Emergency Provisions

Topics Discussed: -

·       Introduction

·       Grounds of Crisis Declaration

·       National Emergency

·       State Emergency or President’s Rule

·       Financial Emergency

·       Introduction

Ø Articles 352 to 360 are emergency powers of centre.

Ø These are given to deal with exceptional circumstances like war or rebellion. These emergency provisions were made part of the Constitution to safeguard and protect the security, integrity and stability of the country and effective functioning of Governments.

Ø The powers were influenced by the German constitution.

Ø They turn India’s federal structure into a unitary one without amendment to the constitution.

·       Grounds of Crisis Declaration

                                     I.            When there is a war or external aggression has been committed or there is threat of the same, or if internal disturbances amounting to armed rebellion taking place.

                                  II.            When it becomes impossible for the government of a State to be carried on in accordance with the Constitution.

                                III.            If the credit or financial stability of the country is threatened.

·       National Emergency (Art. 352)

 When can it be imposed?

3 conditions – War, External Aggression, Armed Rebellion

Note: Armed Rebellion was changed from Internal Disturbance on the recommendation of the Shah Commission. Internal Disturbance was a vague term prone to misuse.

 Features

Can only be proclaimed on the written advice of the Union Cabinet (not the PM). Perhaps, this is the only place where Union Cabinet has a role.

1.   Expires in 1 month from its issue unless approved by a Special Majority (of the second kind*) – Not less than 2/3rd of the Members present and voting + Absolute Majority – in both the houses of the Parliament.

2.    If the LS is dissolved, then RS shall approve it within 1 month and the re-constituted LS shall ratify within 30 days.

3.    Once approved, the proclamation is extended for 6 months, which can be extended again for 6 more months.

4.    Not less than 1/10th of the Members of the LS (this can only be initiated in the LS) may give notice in writing to the Speaker or President (when LS is not in session). If there is no session, a special sitting of the LS shall be held within 14 days. If the resolution gets passed, the President has to revoke the Emergency.

Effects

1.    Executive: State Govt. is not suspended. Union Govt. can issue orders to the State Govt. on subjects on the State List (something that it can’t normally do).

2.    Legislature: State Legislature is not suspended. However, Parliament can make laws on the State subjects. Such laws remain valid for 6 months after the Emergency ceases to be.

3.    Financial: Distribution as per the President’s will subject to approval by the Parliament.

Note: Effect on FR

1.    Art. 19 automatically suspended (only in case of War and External Aggression)

2.   President by a further order can specify other FRs that won’t be operative, except Art. 20 and 21.

·       State Emergency OR President’s Rule

Why?

Under Article 356, the President can issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report from the Governor of the State, or otherwise, that a situation has arisen under which the Government of the State cannot be carried on smoothly. It is also called the President’s Rule.

When

It has been seen that the President’s Rule has been imposed when any one of the following circumstances have occurred:

1.    The state legislature is not able to elect a leader as the Chief Minister for a time prescribed by the state’s governor.

2.   Breakdown of a coalition in the state government, that leads to the CM having minority support in the legislature, and the CM is unable to prove his majority within the time prescribed by the governor.

3.   A no-confidence vote in the legislative assembly leading to a loss of majority.

4.    Postponement of elections owing to unavoidable reasons such as a natural disaster, epidemic or war.

5.   Article 365

Approval

 It must be approved by both the Houses of Parliament within two months, otherwise the proclamation ceases to operate. After approval, the proclamation remains valid for six months at a time. It can be extended for another six months but not beyond a year. But, emergency in a State can be extended beyond one year if 

1.   A National Emergency is already in operation

2.   The Election Commission certifies that the election to the State Assembly cannot be held.

3.    In all, there are more than hundred times that emergency has been imposed.

Effects of President’s Rule in a State

 It has the following effects:

(I)The President can take over all or any of the functions of the State Government or he may vest all or any of those functions with the Governor or any other executive authority.

(ii)The President may dissolve the State Legislative Assembly or suspend it. He can authorize the Parliament to make laws on behalf of the State Legislature.

(iii)The President can make provisions necessary to handle the situation.

Misuse of Article 356

Article 356 gave the Central government wide powers to stamp its authority on the state governments. Although it was meant only as a means to preserve the integrity and unity of the country, it had been used blatantly to oust state governments who were ruled by political opponents of the centre. 

§  It was used for the first time in 1951 in Punjab. Between 1966 and 1977, Indira Gandhi’s government used it about 39 times against various states. 

§  In the S.R. Bommai case (1994), the Supreme Court put forth strict guidelines for the imposition of Article 356.

§  The proclamation (of President’s Rule) is subject to Judicial Review on grounds of mala fide intention.

§  The imposition of Article 356 should be justified by the centre.

§  The court has the power to revive the suspended or dissolved state government if the grounds for the imposition is found to be invalid and unconstitutional.

§  The state assembly CANNOT be dissolved before parliamentary approval for the imposition of Article 356 and the President can only suspend the assembly.

§  Serious allegations of corruption against the state ministry and financial instability are NOT the grounds for the imposition of Article 356.

§  Any action by the state government that leads to the security of secularism (which is a basic feature of the Constitution) cannot be grounds for the use of Article 356.

§  Article 356 cannot be used to sort out any intraparty issues in the ruling party.

§  If the Ministry of the state resigns or is dismissed or loses the majority, then the governor cannot advise the President to impose this article until enough steps are taken by the governor for the formation of an alternative government.

§  The power under Article 356 is to be used only in case of exigencies. It is an exceptional power.

§  There have also been subsequent judgements of the SC that have limited the room for the misuse of this Article.

§  The Sarkaria Commission Report (1983) recommended that Article 356 should be used “very sparingly” and only as a last resort.

1.    The President’s proclamation of President’s Rule should include reasons as to why he thinks the state cannot run normally.

2.   Whenever possible, the center should give the state government a warning before imposing Article 356.

3.    The Article should not be used for settling political scores.

4.    The commission recommended the amendment of the article in order for the President to be authorized to dissolve the state legislature only after getting parliamentary approval.

·       The Punchhi Commission recommended that the center should try to bring only a specific troubled area under its jurisdiction and that too for a brief period, not more than three months.

1.    The commission recommended that suitable amendments should be made to incorporate the guidelines established by SC in the Bommai case.

2.    The commission recommended the provision of a ‘Localized Emergency’ which implies that the center can tackle issues at town/district (local) level without dissolving the state legislative assembly while at the same time, performing the duty of the Union to protect States as per Article 355.

·       Financial Emergency (Art. 360)

a. When can it be imposed? 

If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.

b.  Features

It will ordinarily remain in force for 2 months, unless it is approved by both the houses. If LS is dissolved in this period, similar clause as that of the National Emergency applies.

c.  Effect

1.   The financial autonomy of the states is transferred. The President can:

2.   Suspend distribution of financial resources.

3.   Issue directions to follow canons of finance.

4.   Direct the State Govt. to reduce the Salaries of their employees.

5.   Direct the Governors to reserve all financial and money bills for his consideration.

Note:  Effect on FR: No Effect