EMERGENCY

EMERGENCY

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. 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.

Constitutional Provisions

1. Article 352: The president can declare a national emergency if the security of India or a part of it is threatened by war or external aggression or armed rebellion.
   • He can do so even before the actual incident of war or armed rebellion or external aggression.
2. Articles 358 and 359: Narrates the effect of a National Emergency on the Fundamental Rights.

Incidences: National emergencies declared so far:

Rationale behind Inclusion of Emergency Provisions in Constitution

• Protective ring: Emergency provisions serve as a protective ring around fragile republic system.
• Safeguard: To safeguard the sovereignty, unity, integrity and security of the country, the democratic political system, and the Constitution.
• Unforeseen Situation: To deal with unforeseen situations arising in case of any exigencies, where the national interest and unity is threatened.
• Historical accounts: Indicated that any sign of weakness of the Central government has led to Balkanization and disintegration of the Union.

Effects of National Emergency

1. Effects on the centre-state relations:
   • Executive: Centre becomes entitled to give executive directions to a state on ‘any’ matter.
   • Legislative:
     • Law making: Parliament becomes empowered to make laws on any subject mentioned in the state list.
     • Ordinance: President can issue ordinances on State subjects also, if the parliament is not in session.
     • Operation of Law: Laws made on state subjects by the parliament become inoperative six months after the emergency ceases.
     • Financial: President can modify the constitutional distribution of revenues between the Centre and the states.
2. Effect on the life of the Lok Sabha and State Assembly:
   • LS: Life of the LS may be extended beyond the normal term for one year at a time.
     • Limitations: Extension cannot continue beyond a period of 6 months after the emergency has ceased to operate.
   • State Legislature: Parliament may extend the normal tenure of a State Legislative Assembly by one year each time during a national emergency.
   • Limitation: Subject to a maximum period of 6 months after the emergency has ceased to operate.
3. Effect on fundamental rights:
   • Suspension of FR U/A 358: When a proclamation of National Emergency is made, the six FRs U/A 19 are automatically suspended.

• Revival: Article 19 is automatically revived after the expiry of the emergency.
• 44th Amendment Act: Article 19 can only be suspended when NE is laid on the grounds of war or external aggression and not in the case of armed rebellion.

• Suspension of FRs U/A 359: President authorized to suspend the right to move any court for the enforcement of FRs. Thus, remedial measures are suspended and not FRs.
  • Limitations: The suspension of enforcement relates to only those FRs that are specified in the Presidential Order.
  • 44th Amendment Act: President cannot suspend the right to move the court for the enforcement of FRs guaranteed by Article 20 and 21.

Criticism of the Emergency Provisions:

• Destroy federal feature: The federal character of the Constitution will be destroyed, and the Union will become all-powerful.
• Executive rule: The powers of the State—both the Union and the units will be entirely concentrated in the hands of the Union executive.
• Dictatorship: The Union Executive assumes power like a dictatorship.
• Affect financial autonomy: The financial autonomy of the state will be nullified.
• Curbs freedom: Fundamental rights will become meaningless, and as a result, the democratic foundations of the Constitution will be destroyed.

Important Judgements:

Minerva Mills case (1980): SC held that National Emergency can be challenged in the court on the ground of mala-fide or that the declaration was based on wholly extraneous and irrelevant facts.

Safeguards added Against Misuse (44th Amendment Act 1978):

• “Internal disturbance” replaced by “armed rebellion”.
• Written advice by the cabinet instead of only by the PM.
• Special majority for ratification of emergency.
• Lok Sabha can initiate action for premature termination.
• Repeated approval after every six months, unlike one year earlier.
• Control of Lok Sabha in revocation of emergency (Earlier, the proclamation could be revoked by the president on his own, and the Lok Sabha had no control in this regard).

Way forward:

• Not for political gains: The provisions of emergencies are provided keeping in view the security and stability in the nation. But they must not be used for political gains or disturbing the democratic structure of the nation.
• Only in real crisis situation: Provisions must be used only in cases of real crisis situations. If autocratic rule tries to destroy the democratic structure of India, the citizens have the powers to change the rule by general elections as done in 1977.
• Must not be abused: 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.”

PRESIDENT RULE

President’s rule is the suspension of state government and imposition of direct central government rule in a state. The state will fall under the direct control of the Union government, and the Governor will continue to head the proceedings, representing the President of India. This is achieved through the invocation of Article 356 of the Constitution by the President on the advice of the Union Council of Ministers.

Constitutional Provisions:

• Article 355: Duty of the Union to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution.
• Article 356: President has the power to suspend state government and impose President’s rule in any state in the country “if he is satisfied that a situation has arisen that government of the state cannot be carried on in accordance with the provisions of the Constitution.”

Conditions for President Rule:

• Political Instability: When after general elections to the assembly, no party secures a majority, the Governor may impose President Rule.
• Majority party decline to take ministries: When the party having a majority in the assembly declines to form a government and the governor cannot find any alternative, he can prescribe President Rule.
• Defeat in the Assembly: A party resigns after its defeat in the assembly and no other party is willing or able to form a government commanding a majority in the assembly.
• Non-execution of constitutional direction: Where a constitutional direction of the Central government is disregarded by the state government.
• Internal subversion: For example, a government is deliberately acting against the Constitution and the law or is fomenting a violent revolt.
• Physical breakdown: When the government wilfully refuses to discharge its constitutional obligations, endangering the security of the state.

Effects of President Rule:

1. Executive:
   • Functional Effect: The President assumes to himself all or any of the functions of government or any authority in the state other than that of High Court.
   • Effect on State Autonomy: The President dismisses the Council of Ministers headed by CM and runs state administration with the help of Governor or advisors as he thinks fit.
2. Legislative:
   • Conversion to Unitary system: On the imposition of President Rule, President either suspends or dissolves the legislature of the state and declares that the powers of the legislature of state shall be vested with Parliament.
   • Power of legislature: The Parliament can confer on President the powers of legislature to make laws.
   • Law making power: The President can promulgate the Ordinances in relation to administration of State when the Parliament is not in session.
3. Financial:
   • Appropriation of fund: President is authorized to give approval to pending sanction of expenditure from Consolidated Fund of State by Parliament when LS is not in session.

Misuse of President Rule:

1. Possible reasons of a misuse of rule:
   • Ideological differences: Used to dismiss state governments where the party in power is not the same as that ruling at the Centre.
   • Eroding neutral political character of Governor: Governor controlled by a ruling party is making decisions that could result in a different political party either retaining or losing power, as is currently the case in Arunachal Pradesh and Uttarakhand.
   • Rise of regional parties: The mid-1990s was marked by the rise of regional parties that lent an increasingly opportunistic and volatile character to Indian polity.
   • The defection of political members: Large scale defection to the opposition party by the party in power in the centre for claim to form government.
   • Less secure governments: Governments who cannot handle opposition have a greater tendency to misuse President’s Rule.
2. Inappropriate factors for imposing President rule:
   • Imposition without finding alternative: When a ministry resigns or is dismissed on losing majority support in the assembly and the governor recommends imposition of President’s Rule without probing the possibility of forming an alternative ministry.
   • Not allowing to prove majority: Where the governor recommends imposition of President’s rule without allowing the party to prove its majority on the floor of the Assembly.
   • Maladministration: Maladministration in the state or allegations of corruption against the ministry or stringent financial exigencies of the state.
   • No prior warning: Where the state government is not given prior warning to rectify itself except in case of extreme urgency.
   • Intra-party problems: Where the power is used to sort out inter-party problems with the ruling party.

Important Judgement in this regard:

1. S.R. Bommai judgement (1994):
   • President’s power not absolute: The verdict concluded that the power of the President to dismiss a State government is not absolute.
   • Approval for Proclamation: President should exercise the power only after his proclamation is approved by both Houses of Parliament. Till then the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly.
   • Dissolution of SLA: The dissolution of Legislative Assembly is not a matter of course. It should be resorted to only where it is found necessary for achieving the purposes of the proclamation.
2. Buta Singh Case (2005): Governor’s report could not be taken at face value and should be verified with the Council of Ministers.

Fall in the misuse of Article 356:

1. The frequency of using Article 356 has been greatly reduced since the mid-1990s despite an increasingly higher number of states being ruled by parties other than that in the central government.
2. This happened due to two factors:
   • Emboldening of regional parties.
   • Intervention by the Supreme Court.

Way forward:

1. The Administrative Reforms Commission (1968):
   • Objectivity: Any imposition of Article 356 should be accompanied with a report by the Governor to the President with relevant facts and details.

1. The Rajamannar Committee (1971):
   • Deletion of articles: It recommended the deletion of Articles 356 and 357 from the Constitution of India. The necessary provisions for safeguards against arbitrary action of the ruling party at the Centre under Article 356 should be incorporated in the Constitution.
2. Sarkaria Commission, 1987:
   • Minimal Use: Article 356 should be used very sparingly, in extreme cases only.
   • Adherence to Procedures: No dissolution of Assembly till proclamation is ratified by the parliament.
3. S.R. Bommai Judgment (1994):
   • Proper usage of power: The Supreme Court enlisted the situations where the exercise of power under Article 356 could be proper.
   • Hung Assembly: One such situation is that of a ‘Hung Assembly’, i.e., where after general elections to the assembly, no party secures a majority.
4. Punchhi Commission, 2010:
   • Limits of area and time: The commission recommended imposition of localized emergency i.e., in only a district or a part of it. Such an imposition should not be of a duration exceeding three months.
   • Amendments: It also recommended suitable amendments in Article 356 to incorporate the guidelines of the Supreme Court in the S.R. Bommai case (1994) with regards to invoking the article under Article 356 should be incorporated in the Constitution.

It needs to be remembered that only the spirit of “cooperative federalism” can preserve the balance between the Union and the States and promote the good of the people and not an attitude of dominance or superiority. Under our constitutional system, no single entity can claim superiority. Sovereignty doesn’t lie in any one institution or in any one wing of the government. The power of governance is distributed in several organs and institutions—a sine qua non for good governance.

FINANCIAL EMERGENCY

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. However, the 44th Amendment Act of 1978 implies that the satisfaction of the president is not beyond judicial review. The Financial Emergency is revoked by the President at any time by a subsequent proclamation.

Effects of Financial Emergency:

1. Administrative Effects:
   • Transfer of executive authority: The executive authority of the Centre expands, and it can give financial orders to any state according to its own.
   • No checks on extension of authority: The authority of Centre extends to directions as the president may deem necessary and adequate for the purpose.
   • Provide canon of financial propriety: To direct any state to observe such canons of financial propriety as are specified by it.
2. Legislative Effects:
   • Limitation on passing of Money Bill: All money bills or other financial bills that come up for the President’s consideration after being passed by the state legislature can be reserved.
   • Convert Federal structure into Unitary: It converts the federal structure into a unitary one without a formal amendment of the Constitution.
3. Financial Effects:
   • Reduction of salary in State: Salaries and allowances of all or any class of persons serving in the state can be reduced.
   • Reduction of salary in Centre: President may issue directions 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 Court.

1. Political Effects:
   • Financial sovereignty: The Center gets full control over states in financial matters, which is a threat to the state’s financial autonomy.
   • Effect on Federal Structure: Financial emergency poses a serious threat to the financial autonomy of the states that is against the federal structure of the country.

Grounds to invoke Financial Emergency:

There are various cases where the central government can invoke financial emergency. Here is a list of some of the situations where the central government may proceed for financial emergency:

• Increase in fiscal deficit
• Increase in current account deficit
• Reduction in Gross Domestic Production
• Reduction in credit ratings of the country
• Doubt on financial stability of the country
• Reduction in value of Indian rupee
• Economic Slowdown

Arguments Against Financial emergency:

• Deterioration of Political structure: The conversion of federal system into unitary has its own implications.
• Dual Challenges: The government is currently faced with a dual challenge—to save lives of its people and also to safeguard the economic interests of the nation. The merits and demerits of financial emergency are a subject of lengthy and non-ending debates.
• Affect economic autonomy of States: This would greatly affect the financial autonomy of the state as the centre will be all-powerful to make decisions.

Arguments in favor of Financial Emergency:

• Crisis Management: Instances like the Financial Crisis of 1991 or the Corona Pandemic, etc., can be managed by imposing Financial Emergency as it gives certain economic powers to the centre to control the dire circumstances.
• Reduce Inequality: Power to cut down salaries of Government functionaries and such other steps may help in reducing glaring inequities in income and wealth in different sections of society.
• Shield against Sovereign Default: To save the country from facing a Sri Lanka-like sovereign default that may affect political stability and cause public unrest, strict measures like Financial Emergency can be taken by the Government.

The provisions of a financial emergency were provided with the intention of upholding the Constitution’s honour. The protection of the constitutional system, not its destruction, is the goal of power accumulation. India never even attempted to use the provisions, despite going through severe financial crisis, starvation, war, and pandemic. Declaring a financial emergency harms the reputation of the country. Therefore, this provision has still not been utilized by the Central Government.