Constitutional Emergencies 

The term ‘emergency’ refers to a state of urgency that arises abruptly and requires immediate action by public authorities to curb or control. The Indian Constitution grants public authorities the power to take such action during an emergency period. When an emergency is declared by public authorities, the Indian federation converts itself into a unitary state.[1] That is, the central government single-handedly holds all powers that were earlier distributed between the central, state and local governments.

The Constitution defines three types of emergencies, namely:

  • National Emergency – Article 352 of the Indian Constitution
  • Failure of Constitutional Machinery in the States – Article 356 of the Indian Constitution
  • Financial Emergency – Article 360 of the Indian Constitution

National Emergency

Art.352 discusses the proclamation of a National Emergency. A national emergency can only be imposed by the President of the country, on the written request of the Council of Ministers headed by the Prime Minister. If the President is satisfied that there exists a grave emergency which threatens the security of the country or a part of the country, whether by war, external aggression or armed rebellion, then the President may issue a proclamation that declares a state of emergency in the whole of India or in the particular territory mentioned in the proclamation.

After the President declares the emergency, the emergency proclamation is laid before Parliament for its approval. The proclamation will have been passed only when both houses of Parliament pass the resolution for an emergency with a two-thirds majority of total members present and voting. If Parliament fails to approve the emergency, it will cease to operate within a month of its declaration. If approved by the resolutions of both houses, the Emergency period will last for six months, unless revoked earlier by the President.

The decision of the President to declare an emergency can be brought under the scrutiny of the courts if it brings into question a violation of the Constitution. This was held in the landmark case, Minerva Mills v Union of India, wherein the Supreme Court upheld the importance of judicial review in maintaining checks and balances in a democratic society.

There have been three declarations of National Emergency in India: in 1962, at the time of Chinese aggression; in 1971, in the wake of war with Pakistan; and in June 1975, on the ground of internal disturbance.[2]

Effect of Proclamation of Emergency

  • While the emergency is in effect, all legislative, executive and financial powers are vested in the central government. It has the power to make laws even in those matters which are handled by the states.
  • Fundamental rights provided by the Constitution can be suspended by the President of the country depending on the kind of emergency imposed.
  • Article 358 provides that fundamental rights under Art. 19 (freedom of speech and expression) will be automatically suspended for the entire duration of the emergency period. Art. 358 operates only in the case of external emergency (war or external aggression)[3] and not in the case of internal emergency (armed rebellion or internal disturbance).
  • According to Art. 359 of the Constitution, fundamental rights can be suspended only by Presidential Order, which should specify the particular suspended fundamental rights. This suspension may extend to the entire country or part of it, depending upon the situation. This provision may be applied during both internal and external emergencies. The duration of suspension is specified by the President and may extend to the whole period of the emergency. Art. 359 does not allow for the suspension of Art. 20 (protection with respect to conviction for offences) or Art. 21 (Right to life and personal liberty). Once suspension occurs, the government may make any laws that are inconsistent with the fundamental rights that are suspended.
  • Emergency laws are protected from the scrutiny of judicial review. However, laws that were passed during the emergency period that bear no relation to the emergency situation can be brought under the judicial lens.

State Emergency 

Under Art. 356 of the Indian Constitution, a State Emergency can be proclaimed if the state’s constitutional machinery fails. If the governor of a state is satisfied that the state is not functioning in accordance with constitutional provisions, then he may write a report to the President of India[4]. The President, if satisfied with the conditions, may impose ‘President’s rule’ in that particular state. In this case, the President becomes the executive head of the state.

According to Art. 356(3), if the emergency has not been approved by both Houses of Parliament, its operation shall lapse after two months. The emergency period can be extended by six months each time the Houses approve the resolution for the continuance of the emergency. A state emergency may be imposed for a maximum of three years. After three years, the state’s constitutional machinery must be restored.

When an emergency is proclaimed under Art. 356, the powers of the affected state’s legislature are executed by Parliament. The President can make laws for the state when the Parliament confers the power to do so. Other institutions may also be delegated to carry out functions assigned by the President under the powers conferred by Parliament.

Laws made during this period remain in effect even after the emergency period lapses, but these laws can be amended, altered or repealed by the state legislature.

As of January 2016, President’s Rule has been imposed 115 times in India[5]. During Indira Gandhi’s regime, the President’s Rule was imposed 35 times in various states, the greatest number of impositions under any prime minister. 

Financial Emergency

Art. 360 authorizes the President to proclaim financial emergency if he is satisfied that the financial stability or credit of India or any part of India is threatened.

Financial Emergency ceases to operate within two months if it is not approved by both Houses of Parliament. It will continue to operate unless revoked or varied.

 The effects of a Financial Emergency are:

  • The executive authority of the Union gives directions to the State as necessary for the maintenance of financial stability.
  • It may include provisions for the reduction of salaries and allowances of all or any class of persons serving in the State. This includes Judges of High Courts and the Supreme Court.
  • The Money Bills shall be reserved for the approval of the President.

There has yet to be an instance of Financial Emergency in India.

Photo Credit: The Hindu