Emergency Provisions in India and Types of Emergencies
Posted on : 23-11-2018 Posted by : Admin

Introduction

Indian constitution Articles 352 to 360 of Part XVIII deal with various types of emergencies. The main objective of these provisions is to enable federal constitution to adjust itself according to the demands of the abnormal situation. These emergencies help to safeguard the unity, sovereignty, integrity and security of the country.

During the emergency situation, the central government becomes very powerful. All the states go under total control of the central government. The federal structure of the country gets transformed into the unitary structure without any formal amendment of the constitution. This is one of the unique striking features of the Indian constitution. Hence Indian constitution is federal during normal times and turns into a unitary system during the times of emergency.

Need for emergency provisions

When Indian constitution was being drafted, India was experiencing a phase of trauma and tensions like partition of the country, communal riots and merger of the princely states like Kashmir etc. This made the constitutional framers to prepare the constitution accordingly. They wanted the constitution to be able to deal with such abnormal emergency situations arising in future. So these provisions of emergency were given in constitution to deal with internal and external threat which may affect security and stability of the country.

Types of emergencies

Constitution has envisaged three types of emergencies.

  1. Emergency due to war, external aggression or armed rebellion (National emergency)
  2. Emergency due to failure of constitutional machinery (President's Rule)
  3. Emergency due to financial instability of India (Financial emergency)

NATIONAL EMERGENCY

  • The emergency imposed due to war, external aggression or armed rebellion is called as National emergency.
  • This type of emergency can be declared by the president of India even before the actual occurrence of war or external aggression or armed rebellion, if he is satisfied that the situation is very grave and that the security of India or any part of it is threatened either by external aggression or war or internal aggression or armed rebellion within the country.
  • As per the 44th amendment of the constitution, the President can declare such an emergency only after written recommendation by the cabinet.
  • Such proclamation has to be approved by the houses of the parliament WITHIN ONE MONTH by absolute majority of the total membership of the houses as well as 2/3rd majority of the members present and voting. Otherwise the proclamation ceases to operate.
  • If Lok Sabha stands dissolved at the time of proclamation of emergency or if Lok Sabha is not in session, the proclamation has to be approved by the Rajya Sabha within one month. Later on Lok Sabha also must approve the proclamation within one month of the start 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 the proclamation is to be extended beyond initial six months, another prior resolution has to be passed by the parliament. In this was national emergency continues indefinitely.
  • If the situation improves, President can revoke the national emergency without any formal approval from the parliament. The revoking of national emergency can be done by the proclamation of the president.
  • According to 44th amendment of constitution, ten percent or more members of the Lok Sabha can request a meeting to disapprove or revoke the emergency by simple majority. In such case the emergency will immediately become inoperative.

National emergency in India

National emergency was declared for three times in India

  1. On 26 October 1962, when China attacked Indian borders in North East. This national emergency lasted till 10 January long after conflicts ended.
  2. On 3 December 1971, when second Indo-Pakistan war broke. This national emergency lasted till 21 March 1977
  3. While the second national emergency was still imposed, third national emergency was declared on 25 June 1975 on the grounds of internal disturbances. These were no justifications for imposing this emergency.

Effects of National Emergency

  1. National emergency affects rights of the individuals and also the autonomy of the state.
  2. Federal form of the government changes into a unitary form of government. The Centre becomes more powerful and the parliament gets authority to make laws for entire country even in respect of the subjects mentioned in state list.
  3. The laws made by the parliament on the subjects of state list during the national emergency become inoperative six months after the emergency has ceased.
  4. President of India issues directions to the states as to the manner in which the executive power of the state is to be exercised.
  5. Lok sabha can extend its term by a period of one year at a time. The term of the state government can also be extended in similar manner. But same cannot be extended six months after the proclamation ceases to operate.
  6. During emergency president is empowered to modify the provisions regarding distribution of revenues between center and the states.
  7. Fundamental rights under Article get automatically suspended during national emergency. According to the 44th Amendment, the rights specified in Article 20 (right to protection in respect of conviction for offences) and Article 21 (right to life and personal liberty) remains enforceable even during emergency.

Need for 44th Amendment

During the declaration of National emergency on 26 June 1975, Mrs. Gandhi’s election to Lok Sabha was declared void and opposition parties were demanding her resignation. Instead of resigning she imposed internal emergency. Critics point out that during that period the power was misused, all democratic norms were flouted, leaders of the opposition parties were put behind bars, elections were put off and the term of the Lok Sabha was extended and the press was suppressed.

It was on basis of this misuse of power that when the Janata Party Government came into power in 1977 it went ahead with the 44th Amendment to the Constitution which provides many precautions against the indiscriminate use of emergency power.

PRESIDENT’S RULE

  • Under article 356, the president may issue proclamation to impose emergency in a state if he is satisfied on receipt of a report from the governor of the state that a situation has arisen under which the government of the state cannot be carried out smoothly. This type of proclamation is called “proclamation on account of the failure or constitutional machinery” or “president rule”.
  • Such a proclamation must be approved by the parliament WITHIN TWO MONTHS otherwise the proclamation ceases to be operative. If approved the proclamation remains valid for six months at a time. It can also be extended for another six months but not beyond one year.
  • The state emergency can also be extended beyond one year if,
  • National emergency is already in operation
  • Election commission certifies that election to the state assembly cannot be held
  • Such an emergency has been proclaimed in most of the Indian states. For the first time in 1951, such an emergency was proclaimed in the state of Punjab.  Again in 1957, Kerala was put under president rule. Most of the times this emergency has been misused for more than hundred times till 1995. After 1995, this emergency is been rarely used.

Effects of President’s rule

  1. The president can assume to himself all or any of the functions of the state government. He may vest these functions with the governor of the state or any other executive authority.
  2. The president may dissolve or suspend the state legislative assembly. President may authorise parliament to make laws on behalf of state legislative.
  3. President any also make other consequential provisions necessary to effect the objective of proclamation.
  4. Misuse of President’s Rule: The way President’s Rule was imposed on various occasions has raised many questions among the political critics. At times the situation really demanded it. But at other times, President’s Rule was imposed on political grounds to topple the ministry formed by a party different from the one at the Centre, even if that particular party enjoyed majority in the Legislative Assembly Suspending or dissolving assemblies and not giving a chance to the other political Parties to form governments in states has been due to biased consideration of the Union Governments which Article 356 has been clearly misused.
  5. Though safeguards are been provided through 44th amendment act, it is been allegedly misused by the union government. This raised a demand wither for its deletion or making provision in the constitution to restrict its misuse.
  6. Sarkaria commission appointed to review center-state relations has recommended that Article 356 should be used only as last resort. The state assembly should not be dissolved unless proclamation is approved by the parliament.
  7. Similarly Supreme Court in Bommai case held that state assembly may not be dissolved till proclamation is approved by the parliament.

FINANCIAL EMERGENCY

  • Financial emergency is provided under Article 360.
  • According to this article if the President is satisfied that the financial stability or credit of India or any of its parts is in danger, he may declare the state of financial emergency.
  • Similar to other two types of emergencies, even financial emergency need the approval of the parliament WITHIN TWO MONTHS otherwise the proclamation ceases to be operative.
  • Financial emergency can operate as long as the situation demands and then it can be revoked by a subsequent proclamation.

Effects of Financial emergency

  1. The central government may give directions to the state regarding the financial matters.
  2. The president may ask to reduce the salaries and allowances of all or any class of persons in government services.
  3. The president may ask the state government to reserve all the money bills for the consideration of the parliament after they have been passed by the state legislature.
  4. The president may give directions for the reduction of salaries and allowances of the central government employees including Supreme Court and High Court Judges.

**It is important to note that Financial Emergency has not been proclaimed in our county so far. Though India has experienced financial crisis in 1991,

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