The Constitution of India is a legal document that establishes a federal system of government for the nation as well as lays out specific duties for the federal and state governments.
The emergency provisions under Articles 352 to 360 are outlined in Part XVIII of the Indian Constitution. Article 352 allows for the declaration of an emergency with regard to the security of India or any State against war, external aggression, or armed insurrection. Article 354 specifies the application of the regulations relating to the distribution of revenues when a declaration of Emergency is in place, and Article 353 specifies the effects of the declaration of emergency under Article 352. Article 355 declares that the Union has a duty to defend the States from external invasion and domestic unrest, and Article 356 outlines emergency measures in the event that the States' constitutional machinery malfunctions.
According to Article 356 of the Indian Constitution, the President of India may, under special circumstances, impose President's Rule or central rule on a state with the assistance and counsel of the Council of Ministers. When the constitutional machinery breaks down or the state government is unable to operate in accordance with the Constitution's provisions, it gives the central government the power to take over all or part of the state's administration. In rare instances, this item is referred to in order to handle problems like political unrest, internal strife, or a collapse in state government.
What is emergency?
An emergency is a circumstance in which a government uses extraordinary powers to address a crisis or a threat to the security, integrity, or stability of the country. Normal democratic processes are frequently suspended or limited during emergencies, and extraordinary measures are usually taken to protect the nation.
In order to ensure that India would be prepared for such scenarios, the constitution's authors in India anticipated that there would be some circumstances in the future that would necessitate the use of such provisions.
While emergency measures are necessary, the government shouldn't use them to solve every issue that arises in the country. Instead, all other available options should be explored before turning to emergency measures, which should only be used when other measures are ineffective at resolving the serious issue at hand.
Articles 352 to 360 of Part XVIII of the Indian Constitution deal with the emergency provisions. Three different sorts of emergencies are covered by the constitution. The President has the authority to declare any kind of emergency. The German Weimar Constitution is where we get the idea of an emergency. These are the three types:
1. National Emergency: Under Article 352 of the Indian Constitution, this kind of emergency is declared. It is declared when armed insurrection, war, or external attack endangers the security of India or a portion of it. The central government has more power and can overrule some fundamental rights when there is a national emergency.
Anytime one of the aforementioned reasons occurs, an emergency may be declared:
According to Article 352, the President may declare that all of India or a portion of it is under threat if he is "satisfied" that India's security is in jeopardy.
It is not necessary for external attack or violent revolt to actually occur in order for a national emergency to be declared. Even though such a scenario is conceivable, it is still possible to declare a national emergency.
A significant decision was made in the Minerva Mills v. Union of India case. In this case, it was decided that there could be no impediment to judicial review of the President's emergency declaration issued in accordance with Article 352 (1) of the Constitution. The courts' only authority is to determine whether or not the restrictions mentioned in the Constitution have been followed. It can determine whether or not the President's satisfaction is justified. The President will not be regarded as "satisfied" if the President determines that there are sufficient reasons for a national emergency but the reasons themselves are unimportant.
Three times hath the National Emergency been in effect in India.
2. President's Rule or State Emergency: As was already established, Article 356 of the Indian Constitution allows for the imposition of a state emergency. It happens when a state's constitutional machinery malfunctions, which can result in poor governance or unstable politics. The state's administration can thereafter come under the direct jurisdiction of the President of India.
In situations involving state emergencies, the judiciary has also been crucial. It makes sure that a State doesn't declare an emergency at random. The emergency declaration imposed in Bihar pursuant to Article 356 was contested in Rameshwar Prasad v. Union of India. The Assembly was dissolved after it had not even held a single meeting because there had been an attempt to form the majority through illegal means, but there was no evidence at all, much less information that would have been significant, to support this claim. The proclamation was declared unlawful by the court because it was determined that the justifications offered in it were irrelevant.
On the grounds that the state's constitutional machinery has not operated correctly, a state emergency may be declared. When the state governor in this emergency determines that the state is not operating in accordance with constitutional provisions, he may write a report to the president of India. Additionally, if the President is pleased with the report, he may enact his rule. The President will then take over as the state's executive leader.
Up to 2018, the President of India enforced President's Rule 126 times in India. The President's Rule was implemented a maximum of 39 times during the rule of Indira Gandhi.
3. Financial Emergency: According to Article 360 of the Indian Constitution, this sort of emergency is proclaimed when India's financial stability or credit, in whole or in part, is in jeopardy. By changing or suspending financial commitments and state financial autonomy, it enables the federal government to take extraordinary actions to control the economy.
As per Article 360, a Proclamation of Financial Emergency may be issued, if the President believes that such a situation exists where the financial stability of India or any part of the territory is threatened.
Financial Emergency can be proclaimed on the ground that when a situation arises in the country which leads to a financial crisis, the President of India may impose an emergency to tackle the situation. In such a situation, the Central Authority may reduce the budget or cut the budget given to the State, and salaries of the government officials may be deducted.Emergencies are exceptional actions taken in urgent situations to ensure the nation's security and efficient operation.
Proclamation's Justiciability Under Article 356:
When the state does not operate in accordance with the constitution, a proclamation is made pursuant to Article 356 of the constitution. At this point, Article 356 proclaims that the parliament shall exercise all of the legislative authority of the state and that it may also delegate this authority to the president, who will then be able to enact laws on the state's behalf. A proclamation issued by the president in accordance with Article 356 must be presented to both chambers of the parliament and is valid for two months. However, both houses of the parliament must ratify it if the situation calls for it to remain in effect for a longer amount of time.
A number of attempts were made to have the issue of the invocation of Article 356 reviewed by the courts, but these efforts were unsuccessful.
The high court of Odisha issued a very informative ruling in the case of Bijayananda v. President of India. According to the court, the governor must act independently and without the assistance or counsel of the council of ministers while submitting his report to the president pursuant to Article 356. It is impossible to argue in a court of law that the governor's report is false or is supported by unrelated facts. Given the protection and immunity granted by Article 361 (1), the governor is not a party to the lawsuit.
The executive abuses its position as a result of this immunity and protection, which ultimately causes issues for the general people. The council of ministers' recommendations must be taken into consideration when the president enacts Article 356. The president's "satisfaction" with the information has a very broad amplitude. Whether he makes a decision based on the governor's report or considers other information is up to him. This demonstrated unequivocally that the pleasure of the president and the information source is not a matter of law.
The cases of S.R. Bommai v. Union of India and State of Rajasthan v. Union of India are extremely important for understanding the proclamation's justiciability under Article 356 of the constitution.
S. R. Bommai v. Union of India
In 1989, President's Rule was enacted. As a result, S.R. Bommai's administration—which served as the Janata Dal government's chief minister in Karnataka from 1988 to 1989—was overthrown on April 21, 1989. As it was the most typical method of keeping opposition parties away, this was done in accordance with Article 356 of the Constitution. Because of widespread defections that numerous party leaders of the time organised, the Bommai government lost the majority and was forced to resign. Despite giving Bommai a copy of the resolution passed by the Janata Dal Legislature Party, the then-governor P. Venkata Subbaiah refused to let him test his majority in the Assembly.
Bommai first filed a writ suit with the Karnataka High Court, where it was denied, challenging the Governor's recommendation of President's Rule. Afterward, he went to the Supreme Court.
Does the president's power over the six states comply with the Constitution?
If the president is free to enact Article 356(1) of the Indian Constitution. The following questions' replies determine the answer to this query:
– If so, what does the judicial review's scope in this case entail?
- What does Article 356(1)'s usage of the phrase "a situation has arisen in which the government of the state cannot be carried on under the provisions of this constitution" mean?
Supreme Court Judgement:
The case took almost five years to get to a logical conclusion. On March 11, 1994, a Constitution Bench of nine-judges of the Supreme Court issued the historic order. This put an end to the arbitrary dismissal of State governments under Article 356 by providing for the restrictions.
During his 17 years in office, India's first prime minister, Jawaharlal Nehru, referred to Article 356 eight times. Later (in September 1964), Lal Bahadur Shastri established President's authority in Kerala.
Indira Gandhi has the record for invoking Article 356 the most times, 39 times in 14 years.
The article is being utilised cautiously now because of the Supreme Court's historic decision in the S.R. Bommai case in 1994. The court agreed the claim that the president's rule was being abused by those in positions of authority and issued severe limits regarding its imposition.
The Manmohan Singh-led United Progressive Alliance (UPA) administration referred to the president's rule 12 times in various states. Similar to this, throughout its 20-month tenure, the Narendra Modi-led National Democratic Alliance government used the president's authority three times.
Along with Arunachal Pradesh, Maharashtra too came under president's administration following the breakup of the Congress-Nationalist Congress Party coalition prior to the assembly elections in October 2014. Following the most recent assembly election, it was also implemented in Jammu and Kashmir.
We can see that every government use or misused article 356.
Misuse of Article 356
According to the Sarkaria Committee Report, Article 356 has been used more over 100 times since independence, according to a quick look at the statistics.
The rightful state governments have occasionally been overthrown in an effort to get them to submit or to offer the Union government's own party a chance to take over the state. In order to assert their power, Union governments have taken on the exact position that Dr. Ambedkar feared they would, namely that of being judges of the effectiveness of state governance.
The most aggressive use of Article 356 occurred throughout the 1970s and 1980s, which will be remembered. It was applied 59 times between 1971 and 1984. It was used the most frequently between 1977 and 1979, when the Morarji Desai cabinet was in power. The post-emergency Central government exploited it as justification for a vendetta against state governments governed by Congress. After regaining power in 1980, Indira Gandhi later paid it back. Then, from 1980 to 1984, it was utilised 17 times.
Indira Gandhi is recognised for having used Article 356 mostly as a tool against state governments, despite Jawaharlal Nehru also abusing it to overthrow Kerala's majority Communist government. Following the Congress party's defeat in several Indian states in 1967, its frequency rose substantially.
Indira Gandhi even blocked judicial scrutiny of the President's decision invoking Article 356 using the 38th Constitutional Amendment Act during a time of emergency. But as Dr. Ambedkar had prophesied, the original Article 356 was reinstated in 1978 as a result of the 44th Constitutional Amendment Act, which Morarji Desai had proposed.
Sarkaria Committee Report
Justice R.K. Sarkaria served as the chairman of the Sarkaria Commission. It was established in 1983 and intended to enhance ties between centre and state. It is abundantly obvious from the Sarkaria Commission Report that this power has been exercised more than 100 times since independence. Despite the safeguards outlined in clause 356, the centre had repeatedly invoked this clause, which led to its egregious misuse. The 1970s and 1980s saw the most abuse of Article 356.
The Sarkaria Commission authorised this unusual application of Article 356. This commission contends that Article 356 offers protections in the event that the state's constitutional apparatus malfunctions. Furthermore, it implies that any abuse of this authority would undermine the democratic aspects of the Indian Constitution. After carefully weighing all of the ideas, this research concluded that this article should only be utilised in extremely rare circumstances where there are no other options. The report also suggested warning the state in question whose constitutional apparatus had collapsed.
The justification provided by the state should be adequately assessed and taken into consideration before proclamation of Article 356. The study advises the government to make every effort to have a majority-supported government in the Assembly. In the event that this is not practicable, fresh elections must be held right away, and the governor must ask the departing minister to serve as a caretaker administration. The commission advises against dissolving state legislative bodies prior to the declaration of an emergency. It further suggests that Article 356 be properly amended to include the relevant details and justifications for invoking paragraph 1 of that article in the proclamation. This will stop the abuse of authority in violation of Article 356.
In order to protect national security and address urgent problems, the constitution now includes emergency clauses. Even the founding fathers of the Constitution anticipated that special powers could be needed in the future for the State to respond to and handle such events. Since independence, many times have been made use of the emergency provisions. These were employed by the State for a considerable amount of time in an unethical manner and as a tool for political control. The prescribed protocol for the President's emergency proclamation was broken and misapplied. In the State of Punjab and Jammu and Kashmir the Constitution's limited time for how long an emergency can last was violated.
These cases of misuse led to certain changes being made to these clauses in the 44th Amendment Act. In the meantime, the Indian judicial system largely shut its doors to any kind of infringement of human rights. The ability of a person to approach a court of law in the event that their Fundamental Rights are violated was covered in various Supreme Court decisions. After the 44th Amendment Act, the Court decided that no one could ever have their right to life and personal freedom taken away. Even in an emergency, Articles 20 and 21 could not be suspended.
This article is written by Shubham krishna Tiwari of Amity university Jharkhand.