continuance of emergency beyond 1 year shall not be passed by Parliament unless :-
•A proclamation of national emergency is in operation
•Election Commission certifies that continuance of emergency is necessary on account of difficulties in holding election to State Assemblies
[Added by 44th Amendment Act]

Judicial Review of proclamation of State Emergency

The word ‘satisfaction’ used in Art. 356 does not means personal satisfaction of president but Satisfaction of Cabinet

State of Rajasthan v. Union of India – First case

Satisfaction of president can be challenged before court on ground that it has been based on malafide and wholly extraneous and irrelevant grounds.

S.R. Bommai v. Union of India – Leading case

S.C. held that judicial review of presidential proclamation is permissible if allegation of mala fides have been levelled in petition. The court laid down following guidelines:

1.Proclamation dissolving state legislative assembly is subject to judicial review.
2.President’s rule cannot be imposed on grounds of political considerations.
3.Imposition of President Rule and dissolution of State assembly cannot be done together.
4.State Assembly can be dissolved after the Parliament approved the proclamation 
5.Existence of materials is a pre – condition to form the basis of satisfaction for imposition of President’s rule.
6.Secularism is basic feature of Constitution and if any State Govt. acts against it, president’s rule can be imposed
7.Supreme Court and High Court can compel Union Govt. to disclose material on whose basis, president’s rule is imposed.
If dismissal is found to be illegal then the court can revive the dissolved State Assembly.

Covid – 19 Pandemic and State Emergency

Interestingly, the Sarkaria Commission notes in its report, that the 'breakdown' of Constitutional machinery in a State, can include a 'physical breakdown', and states that Article 356 can be imposed –

"Where a natural calamity such as an earthquake, cyclone, epidemic, flood, etc. of unprecedented magnitude and severity, completely paralyses the administration and endangers the security of the State and the State Government is unwilling or unable to exercise its governmental power to relieve it. 

The caveat, however, is that the pandemic, as referred to by the Commission, must be of such magnitude that the State Government is unable or unwilling to exercise its governmental power. This kind of situation has not arisen in our Country.

Article 360: Financial Emergency

According to this article, if President is satisfied that a situation has arisen whereby financial stability or credit of India or any part of territory is threatened, he may by a proclamation make a declaration to that effect.

Art. 360(2): Such Proclamation must be approved by both the houses of Parliament within 2 months by Simple majority else it shall cease to operate after expiry of 2 months.

If such proclamation is issued at a time when Lok Sabha is dissolved or dissolution takes place within two months of proclamation without approving it but proclamation has been approved by Rajya Sabha then it will have to be approved within 30 days from date of first sitting of newly constituted Lok Sabha else it will cease to operate.
Effects

1. Art. 360(3): the Executive authority of the Union shall extend to giving of directions to any state to observe specified cannons of financial proprietary and make such other directions as President may deem necessary and adequate for the purpose.

2. Art. 360(4)(a)(i) & Art 360(4)(b): directions may include provision for reduction salary and allowances of any person serving in State or Union including judges of Supreme Court and High Court.

3. Art. 360(4)(a)(ii): direction may include provision requiring all Money Bills or other bills to which provision of Art. 207 apply to be reserved for consideration of president after they are passed by State Legislature.

No definite time for financial emergency is prescribed.

Financial Emergency & Pandemic Crisis


A Public Interest Litigation has come to be filled before the Supreme Court by a think tank – Centre for Accountability and Systemic Change (CASC), asking for the declaration of finnancial emergency under Article 360. The thrust of the plea appears to be towards unification of efforts by the Centre and the State in an effort to fight the 'global epidemic', particularly in view of divergent and arbitrary steps being taken by States in exercise of powers under Section 144 of the Code of Criminal Procedure, 1973; the Epidemic Diseases Act, 1897; and the Disaster Management Act, 2005.

The question that begs to be answered is whether the declaration of a financial emergency, will in fact effectively address the aforesaid issues

Article 360, or draft Article 280A came to be introduced by Dr. B.R. Ambedkar quite belatedly on the 16th of October, 1949.

Dr. Ambedkar explained that draft Article 280A drew inspiration from the National Recovery Act of the United States, 1933 to combat the aftereffects of the great depression. It could never be effectively used, since it was struck down by the United States Supreme Court, soon after its enactment. 
To prevent such a situation from befalling upon any prospective Indian legislation, the framers of the Constitution deemed it fit to introduce financial emergency provisions in the Constitution itself.



This Article Is Contributed By: Keshav Dwivedi 

Organised By: Vaibhav Srivastava & Team

Event: Legal Webinar 2.0

Organization : Table  To Screen [Instagram]

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