Emergency (National emergency, President rule and Financial emergency)

Emergency

"One of the test of leadership is the ability to recognise a problem before it becomes an emergency"

• Part - 18
• Article - 352 to 360
• Article - 352 (National Emergency)
• Article - 356 (Presidential Rule/State Emergency)
• Article - 360 (Financial Emergency)

National Emergency 

• Article - 352
• Emergency proclaimed by the President of India; Parliament must approves it within a period of 1 month.
• At once it can be proclaimed for a maximum of 6 months (counting from the day it was approved by the second house of the parliament) and may be renewed before it lapses by the same way.
• It can also be approved only by Rajya Sabha provided Lok Sabha is dissolved but after election the newly formed Lok Sabha must approve it within 30 days.
• proclaimed when there is a threat to security of India.
• Grounds -
• War
• External Aggression
• Armed Rebellion (44th Constitutional Amendment Act 1978 replaced the word Internal disturbance with Armed Rebellion).
• It was proclaimed three times in India.
• During Indo-China war (1962-68)
• During Bangladesh liberation war (1971-77)
• During the tenure of Indira Gandhi on the ground of Internal disturbance (1975-77)

Presidential Rule/State Emergency 

• Article - 356
• Emergency proclaimed by the President of India.
• Ground -
• Failure of constitutional machinery in the State.

Financial Emergency 

• Article - 360
• Emergency proclaimed by the President of India.
• Ground -
• When there is a threat to financial stability or credit of India.

National Emergency 

When the president is satisfied that the security of India is under threat or there is an eminent threat to security on account of war, external aggression or armed rebellion, then the president may proclaim National emergency.

However, before National emergency can be proclaimed a written recommendation must be given to the president by the Union cabinet (i.e., President can't proclaim emergency in his discretion).

Emergency can be proclaimed on the whole country or a specific part of the country also.

National emergency proclaimed by the president lapses after 1 month unless the same is approved by the parliament by a special majority, i.e., majority of not less than 2/3rd of the members present and voting and also the majority of the total strength of the house.

If in case Lok Sabha gets dissolved during this period without approving the emergency but Rajya Sabha has approved it within 1 month, then the newly elected Lok Sabha shall have to approve it within 30 days of his 1st sitting for emergency to remain valid.

Once approved, National emergency remains in operation for a period of 6 months and for further continuation beyond 6 months, it has to be again approved by both the houses in similar way before it lapses.

National emergency if put in State because of the threat to security, then it does not amount to the dismissal of state government. Whereas in case of Presidential rule (if state machinery fails), then it amounts to the dismissal of state government.

Withdrawal of National emergency 

1. National emergency can be withdrawn any time by proclamation of revocation issued by the president of India on the advice of the Council of Ministers.
2. Emergency can stand removed automatically also if any house of the parliament does not approve the continuation of national emergency wither within 1 month or thereafter.
3. Lok Sabha has given special power in the matter of withdrawal of the national emergency wherein when at least 10% of the members of the Lok Sabha gives a notice to the president when Lok Sabha is not in session or to the speaker when Lok Sabha is in session mentioning their intentions to discontinue emergency. Then, a special sitting of Lok Sabha is called within 14 days to vote on discontinuation of emergency. If the proposal to discontinue the on way national emergency is passed by the Lok Sabha by Simple Majority, then emergency stands removed.
• Here, there is no need of Rajya Sabha's approval.

Effects and consequences of the National emergency 

• Executive/Administrative consequences - During national emergency, union executive can give any direction to the state executive regarding the mechanism in which administration of the state must be carried out.
• Legislative consequences - During national emergency, the legislative powers of the parliament extends to making law in any subjects mentioned in the state list (under Article 250).

Note - Union government can also make laws in other state which are not under national emergency provided there exists at least one state which is under national emergency.

The term of Lok Sabha and State legislative assembly can be extended by 1 year at a time during national emergency. This way they can be given extension for any number of times during emergency.

However in the event of withdrawal of emergency, fresh election for the new legislature must be held within 6 months of withdrawal of emergency.

• Financial consequences - The distribution of financial power which exists normally between the centre and the state may ceases to be in operation during national emergency.
• Effect on Fundamental Rights (under Article 358 & 359) - 

Article 358 - Under Article 358 when national emergency is declared on the grounds of war or external aggression then fundamental rights under Article 19 gets automatically suspended.

Article 359 - Under Article 359, President can declare suspension of enforceability of any fundamental rights including Article 19. However, Fundamental rights under Article 20 and 21 can't be suspended and people enjoy them anytime even during National emergency.

HOTs 

Would Parliamentary approval is required for revocation of emergency?

• No, president can revoke it (on the advice of CoM)

Changes introduced in Article 352 through 44th Constitutional Amendment Act 1978 

1. The word 'Internal disturbance' as a ground for considering threat to national security was replaced by the word 'Armed Rebellion'.
2. President can now proclaim national emergency only after getting the recommendation of union cabinet in writing.
3. Continuation of national emergency after its proclamation has to be approved by both the houses of the parliament within 1 month by special majority (earlier it was 2 months by simple majority).
4. Now, emergency approved by the parliament can continue for a maximum of 6 months in one go and for its further continuation beyond 6 months, it requires renewal by both the houses by a special majority (earlier no renewal is required, it continued until revoked by the parliament or the president).
5. Lok Sabha was given special power through 44th Constitutional Amendment Act in the matter of withdrawal of emergency.
6. Fundamental rights under Article 20 and 21 can never be suspended.
7. The provisions under Article 352, which prohibited judicial review was removed.
8. Continuation of the president rule under Article 356 was restricted to a maximum of 3 years.

Note - National emergency can be proclaimed for the whole of India or even a part of India also. This provision was added by 42nd Constitutional Amendment Act 1976.

President Rule/State Emergency

• Proclaimed on the ground of breakdown of constitutional machinery 
• → Violation of basic structure of State government
• → Law and order disturbed (Violation of rule of law, Article 21, Secularism, etc.)
• → Secessionist tendency, i.e., state wants to separate from India which is a threat to the integrity and unity of India.
• → Huge corruption, etc.
• They are subjected to the subjective interpretation of the Union government.
• Constitution does not provide detailed provisions about the breakdown of constitutional machinery.
• It may be used by the union government to punish/harass the state government (which alter the basic structure of the constitution; Federalism).

Article 355 - Article 355 makes it obligatory for the union government to protect the state against external aggression as well as internal disturbance. Also, to ensure that the government in the state must run according to the provisions of the constitution and a mechanism to fulfill this condition is provided by Article 356.

Article 356 - It provides that the president on satisfaction that the government in the state can't be carried according to the provisions of the constitution on the basis of the report of the governor or otherwise also, can impose president rule in the state.

The president rule imposed must be approved within the 2 months of imposition by both the hoses of the parliament by a Simple majority. 

Once imposed, the emergency remains in operation upto 6 months (from the date of imposition, not from the date of approval by the parliament as in case of national emergency) and if needed to be extended, it can be renewed for another 6 months by both the houses of the parliament by a simple majority.

For president rule to continue beyond 1 year, two following conditions must be fulfilled -

1. There is a national emergency in operation either in throughout India or a part of that state and 
2. Election Commission of India certifies that the condition in state is not conducive to hold free and fair election.

President rule can be extended to a maximum of 3 years.

Effect of President rule 

1. President can assume in himself all the executive function in context of the state under President rule.
2. President can perform these functions either on his own or through an authority appointed by him.
3. President can declare about parliament having the powers of legislature in all the subjects in state list for the concerned state. Now parliament can delegate this law making power for the state to the president but in no case president can assume in himself the power of High Court, i.e., Judiciary Power.
4. Parliament can authorise the president with the power to spend money out of the consolidated fund of the state subjected to the approval of the parliament.

Dr. B. R. Ambedkar called Article 356 as 'Dead letter'.

• S. R. Bommai vs Union of India, 1997 - It was against the misuse of president rule by the union government. 

Supreme Court in SR Bommai case 1997 held that -

1. Power of the president under Article 356 is not absolute rather it is a conditional power subjected to the provisions of the constitution.
2. It is not the satisfaction of the president, in real sense rather it is the satisfaction of the union council of ministers only on whose advice the president can take action under Article 356.
3. Imposition of president rule is subjected to judicial review.
4. Court can't go into the advice given by the council of ministers to the president but it can certainly go through the material fact on the basis of which the advice was given and if court finds the material fact to be irrelevant or malafide, then the action of the president can be declared unconstitutional (i.e., Advice given by the CoM can't be questioned but the report of the governor can be questioned by the Supreme Court).
5. Report of the governor to the president must be a 'Speaking document', i.e., it must clearly mentioned the reason governor has concluded that the state can't be run as per the provisions of the constitution.
6. Support to the government or majority of government must be tested on the floor of the house and not in the governor's chamber.
7. If the court comes to the conclusion that the imposition of president rule is unconstitutional then it can direct the revival of council of minister of the state and even the restoration of state legislative assembly.
8. The dismissal of state council of minister and dissolution of the state assembly should not be dome simultaneously. Assembly should be dismissed only after the imposition of president rule is approved by both the houses of the parliament (till then the assembly is suspended).
9. Secularism is the basic feature of the constitution and any state government which is responsible for the violation of any basic structure of Indian Constitution may be dismissed by imposing president rule.

i.e., in short in SR Bommai case Supreme Court declared that -

• The president can't be questioned but his action of imposition of president rule can be questioned (i.e., judicial review).
• Advice of CoM to impose president rule can't be questioned but the report of the governor on the basis of which the advice was given can be questioned.

Difference between National Emergency and President Rule 

National Emergency 

1. Ground - applied in the case of threat to the security on the ground of war, external aggression or armed rebellion.
2. Upper limit - National emergency has no upper limit, i.e., it can be extended for any period of time.
3. Effect on State CoM - During national emergency, state legislative and executive continue to function.
4. Effect on State legislative power - Parliament gets concurrent power of legislation on the subjects of state list (under Article 250).
5. Article 352 alters the relation of centre with all the states.
6. Article 352 affects fundamental rights.

President Rule 

• Ground - applied for the reason of breakdown of constitutional machinery in the state.
• Upper limit - President rule can conditionally go beyond 1 year but can't exceed 3 years.
• Effect on State CoM - State Council of ministers is always dismissed and assembly in most of the cases dissolved though always suspended.
• Effect on State legislative power - Parliament gets exclusive power of legislation on the subjects of state list.
• It is specific to the state brought under president rule.
• It will never effect the Fundamental rights.

Sarkaria Commission's recommendation with respect to the use of Article 356 

1. President rule in a state must be imposed in exceptional situations only after having explored all other alternatives to rectify the constitutional machinery of the state. Except where not imposing president rule may lead to disaster warning can be given in specific terms by the centre to the errant state.
2. When the Council of ministers loses support in the assembly, the governor should try in the first instance to form an alternative majority government and if that is also not possible and election can't be held immediately then the governor should install a Caretaker government and go for election for the new assembly from which the state will get a new government.
3. Assembly should be dissolved after the president rule imposition is approved by both the houses of the parliament.
4. Report of the governor must be a speaking document where it must specifically mentioned that what so has happened which is seen as breakdown of constitutional machinery. 
5. Majority of the council of ministers must always be tested on the floor of the house.
6. Provisions of Article 356 is to protect the integrity and the interest of the country and to safeguard various important constitutional provisions. However, to ensure that it is not misused for political reason and the spirit of federation is maintained, there may be some safeguard in Article 356 regarding its use, the way safeguards are given under Article 352.

Normally, president shall be imposed in the state only on the basis of the report of the governor.

M. M. Punchhi Commission 2007

It is also known as 'Commission on Centre-State Relations'. Its recommendations are -

1. For cultivating better centre-state relations and to facilitate effective implementation of laws on List 3 (Concurrent list), the centre while legislating on matters in concurrent list makes consultation with the concerned state.
2. Article 201 empowers the president to give assent or withhold assent to the bill reserved by the governor for president's consideration. State have expressed concerned that that the bill are sometimes retained indefinitely. Thus, restricted the democratic will of the State legislature and it disturbed the basic feature of the constitution, i.e., federalism. Therefore, the President should decide consenting or withholding consent in reasonable time to be communicated to the state.
3. Governor should be given a fixed tenure of 5 years. The phrase 'during the pleasure of the president' in Article 156(1) should be substituted by an appropriate process under which governor can be removed for valid reason.
4. In case of external aggression or internal disturbance creating a situation of breakdown of constitutional machinery of the state, all alternative courses available to the union must be exercised before imposing president rule.
5. Rajya Sabha to be the chamber to protect States' rights.
6. Equal representation of states in Rajya Sabha.

Financial Emergency

If the financial stability of India or credit of India is under threat and the president is satisfied about such a threat, then he can impose financial emergency.

After imposition, it has to be approved by both the houses of the parliament through Simple majority within 2 months of the imposition.

Once approved financial emergency goes for indefinite period of time until it was revoked.

Financial emergency can be withdrawn only through proclamation of revocation issued by the parliament and this revocation requires parliamentary approval.

Effect of financial emergency 

1. The revenue distribution provisions which normally exists between union and the state ceases to be in operation, the way centre wants.
2. Union government can give direction to the state government as how to manage their financial health.
3. Money bills and financial bills of the state may be subjected to the routine presidential assent.
4. Union executive can direct the state executive to reduce the salary and allowances of all or any state government functionaries.
5. Salary and allowances of all or any union government functionaries including judges of Supreme Court and High Court and the President of India can be reduced.

National emergency can also change the financial relation between the centre and the state but only in a narrow extent but financial emergency can totally alter the financial relation between the centre and the state.

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Note - This is my Vision IAS Notes (Vision IAS Class Notes) and Ashutosh Pandey Sir's Public Administration Class notes. I've also added some of the information on my own. 

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