Emergency Provisions (Part XVIII

of the Constitution of India)

Indian Federalism
Learning Objectives
• In this module you will learn about different kinds of emergencies
envisaged under the Indian Constitution.
• You will also understand the impact of emergency on federal
structure and fundamental rights.
• Discussion will also take place regarding the controversies
surrounding the use or misuse of article 356 and how the judiciary
has tried to incorporate safeguards to protect our federal structure
and fundamental rights.
Three Kinds of Emergency

Failure of
Constitutional
National Emergency Financial Emergency
Machinery (art. 355-
(article 352) (article 360)
356) (State
Emergency)
1. Proclamation of Emergency
• Article 352 provides that if the President is satisfied that a grave
emergency exists whereby the security of India or any part of its territory is
threatened by war, or external aggression or armed rebellion, he may by
proclamation, make a declaration to that effect.
• Even if President is satisfied that there is imminent danger thereof, a
proclamation of emergency can be declared. (art. 352(1) and art. 352(9))
• According to the Constitution (Forty Fourth Amendment) Act, 1978, the
President can declare such an emergency only if the Cabinet headed by the
Prime minister and other Ministers of Cabinet rank recommends in writing
doing so.
• This was incorporated to avoid the kind of situation of 1975 wherein on the
oral advice of the prime minster, the Proclamation of emergency was
declared.
2. Procedure for declaring Emergency
• Every proclamation needs to be laid before both Houses of Parliament.
• If both Houses of Parliament do not approve of it within one month, it will
cease to operate at the expiration of thirty days from the date on which the
proclamation was issued.
• In case the Lok Sabha stands dissolved at the time of proclamation of
emergency or is not in session, it has to be approved by the Rajya Sabha
within one month and later on by the Lok Sabha also within one month of
the commencement of its next session.
• Once approved by the Parliament, the emergency remains in force for a
period of six months from the date of proclamation.
• In case it is to be extended beyond six months, another resolution has to
be passed by the Parliament.
3. Revocation of Emergency
• The proclamation of the emergency can be revoked by another proclamation by
the President of India.
• The Constitution (Forty Fourth Amendment) Act 1978, has added certain control
mechanisms to be exercised by the House of the People if it passes a resolution
to that effect.
• If the House of the People is not in session, then ten per cent or more members
of that House can issue a notice in writing to the speaker if the House is in session
or to the president if the House is not in session for the revocation of the
emergency and if passed by a simple majority emergency will immediately
become inoperative.
• If the notice is given to the President, he shall convene the session of the House
of the People for a special sitting within fourteen days from the date on which
such notice is received by the Speaker or as the case may be by the President, for
the purpose of considering such resolution.
Proclamation of Emergency and Judicial
Review
• In Minerva Mills v. Union of India, (AIR 1980 SC 1789) it was held that
even though the proclamation under article 352 is the prerogative of
the president, there is no bar to judicial review of the validity of the
proclamation of emergency.
• However, court's power is not unlimited and extends only to
examining whether the limitations conferred by the constitution have
been observed or not.
4. Effect of National Emergency on Indian
Federal structure
• Firstly, the executive power of the Union shall extend to the giving of any
direction to any State in the declared emergency area. (Art. 353(a))
• Secondly, Parliament’s lawmaking power will extend to the subjects
enumerated even in the State List. (art. 353(b))
• Further, the President is empowered to alter the distribution of revenues
that are normally to be assigned to the States under the financial
provisions of the Constitution. (art. 354(1))
• During the period, the tenure of Lok Sabha and State Assemblies can be
extended by a period of one year at a time and not extending in any case
beyond a period of six months after the proclamation ceased to exist. (Art.
83 (2) read with proviso and art. 172(1) proviso, respectively).
4. Effect of National Emergency on Indian Federal
structure: Impact on Fundamental Rights)
• The Fundamental Rights under Article 19 are automatically suspended and this
suspension continues till the end of the emergency. (art. 358).
• The Constitution (Forty Fourth Amendment) Act 1978 incorporated certain
changes in this structure. Freedoms listed in Article 19 can be suspended only in
case of proclamation on the ground of war or external aggression.
• Further, the Constitution empowers the President to suspend the right to move
any court of law for the enforcement of any of the fundamental Rights. (art. 359).
Such orders are to be placed before Parliament as soon as possible for its
approval.(art. 359(3))
• The Constitution (Forty Fourth Amendment) Act 1978, inserted a restraint on the
unbridled power of executive. After the Constitution (Forty Fourth Amendment)
Act, Article 21 of the Constitution which guarantees right to life and personal
liberty cannot be suspended even during emergency.
State of Maharashtra v. Prabhakar Pandurang
(AIR 1966 SC 424)
• In State of Maharashtra v. Prabhakar Pandurang, the Supreme court
held that if a person was deprived his personal liberty not under the
Defence of India Act, or any rule made under that Act, his right to
move the court in that regard would not be suspended.
Mohd. Yaqub v. State of Jammu and Kashmir
(AIR 1968 SC 765)
• In Mohd. Yaqub v. State of Jammu and Kashmir, the Supreme Court
held that an order issued by the President under article 359(1) was
not law within the meaning of article 13(2) and therefore its validity
cannot be challenged with reference to the provisions of part III.
Thus, if the order suspends the enforcement of article 14, if cannot be
challenged on the ground that it is discriminatory under article 14.
The validity of the order cannot be tested under the very
fundamental rights, i.e. article 14, which may be suspended.
Makhan Singh v. State Of Punjab (AIR 1964
SC 1120)
• In Makhan Singh v. State Of Punjab, the validity of the suspension of
the right to move any court for the enforcement of Articles 14, 21 and
22 under the proclamation of emergency declared during the Indo-
China war was challenged. The Supreme Court held that the rights
were suspended only for legally detained persons and not applicable
to persons illegally detained under preventive detention law. The
Supreme Court pointing out that a citizen would not be deprived of
his right to move the appropriate court for a writ of habeas corpus if
his detention had been mala fide.
A.D.M. Jabalpur v. Shiv Kant Shukla (The
Habeas Corpus Case) (AIR 1976 SC 1207)
• The court held that political detainees could be denied all access to
the courts during an emergency.
• The court further held that “in effect, if not in intent, that as to life
and personal liberty, all laws were abrogated during the emergency.”
• The Court declared article 21 to be the sole repository of liberty and
when that has been suspended in its totality, there cannot be any
question of enjoyment of right to life and liberty and no writ of
Habeas Corpus is maintainable.
• The judgment is criticised and many believe that the Court did not
uphold the legitimacy and supremacy of the Constitution.
5. Safeguards introduced under the Constitution
(Forty Fourth Amendment) Act, 1978
• This amendment has made two important changes in article 358. Firstly,
article 19 will be suspended only when a proclamation of emergency is declared
on the ground of war or external aggression and not when the emergency
declared on the ground of armed rebellion.
• Secondly, it has inserted a new clause (2) in article 358 which says that nothing in
clause (1) shall apply to- (a) any law which does not contain a recital to the effect
that such a law is in relation to the proclamation of emergency, or (b) to any
executive action taken otherwise than under a law containing such a rectal. This
clause makes it clear that article 358 will only protect emergency laws from being
challenged in court of law and no other laws which are not related to the
emergency.
• After this amendment, Article 21 of the Constitution which guarantees
right to life and liberty, cannot be suspended even during emergency.
(B) STATE EMERGENCY or Failure of
Constitutional Machinery in the State
• Article 355 of the Constitution of India enjoins a responsibility on the
Union Government to protect States against external aggression and
internal disturbance.
• In pursuance of this goal Article 356 provides that if the President is
satisfied on receipt of a report from the Governor or otherwise that a
situation has arisen in which the Government of a State cannot be
carried on in accordance with the provisions of the Constitution, he is
empowered to issue a proclamation under Article 356. (Art. 356(1)).
• The proclamation may be revoked subsequently; if not, it shall be laid
before both Houses of Parliament, if Parliament does not approve of
it within two months, it will become ineffective. (Art 356(3)).
1. Effect of a proclamation issued under
article 356
• (i) The president may 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; (Art 356(1)(a))
• (ii) he may declare that the powers of the State legislature shall be
exercisable by or under the authority of Parliament; (Art 356(1)(b))
• (iii) The President, however, cannot assume himself any of the
powers vested in a High Court. (Art 356(1) (c ))
Judiciary safeguards to abuse of article 356
• Since the commencement of the Constitution, this type of
proclamation under article 356 has been issued almost 100 times.
• In its analysis, the National Commission to Review the Working of the
Constitution (NCRWC) stated that in at least twenty out of the more
than one hundred instances, the invocation of Article 356 might be
termed as a misuse. (NCRWC, 2002)
Court's cautious approach to use Judicial
Review {Pre-Minerva Mill case}

• After the general elections in 1977, in the case of State of Rajasthan

v. Union of India (1977) 3 SCC 592,629, the issue of the power of
judicial review came up. Court held that the power of the President
under Article 356 concerns his political judgment and the courts
usually avoid entering the political thicket.
• However, this power does not enjoy blanket immunity from judicial
review.But if the satisfaction is mala fide or is based on wholly
extraneous and irrelevant grounds, the Court would have jurisdiction
to examine it.
Minerva Mills v. UoI (AIR.1980 SC 1789)
• The Supreme Court observed, that it should not hesitate to perform
its constitutional duty to Judicial Review merely because it involves
consideration of political issues. At the same time, it should restrict
itself to examining whether the constitutional requirements have
been observed in the declaration of the Proclamation and it should
not go into the sufficiency of the facts and circumstances of the
presidential satisfaction in the existence of a situation of emergency.
• Drawing on the analogy we can interpret that, though limited, the
presidential Proclamation under Article 356 is subject to judicial
review.
Constitutional validity of the Union’s dissolution of the
Bihar State legislative assembly
• In Rameshwar Prasad v. Union of India (2006) 2 SCC 1, the Supreme
Court reviewed the constitutional validity of the Union’s dissolution of
the Bihar State legislative assembly and the proclamation of
President’s rule under Article356 of the Constitution.
• It held that if the Governor’s report, which forms the basis of
invoking Article 356, is mala fide, arbitrary, or irrelevant, the
proclamation can be struck down.
The Sarkaria Commission for the Centre–State
Relations: Recommendations on Article 356
• It recommended that Article 356 should be used only as a last resort.
• The Commission felt that article 356 is justiciable only when all available
alternatives had failed to prevent a breakdown of constitutional machinery
in a State.
• 2. Every effort is made to resolve the crisis at State level.
• 3. Commission recommended amendment of Art 356 to incorporate a
speaking order with material facts. The Governor’s Report, advising
president should be a ‘speaking document, containing a precise and clear
statement of all material facts and grounds’.
• Commission also broadly classified the following possible instances of
constitutional breakdown: (a) Political crises. (b) Internal subversion. (c)
Physical breakdown. (d) Non-compliance with constitutional directions of
the Union Executive.
S.R. Bommai Constitutional court decision
• (1) Article 356 should be used sparingly as to not to disturb the delicate balance of
power between Centre and states. Federalism constitutes a basic structure of the
constitution;
• (2) The essential condition for the intervention by the Centre is the political instability of
the State, that is, the virtual breakdown of the parliamentary system of the government;
• (3) The Union will watch the situation of instability with utmost caution and provide
every opportunity for the formation of an alternative ministry;
• (4) The power conferred by Article 356 upon the President is a conditioned power. It is
not an absolute power. An objective analysis of conditions must precede before the
imposition of president’s rule by invoking Article 356;
• (5) The State's Assembly must not be dissolved before both Houses of Parliament have
approved the proclamation made by the President under Article 356. Until such
approval, the President can only suspend the Legislative Assembly by suspending the
provisions of Constitution relating to the Legislative Assembly;
S R Bommai: Federalism is basic structure
• (6) Judicial review is part of basic structure and hence court will have
the power to consider independently whether in fact conditions so
existed as to warrant exercise of the power under article 356. Once a
prima facie case is made out, the burden of proof will lie on the
Government of India to justify the action.
• (7) Courts can call for the records and materials from the government
containing the material on the basis of which the Council of Ministers
of the Government of India tendered the advice to the President; and
• (8) Courts have got the power to strike down a proclamation issued
under article 356 as unconstitutional. In such a case, the dissolved
state assembly can be reinstated.
(C) Financial Emergency
• If the President is satisfied that a situation has arisen whereby the financial
stability or credit of India or any part of it is threatened, he may declare a
financial emergency under Article 360.
• The proclamation in this case also should be approved by Parliament as in the
other two cases mentioned above.
During a financial emergency, “the executive authority of the Union shall extend
to the giving of directions to any State, to observe such canons of financial
propriety as may be specified in the direction, or any other directions which the
President may deem necessary for the purpose.” (art. 360(3))
• Such directions may include those requiring the reduction of salaries and
allowances of Government servants and even those of Judges of the Supreme
Court and the High Courts. (art. 360(4)(b))
• However, it is interesting to note that no such proclamation has been issued
under article 360 so far.