Grounds for Proclamation

Part XVIII (Articles 352 to 360) of the Constitution contains the Emergency Provisions. These provisions enable the Central Government to deal with any abnormal situation effectively. The rationality behind the inclusion of these provisions is to safeguard the sovereignty, unity, integrity, and security of the country, the democratic political system, and the Constitution.

The National Emergency is the most severe form of emergency. It is proclaimed by the President when the security of India or a part of it is threatened.

Grounds:

Article 352 states that if the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war, or external aggression, or armed rebellion, he may, by Proclamation, make a declaration to that effect.

• Originally, the ground for internal disturbance was 'internal disturbance'. The 44th Amendment Act, 1978, substituted this with 'armed rebellion'. This change was made to prevent the use of the emergency power to suppress internal dissent not amounting to armed revolt, learning from the experience of the 1975 Emergency.

• A National Emergency can be proclaimed even before the actual occurrence of war or external aggression or armed rebellion, if there is an imminent danger thereof.

• A proclamation of National Emergency may be made in respect of the whole of India or only a part of it.

Proclamation on advice of the Cabinet

The President can issue a proclamation of National Emergency only on the written recommendation of the Cabinet (Article 352(3)).

• The 44th Amendment Act, 1978, added this requirement. Before this amendment, the President could act on the advice of the Prime Minister alone. This change was made to prevent the Prime Minister from taking such a drastic decision unilaterally, ensuring that the entire Cabinet agrees.

• The term 'Cabinet' was inserted into Article 352 for the first time by the 44th Amendment.

The 38th Amendment Act, 1975, had made the satisfaction of the President in declaring an emergency final and conclusive, immune from judicial review. However, the 44th Amendment Act, 1978, deleted this provision. In the Minerva Mills case (1980), the Supreme Court held that a proclamation of National Emergency can be challenged in a court of law on the ground of malafide or that the proclamation was based on wholly irrelevant and extraneous facts or was a palpably perverse or irrational exercise of power.

Parliamentary Approval and Duration

A proclamation of National Emergency requires approval by Parliament and has specific provisions regarding its duration.

Approval:

A proclamation of National Emergency must be approved by both Houses of Parliament within one month from the date of its issue (Article 352(4)).

• Originally, the period for approval was two months, but it was reduced to one month by the 44th Amendment Act, 1978.

• If the Lok Sabha is dissolved during this one-month period, and the Rajya Sabha has approved the proclamation, the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha approves it in the meantime.

Resolution by Special Majority

The resolution approving the proclamation must be passed by both Houses of Parliament by a special majority (Article 352(4)).

A special majority means 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.

This requirement of a special majority was also added by the 44th Amendment Act, 1978; originally, it required only a simple majority.

Duration:

If approved by both Houses by a special majority, the Emergency continues for six months (Article 352(5)).

It can be extended for a further period of six months with parliamentary approval, again by a special majority. This can be repeated any number of times, meaning there is no maximum limit on the total duration of National Emergency, provided parliamentary approval is obtained every six months.

Revocation:

A proclamation of Emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval.

Also, the President must revoke the proclamation if the Lok Sabha passes a resolution disapproving its continuation. This power of the Lok Sabha was introduced by the 44th Amendment Act, 1978, giving the Lok Sabha a check on the executive's power to continue the emergency.

Consequences of National Emergency

A proclamation of National Emergency has drastic and wide-ranging effects on the political system, particularly on Centre-State relations and Fundamental Rights.

Effect on Centre-State Relations:

• Executive: The executive power of the Union extends to giving directions to any State as to the manner in which its executive power is to be exercised (Article 353). The states are bound to comply with these directions. Thus, the State governments are brought under the complete control of the Centre, though they are not suspended.

• Legislative: Parliament becomes empowered to make laws with respect to any matter enumerated in the State List (Article 250 read with Article 353). The laws made by Parliament on the State List subjects during emergency become inoperative six months after the emergency ceases. However, the legislative power of the state legislature is not suspended; it can still make laws on State List subjects, but the Union law prevails in case of repugnancy.

• Financial: The President can modify the constitutional distribution of revenues between the Centre and the States by order (Article 354). Such an order has to be laid before each House of Parliament.

Effect on Fundamental Rights:

The most significant impact is on Fundamental Rights, as provided by Articles 358 and 359.

Suspension of Fundamental Rights (Article 19)

Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19.

• When a proclamation of National Emergency is made on the grounds of war or external aggression, the six rights guaranteed by Article 19 (freedoms of speech, assembly, association, movement, residence, profession) are automatically suspended (Article 358).

• Any law or executive action taken by the State during this period cannot be challenged on the ground that it violates Article 19.

• Once the emergency ceases, Article 19 automatically revives.

The 44th Amendment Act, 1978, restricted the scope of Article 358: Article 19 can be suspended only when the National Emergency is declared on the grounds of war or external aggression, and not on the ground of armed rebellion.

Suspension of Enforcement of other Fundamental Rights (Article 359)

Article 359 deals with the suspension of the right to move any court for the enforcement of other Fundamental Rights (other than Article 19).

• The President is empowered to suspend the right to move any court for the enforcement of such Fundamental Rights as are mentioned in the Presidential Order (Article 359(1)).

• This suspension is not automatic; it requires a Presidential Order.

• The Presidential Order must be laid before each House of Parliament for approval.

• The suspension of the right to enforce applies to remedies, not the rights themselves (although the effect is similar in practice during the emergency).

• The 44th Amendment Act, 1978, added that the rights guaranteed by Articles 20 (protection in respect of conviction for offences) and 21 (protection of life and personal liberty) cannot be suspended by a Presidential Order under Article 359.

In summary, during a National Emergency, the Centre's power increases significantly, Fundamental Rights guaranteed by Article 19 are suspended on grounds of war or external aggression, and the enforcement of other rights (except Articles 20 and 21) can be suspended by Presidential Order.

India has witnessed National Emergencies three times: 1962 (Sino-Indian War), 1971 (Indo-Pak War), and 1975 (internal disturbance/armed rebellion).

President's Rule

President's Rule, also known as State Emergency or Constitutional Emergency, is proclaimed when the constitutional machinery in a state breaks down. Article 356 and Article 365 deal with this situation.

Conditions for Proclamation:

Article 356 empowers the President to issue a proclamation if he 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.

This satisfaction can be based on:

• A report from the Governor of the State.

• Otherwise, i.e., on information received from other sources or his own satisfaction.

Article 365 provides an additional ground: if a State fails to comply with or give effect to any directions given by the Union in the exercise of its executive power (under any of the provisions of the Constitution), it shall 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.

Reporting of the Governor

The Governor's report is one of the primary ways the President is informed about a breakdown of constitutional machinery in a state. The Governor sends a report to the President describing the situation in the state, indicating that the state government cannot function as per the Constitution.

However, President's Rule can be imposed even without a Governor's report if the President is otherwise satisfied. The Sarkaria Commission recommended that Article 356 should be used sparingly and as a last resort, and the Governor's report should be a speaking document containing all the relevant facts and circumstances.

Parliamentary Approval and Duration

A proclamation of President's Rule requires parliamentary approval and has limitations on its duration.

Approval:

A proclamation of President's Rule must be approved by both Houses of Parliament within two months from the date of its issue (Article 356(3)).

If the Lok Sabha is dissolved during this two-month period, and the Rajya Sabha has approved the proclamation, the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha approves it in the meantime.

Resolution by Simple Majority

The resolution approving the proclamation must be passed by each House of Parliament by a simple majority, i.e., a majority of members present and voting (Article 356(4)).

Duration:

If approved, the proclamation remains in force for six months (Article 356(4)).

It can be extended for a further period of six months at a time with parliamentary approval (by simple majority), but for a maximum period of three years (Article 356(4)).

However, an extension beyond one year requires special conditions to be met (National Emergency in operation in the state or any part of the state, and Election Commission certifying that holding general elections to the legislative assembly of the state is difficult).

Revocation:

A proclamation of President's Rule can be revoked by the President at any time by a subsequent proclamation. This does not require parliamentary approval.

President's Rule has been imposed numerous times in various states since the commencement of the Constitution, often raising concerns about its misuse for political purposes.

Consequences of President's Rule

When President's Rule is imposed in a state, the normal functioning of the state government and legislature is significantly altered.

Powers of the President:

Upon a proclamation under Article 356, the President may assume to himself (Article 356(1)):

• 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 any body or authority in the State other than the Legislature of the State.

• Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament.

• Make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State.

Suspension or Dissolution of State Legislature

The President may either suspend (place under dormancy) or dissolve the state Legislative Assembly. In most cases, the Assembly has been dissolved.

The State Council of Ministers is dismissed.

Power of Parliament to Legislate for the State

When the powers of the state legislature are declared to be exercisable by or under the authority of Parliament, Parliament gains the power to make laws for that state on any subject, including those in the State List (Article 357).

• Parliament can delegate the power to make laws for the state to the President or any other authority specified by him.

• Laws made by Parliament or under its authority continue to be in force even after the President's Rule is revoked, until altered, repealed, or amended by the competent state legislature.

In essence, the state comes under the direct control of the Union Executive and Legislature. The Governor, acting on behalf of the President, carries on the administration of the state with the help of the Chief Secretary or advisors appointed by the President. The Fundamental Rights of the citizens in the state are not automatically suspended, unlike during a National Emergency.

Judicial Review of Proclamation

The question of whether a proclamation of President's Rule is subject to judicial review has been a matter of significant debate and evolution in constitutional law.

Early Position:

Initially, the view was that the President's satisfaction under Article 356 was a political question and therefore not subject to judicial review.

S.R. Bommai Case (1994)

This landmark judgment by a nine-judge bench of the Supreme Court significantly altered the position on the judicial review of President's Rule. The Court held that a proclamation under Article 356 is subject to judicial review.

Key Principles Laid Down:

• The President's power under Article 356 is not absolute. The satisfaction of the President must be based on relevant material. It is not an unfettered power.

• The Court can examine whether the proclamation was based on any relevant material. If it is based on irrelevant or extraneous considerations, it can be struck down.

• The burden is on the Centre to prove that relevant material existed to justify the proclamation.

• If the Court strikes down the proclamation, it has the power to restore the dismissed state government and revive the suspended or dissolved Legislative Assembly.

• The power to dissolve the Legislative Assembly should be exercised only after the proclamation has been approved by both Houses of Parliament. Until then, the Assembly should only be kept in suspension.

• The Court outlined various instances where President's Rule would be improper (e.g., imposing PR for political considerations, where a ministry resigns and the Governor does not explore the possibility of forming an alternative government, on the ground that there are serious allegations of corruption against the ministry, or where the ruling party in the state has suffered a crushing defeat in the Lok Sabha elections).

• Secularism is a basic feature of the Constitution, and if a state government acts in a manner detrimental to secularism, President's Rule may be justified.

The S.R. Bommai case judgment put an effective check on the arbitrary imposition of President's Rule, reinforcing the federal character of the Constitution and strengthening the position of states.

Grounds for Proclamation

The third type of emergency provided in the Constitution is the Financial Emergency.

Provision:

Article 360(1) states that 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.

• This satisfaction of the President may be based on any information, and it is subject to judicial review (following the deletion of the provision making the satisfaction final by the 44th Amendment Act, 1978).

• Like a National Emergency, a Financial Emergency can be proclaimed even if there is an imminent danger of a financial crisis.

Declaration:

The President issues a proclamation declaring a Financial Emergency. So far, no Financial Emergency has been proclaimed in India.

Parliamentary Approval and Duration

Similar to other emergencies, a proclamation of Financial Emergency requires parliamentary approval.

Approval:

A proclamation of Financial Emergency must be approved by both Houses of Parliament within two months from the date of its issue (Article 360(2)(c)).

If the Lok Sabha is dissolved during this two-month period, and the Rajya Sabha has approved it, the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha passes a resolution approving it in the meantime.

Resolution by Simple Majority:

The resolution approving the proclamation can be passed by either House of Parliament by a simple majority.

Duration:

Once approved by both Houses, the Financial Emergency continues indefinitely until it is revoked by the President (Article 360(4)).

There is no maximum period prescribed for its operation, and no repeated parliamentary approval is required for its continuation, unlike National Emergency or President's Rule.

Revocation:

A proclamation of Financial Emergency can be revoked by the President at any time by a subsequent proclamation. This does not require parliamentary approval.

Consequences of Financial Emergency

A Financial Emergency leads to significant centralisation of financial control and potential austerity measures.

Powers of the Union Executive:

During a Financial Emergency, the executive authority of the Union extends to giving directions to any State to observe such canons of financial propriety as may be specified in the directions (Article 360(3)).

Such directions may include measures for:

• Reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the State.

• The requirement that all Money Bills or other Bills to which Article 207 applies (Bills involving expenditure from the Consolidated Fund of the State) passed by the State Legislature shall be reserved for the consideration of the President.

Suspension of other Financial Provisions

The President may also issue directions for the reduction of salaries and allowances of persons serving in connection with the affairs of the Union, including the Judges of the Supreme Court and the High Courts (Article 360(4)).

The Union Government gets complete control over the finances of the states.

The consequences are aimed at restoring financial stability and creditworthiness by enabling the Centre to enforce financial discipline across the Union and States.

Role of 44th Amendment Act, 1978

The experience of the National Emergency of 1975-1977, which was widely seen as a period of misuse of emergency powers, led to significant changes in the Emergency Provisions through the 44th Constitutional Amendment Act, 1978 (enacted by the Janata Party government).

Changes in grounds for National Emergency

• Replacement of 'internal disturbance': The most important change was the replacement of the term 'internal disturbance' with 'armed rebellion' as a ground for declaring National Emergency (Article 352).

• This narrowed the scope for imposing internal emergency, ensuring that it cannot be declared merely on the basis of internal unrest that does not amount to armed revolt.

Changes in Parliamentary approval process

• Reduced time for approval: The period for parliamentary approval for a proclamation of National Emergency was reduced from two months to one month (Article 352(4)).

• Requirement of Special Majority: Parliamentary approval (both initial and for continuation) now requires a special majority of both Houses, not just a simple majority (Article 352(4)).

• Provision for Revocation by Lok Sabha: Introduced a mechanism for the Lok Sabha to disapprove the continuation of emergency. If 1/10th of the total members of Lok Sabha give notice, a special sitting can be held within 14 days to consider a resolution for disapproving the continuation. If passed (by simple majority), the President must revoke the emergency (Article 352(8)).

Changes in Suspension of Fundamental Rights:

• Restriction on Suspension of Article 19: Suspension of Article 19 under Article 358 is limited to emergencies declared on grounds of war or external aggression only, not armed rebellion.

• Articles 20 and 21 cannot be suspended: The right to protection in respect of conviction for offences (Article 20) and the right to protection of life and personal liberty (Article 21) cannot be suspended during a National Emergency by Presidential Order under Article 359.

Changes related to President's Rule (Article 356):

• Introduced conditions for extending President's Rule beyond one year.

• Removed the provision making the President's satisfaction in declaring President's Rule (and National and Financial Emergency) final and beyond judicial review.

The 44th Amendment Act significantly reformed the emergency provisions, strengthening parliamentary control, enhancing judicial review, and providing greater safeguards for Fundamental Rights, particularly Article 21, aiming to prevent future misuses of these powers.

While subsequent amendments have been made to the Constitution, the core framework of emergency provisions and the safeguards introduced by the 44th Amendment largely remain in place.