EMERGENCY PROVISIONS IN INDIA

The thought of emergency has passed into political hypothesis. The basic idea, to make specific
emergency provisions in the Constitution, was to protect against unintended emergence of autocracy as a
result of internal disorder, external attack or battle. In the Indian Constitution, there is a separate part
present for the emergency provisions. Part XVIII, therefore, is a component of innovation in our
Constitution.

TYPES OF EMERGENCIES UNDER THE INDIAN CONSTITUTION:1

To protect the active order in the nation, Constitution provides the laws for emergency action.The
unusual circumstances are to be dealt with by the provisions contained in Part XVIII of the Indian
Constitution. These situations can be broadly classified under three head, which are given below.2

1. National Emergency- Emergency due to war, external aggression or internal disturbance – ( Art.
352 ),

2. State Emergency- Emergency in case of failure of Constitutional machinery in States – ( Art.

3. Financial Emergency- Emergency due to financial crisis (Art. 360).

1. NATIONAL EMERGENCY (Art. 352)

PROCLAMATION OF EMERGENCY:

“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, whether by war or external aggression or armed rebellion, he
may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such
part of the territory thereof as may be specified in the Proclamation.”3

A proclamation of emergency under Article 352(1) may be made before the actual occurrence of war,
external aggression or armed rebellion.4 Moreover, the forty fourth amendment introduced another
innovation : where a notice in writing, signed by not less than 1/10th of the total members of the Lok
Sabha has been given of their intention to move a resolution disapproving the proclamation of
1
Jain M.P., Indian Constitutional Law, 700 (7th Edition, 2011), Lexis Nexis, New Delhi.
2
Articles 352, 356 and 360, the Constitution of India, 1950.
3
Article 352(1), the Constitution of India, 1950.
4
Naga people’s Movement of human rights V. Union of India, (1998) 2 SCC 109.
 emergency, 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 is to be held within 14 days from the date on which such notice is received
by the speaker or the president, as the case may be, for the purpose of considering such resolution.
[Article 352(8)].

CONSEQUENCES OF A PROCLAMATION OF EMERGENCY[11]

(a) There is a transformation in the behaviour of the Indian federalism. The normal fabric of the Centre-
State relations undergoes a fundamental change. Parliament becomes empowered to make a law with
respect to any matter in the state list, and such a law operates till six months after the proclamation
ceases to operate [Art. 250][12]

(b) Further, the Centre can give directions to the state as to the manner in which it is to exercise its
executive powers [353(a)].  [13]Since parliament can make a law even in the exclusive state field, it
means that the centre can give directions even in the area normally allotted to the states. Parliament
may confer powers and impose duties upon the Centre or its officers or authorities even though the
law pertains to a matter not in the Union List [Art. 353(b)].[14]

(c) When emergency is declared not in the whole of India but only in a part of India, the executive power
of the Centre to give directions, and the power of Parliament to make laws as mentioned above,
extend not only to the State in which the territory under emergency lies, but also to any other state, “if
and so far as the security of India or any part of the territory thereof is threatened by activities in or in
relation to the part of the territory of India in which the Proclamation of Emergency is in operation ”
[Proviso to Art. 353]. [15]

(d) While the proclamation of emergency is in operation, the President may by order direct that any
provision (Arts. 268 to 279) relating to the distribution of revenue between the Centre and the States,
shall take effect subject to such exceptions or modifications as he thinks fit [Art. 354(1)].[16]This
provision frees the Centre from its obligation to transfer revenue to the States so that’s own financial
capacity remains unimpaired to deal with the emergency.

(e) During an emergency, Parliament can also levy any tax which ordinarily falls in the Sate list [Art.
250][17]
(f) As has already been pointed out, during the operation of the proclamation of emergency, the life of the
Lok Sabah may be extended beyond its normal five year period by parliament by law for a year each
time, up to a period not extending beyond six months after the proclamation of emergency ceases to
operate.[18]

(g) Parliament may by law extend the life of the state legislators by one year each time during an
emergency, subject to a maximum period of six months after the emergency ceases to operate.[19]

INVOCATION OF NATIONAL EMERGENCY[20]

In India, national emergency has been invoked three times so far.

First time, on October 26, 1962, in the wake of clash with china. It remained in force during the Indo-Pak
conflict in 1965, and was revoked only in January, 1968.

Second time, on December, 1971, as a result of the India and Pakistan dispute on the ground of external
aggression.

While the 1971 was still effective, another proclamation was issued on June 26, 1975. This time the
proclamation was issued on the ground of “internal disturbance” threatening the security of India.
Bothe these proclamations were revoked in March 1977.

One of the major result which come out after the proclamation of the emergency in 1975was the
amendment of Article 352 by 44th Constitutional amendment so as to introduce some more safeguards
therein against any unwarranted declaration of emergency in future. The main purpose of this
amendment was that what happened in 1975 should not repeat in future.[21]

2. STATE EMERGENCY

PROCLAMATION OF EMERGENCY

Article 356 and 357 provide for meeting a situation arising from the failure of the Constitutional
machinery in a state.[22]

“If the President, on receipt of a report from the Governor of a 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 this Constitution, the President may by Proclamation
(a)  Assume to himself all or any of the functions of the Government of the State and all or any of the
powers vested in or exercisable by the Governor or anybody or authority in the State other than the
Legislature of the State;

(b)  Declare that the powers of the Legislature of the State shall be exercisable by or under the authority
of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary or
desirable for giving effect to the objects of the Proclamation, including provisions for suspending in
whole or in part the operation of any provisions of this Constitution relating to anybody or authority
in the State.”[23]

CONSEQUENCES OF INVOKING STATE EMERGENCY

Article 356(1) has been invoked a number of times since the advent of the Constitution.[24]Reading Art.
356 along with Art. 357 a pattern has thus come into existence, whenever the centre takes over a state
government. The centre has acted only when the governor has reported failure of the Constitutional
machinery in the state and in no case has the centre acted ‘otherwise’. The governor makes the report
to act in this matter on the advice of the council of ministers.

The proclamation issued by the President under Art. 356(1) is placed before parliament. If it is expected
to remain in force only for two months, then no further action is necessary. But if it is proposed to
keep it in force for a longer period, it is to be ratified by both houses.

Under Art. 356(1) (a), the President can assume to himself the powers of the Governor. One of the
Governor’s powers is to dissolve the Legislative Assembly. Consequently, when the. President issues
a proclamation and assumes the governor’s powers, the powers to dissolve the assembly and hold
fresh elections is automatically transferred to the president. Therefore, the Presidential proclamation
may dissolve the State Legislature and arrangements for holding fresh elections are set afoot.

INVOCATION OF NATIONAL EMERGENCY

The sweep of the phrase, “the government of the State cannot be carried on in accordance with the
provisions of this Constitution” in Art. 356(1) has indefinite connotations. Failure of the
Constitutional machinery in a State may arise because of various factors; these factors are diverse an
 imponderable. Nevertheless, some situations of the breakdown of the Constitutional machinery may
be as follows:

(1) No party in the Assembly has a majority in the State Legislative Assembly to be able to form the
government.

(2) A government in office loses its majority due to defections and no alternative government can be
formed.

(3) A government may have majority support in the House, but it may function in a mar ner subversive of
the Constitution. As for example, it may promote fissiparous tendencies in the State.

(4) The State Government does not comply with the directions[25] issued by the Centre Government
under various Constitutional provisions.[26]

(5) Security of the State may be threatened by a widespread breakdown of law and order in the State.

(6) It may be debatable whether Art. 356(1) can be invoked when there are serious allegations of
corruption against the Chief Minister and the Ministers in a State.[27]

Reading Articles 355 and 356 together, it can be argued plausibly that the Constitutional machinery
breaks down in the State when the government indulges in corruption.

Article 356 has been invoked in the State of Uttar Pradesh because it did not appear to be feasible to form
a stable government. [28]

3. FINANCIAL EMERGENCY

Article 360 makes a provision concerning financial emergency. “If the President is satisfied that a
situation has been whereby the financial stability or credit of India, or any part thereof, is
threatened, he may by a proclamation make a declaration to that effect.”[29]

When such a proclamation is in operation, the centre can give directions to any state to observe such
canons of financial property as may be specified in the directions. It may give such other directions as
the President may deem necessary and adequate for the purpose [360(3)].[30] Any such directions
may provide for the reduction of salaries and allowances of all. Or any class of persons serving in the
state. [Art. 360(4)(a)(i)].[31]
The centre may require that all money bills, or financial bills or those which involve expenditure from the
state consolidated fund, shall be reserved for the President’s consideration after being passed by the
state legislature [Art. 360(4) (a) (ii)].[32]

The President may also issue directions for reducing the salaries and allowances of persons serving the
union including the Supreme Court and the high court judges [Article 360(4) (b).][33]

A proclamation issued under issued under Art. 360(1) may be revoked or varied by a subsequent
proclamation [Art. 360(2) (a)], and has to be laid before each House of Parliament [Art. 360(2) (b).
The proclamation ceases to have effect after two months unless in the meantime it is approved by the
Thirty-Eighth Amendment of the Constitution, the Presidential ‘satisfaction’ in Art. 360(1) was
declared to be ‘final and conclusive’ and not questionable in any court on any ground. No court was
to have jurisdiction to entertain any question, on any ground, regarding the validity of —

1. A declaration made by proclamation by the President to the effect stated in Article 360(1); or

2. The continued operation of such Proclamation. This provision has now been deleted by the Forty-
Fourth Amendment of the Constitution.

In India, there has not been financial emergency imposed till now.

[II.3.] DURATIAN OF EMERGENCY PROCLAMATION

The Constitution specifically provides that a Proclamation of Emergency made by the President shall be
valid for a period of two months only in the maximum within which it shall be laid before each House
of Parliament and approved by them. But if within that period, Lok Sabha is dissolved, the
proclamation shall be laid before Rajya Sabha only. On its approval, it shall continue beyond two
months till the new Lok Sabha are elected, and it ratifies the proclamation within thirty days of its
first session. Fixed time limit is always qualified by clauses like, “as soon as”, “for the time being”,
etc. The Constitution also does not provided for the contingency of Parliament disapproving the
proclamation. Parliament has three options before it – (a) it may approve the proclamation by a
resolution; (b) it may take no action; or (c) it may reject or disapprove the proclamation. If the
President feels the necessity of continuance of the proclamation beyond two months, and Parliament
is opposed to its continuance, there is a deadlock. Its tenure can be extended by Parliament alone.
[34]Ordinarily, the wishes of the legislature will prevail. If the executive persists in its view, it may
issue another proclamation which shall remain valid for another two months. The issue of another
proclamation is not barred by the Constitution. It is difficult to agree that the President will take
advantage of this gap. In practice, there is no room for conflict between the executive and the
legislature especially, the lower house in a parliamentary democracy. If at all such a conflict arises, it
will result in the resignation of the ministry and/or dissolution of the Lower house.[35]