CU-BA SEM III-Political Science-Second Draft-converted

UNIT – 9: EMERGENCY PROVISIONS IN THE INDIAN CONSTITUTION: ARTICLE 352, 356, AND 360 Structure 9.0 Learning Objectives 9.1 Introduction 9.2 History 9.3 Types of Emergency 9.4 Summary 9.5 Keywords/Abbreviations 9.6 Learning Activity 9.7 Unit End Questions 9.8 References 9.0 LEARNING OBJECTIVES After studying this unit you will be able to • Trace historical background of the emergency provisions; • Describe types of Emergency; • Describe salient characteristics of the provisions; • Explain misuses of the emergency provisions. 9.1 INTRODUCTION A state of emergency in India refers to a period of governance that can be proclaimed by the President of India during certain crisis situations. Under the advice of the cabinet of

ministers, the President can overrule many provisions of the Constitution, which guarantees Fundamental Rights to the citizens of India. Emergency is imposed under some situations such as war, external aggression, internal disturbances or armed rebellion or financial crisis in whole of India or any part of it. It imposes restrictions on freedom of people. Emergency provisions in Indian Constitution are provided in a separate Part-XVIII under Articles 352-360. The order to declare emergency is passed by the President of India. He declares it on the advice of Council of Ministers. However, the real power during emergency is exercised by the prime minister. During emergency the Union executive can give directions to the executive in the states and the parliament can pass legislation on any matter which is not in the Union Legislature List. During emergency, authorities of the state government enjoy subordinate positions to the central authorities. Fig 9.1 9.2 HISTORY The need to include emergency provisions arose in the context of unusual political situation in India. Constitution of India has emergency provisions, which have been borrowed from Constitutions of Weimar (Germany) and Government of Emergency Provisions India Act, 1935. Indian Constitution followed Government of India Act 1935 which embodied emergency provisions in section 45 for the Centre and in section 93 for the Provinces. It empowered the Chief Executive to declare emergency. The Government of India Act 1935 202 CU IDOL SELF LEARNING MATERIAL (SLM)

was meant to provide Provincial autonomy in India. But it had also emergency provisions which put restrictions on the autonomy of provinces. It involved questions of relations between centre and provincial units. The Act empowered the centre to control and intervene in provincial matters if emergency arises due to war or internal disturbance, and make provision for carrying administration if the machinery of ministerial government failed to function. In times of emergency due to war or internal disturbances, Governor General was armed with power to make laws on all matters, even those in the provincial list. Governor General could declare emergency in provinces. Apart from Government of India Act 1935 and the Constitution of Germany also contributed to inclusion of emergency provisions in the Indian Constitution. The Governor General of India had in fact specific responsibility concerning peace and tranquility of India or any part thereof. Even he could act independently in the provincial government through the Governor who was also empowered to function in the respective provinces and was the main source of information of the Governor-General. Debate in the Constituent Assembly There were differences among the members of the Constituent Assembly about the need to include emergency provisions in the Constitution. According to Granville Austin, A.K. Ayyar and K.M. Munshi were staunchest supporters of the curb on freedom. K.M. Munshi supported that both provincial and union governments should be given right to suspend right to freedom in times of emergency. Their views were supported in the Rights Sub-committee “with one or two exceptions”. Ayyar suggested that the rights enshrined in the constitution must be subject to public order, security and safety. He supported his arguments by giving examples of disturbances in Bengal and Assam, communal riots in Punjab and NWPF (North West Frontier Provinces). However, suggestions to suspend Fundamental Rights were opposed by three members: KT Shah, HV Kamath and H. N. Kunjru. With reference to the provision of a financial emergency H.N. Kunjru said they were a serious threat to the financial autonomy of the States. After deliberations on both types of views – those which supporting the suspension of rights during emergency and those which opposed the suspension, the committee prepared a new version about suspension of rights during emergency. The new version did not support arbitrary suspension of democratic rights during emergency. What it allowed was suspension of taking resource to constitutional remedies under Art. 32. The suspension of Fundamental Rights was kept out of purview of judicial review till the passage of 44th 203 CU IDOL SELF LEARNING MATERIAL (SLM)

Constitutional Amendment in 1978. Details of EMERGENCY PROVISIONS Fig 9.2 Emergency Provision 352. (1) 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 1 [armed rebellion], he may, by Proclamation, make a declaration to that effect 2 [in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation]. Explanation.—A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof. (2) A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation. (3) The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated 204 CU IDOL SELF LEARNING MATERIAL (SLM)

to him in writing. (4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or the dissolution of the House of the People takes place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. (5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the Proclamation under clause (4): Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause: Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People. (6) For the purposes of clauses (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of 205 CU IDOL SELF LEARNING MATERIAL (SLM)

not less than two-thirds of the Members of that House present and voting. (7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation. (8) Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (1) or a Proclamation varying such Proclamation,— (a) to the Speaker, if the House is in session; or (b) to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution. The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or armed rebellion or imminent danger of war or external aggression or armed rebellion, whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation. 353. While a Proclamation of Emergency is in operation, then— (a) Notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised; (b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List: 1. Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India,— 206 CU IDOL SELF LEARNING MATERIAL (SLM)

(i) The executive power of the Union to give directions under clause (a), and (ii) the power of Parliament to make laws under clause (b), shall also extend to any State other than a State in which or in any part of which the Proclamation of Emergency is in operation if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation. 354. (1) The President may, while a Proclamation of Emergency is in operation, by order direct that all or any of the provisions of articles 268 to 279 shall for such period, not extending in any case beyond the expiration of the financial year in which such Proclamation ceases to operate, as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit. (Part XVIII.—Emergency Provisions.—Arts. 353-354.) 221 (2) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament. 355. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. 356. (1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation— (a) assume to himself 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 anybody or authority in the State other than the Legislature of the State; (b) Declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) 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 207 CU IDOL SELF LEARNING MATERIAL (SLM)

Constitution relating to anybody or authority in the State: Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. (Part XVIII.—Emergency Provisions.—Arts. 354—356.) 222 (2) Any such Proclamation may be revoked or varied by a subsequent Proclamation. (3) Every Proclamation under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People. (4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of 1[six months from the date of issue of the Proclamation]: Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of [six months] from the date on which under this clause the proclamation was issued. (Part XVIII.—Emergency Provisions.—Art. 356.) would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years: Provided further that if the dissolution of the House of the People takes place during any such period of 1[six months] and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the 208 CU IDOL SELF LEARNING MATERIAL (SLM)

continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People: 2 [Provided also that in the case of the Proclamation issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab, the reference in the first proviso to this clause to “three years” shall be construed as a reference to 3[five years]. 4 [(5) Notwithstanding anything contained in clause (4), a resolution with respect to the continuance in force of a Proclamation approved under clause (3) for any period beyond the expiration of one year from the date of issue of such Proclamation shall not be passed by either House of Parliament unless— (a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and 1 Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 38, for “one year “(w.e.f. 20-6-1979). The words “one year” were subs. for the original words “six months” by the Constitution (Forty-second Amendment) Act, 1976, s. 50 (w.e.f. 3-1-1977). 2 Ins. by the Constitution (Sixty-fourth Amendment) Act, 1990, s. 2. (Part XVIII.—Emergency Provisions.—Art. 356.) 224 (b) the Election Commission certifies that the continuance in force of the Proclamation approved under clause (3) during the period specified in such resolution is necessary on account of difficulties in holding general elections to the Legislative Assembly of the State concerned:] 1 [Provided that nothing in this clause shall apply to the Proclamation issued under clause (1) 209 CU IDOL SELF LEARNING MATERIAL (SLM)

on the 11th day of May, 1987 with respect to the State of Punjab.] 357. (1) where by a Proclamation issued under clause (1) of article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent— (a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorize the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf; (b) for Parliament, or for the President or other authority in whom such power to make laws is vested under sub-clause (a), to make laws conferring powers and imposing duties, or authorizing the conferring of powers and the imposition of duties, upon the Union or officers and authorities thereof; (c) For the President to authorize when the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament. 5[(2) any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause (a) of clause (1) (Part XVIII.— Emergency Provisions.—Arts. 356-357.) 225 Which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority.] 358. 1[(1)] 2[While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation], nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect: 210 CU IDOL SELF LEARNING MATERIAL (SLM)

3 [Provided that 4 [where such Proclamation of Emergency] is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the, territory thereof is threatened by activities in or in relation to the part of the territory of India in which the, Proclamation of Emergency is in operation.] 5 [(2) Nothing in clause (1) shall apply— (a) to any law which does not contain a recital to the effect that such law is in relation to the (Part XVIII.—Emergency Provisions.—Arts. 357-358.) 226 Proclamation of Emergency in operation when it is made; or (b) to any executive action taken otherwise than under a law containing such a recital.] 359. (1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of 1 [the rights conferred by Part III (except articles 20 and 21)] as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. 2 [(1A) While an order made under clause (1) mentioning any of 1 [the rights conferred by Part III (except articles 20 and 21)] is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:] 211 CU IDOL SELF LEARNING MATERIAL (SLM)

3 [Provided that where a Proclamation of Emergency any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.] 1(Part XVIII.—Emergency Provisions.—Arts. 358-359.) 227 1 [(1B) Nothing in clause (1A) shall apply— (a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or (b) to any executive action taken otherwise than under a law containing such a recital.] (2) An order made as aforesaid may extend to the whole or any part of the territory of India: 2 [Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary.] (3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament. 3 359A. [Application of this Part to the State of Punjab.] Rep. by the Constitution (Sixty-third Amendment) Act, 1989, s. 3 (w.e.f. 6-1-1990). 360. (1) 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. 4 [(2) A Proclamation issued under clause (1)— (a) may be revoked or varied by a subsequent 212 CU IDOL SELF LEARNING MATERIAL (SLM)

Proclamation; (Part XVIII.—Emergency Provisions.—Arts. 359—360.) 228 (b) Shall be laid before each House of Parliament; (c) Shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament: Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in subclause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.] (3) During the period any such Proclamation as is mentioned in clause (1) is in operation, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose. (4) Notwithstanding anything in this Constitution— (a) Any such direction may include— (i) A provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State; (ii) a provision requiring all Money Bills or other Bills to which the provisions of article 207 apply to be reserved for the consideration of the President after they are passed by the Legislature of the State; (Part XVIII.—Emergency Provisions.—Art. 360.) 229 (b) it shall be competent for the President during the period any Proclamation issued under 213 CU IDOL SELF LEARNING MATERIAL (SLM)

this article is in operation to issue directions for the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of the Union including the Judges of the Supreme Court and the High Courts. 9.3 TYPES OF EMERGENCY Black law’s dictionary defines emergency “as a failure of social system to deliver reasonable conditions of life”. The term emergency may be defined as “circumstances arising suddenly that calls for immediate action by the public authorities under the powers especially granted to them”. Dr. B.R Ambedkar claimed that the Indian Federation was unique as during the times of emergency it could convert itself into an entirely unitary system. In India, the emergency provisions are such that the constitution itself enables the federal government acquire the strength of unitary government whenever the situation demands. During such urgent needs all the pacific methods should be exhausted and emergency should also be the last weapon to use as it affects India’s federal feature of government. • The emergency provisions are contained in Part XVIII of the Constitution of India, from Article 352 to 360. These provisions enable the Central government to meet any abnormal situation effectively. • The rationality behind the incorporation is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution. • The Constitution stipulates three types of emergencies- 1. National Emergency 2. Constitutional Emergency 3. Financial Emergency National Emergency Article 352 of the Indian Constitution talks about the national emergency. National emergency is imposed whereby there is a grave threat to the security of India or any of its territory due to war, external aggression or armed rebellion. Such emergency shall be imposed by the president on the basis of written request by the council of ministers headed 214 CU IDOL SELF LEARNING MATERIAL (SLM)

by the Prime Minister. When they are satisfied that they are satisfied that there is an eminent danger thereof. Every proclamation is required to be laid before each House of Parliament, it will cease to operate after one month from the date of its issue unless in the meantime it is approved by the parliament, the proclamation may continue for a period of 6 months unless revoked by the president. For further continuance of emergency the resolution has to be passed by either house of parliament by a majority of not less than two-third members of the houses. During the times of such emergency the executive, legislative and financial power rests with the centre whereas the state legislature is not suspended. The union government under Art.250 of the constitution gets the power to legislate in regards to subjects enumerated in the state list. Except Art20 and 21 all the fundamental rights are suspended. Under Art.359 the president may suspend the right to move to the courts for enforcement of fundamental rights during the time of emergency. National emergency has been imposed thrice in the country- in 1962 at time of Chinese aggression, in 1971 during the Indo-Pak war, in 1975 on the grounds of internal disturbances. National emergency can be declared on the basis of war, external aggression or armed rebellion. The Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type. 1) National Emergency (Article 352) The Constitution of India Provides three types of Emergencies - National Emergency (Article 352), State Emergency (Article 356), Financial Emergency (Article 360). National Emergency can be declared due to war external aggression or armed rebellion. State Emergency can be declared due to the failure of Constitutional Machinery in States and Financial Emergency can be declared due to the financial stability or credit of India or part of the territory is threatened. 2) National Emergency (Article 352) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of India is threatened, either by war or external aggression or armed rebellion, he may make a Proclamation of emergency in respect of the whole of India or any part of India. as may be specified in the Proclamation. 215 CU IDOL SELF LEARNING MATERIAL (SLM)

3) Grounds The Proclamation of Emergency can be made on Three grounds: i) War ii) External aggression; iii) Armed Rebellion Prior to the 44th Amendment Act. 1978, one of the grounds on which emergency could be proclaimed was \"internal disturbance\". These words \"internal disturbance\" was vague and give wide discretion to the executive to declare an emergency even on flimsy grounds. In 1975, the emergency was declared on the ground of internal disturbance by the Prime Minister Indira Gandhi because the position opposition parties had given a call to launch a movement with a view to compelling P. M. to resign from her post as her election to the Lok Sabha was declared void by the Allahabad High Court. The 44th Amendment 1978, has now substituted the words \"armed rebellion\" for the words \"internal disturbance\" which will exclude the possibility of a situation which arose in 1975. Constitution 59th Amendment Act,1988 again amended Article352 and allowed the issue of a proclamation on the ground of 'internal disturbance' only in the State of Punjab. As Constitution 59th Amendment Act has been repealed by 63rd Amendment Proclamation of emergency can now be issued on above mentioned three grounds. It cannot be issued merely on the Ground of Internal Disturbance unless it takes shape of armed rebellion. 4) 44th Constitutional Amendment Act 1978 44th amendment has made important changes in Article 358; Article 19 will be suspended only when a Proclamation of emergency is declared on the ground of war or external aggression and not when the emergency is declared on the ground of armed rebellion. It is also provided that the President can make a Proclamation declaring emergency, only when he receives in writing the decision of the Union Cabinet to this effect. 5) Duration Prior 44th Amendment: Proclamation of emergency could remain in force in the first instance for two months. But once approved by Parliament emergency could remain in force indefinitely. as long as executive wanted to continue. After 44th Amendment: A proclamation of emergency may remain in force in the first 216 CU IDOL SELF LEARNING MATERIAL (SLM)

instance for one month. Such proclamation if approved by Parliament, shall remain in force for the period of six months unless it revoked earlier. 6) Effects of Proclamation of Emergency The proclamation of emergency results into serious consequences. It adversely affects the enforcement of Fundamental Rights of the People. The following are the consequences of the Proclamation of Emergency- i) Executive While a Proclamation of Emergency is in operation, the executive power of the Union extends to giving of directions to any State as to the manner in which the executive power of the State is to be exercised. The Constitution (Forty-second Amendment) Act 1976 made a consequential change in Article 353.It provides that the executive power of the Union to give directions under clause (a), and the power to make laws under clause (b), shall also extend to any State other than a State in which or in any part of which the Proclamation of Emergency is in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation. In normal time, the executive power does not extend to give such direction subject to certain exceptions. ii) Legislative During the operation of Proclamation of Emergency Parliament shall have the power to legislate as regard List II (State List) as well. The emergency does not suspend the State Legislature but suspends the distribution of Legislative powers between the Union and State iii) Financial: Centre empowered to alter distribution of revenue between the Union and the State The President may, while a Proclamation of Emergency is in operation, by order after the financial arrangement between State and the Union as provided in Articles 268 to 279 every such order is to be laid before each House of Parliament and will come to an end by the financial year in which the Proclamation of Emergency ceases to operate. v) Extension Life of Lok-Sabha While a Proclamation of Emergency is in operation Parliament may, by law extend the 217 CU IDOL SELF LEARNING MATERIAL (SLM)

normal life of Lok-Sabha (House of people) for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. v) Suspension of Fundamental Rights guaranteed by Article 19 Article 358 of the Indian Constitution provides for Suspension 6 freedoms guaranteed by to the citizens by Article 19 of the Indian Constitution. While a Proclamation of Emergency in operation, nothing in article 19 shall restrict the power of the State to make any law or to take any executive action abridging or taking away the rights guaranteed by Article 19 of the Constitution. It means that as soon as the Proclamation of Emergency is made the freedom guaranteed by Article 19 automatically suspended. When the Proclamation of Emergency cease to operate Article 19 which remains suspended during the emergency, automatically comes into life and begins to operate. 7) Revocation The President shall revoke a proclamation of emergency. If the Lok-Sabha passes a resolution by way of a written notice signed by minimum 1/10th members out of its total strength. This should be submitted to the speaker if the Lok-Sabha is in Session, else to the President if it is not in session. 8) History History of National Emergency in India i) 1962: 26 October 1962 to 10 January 1968, on the ground of External aggression. ii) 1965: In 1965 Emergency was proclaimed on the ground of war with Pakistan. But instead of issuing the fresh proclamation, the Proclamation 1962 was allowed to continue. iii) 1973: 3 December 1973 Emergency was proclaimed on the ground of external aggression from Pakistan. iv) 1975: 25 June 1975 to 21 March 1977 under Indira Gandhi's Prime minister ship, President Proclaimed emergency on the ground of internal disturbance The emergency declare during the Prime minister ship Mrs. Indira Gandhi was Highly controversial. The Prime Minister has misused her power when she asked the President to make a proclamation of emergency on the ground of internal disturbance. 218 CU IDOL SELF LEARNING MATERIAL (SLM)

9) Relevant Case law a) Minerva Vs Union of India Supreme Court held that proclamation of emergency under Article 352 is also subject to judicial review. Court has the power to see whether it was under the provision of the constitution or not. Grounds of declaration: • Under Article 352, the president can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. • The President can declare a national emergency even before the actual occurrence of war or armed rebellion or external aggression • When a national emergency is declared on the grounds of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the grounds of ‘armed rebellion’, it is known as ‘Internal Emergency’. • This term ‘armed rebellion’ is inserted from the 44th amendment. Before this term it was known as internal disturbance. Example: If India and Pakistan openly accept that they will use armed forces against each other is simply war. If there is no formal declaration that there will be armed forces used against a country is External aggression. And if because of these two grounds an emergency is proclaimed as an external emergency. Facts • The 38th Amendment Act of 1975 made the declaration of National Emergency immune to judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of 1978. • In Minerva Mills case (1980), the Supreme Court held that National Emergency can be challenged in the court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts. 219 CU IDOL SELF LEARNING MATERIAL (SLM)

Parliamentary approval and duration • The proclamation of emergency has to be approved by both the houses of parliament within a month from the date of its issue. • However, if the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution takes place during the period of one month without approving the proclamation, then the proclamation survives until 30 days from the first sitting of Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. • If approved by both the houses, the Emergency continues for 6 months and can be extended to an indefinite period with an approval of the Parliament for every six months. • Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority. Revocation of proclamation A proclamation of Emergency may be revoked by the President at any time by a subsequent proclamation. Such proclamation does not require parliamentary approval. • The emergency must be revoked if the Lok Sabha passes a resolution by a simple majority disapproving its continuation. Effects of national emergency A proclamation of Emergency has drastic and wide-ranging effects on the political system. These consequences can be grouped into 3 categories: Effects on the centre-state relations: While a proclamation of Emergency is in force, the normal fabric of the Centre-State relations undergoes a basic change. this can be studied under three heads: Executive: Centre becomes entitled to give executive directions to a state on ‘any’ matter 1. Legislative: The parliament becomes empowered to make laws on any subject mentioned in the state list, the president can issue ordinances on State subjects also, if the parliament is not in session. The laws made on state subjects by the parliament become inoperative six months after the emergency has ceased to be in operation. 2. Financial: the president can modify the constitutional distribution of revenues 220 CU IDOL SELF LEARNING MATERIAL (SLM)

between the centre and the states. Effect on the life of the Lok Sabha and State Assembly: While a proclamation of National Emergency is in operation, the life of the Lok Sabha may be extended beyond the normal term for one year at a time. However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate. • Similarly, the Parliament may extend the normal tenure of a state Legislative Assembly by one year each time during a national emergency, subject to a maximum period of six months after the emergency has ceased to operate. Effect on fundamental rights: Articles 358 and 359 describes the effect of a National Emergency on the Fundamental Rights. These two provisions are explained below: Suspension of Fundamental rights under Article 19: According to Article 358, when a proclamation of National Emergency is made, the six fundamental rights under article 19 are automatically suspended. Article 19 is automatically revived after the expiry of the emergency. • The 44th Amendment Act laid out that Article 19 can only be suspended when the National Emergency is laid on the grounds of war or external aggression and not in the case of armed rebellion. • Suspension of other Fundamental Rights: Under Article 359, the President is authorized to suspend, by order, the right to move any court for the enforcement of Fundamental Rights during a National Emergency. Thus, remedial measures are suspended and not the Fundamental Rights. • The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order. • The suspension could be for the period during the operation of emergency or for a shorter period. • The Order should be laid before each House of Parliament for approval. • The 44 Amendment Act mandates that the President cannot suspend the right to move the court for the enforcement of Fundamental Rights guaranteed by Article 20 and 21. 221 CU IDOL SELF LEARNING MATERIAL (SLM)

• Declarations made so far: This type of emergency has been proclaimed three times so far- in 1962, 1971 and 1975 • The first proclamation of National Emergency was issued in October 1962 on account of Chinese aggression in the NEFA and was in force till January 1968. • The second proclamation of National Emergency was made in December 1971 in the wake of the attack by Pakistan. • Even when the emergency was in operation, the third proclamation of National Emergency was made in June 1975. Both the second and the third proclamations were revoked in March 1977 President’s Rule State emergency / Failure of constitutional machinery in state -President Rule - (Article 356) A) The president on the report of the Governor of state, if he satisfied then proclamation of emergency under Article 356 is carried on. B) Here Governor gives report on the recommendation of state cabinet. C) President’s rule is imposed more than hundred times after the adoption of constitution. Effects of Proclamation of State emergency / President Rule – Effects of Proclamation under Article 356 - If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation - (a) Assume to him 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 anybody or authority in the State other than the Legislature of the State; (b) The President may declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament; (c) The President may 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 222 CU IDOL SELF LEARNING MATERIAL (SLM)

this Constitution relating to anybody or authority in the State. Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. (d) Article 357 (I) of the Indian Constitution provides that where the President has declared under Article 356 (i) (b) that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament then Parliament may - (a) Confer on the parliament the power of the Legislative of the State to make Laws, and (b) Authorise the President to delegate the power conferred on him by the Parliament, on any other authority to be specified by the President in that behalf. This Delegation shall be subject to such conditions as the President may think fit to impose, or the president or may, or other authority in whom power to make laws is vested (by virtue of Article 356(I) and 357 may make laws - For conferring powers and imposing duties upon the union or officers and authorities thereof. The President may, when the House of People is not in session, authorize expenditures from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament. The power of state legislation are to be exercise by the president, who is authorized by Parliament. This is known as president rule. Case law S.R. BOMMAI VS UNION OF INDIA Supreme court held that dismissal of BJP government in M.P. Rajasthan and Himachal Pradesh wake of the Ayodhya incident was valid at imposition of the president’s rule was constitutional because ‘secularism’ is the basic feature of Indian constitution. Court laid down following guideline – 1) Proclamation of emergency under Article 356 is subject to judicial review. 2) If State Government works against secularism president rule can be imposed. 3) No several dismissal of opposition ruled State Government. 4) Imposition of president’s rule and dissolution of assembly cannot be done together 223 CU IDOL SELF LEARNING MATERIAL (SLM)

5) State assembly can be dissolved after Parliament’s approval of central rule. PRESIDENT’S RULE IMPOSED ON— President’s Rule in U.P.1995- BJP withdrew support to minority government of BSP headed by chief minister Miss Mayawati. President rule in U.P. 1996 – No party or group was in position to form of stable Government. U.P. FEB 1998 – President’s rule quashed by Allahabad high court and chief minister reinstated. Governor Mr. Romesh Bhandari dismissed the Kalyan Singh government and invited loktantrik congress candidate Jagdambika Pal. President R.k.Narayanan asked him not to be in hurry. • Article 355 imposes a duty on the centre to ensure that the government of every state is carried on in accordance with the provisions of the constitution. • It is this duty in the performance of which the centre takes over the government of a state under Article 356 in case of failure of constitutional machinery in a state. • This is popularly known as ‘President’s Rule’. • Grounds of imposition: the president’s ruler can be proclaimed under Article 356 on two grounds: 1. 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. 2. Article 365 says that whenever a state fails to comply with or to give effect to any direction from the centre, it will 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. • Parliamentary approval and duration: A proclamation imposing president’s rule must be approved by both the houses of parliament within two months from the date of its issue. 224 CU IDOL SELF LEARNING MATERIAL (SLM)

• However, if the proclamation of President’s rule is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided that the Rajya Sabha approves it in the meantime Consequences of the President’s rule: The President acquires the following extraordinary powers when the President’s rule is imposed in a state: He can take up the functions of the state government and powers vested in the governor or any other executive authority in the state. • He can declare that the powers of the state legislature are to be exercised by the parliament. • He can take all other necessary steps including the suspension of the constitutional provisions relating to anybody or authority in the state. • Scope of judicial review: The 38th Amendment act of 1975 made the satisfaction of the President in invoking Article 356 final and conclusive which would not be challenged in any court on any ground. • But, this provision was subsequently deleted by the 44th Amendment Act of 1978 implying that the satisfaction of the President is not beyond judicial review. Financial Emergency • Grounds of declaration: Article 360 empowers the president to proclaim a Financial Emergency if he is satisfied that a situation has arisen due to which the financial stability or credit of India or any part of its territory is threatened. • Parliamentary approval and duration: A proclamation declaring financial emergency must be approved by both the Houses of Parliament within two months from the date of its issue. However, if the proclamation of Financial Emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of two months without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it. 225 CU IDOL SELF LEARNING MATERIAL (SLM)

Once approved by both the houses of Parliament, the Financial Emergency continues indefinitely till it is revoked. Duration- The duration of proclamation of financial emergency will be in operation for 2 months and unless approved by the president it shall Cease to operate at the expiry of 2 months Period. The Constitution of India is unique in respect that it contains a complete scheme for Speedy readjustment of the peace time governmental machinery and movement of national peril. These provisions may appear to be particularly in a constitution which profess to be built upon an edifice of fundamental rights and democracy. But the provision must be studied in the light of India's past history. India had her in glorious days whenever the central power grew weak. It is for well that the constitution guards against the forces of disintegration. Events may take place threatening the very existence of the state and if there are no Safeguard's against such eventualities the state together with all that is desired desire to remain basic and immutable, will be swept away. Effects of Financial Emergency • Extension of the executive authority of the Union over the financial matters of the States. • Reduction of salaries and allowances of all or any class of persons serving in the State. • Reservation of all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the State. • Direction from the President for the reduction of salaries and allowances of all or any class of persons serving the Union; and the judges of the Supreme Court and the High Courts. Criticism of the Emergency Provision • Some members of the Constituent Assembly criticised the incorporation of emergency provisions in the constitution on the following grounds: The federal character of the constitution will be destroyed and the union will become all-powerful 226 CU IDOL SELF LEARNING MATERIAL (SLM)

• The powers of the State- both the Union and the Units- will entirely be concentrated in the hands of the union executive. • The president will become a dictator • The financial autonomy of the state will be nullified • Fundamental rights will become meaningless and, as a result, the democratic foundation of the constitution will be destroyed.’ • While defending the emergency provisions in the Constituent Assembly, Dr Ambedkar accepted the possibility of their misuse. He observed, ‘I do not altogether deny that there is a possibility of the Articles being abused or employed for political purposes. 9.4 SUMMARY • Emergency is a situation when democratic rights of people are suspended and the central government assumes powers over the state governments. • The power to declare emergency is vested with the President of India. He can declare emergency after on the advice of the Council of ministers. • Emergency is declared when 116 there is war, external or internal disturbances or financial crisis. The provisions for declaration of emergency are incorporated in Part- XVIII of the Indian Constitution under Articles 352-360.There are three kinds of emergency: national, state and financial emergency. Article 352 deals with national emergency and it can be declared if there is external threat or internal disturbance in the country. State emergency can be proclaimed under Article 356, the financial emergency can be declared according to Article 360. • In case of national emergency, President is in the position to promulgate an ordinance, but he or she must on aid and advice of the Council of Ministers. • President can also declare state emergency on the receipt of the report of the Governor if such situation arises. • A financial emergency may be declared to curb economic recess. In India, national emergencies happened three times. But, Article 356 has been used randomly. On the 227 CU IDOL SELF LEARNING MATERIAL (SLM)

other, there is not a single case where financial emergency proclaimed so far. • Article 360 could be used the whole of India except Jammu & Kashmir. This provision was often used to fulfil political motives and get space. For the success of India’s democracy, emergency provisions should be used with caution. 9.5 KEYWORDS • Consequential provisions: The Consequential Provisions Regulations means the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 as in force immediately before the coming into force of regulations 4 to 19 in that case. • Article 360: Article 360 gives authority to the President of India to declare a financial emergency. But keep in mind that the 44th Constitutional Amendment Act of 1978 says that the President's 'satisfaction' is not beyond judicial review. It means the Supreme Court can review the declaration of Financial Emergency. • Article 352: The President can declare such an emergency only on the basis of a written request by the Cabinet headed by the Prime Minister. During a national emergency, many Fundamental Rights of Indian citizens can be suspended. • Article 350: Language to be used in representations for redress of grievances Every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be 9.6 LEARNING ACTIVITY 1. Prepare a comprehensive note on effects of emergencies & give your viewpoints regarding it. ______________________________________________________________________ ______________________________________________________________________ 2. Discuss the various types of emergencies in India. 228 CU IDOL SELF LEARNING MATERIAL (SLM)

_______________________________________________________________________ ________________________________________________________________________ 9.7 UNIT END QUESTIONS A. Descriptive Questions Short Answer 1. Explain national emergency? 2. What are the facts of national emergency? 3. What are criticisms of emergency provision? 4. Prepare a brief note constitutional emergency. 5. Make a small note on effects of financial emergency. Long Answer 1. Describe the main features of Emergency Provisions? 2. What are the salient features of the provision? 3. What was the historical background of emergency provisions in India? 4. Describe the different types of emergency provisions in Indian Constitution. 5. What were the misuses of emergency provisions? B. Multiple Choice Questions 1. Which of the following constitutional amendments equipped President to impose National Emergency on any particular part of India? a. 38th b. 40th.TV 229 CU IDOL SELF LEARNING MATERIAL (SLM)

c. 42nd d. 62nd 2. When was the word \"armed 230rebellion\" added to the Constitution to declare a National Emergency? a. “After 44th Constitution Amendment Act b. After 42nd Constitution Amendment Act c. After 40th Constitution Amendment Act d. After 38th Constitution Amendment Act 3. How soon imposition of National Emergency should be approved by the Parliament? a. 1 month b. 2 months c. 6 months d. 3 months 4. If the announcement of the National Emergency has been approved by both Houses of Parliament, how long will it be effective? a. 1 month b. 2 months c. 6 months d. 3 months 230 CU IDOL SELF LEARNING MATERIAL (SLM)

5Which kind of emergency will be imposed in the case of war, external aggression and armed rebellion? a. 356 b. 352 c. 360 d. None of these Answer 1-c, 2-a, 3-a, 4-c, 5-b 9.8 REFERENCES • Austin, Granville (1966), The Indian Constitution: Cornerstone of a Nation, Bombay: Oxford University Press. • Bakshi, P.M. ((2012), The Constitution of India, New Delhi: Universal Law Publishing. • Basu, D.D. (1960), Introduction to the Constitution of India, Calcutta: S.C. Sarkar & Sons Pvt. Ltd. • Choubey, S.K. (2009), The Making and Working of Indian Constitution, National Book Trust, New Delhi. • Kashyap, Subhash C. (2011). Our Constitution, New Delhi: National Book Trust, India. Web resources • https://www.jagranjosh.com/general-knowledge/the-constituent-assembly-of-india- 1434780545-1 • https://www.topperlearning.com 231 CU IDOL SELF LEARNING MATERIAL (SLM)

• https://www.constitutionofindia.net › 232 CU IDOL SELF LEARNING MATERIAL (SLM)