Emergency Provisions in Constitution of India

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Q. Explain the emergency provisions of the constitution. What do you understand by proclamation of Emergency? Describe various types. What are the effects of emergency on fundamental rights? What are the effects of emergency arisen out of the failure of the constitutional machinery in a state? What changes have been made by the 44th amendment regarding emergency provisions?

Emergency is a unique feature of Indian Constitution that allows the center to assume wide powers so as to handle special situations. In emergency, the center can take full legislative and executive control of any state. It also allows the center to curtail or suspend freedom of the citizens. Existence of emergency is a big reason why academicians are hesitant to call Indian constitution as fully federal. Emergency can be of three types - Due to war, external aggression or armed rebellion, failure of constitutional machinery in a state, or financial emergency. However, technically, Proclamation of Emergency is only done upon external aggression or armed rebellion. In the second case, it is called Presidential Rule, and in the third case it is called "Proclamation of Financial Emergency:

Proclamation of Emergency
Art 352 says that if the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened due to outside aggression or armed rebellion, he may make a proclamation to that effect regarding whole of India or a part thereof.
However, sub clause 3 says that President can make such a proclamation only upon the written advise of the Union Cabinet. Such a proclamation must be placed before each house of the parliament and must be approved by each house with in one month otherwise the proclamation will expire.

An explanation to art 352 says that it is not necessary that external aggression or armed rebellion has actually happened to proclaim emergency. It can be proclaimed even if there is a possibility of such thing happening.

In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court's power is limited only to examining whether the limitations conferred by the constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.
Prior to 44th amendment, duration of emergency was two months initially and then after approval by the houses, it would continue indefinitely until ended by another proclamation. However after 44th amendment, the period is reduced to 1 month and then 6 months after approval.

Effects of Proclamation of emergency
The following are the effects arising out of proclamation of emergency in art 352.
Art 353

executive power of the Union shall extend to giving directions to any state.
parliament will get power to make laws on subjects that are not in Union list.
if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if that is also threatened.

Art 354
Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by the president. Every law such made shall be laid before each house of the parliament.

Art 355 says that it is the duty of the Union to protect States against external aggression.

Art 358
While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19.
It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency.

In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

Art 359
This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359 as shown below:

Art 358	Art 359
Freedoms given by art 19 are suspended.	Fundamental rights are not suspended. Only the courts cannot be moved to enforce fundamental rights.
Any actions done or omitted to be done cannot be challenged even after emergency.	Any action done by the legislature or executive can be challenged after the suspension is over.
Art 19 is suspended for the period of emergency.	Right to move courts is suspended for the period of emergency or until the proclamation of the president to remove suspension.
Effective all over the country.	May be confined to an area.

Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by one year each time up to a period not exceeding beyond 6 months after proclamation ceases to expire.

Provisions in case of failure of constitutional machinery is States

Art 356 says that if, upon the report of the Governor of a state, the president is satisfied that the govt. of the state is cannot function according to the provisions of the constitution, he may, by proclamation, assume to himself all or any of the functions of the govt, or all or any of the powers vested in the governor, or anybody or any authority in the state except the legislature of the state. The power of the legislature of the state shall be exercised by the authority of the parliament.
Under this article, president can also make such incidental and consequential provisions which are necessary to give effect to the objectives of the proclamation. This includes suspension of any provision of this constitution relating to any body or authority in the state.

However, this article does not authorize the president to assume the powers vested in the High Courts.

Art 357 provides that in the case of proclamation under art 356

parliament can confer upon the president the power of legislature of the state to make laws or the power to delegate the power to make laws to anybody else.
the parliament or the president can confer power or impose duties on the Union or Union officers or Union authorities.
president can authorize the expenditure from the consolidated fund of the stat pending sanction of such expenditure by the parliament.

Important instances of invocation of Art 356
This article has been invoked over a hundred times.

Dissolution of 9 state assemblies in 1977 by Janata Party govt..

This was challenged in the case of State of Rajasthan vs Union of India AIR 1977. In this case, SC held that the the decision of the president is not only dependent on the report of the governor but also on other information. The decision is entirely political and rests with the executive. So it is not unconstitutional per se. However, courts can validate the satisfaction of the president that it is no mala fide.

Dissolution of 9 state assemblies in 1980 by Congress party govt.
Dissolution of BJP govt in MP, HP, and Raj. in 1992.

This was challenged in the case of SR Bommai vs Union of India AIR 1994. In this case SC held that secularism is a basic feature of the constitution and a state govt. can be dismissed on this ground. It further observed that no party can simultaneously be a religious party as well as a political party.

Financial Emergency
Art 360 provides that if the president is satisfied that a situation has arisen whereby the financial security of India or the credit of India or of any part of India is threatened, he may make a declaration to that effect. Under such situation, the executive and legislative powers will go to the center.
This article has never been invoked.
Changes made by 44th Amendment
44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not abused by the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done by 42nd amendment. The following are important points of this amendments-

"Internal disturbance" was replaced by "armed rebellion" under art 352.
The decision of proclamation of emergency must be communicated by the Cabinet in writing.
Proclamation of emergency must be by the houses within one month.
To continue emergency, it must be re approved by the houses every six month.
Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present and voting. 1/10 of the members of a house can move such a resolution.
Art 358 - Under this article art 19 will be suspended only upon war or external aggression and not upon armed rebellion. Further, every such law that transgresses art 19 must recite that it is connected to art 358. All other laws can still be challenged if they violate art 19.
Art 359, under this article, suspension of the right to move courts for violation of part III will not include art 20 and 21.
Reversed back the term of Lok Sabha from 6 to 5 years.