1|Page

National law institute university, Bhopal

Project on

Emergency provisions as found in Indian constitution from article 352 to 360

Constitutional law i

SUBMITTED BY-:
Dheeresh kumar dwivedi 2012 B.A.ALL.B.65

SUBMITTED TO-:
ms kuldeep kaur assistence PROFESSOR

3rd Trimester

2|Page

Table of content Acknowledgment03 Introduction..04 Emergency provisions in Indian constitution......05 Article 352-proclamation of national emergency.05 Article 356-state emergency or presidents rule06 Criticism07 Article 360-financial emergency....08 Effects of proclamation of emergency...09 Abuse of power..09 Conclusion.10 Bibliography10

3|Page

Acknowledgment I am very glad that I got an opportunity to learn and imbibe so many things while making this project. It helped to a great extent in developing researching skills which are very important for a student of law. First and foremost, I would like to Ms Kuldeep Kaur for giving us this opportunity and always being such a great support. Secondly, I would like to thank my friends and family who are always there for me and without whom I wont be successful in achieving anything in life.

Thank you Dheeresh Kumar Dwivedi 2012BALLB65

4|Page

Introduction The Indian Constitution provides a detailed insight into the entire government structure, basic rights and duties of the citizen and special provisions. There are a total of 395 Articles in the constitution of India. Enacted on 26th of January, 1950, the Constitution contains Emergency and Special Provisions of the Indian Constitution. Special Provisions relating to Certain Classes are included in Part XVI. The Constitution of India also covers Emergency Provisions in Part XVIII. A state of emergency in India refers to a period of governance under an altered constitutional setup that can be proclaimed by the President of India, when he/she perceives grave threats to the nation from internal and external sources or from financial situations of crisis. Under the advice of the cabinet of ministers 1and using the powers vested in him largely by Part XVIII of the Constitution of India, the President can overrule many provisions of the constitution, which guarantee fundamental rights to the citizens of India and acts governing devolution of powers to the states which form the federation. In the history of independent India, there were three periods during which a state of emergency was deemed to have existed. 1. Between 26 October 1962 to 10 January 1968 during the India-China war "the security of India" having been declared "threatened by external aggression". 2. Between 3 December 1971 to 1977 originally proclaimed during the Indo Pakistan war, and later extended along with the third proclamation "the security of India" having been declared "threatened by external aggression". 3. Between 26 June 1975 to 21 March 1977 under controversial circumstances of political instability under the Indira Gandhi's prime ministership "the security of India" having been declared "threatened by internal disturbances". The President can declare three types of emergencies:

National emergency State emergency

President of India needs the aid and advice of cabinet, and is bound to work in accordance with such advice as provided under article 74(1) which states thatArticle 74 - Council of Ministers to aid and advise President [(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:] [Provided that the President may require the Council of Ministers to reconsider such advice; either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.]

5|Page

Financial emergency

Emergency provisions in Indian constitution The Emergency Provisions are mentioned from Article 352 to Article 360 of the Indian Constitution. Below is the list of all the Articles of the Indian Constitution containing the Emergency provisions. National Emergency- Article 352 Proclamation of Emergency - due to external aggression or war the President of India can proclaim a state of emergency. This Article suggests that such a Proclamation can be revoked or a varied Proclamation can also be issued. However, the decision of the Cabinet ministers to issue such a proclamation must be sent to the President in written form prior to his issuance of the same. Thus it is clear that president cannot proclaim emergency unilaterally and can only do same with the written recommendation of the council of ministers as declared in Article 74 of Indian constitution. According to the Article, all such Proclamations should be presented to both the Houses of the Parliament. The Proclamations, if not accepted by a resolution, will be counted as ineffective after one month. If the Proclamation is not accepted after the passing of a second resolution, then it will become ineffective after the expiry of 6 months of the second resolution. It is also mentioned in the Article that not less than two-thirds of the members of both of the Houses of the Parliament should be required to pass a resolution. There are certain rules specified in this Article regarding the President revoking or issuing a varied Proclamation during Emergency.

Article 353: Effect of Proclamation of Emergency - this Article states that the Proclamation of Emergency includes extending the executive power of the union to the states in the form of directions. The Parliament, as per this Article, can confer the power to make laws, upon the officers or authorities of the Union. Article 354: Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation - provisions made under Articles 268 to 279 can be modified or exceptions can be made by the President of India by an Order while the Proclamation period of emergency is going on. Information about all such Orders must be conveyed to both the Houses of Parliament. Article 355: Duty of the Union to protect States against external aggression and internal disturbance - this Article states the fact that the Union or Center is solely responsible for defending the various states from all types of violence and aggressions erupting from outside and disturbances occurring within the nation's territory.

So far national emergency has been declared thrice in the history of independent India. Such an emergency was at first time declared during Indo-Sino war of 1962, then during Indo-Pak war of 1965 and then in 1975 by the then Prime Minister of India, Smt. Indira Gandhi when

6|Page

her election was declared invalid by Allahabad High Court in famous case of Rajnarain v India Nehru Gandhi2. The emergency proclaimed by Ms Indira Gandhi was a blow for Indian democracy. Several acts of violation of fundamental rights were done during this period. Indira Gandhis election was declared invalid by the Allahabad High Court and she found to be guilty of various offences under Representation of People Act 1956 and in order to escape from the conviction, she declare national emergency. Grounds for proclamation of national emergency-: Before 44th Constitutional Amendment Act of 1978, the grounds for the proclamation of national emergency were war, external aggression and internal disturbance. But the term internal disturbance was very vague and might also include political agitation in country. Hence, the 44th amendment replaced this with armed rebellion. After the 44th amendment National Emergency can be proclaimed by the President on the ground of war, external aggression and armed rebellion. Publication of proclamation of emergency-: There is no prescribed format in which a Proclamation of Emergency needs to be published. The publication can be made in any manner deemed fit in order to be known to public.

2. Emergency due to failure of constitutional machinery in state i.e. presidents rule-: President's rule (or centralised rule) is a term used in India when a state is placed under direct federal rule. The former name comes from the fact that the President of India governs the state through the Governor with the help of the Union Government, instead of a Council of Ministers headed by an elected Chief Minister accountable to the state legislature. President's rule is enabled by Article 356 of the Constitution of India, which gives authority to impose it if there has been failure of the constitutional machinery in any state of India. During President's rule, the Governor appointed by the President assumes executors, usually retired civil servants, to assist him in the administration. The advisors take the functions of state ministers 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

22

AIR1975SC2299

7|Page

proclamation to be operative must be placed before the House of Parliament and with its approval it is valid for six months. It is imposed for six months and can last for a maximum period of three years with repeated parliamentary approval every six months. But 42nd amendment act of 1976 extended the one time duration of state emergency from 6 months to 1 year. Subsequently, 44th Constitutional Amendment Act 1978 restored the 1 year period to 6 months. Originally, the maximum period of operation of state emergency was 3 years. This 3 year period was divided into 1 year of ordinary period and 2 year of extra ordinary period for which certain conditions are to be fulfilled. Therefore from now on after every 1 year Parliament needs to approve the same. If the emergency has to be extended for more than three years, it can be done by a constitutional amendment, as has happened in Punjab and Jammu and Kashmir. During such an emergency, the President can take over the entire work of the executive, and the Governor administers the state in the name of the President. The Legislative Assembly can be dissolved or may remain in suspended animation. The Parliament can make laws on the 66 subjects of the state list as provided under article 250 of Indian Constitution. All money bills have to be referred to the Parliament for approval. In this situation ministers of state legislature are not allowed to perform action in state.

Criticism-: Article 356 gave wide powers to the central government to assert its authority over a state if civil unrest occurred and the state government did not have the means to end the unrest. This is one of the articles that gave the Indian constitution some amount of unitary character. Though the purpose of this article is to give more powers to central government to preserve the unity and integrity of the nation, it has often been misused by the ruling parties at the centre. It has been used as a pretext to dissolve state governments ruled by political opponents. Thus, it is seen by many as a threat to the federal state system. Since the adoption of Indian constitution in 1950, the central government has used this article several times 3to dissolve elected state governments and impose President's rule. The article was used for the first time in up 1987. It has also been used in the state of Patiala and East Punjab States union (PEPSU) and then during Vimochana samaram to dismiss the democratically elected Communist state government of Kerala on 31 July 1959. In the 1970s and 1980s it almost became common practice for the central government to dismiss state governments led by opposition parties. The Indira Gandhi regime and post-emergency Janata Party were noted for this practice. Indira Gandhi's government between 1966- 1977 is known to have imposed President' rule in 39 states. Similarly Janta Dal which to power emergency is known to have issued President's rule in 9 states which were ruled by congress. It is only after the landmark judgement in 1994 in the S. R. Bommai v. Union of India 4case that the misuse of Article 356 was curtailed. In this case, the Supreme Court established
3 4

Ahmadi j., S R Bommai v Union of India, (1994) 3 SCC 1 (1994) 3 SCC 1

8|Page

strict guidelines for imposing President's rule. Subsequent pronouncements by the Supreme Court in Jharkand and other states have further whetted down the scope for misuse of Article 356. Hence since the early 2000, the number of cases of imposition of President's rule has come down drastically. Article 356 has always been the focal point of a wider debate of the federal structure of government in Indian polity. The Sarkaria Commission on central-state relations has recommended that Article 356 must be used "very sparingly, in extreme cases, as a measure of last resort, when all the other alternatives fail to prevent or rectify a breakdown of constitutional machinery in the state".

Financial emergency-: If the President is satisfied that there is an economic situation in which the financial stability or credit of India is threatened, he or she can declare financial emergency. Such an emergency must be approved by the Parliament within two months. It has never been declared. Such a situation had arisen but was avoided by putting the gold assets of India as collateral for foreign credit. It remains enforced till the President revokes it. In case of a financial emergency, the President can reduce the salaries of all government officials, including judges of the Supreme Court and High Courts. All money bills passed by the State legislatures are submitted to the President for his approval. He can direct the state to observe certain principles (economy measures) relating to financial matters. So far financial emergency have never been imposed in the history of independent India.

Effects of proclamation of emergencies-: Suspension of Fundamental Rights The first and foremost effect of an emergency is the suspension of the fundamental right of right to freedom of speech and expression guaranteed by Article 19 of the Indian Constitution. Under articles 358 and 359, the President of India can extend the suspension of all fundamental rights except right to life and liberty and protection from conviction for offences as mentioned in Articles 20 and 21.

Extension of Centre's Executive Power The constitution empowers the Union to extend its executive power by giving directions to state. (a) To give directions to the State to make certain laws;

9|Page

(b) Or to make laws of for states for any subject included those enunciated in List II of VII schedule5. The executive power also extends to states where emergency is not in force, but are in relation to states which the Proclamation of Emergency is in operation. Parliament to legislate on State subjects The law-making power of the State is not suspended, but the Parliament can amend laws which override the state laws. Extension of life of Lok Sabha (House of People) The President is empowered to extend the life of Lok Sabha by one year and can extend it six months each time. In Bennett Coleman & co. v. Union of India6, the supreme cour 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 Presidents 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. 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.

Article250. Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation (1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have, power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List (2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period
6

AIR 1973 SC 106

10 | P a g e

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 44thamendment 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 Presidents 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. 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.

Bibliography-: Shulka V.N., Constitution of India Basu DD, Constitution of India