Emergency Provisions Under The Indian Constitution
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EMERGENCY PROVISIONS UNDER CONSTITUTION OF INDIA: The Indian system of government is of quasi-judicial nature where resembling a federal government, powers are distributed between the centre and the state and similar to unitary form because of retention of powers to the Union during emergency. Here the state government relinquishes their rights to the central government to retain security and pursuit of public welfare. It was at the time when neighbouring country, China attacked the northern borders posing a threat to the security of India, when for the first time the Union assumed powers to handle such a situation. Since then the President was assigned with extraordinary powers to act in situations of Emergency. Part XVIII of the Constitution has made provision for three kinds of emergencies: ➢ National Emergency
➢ Emergency due to failure of constitutional machinery in states ➢ Financial Emergencies These Are Explained Below: •
ARTICLE 352: The constitution makers have equipped the Union under Article 352 with absolute control during time of emergency to preserve the integrity, security and stability of the country. Proclamation of Emergency under this Article excludes the other two kinds of Emergencies. President can impose National Emergency if he is satisfied that a grave situation exists or is likely to arise due to war, external aggression or armed rebellion (earlier it was internal disturbance). However his powers are subject to the recommendation of the Cabinet. The proclamation must also be laid before the House of Parliament which may approve it by passing a resolution, take no action or disapprove it within one month. Such a proclamation is notified by publication in official gazette but this is not obligatory. So far National Emergency has been declared three times in the country, first being in 1962-1968 when China attacked Indian borders, second in 1971-1977 during Second World War and the third was imposed in 1975 on grounds of internal disturbances.
•
ARITCLE 356: Under this article the President is vested with wide discretionary powers when he is satisfied that the government of the state cannot be carried on in accordance with the provision of the Constitution of India. Imposition of Emergency during failure of constitutional machinery in state is called Presidents Rule and noncompliance by any state with direction of Union given in the exercise of its executive power is an express ground to impose such a rule. Such a proclamation to be operative must be placed before the House of Parliament and with its approval it is valid for six months. In S.R. Bommai v. Union Of India, a full bench of the Karnataka high court produced different opinion about the imposition of the President’s Rule in 1
Karnataka, while in other states the court held that it was in violation of the constitution and would have restored the original position.
•
ARTICLE 360: This article explains Financial Emergency imposed by the President in a situation of financial crises where the credit of India, or any part is threatened or in danger. The purpose of this article is to alter the governmental machinery at the backdrop of the financial stability of the country. Unless approved by the House of Parliament this proclamation shall cease to operate in two months. In so far, this proclamation is not imposed in India.
Effects Of Proclamation Of Emergencies: The effects of Proclamation of Emergency are given under Article 353 of the
Constitution. The power under this is provisional and cannot be used without reasonable care. The most important effect is that during the operation of a proclamation the federal nature of the government becomes unitary and the union has power to give directions to the state in reference to the executive power to be exercised by them. In this way the legislative power of the union parliament is enlarged up to the extent that it can make laws for the state and also modify provisions regarding revenue matters. Where the fundamental rights are concerned, during emergency arising out of war or external aggression Article 19 is suspended. During the continuance of proclamation, power is vested in the President to suspend the right of individual to move to the courts in case of infringement of their fundamental rights except those under Article 20 and Article 21 under the Constitution of India. In Bennett Coleman & co. v. Union of India, the supreme court held that the Newsprint Policy of 1972-73 in continuation of the old policy made before the Proclamation of Emergency was not protected during the operation of the proclamation from attack under Article 19.
Under the President’s Rule the President is empowered with powers to suspend or
dissolve the State legislative Assembly. The provisions made by the president in view of the Rule are incidental or consequential and must be necessary to give effect to objects of the proclamation. Article 357 provides the manner in which the legislative powers are exercised under the proclamation issued under Article 356. In Nishi Kanta Mondal v. State of W.B, it was held that the Act enacted, in view of the provisions of clause (2) of Article 357, shall continue to remain in force in spite of the revocation of the Proclamation unless the Act is repealed or re-enacted with or without modifications by an Act of appropriate legislature. 2
While the Proclamation of Financial Emergency is operative as per Article 360 of the
constitution, powers are vested in the President to give directions to states regarding financial matters, to reduce salaries and allowance of government servants and also reserve all money bills. The salaries of the higher official including judges of the Supreme Court can also be altered to make the country financially stable at times of crisis.
Abuse of Power: It is clear that the power extended to the Union Parliament in the Proclamation of Emergency must be used in rarest of the rare cases. However it is not so, the power given to the President to be used in extraordinary circumstances is widely used for political benefits of individuals rather than public interest. This abuse of power can easily lead to sedition of the Indian democracy. In a number of cases the power was distorted with political considerations, sometimes there is also self interest of the individual that lie behind the decisions taken during manoeuvre of Emergency. The 44th amendment ensured that internal disturbance would no longer be ground for Proclamation of Emergency, where it lead to the worst abuse of Emergency power at National level in 1975 and continued till 1977. The power under Article 356 has been used frequently in India since 1950, especially in states like Uttar Pradesh, Kerela and Punjab. At one instance this President’s Rule was imposed purely on political grounds to overthrow the ministry formed by a different party. By the 42nd amendment in 1976, it was exemplified as it affected almost sixty clauses of the constitution. Therefore there is demand for either deletion or making provisions to restrict misuse of these provisions.
Deterrence of Abuse of Power: It is noteworthy that the Emergency Provisions are subject to abuse by the authorities and relevant safeguards must be followed to deter the same. The constitution of India guarantees to the citizens of India fundamental rights, which are suspended pursuant to Emergency Provisions. It must be kept in mind that the human rights must be not violated during the proclamation, if so, done with justifiable cause in favour of individual interest. Also the social, cultural, political, and civil rights of people must be safeguarded. The Provisions must not be such as to disregard the principle of legality. ‘Due procedure of law’ or ‘procedure established by law’ as mentioned in Maneka Gandhi v. Union of India, must be followed to prevent corruption and misuse of power. It is a conditional power and must be used as a last resort with due care. The Sarkaria Commission sharing a similar view believes that this extraordinary power given by the constitution must be used as a 3
constitutional weapon to deal with extreme situation and not used frequently as is being done in India. First time in S.R Bommai v. Union of India, it was held that the Proclamation under Artcle 356 can be subject to judicial review. The judges have the power to examine the validity of grounds on which the Proclamation of Emergency is based. The power of judicial review was first experienced in State of Rajasthan v. Union of India, held that there cannot be any uniform rule of law for Proclamation of Emergency, it varies in different circumstances.
Also in Ram Manohar Lohia v. State of Bihar, the order of detention under the Defence of India Rules was held to be illegal because the actual order of detention in the case was not in terms of the rules. Proclamation of Emergency provisions are legitimate action but must be applied only when the situation demands. It should be used cautiously to avoid interruption in the constitutional mechanism. Therefore, limitations should be placed to bring the actions under constitutional limit. Government is responsible for all the acts and thus scrutiny of the basis of rules is a necessity to deter abuse of power for political or other purpose other than social welfare. Where state government fails to follow the directions of the central government, proclamation of Emergency cannot be imposed. Emergency intervention in the country must be for short term and it should deal with Emergency situations only. The decision making power must not be vested in few hands, this may lead to biased ground of imposing Proclamation. Expertise from different areas of work must be involved in decision making process. Thus it is crystal clear that to prevent abuse of power during Proclamation of Emergency three things should be kept in mind i.e functioning democracy, protection of human rights and Rule of Law.
A Relative Study: The Indian Constitution equips the central government with powers to function while operation of Proclamation of Emergency whether National Emergency, Emergency due to failure of constitutional machinery in states or Financial Emergency. The President is vested with wide discretionary powers, subject to constitutional validity of the same. Similarly in the European countries the Emergency measures must not exceed that what the situation demands and they cannot be inconsistent with the states other obligations as per under the International law. One of the duties while exercising the power under Article 352 is the protection of human rights. However Article 19 is suspended during operation of the proclamation but as soon as the Emergency ceases, these rights must be reinstated to the individuals. In Bangladesh it is 4
recommended that there should be immediate restoration of fundamental and democratic rights of people after the Emergency ceases to operate. As stated in S.R. Bommai v. Union of India, that grounds of Proclamation of Emergency must be reasonable and are subject to judicial review, the ancient Romans placed automatic limit of six months on Emergency dictatorship. According to them existence of reasonable cause is must and the same should be proved and justified.
The President can declare an Emergency mentioned in Article 352 of the Constitution of India only on written advice of the Union Cabinet, with further approval of the House of Parliament within one month in case of National Emergency and within two months in case of the other two types of Emergencies, from the date of its imposition. Also, in Germany, the President can declare Emergency on request of the Chancellor with approval of Federal Council.
Conclusion: Where the Constitution provides for execution of power which may lead to infringement of fundamental rights of the individual during Emergency, judicially guaranteed by Constitution of India, there must also be effective control mechanism to ensure limitation of this power within the ambit of the Constitution. The validity of actions must be reviewed to deter political gains and give way to public interest. Despite the abuse of power the Emergency provisions still have a role to play under conditions prevailing in India, though it still remains a controversial issue in the country.
5
➢ Emergency due to failure of constitutional machinery in states ➢ Financial Emergencies These Are Explained Below: •
ARTICLE 352: The constitution makers have equipped the Union under Article 352 with absolute control during time of emergency to preserve the integrity, security and stability of the country. Proclamation of Emergency under this Article excludes the other two kinds of Emergencies. President can impose National Emergency if he is satisfied that a grave situation exists or is likely to arise due to war, external aggression or armed rebellion (earlier it was internal disturbance). However his powers are subject to the recommendation of the Cabinet. The proclamation must also be laid before the House of Parliament which may approve it by passing a resolution, take no action or disapprove it within one month. Such a proclamation is notified by publication in official gazette but this is not obligatory. So far National Emergency has been declared three times in the country, first being in 1962-1968 when China attacked Indian borders, second in 1971-1977 during Second World War and the third was imposed in 1975 on grounds of internal disturbances.
•
ARITCLE 356: Under this article the President is vested with wide discretionary powers when he is satisfied that the government of the state cannot be carried on in accordance with the provision of the Constitution of India. Imposition of Emergency during failure of constitutional machinery in state is called Presidents Rule and noncompliance by any state with direction of Union given in the exercise of its executive power is an express ground to impose such a rule. Such a proclamation to be operative must be placed before the House of Parliament and with its approval it is valid for six months. In S.R. Bommai v. Union Of India, a full bench of the Karnataka high court produced different opinion about the imposition of the President’s Rule in 1
Karnataka, while in other states the court held that it was in violation of the constitution and would have restored the original position.
•
ARTICLE 360: This article explains Financial Emergency imposed by the President in a situation of financial crises where the credit of India, or any part is threatened or in danger. The purpose of this article is to alter the governmental machinery at the backdrop of the financial stability of the country. Unless approved by the House of Parliament this proclamation shall cease to operate in two months. In so far, this proclamation is not imposed in India.
Effects Of Proclamation Of Emergencies: The effects of Proclamation of Emergency are given under Article 353 of the
Constitution. The power under this is provisional and cannot be used without reasonable care. The most important effect is that during the operation of a proclamation the federal nature of the government becomes unitary and the union has power to give directions to the state in reference to the executive power to be exercised by them. In this way the legislative power of the union parliament is enlarged up to the extent that it can make laws for the state and also modify provisions regarding revenue matters. Where the fundamental rights are concerned, during emergency arising out of war or external aggression Article 19 is suspended. During the continuance of proclamation, power is vested in the President to suspend the right of individual to move to the courts in case of infringement of their fundamental rights except those under Article 20 and Article 21 under the Constitution of India. In Bennett Coleman & co. v. Union of India, the supreme court held that the Newsprint Policy of 1972-73 in continuation of the old policy made before the Proclamation of Emergency was not protected during the operation of the proclamation from attack under Article 19.
Under the President’s Rule the President is empowered with powers to suspend or
dissolve the State legislative Assembly. The provisions made by the president in view of the Rule are incidental or consequential and must be necessary to give effect to objects of the proclamation. Article 357 provides the manner in which the legislative powers are exercised under the proclamation issued under Article 356. In Nishi Kanta Mondal v. State of W.B, it was held that the Act enacted, in view of the provisions of clause (2) of Article 357, shall continue to remain in force in spite of the revocation of the Proclamation unless the Act is repealed or re-enacted with or without modifications by an Act of appropriate legislature. 2
While the Proclamation of Financial Emergency is operative as per Article 360 of the
constitution, powers are vested in the President to give directions to states regarding financial matters, to reduce salaries and allowance of government servants and also reserve all money bills. The salaries of the higher official including judges of the Supreme Court can also be altered to make the country financially stable at times of crisis.
Abuse of Power: It is clear that the power extended to the Union Parliament in the Proclamation of Emergency must be used in rarest of the rare cases. However it is not so, the power given to the President to be used in extraordinary circumstances is widely used for political benefits of individuals rather than public interest. This abuse of power can easily lead to sedition of the Indian democracy. In a number of cases the power was distorted with political considerations, sometimes there is also self interest of the individual that lie behind the decisions taken during manoeuvre of Emergency. The 44th amendment ensured that internal disturbance would no longer be ground for Proclamation of Emergency, where it lead to the worst abuse of Emergency power at National level in 1975 and continued till 1977. The power under Article 356 has been used frequently in India since 1950, especially in states like Uttar Pradesh, Kerela and Punjab. At one instance this President’s Rule was imposed purely on political grounds to overthrow the ministry formed by a different party. By the 42nd amendment in 1976, it was exemplified as it affected almost sixty clauses of the constitution. Therefore there is demand for either deletion or making provisions to restrict misuse of these provisions.
Deterrence of Abuse of Power: It is noteworthy that the Emergency Provisions are subject to abuse by the authorities and relevant safeguards must be followed to deter the same. The constitution of India guarantees to the citizens of India fundamental rights, which are suspended pursuant to Emergency Provisions. It must be kept in mind that the human rights must be not violated during the proclamation, if so, done with justifiable cause in favour of individual interest. Also the social, cultural, political, and civil rights of people must be safeguarded. The Provisions must not be such as to disregard the principle of legality. ‘Due procedure of law’ or ‘procedure established by law’ as mentioned in Maneka Gandhi v. Union of India, must be followed to prevent corruption and misuse of power. It is a conditional power and must be used as a last resort with due care. The Sarkaria Commission sharing a similar view believes that this extraordinary power given by the constitution must be used as a 3
constitutional weapon to deal with extreme situation and not used frequently as is being done in India. First time in S.R Bommai v. Union of India, it was held that the Proclamation under Artcle 356 can be subject to judicial review. The judges have the power to examine the validity of grounds on which the Proclamation of Emergency is based. The power of judicial review was first experienced in State of Rajasthan v. Union of India, held that there cannot be any uniform rule of law for Proclamation of Emergency, it varies in different circumstances.
Also in Ram Manohar Lohia v. State of Bihar, the order of detention under the Defence of India Rules was held to be illegal because the actual order of detention in the case was not in terms of the rules. Proclamation of Emergency provisions are legitimate action but must be applied only when the situation demands. It should be used cautiously to avoid interruption in the constitutional mechanism. Therefore, limitations should be placed to bring the actions under constitutional limit. Government is responsible for all the acts and thus scrutiny of the basis of rules is a necessity to deter abuse of power for political or other purpose other than social welfare. Where state government fails to follow the directions of the central government, proclamation of Emergency cannot be imposed. Emergency intervention in the country must be for short term and it should deal with Emergency situations only. The decision making power must not be vested in few hands, this may lead to biased ground of imposing Proclamation. Expertise from different areas of work must be involved in decision making process. Thus it is crystal clear that to prevent abuse of power during Proclamation of Emergency three things should be kept in mind i.e functioning democracy, protection of human rights and Rule of Law.
A Relative Study: The Indian Constitution equips the central government with powers to function while operation of Proclamation of Emergency whether National Emergency, Emergency due to failure of constitutional machinery in states or Financial Emergency. The President is vested with wide discretionary powers, subject to constitutional validity of the same. Similarly in the European countries the Emergency measures must not exceed that what the situation demands and they cannot be inconsistent with the states other obligations as per under the International law. One of the duties while exercising the power under Article 352 is the protection of human rights. However Article 19 is suspended during operation of the proclamation but as soon as the Emergency ceases, these rights must be reinstated to the individuals. In Bangladesh it is 4
recommended that there should be immediate restoration of fundamental and democratic rights of people after the Emergency ceases to operate. As stated in S.R. Bommai v. Union of India, that grounds of Proclamation of Emergency must be reasonable and are subject to judicial review, the ancient Romans placed automatic limit of six months on Emergency dictatorship. According to them existence of reasonable cause is must and the same should be proved and justified.
The President can declare an Emergency mentioned in Article 352 of the Constitution of India only on written advice of the Union Cabinet, with further approval of the House of Parliament within one month in case of National Emergency and within two months in case of the other two types of Emergencies, from the date of its imposition. Also, in Germany, the President can declare Emergency on request of the Chancellor with approval of Federal Council.
Conclusion: Where the Constitution provides for execution of power which may lead to infringement of fundamental rights of the individual during Emergency, judicially guaranteed by Constitution of India, there must also be effective control mechanism to ensure limitation of this power within the ambit of the Constitution. The validity of actions must be reviewed to deter political gains and give way to public interest. Despite the abuse of power the Emergency provisions still have a role to play under conditions prevailing in India, though it still remains a controversial issue in the country.
5
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