National Emergency

To deal with abnormal or unforeseen situations, the Constitution of India provides for emergency provisions. Part XVIII of the Constitution contains emergency provisions from Article 352 to 360. These provisions provide the State the tools to defend its sovereignty and integrity. Also they act as an important means to preserve democratic values enshrined in the Constitution. There are three kinds of Emergency under the Constitution: Firstly, National Emergency, is invoked when the security of India faces threats of war, external aggression, or armed rebellion. Secondly, State Emergency, often known as President's rule, for when constitutional machinery within states, breaks down. Thirdly, Financial Emergency, declared by the President on there being threat to India's financial stability

According to the Constitution, Union government has power to declare an emergency. During an emergency Union government gains all powers and the structure of Indian polity converts from being federal to a unitary one. This type of transformation is a unique feature of the Indian Constitution. The idea of emergency provision is borrowed from the Government of India Act 1935 which provided for the executive to declare emergency in some circumstances. It is also inspired from the Constitution of the Weimar Republic of Germany.

Emergency can be declared at the national level or state level. There are three types of emergency mentioned in Part XVIII of Constitution:

1. National Emergency- Article 352, can be proclaimed in case of a war, external aggression or an armed rebellion.
2. State Emergency or President’s Rule- Article 356, can be declared if there is a failure of constitutional machinery in the states.
3. Financial Emergency- Article 360, can be declared if there is a financial instability or threat to credit of India

The imposition of emergency curtails liberties of the people. The authorization to declare an emergency rests with the President of India acting on the advice of the Council of Ministers. The law-making power of the Parliament is expanded with the proclamation of National Emergency under Article 353 and 354. In case of State Emergency, the State Assemblies are dissolved and their powers are transferred to the Parliament under Article 357.

National Emergency is an emergency declared under Article 352 with “proclamation of emergency”.
Declaration of National Emergency by President:

• The President can declare an emergency based on the advice of the Union Cabinet. This safeguard of Cabinet direction was added by the 44th Amendment Act to prevent the President from acting under political pressure.
• Grounds: If there is a serious threat to the security of India due to war, external aggression, or armed rebellion.
• When emergency is declared on account of external aggression or a war it is called as ‘External Emergency’
• Imminent Danger: The President also has a right to declare emergency before the occurrence of War, External Aggression or Armed Rebellion if he is satisfied that there is imminent danger.
• Extent: The declaration can cover the entire country or a specific part of it.

Procedure for Declaration:

• Approval of Parliament: Every proclamation has to be presented before each house of Parliament.
  • A resolution for approval needs the support of the 2/3rds of members present and voting in that house (special majority included by the 44th amendment).
• Expiration in 1 month: If it is not approved within One month from the date of the Proclamation, it will expire.
  • Previously, the proclamation lasted for Two months without Parliamentary approval. However, the 44th Amendment reduced this period from Two months to One month.

Life of Proclamation: if the proclamation is not revoked, it will stop after six months from the date of the last approval of the proclamation. After one house approves it, the other house must do the same within a period of 30 days or the proclamation will come to an end.

Revocation Procedure

• Order of President: The President can cancel the emergency anytime through another proclamation, this can be done without prior approval of the Parliament, if he is satisfied that the circumstances which called for declaration of emergency no longer exist.
• Lok Sabha Rejects: Before the 44th Amendment, the Lok Sabha had no power to reject the proclamation of Emergency. After the amendment, if One-tenth of the Lok Sabha members give notice, the President or Speaker must call a special parliament session within 14 days to assess the proclamation’s validity.

Effects of Declaration: Proclamation of Emergency under Article 352 has the following impacts:

1. Effect on Federal structure
2. Effect on the life of Lok Sabha and State Legislative Assemblies
3. Effect on the Fundamental Rights

(i) Effect on Federal Structure

(ii) Effect on Life of Legislatures

1. State Legislative Assembly: Its life may be extended by a year each time for any number of time, subject to a maximum period of six month after the emergency ceases to be in operation.
2. Lok Sabha: Its life may extended beyond 5 years by Parliament for one year at a time (for any length) subject to a maximum period of six month after the emergency ceases to be in operation.

(ii) Effect on Life of Legislatures

• Article 358 and 359 describes the manner in which the Fundamental Rights are affected by National Emergency.

Judicial Review: Declaration of National Emergency was made immune from the Judicial review by the 38th Amendment but this provision was subsequently deleted by the 44th Amendment Act. Supreme Court in Minerva Mills case 1980, held that proclamation of National Emergency is subject to Judicial Review on the grounds of ‘malafide’.

History of Declaration of Proclamation of National Emergency in India:
The Emergency provisions under Article 352 (National Emergency) have been used thrice in History of Independent India. During the India-China war between 26.10.1962 uptill 10.01.1968. When the “Security of India” was declared to be “threatened by external aggression”. During the India-Pakistan war between 03.12.1971 uptill 21.03.1972. When the “Security of India” was declared to be “threatened by external aggression”. It was declared on account of internal political turmoil between 25.07.1975 till 21.03.1977 and emergency was declared by stating that the security of India is threatened by “internal disturbance”.

After the declaration of National Emergency in 1975 certain measures were taken to ensure that Emergency cannot be declared again on such grounds through the 44th Constitutional Amendment.

Also referred to as the President's rule is implemented when there's a breakdown in the constitutional machinery within states. Almost all Indian states, excluding Chhattisgarh and Telangana, have experienced such a situation at various points. It can be declared only for a period of 1 year.

Grounds for Declaration: President's rule can be enforced due to several reasons, including failure to elect a Chief Minister, coalition breakdown, failure to conduct elections, or loss of majority in the assembly. Even though the President initiates the state emergency, the Governor acts as the President's or the central government's representative.

Process of Declaration: The President imposes this emergency after receiving a report from the Governor confirming the breakdown of the state's constitutional mechanisms.

• Proclamation of emergency must be approved by a simple majority within two months by the Parliament or it shall cease to exist. After such approval it will remain in-force for six months only. (Added by the 44th Constitutional Amendment Act, 1978)

Extension: Extension of emergency beyond one year is restricted by the 44th Constitutional Amendment. Such extension is possible in few conditions:

• Proclamation of National Emergency is in force in whole or any part of the country.
• Election Commission has certified that it is not possible to hold election in that particular state.
• In above condition proclamation can be extended upto 3 years only.

Revocation of State Emergency: Unlike National Emergency, there is no provision which enables Lok Sabha to disapprove the continuation of the emergency. President can revoke the emergency by issuing a proclamation for revocation. Such proclamation does not require any Parliamentary approval

Effect of Declaration:

• State Legislature ceases to function, it is dissolved or kept under suspension (Article 357)
• Parliament can authorize the President to approve any expenditure out of the Consolidated Fund of the State.
• President can take up the executive function of the state government and the governor or any other executive authority of the state. He can declare that the power of the state legislature shall be exercised by the Parliament.

Judicial Review: The 38th Constitutional Amendment Act of 1975 made satisfaction of the President in imposing state emergency immune to judicial review. This provision was subsequently deleted by the 44th Constitutional Amendment Act of 1978 i.e., now, satisfaction of the President is subject to the judicial review of courts.
Supreme Court made following observations in the landmark judgment of SR Bommai case (1994):

• Imposition of President’s rule is subject to judicial review. If the the proclamation is held invalid by the court then it has the power to restore the state government and the state legislature.
• Secularism is the ‘basic feature’ of the Constitution. If the state is following anti-secular politics then action under Article 356 is justified.
• The question of the state government losing confidence of the assembly must be decided on the floor of the house.
• The power under the Article 356 is exceptional power and should be used sparingly.

Supreme Court in the SR Bommai case listed proper and improper use of the President Rule:-

Difference Between National Emergency & President’s Rule

Fortunately, Financial Emergency has never been declared in India.
Grounds for declaration: Financial emergency can be declared where the President (acting on the advice of the Union Cabinet) is satisfied that a situation has arisen where financial stability or credit of India or any part of India is threatened.

Proclamation

• Proclamation must be approved by the Parliament within two months from the date of issuance.
• If Lok Sabha is dissolved then it has to be approved within thirty days of the first sitting of the reconstituted Lok Sabha.
• Once approved it can continue for an indefinite period.

Effect of Declaration:

• The Centre has power to issue directions to the States on financial matters which the States are required to comply with; the Centre can also direct the State governments to reduce their expenses and specify limits on it.
• The Union Government has the authority to give directions to RBI.
• President can issue direction to reduce salaries and allowances of all or any class of persons serving under the state or the Union including the Judges of the Supreme Court and High courts.
• Any money or financial bill passed by the state legislative assembly shall be reserved for the consideration of the President.

The Indian Constitution has been crafted meticulously after extensive deliberations. Though emergency provisions aimed to secure India and protect individual rights, during extreme circumstances their execution and implementation for political gains has left a bad taste in the mind of the Nation. The lapses in checks and balances, notably evident during the 1975 national emergency have served as a valuable lesson for India, and the lapses were corrected by means of the 44th Constitutional Amendment. While emergency provisions hold significance, their effective deployment necessitates a delicate equilibrium in order to safeguard fundamental rights and prevent their infringement during crises, it's imperative to introduce control mechanisms that align with India's constitutional principles.