EMERGENCY

G. Vaishnav Kumar,
B.A., LL.M., PGCJFSC., (Ph.D.), UGC NET & TS-AP SET
Asst. Professor (Law),
Pendekanti Law College, Hyderabad.
Introduction
 Introduction
❖ Adaptation of peace time federalism into emergency.
❖ The framers of the Constitution felt that, in an
emergency, the Centre should have overriding
powers to control and direct all aspects of
administration and legislation throughout the country.
❖ Provisions are contained in Part XVIII of the
Constitution, from Articles 352 to 360.
 Introduction
❖ Enables the Central government to meet any
abnormal situation effectively.
❖ The rationality behind the incorporation of these
provisions in the Constitution is to safeguard the
sovereignty, unity, integrity and security of the
country, the democratic political system, and the
Constitution.
 Introduction
❖ During an Emergency, the Central government
becomes all powerful and the states go into the total
control of the Centre.
❖ It converts the federal structure into a unitary one
without a formal amendment of the Constitution.
❖ Constitution envisages three kinds of emergencies.
 Kinds of
Emergencies
 Kinds of Emergencies

EMERGENCY

NATIONAL STATE FINANCIAL

 Kinds of Emergencies
❖ Three Kinds:
➢ Emergency arising from a threat to the security of
India; [National Emergency / Proclamation of
Emergency].
➢ Emergency arising out of breakdown of
constitutional machinery in a State; [President’s
Rule / State Emergency / Constitutional
Emergency]
➢ Financial emergency.
 National
Emergency
 National Emergency
❖ Article 352 - the President can declare a national
emergency when the security of India or a part of it is
threatened by war or external aggression or armed
rebellion.
❖ President can declare a national emergency even before
the actual occurrence of war or external aggression or
armed rebellion, if he is satisfied that there is an
imminent danger.
 National Emergency
❖ When a national emergency is declared on the ground
of ‘war’ or ‘external aggression’, it is known as ‘External
Emergency’.
❖ On the other hand, when it is declared on the ground of
‘armed rebellion’, it is known as ‘Internal Emergency’.
❖ Originally, the Constitution mentioned ‘internal
disturbance’ as the third ground for the proclamation of
a National Emergency, but the expression was too
vague and had a wider connotation.
 National Emergency
❖ 44th Amendment Act of 1978 made the following
changes:
➢ Substituted the words ‘armed rebellion’ for ‘internal
disturbance’.
➢ Proclaim a national emergency only after receiving a
written recommendation from the cabinet.
➢ Proclamation of a national emergency can be challenged
in a court on the ground of malafide or that the
declaration was based on wholly extraneous and irrelevant
facts or is absurd or perverse.
 National Emergency
❖ Parliamentary Approval:
➢ The proclamation of Emergency must be approved by
both the Houses of Parliament within one month from the
date of its issue.
➢ If the proclamation of emergency is issued at a time when
the Lok Sabha has been dissolved or the dissolution of the
Lok Sabha takes place during the period of one month
without approving the proclamation, then the
proclamation survives until 30 days from the first sitting of
the Lok Sabha after its reconstitution, provided the Rajya
Sabha has in the meantime approved it.
 National Emergency
❖ Parliamentary Approval:
➢ 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.
➢ Special majority that is,
■ A majority of the total membership of that house, and
■ A majority of not less than two-thirds of the members
of that house present and voting.
 National Emergency
❖ Revocation:
➢ A proclamation of emergency may be revoked by the
President at any time by a subsequent proclamation. Such
a proclamation does not require the parliamentary
approval.
➢ The President must revoke a proclamation if the Lok
Sabha passes a resolution disapproving its continuation.
➢ A resolution of disapproval is different from a resolution
approving the continuation of a proclamation in the
following two respects.
 National Emergency
❖ Revocation:
➢ Resolution for Disapproval - It is required to be passed by
the Lok Sabha only. Simple majority only.
➢ Resolution for Approval - needs to be passed by the both
Houses of Parliament. A Special majority.
 National Emergency
❖ Consequences of Emergency:
➢ On the Centre–state relations,
➢ On the life of the Lok Sabha & State assembly, and
➢ On the Fundamental Rights.
 National Emergency
❖ Consequences on the Centre–state relations:
➢ Executive: The executive power of the Centre
extends to directing any state regarding the manner
in which its executive power is to be exercised.
➢ State governments are brought under the complete
control of the Centre, though they are not
suspended.
 National Emergency
❖ Consequences on the Centre–state relations:
➢ Legislative: Parliament becomes empowered to
make laws on any subject mentioned in the State
List.
➢ Although the legislative power of a state legislature
is not suspended, it becomes subject to the
overriding power of the Parliament.
➢ Laws made by Parliament on the state subjects
during a National Emergency become inoperative
six months after the emergency has ceased to
operate.
 National Emergency
❖ Consequences on the Centre–state relations:
➢ Financial: President can modify the constitutional
distribution of revenues between the centre and the
states.
➢ This means that the president can either reduce or
cancel the transfer of finances from Centre to the
states. Such modification continues till the end of
the financial year in which the Emergency ceases to
operate.
➢ Also, every such order of the President has to be
laid before both the Houses of Parliament.
 National Emergency
❖ Consequences on the life of Lok Sabha & State
Assembly:
➢ The life of the Lok Sabha may be extended beyond
its normal term (five years) by a law of Parliament
for one year at a time (for any length of time).
➢ The Parliament may extend the normal tenure of a
state legislative assembly (five years) by one year
each time (for any length of time) during a national
emergency, subject to a maximum period of six
months after the Emergency has ceased to operate.
 National Emergency
❖ Consequences on Fundamental Rights:
❖ Articles 358 and 359 describe the effect of a National
Emergency on the Fundamental Rights.
❖ Article 358 deals with the suspension of the
Fundamental Rights guaranteed by Article 19.
❖ Article 359 deals with the suspension of other
Fundamental Rights (except those guaranteed by
Articles 20 and 21).
 National Emergency
❖ Articles 358: When a proclamation of national
emergency is made, the six Fundamental Rights under
Article 19 are automatically suspended.
❖ No separate order for their suspension is required.
❖ The state can make any law or can take any executive
action abridging or taking away the six Fundamental
Rights guaranteed by Article 19.
 National Emergency
❖ Articles 358: Any such law or executive action cannot
be challenged on the ground that they are inconsistent
with the six Fundamental Rights guaranteed by Article
19.
❖ When the National Emergency ceases to operate,
Article 19 automatically revives and comes into force.
❖ Any law made during Emergency, to the extent of
inconsistency with Article 19, ceases to have effect.
However, no remedy lies for anything done during the
Emergency even after the Emergency expires.
 National Emergency
❖ Articles 358: The 44th Amendment Act of 1978
restricted the scope in two ways:
➢ Firstly, the six Fundamental Rights under Article 19
can be suspended only when the National
Emergency is declared on the ground of war or
external aggression and not on the ground of armed
rebellion.
➢ Secondly, only those laws which are related with the
Emergency are protected from being challenged
and not other laws. Also, the executive action taken
only under such a law is protected.
 National Emergency
❖ Articles 359: Article 359 authorises the president to
suspend the right to move any court for the
enforcement of Fundamental Rights (Except 20 & 21)
during a National Emergency.
❖ This means that under Article 359, the Fundamental
Rights as such are not suspended, but only their
enforcement. The said rights are theoretically alive but
the right to seek remedy is suspended.
 National Emergency
❖ Articles 359: The suspension of enforcement relates to
only those Fundamental Rights that are specified in the
Presidential Order.
❖ Further, the suspension could be for the period during
the operation of emergency or for a shorter period as
mentioned in the order, and the suspension order may
extend to the whole or any part of the country.
❖ It should be laid before each House of Parliament for
approval.
 National Emergency
❖ Articles 359: 44th Amendment Act of 1978 restricted
the scope in two ways:
➢ Firstly, the President cannot suspend the right to
move the Court for the enforcement of fundamental
rights guaranteed by Articles 20 to 21.
➢ Secondly, only those laws which are related with the
emergency are protected from being challenged
and not other laws and the executive action taken
only under such a law, is protected.
 State
Emergency
 State Emergency
❖ This is popularly known as ‘President’s Rule’. It is also
known as ‘State Emergency’ or ‘Constitutional
Emergency’.
❖ Article 355 imposes a duty on the Centre to ensure that
the government of every state is carried on in
accordance with the provisions of the Constitution.
❖ It is this duty in the performance of which the Centre
takes over the government of a state under Article 356
in case of failure of constitutional machinery in state.
 State Emergency
❖ The President’s Rule can be proclaimed under Article
356 on two grounds:
➢ Article 356 - If President is satisfied that a situation
has arisen in which the government of a state
cannot be carried on in accordance with the
provisions of the Constitution.
➢ Notably, the president can act either on a report of
the governor of the state or otherwise too (ie, even
without the governor’s report).
 State Emergency
❖ The President’s Rule can be proclaimed under Article
356 on two grounds:
➢ Article 365 - whenever a state fails to comply with
or to give effect to any direction from the Centre, it
will be lawful for the president to hold that a
situation has arisen in which the government of the
state cannot be carried on in accordance with the
provisions of the Constitution.
 State Emergency
❖ Parliamentary Approval and Duration:
➢ A proclamation imposing President’s Rule must be
approved by both the Houses of Parliament within
two months from the date of its issue.
➢ If approved by both the Houses of Parliament, the
President’s Rule continues for six months.
➢ It can be extended for a maximum period of three
years with the approval of the Parliament, every six
months.
 State Emergency
❖ Parliamentary Approval and Duration:
➢ Every resolution approving the proclamation of
President’s Rule or its continuation can be passed
by either House of Parliament only by a simple
majority, that is, a majority of the members of that
House present and voting.
➢ 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.
 State Emergency
❖ Parliamentary Approval and Duration: 44th
Amendment, 1978
➢ It provided that, beyond one year, the President’s
Rule can be extended by six months at a time only
when the following two conditions are fulfilled:
■ A proclamation of National Emergency should be in
operation in the whole of India, or in the whole or any
part of the state; and
■ The Election Commission must certify that the general
elections to the legislative assembly of the concerned
state cannot be held on account of difficulties.
 State Emergency
❖ Consequences of President’s Rule: The President
acquires the following extraordinary powers when the
President’s Rule is imposed in a state:
➢ He can take up the functions of the state
government and powers vested in the governor or
any other executive authority in the state.
➢ He can declare that the powers of the state
legislature are to be exercised by the Parliament.
➢ He can take all other necessary steps including the
suspension of the constitutional provisions relating
to any body or authority in the state.
 State Emergency
❖ Consequences of President’s Rule: Therefore, when the
President’s Rule is imposed in a state, the President
dismisses the state council of ministers headed by the
chief minister.
❖ 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.
 State Emergency
❖ Consequences of President’s Rule: This is the reason
why a proclamation under Article 356 is popularly
known as the imposition of ‘President’s Rule’ in a state.
Further,
❖ The President either suspends or dissolves the state
legislative assembly. The Parliament passes the state
legislative bills and the state budget.
 State Emergency
❖ Consequences of President’s Rule: A law made by the
Parliament or president or any other specified authority
continues to be operative even after the President’s
Rule. This means that the period for which such a law
remains in force is not co-terminous with the duration
of the proclamation. But it can be repealed or altered or
re-enacted by the state legislature.
❖ 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.
 State Emergency
❖ Scope of Judicial Review: S.R. Bommai v. U.O.I.
❖ The presidential proclamation imposing President’s Rule
is subject to judicial review.
❖ The satisfaction of the President must be based on
relevant material. The action of the president can be
struck down by the court if it is based on irrelevant or
extraneous grounds or if it was found to be malafide or
perverse.
 State Emergency
❖ Scope of Judicial Review: S.R. Bommai v. U.O.I.
❖ Burden lies on the Centre to prove that relevant material
exist to justify the imposition of the President’s Rule.
❖ The court cannot go into the correctness of the material
or its adequacy but it can see whether it is relevant to
the action.
 State Emergency
❖ Scope of Judicial Review: S.R. Bommai v. U.O.I.
❖ If the court holds the presidential proclamation to be
unconstitutional and invalid, it has power to restore the
dismissed state government and revive the state legislative
assembly if it was suspended or dissolved.
❖ The state legislative assembly should be dissolved only after
the Parliament has approved the presidential 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.
 State Emergency
❖ Scope of Judicial Review: S.R. Bommai v. U.O.I.
❖ Secularism is one of the ‘basic features’ of the
Constitution. Hence, a state government pursuing
anti-secular politics is liable to action under Article 356.
❖ The question of the state government losing the
confidence of the legislative assembly should be
decided on the floor of the House and until that is done
the ministry should not be unseated.
 State Emergency
❖ Scope of Judicial Review: S.R. Bommai v. U.O.I.
❖ Where a new political party assumes power at the
Centre, it will not have the authority to dismiss
ministries formed by other parties in the states.
❖ The power under Article 356 is an exceptional power
and should be used only occassionally to meet the
requirements of special situations.
 Financial
Emergency
 Financial Emergency
❖ Article 360 empowers the president to proclaim a
Financial Emergency if he is satisfied that a situation has
arisen due to which the financial stability or credit of
India or any part of its territory is threatened.
❖ The satisfaction of the president is subject to judicial
review.
❖ A proclamation declaring financial emergency must be
approved by both the Houses of Parliament within two
months from the date of its issue.
 Financial Emergency
❖ Once approved by both the Houses of Parliament, the
Financial Emergency continues indefinitely till it is revoked.
This implies two things:
❖ There is no maximum period prescribed for its operation; and
❖ Repeated parliamentary approval is not required for its
continuation. A resolution approving the proclamation of
financial emergency can be passed by either House of
Parliament only by a simple majority, that is, a majority of the
members of that house present and voting.
 Financial Emergency
❖ The consequences of the proclamation of a Financial
Emergency are as follows:
❖ The executive authority of the Centre extends (a) to
directing any state to observe such canons of financial
propriety as are specified by it; and to directions as the
President may deem necessary and adequate for the
purpose.
 Financial Emergency
❖ The consequences of the proclamation of a Financial
Emergency are as follows:
❖ 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.
 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; and (b) the judges of the Supreme
Court and the high court.