|VOLUME 1|ISSUE 2|APRIL 2018|ISSN: 2581-3595|​

EMERGENCY PROVISIONS AND THEIR IMPACT ON DISTRIBUTION OF POWERS

AUTHORED BY: MEGHA BHATIA, B.B.A.LL.B & CO-AUTHORED BY: AANCHAL GAGNEJA, B.B.A.LL.B, STUDENTS AT UPES, DEHRADUN

ABSTRACT

Federal Government, in author’s perception, means weak government because it involves a division of power. One of the defects that are attributed to a federal system is that the division of powers between the two layers of government. Every modern federation, however, has sought to avoid this weakness by providing for the assumption of larger powers by the federal government whenever unified action is necessary by reason of emergent circumstances. Even Dicey[1] has defined the federal system as a political contrivance to reconcile conflicting sentiments of unity and separateness simultaneously existing among the people who want union but are opposed to total unity. The experience of other federations like that of the US and Australia has shown that the courts rise to the occasion and rescue the situations by giving an expensive meaning to the federal powers, though the US Supreme Court uncooperative initially during the period of recession in the 1930s. Consequently, the framers of the Indian Constitution have chosen to provide expressly in part XVIII that the Union Government’s powers will get enlarged if the President of India proclaims an emergency threatening the security of India or its financial stability. As it has been stated earlier, the emergency provision of our constitution enables the federal government to acquire the strength of the unitary system whenever the exigencies of the situation so demand.

INTRODUCTION

In some of the federal countries like the US and Australia, emergency situations were met by the courts giving an expansive and liberal interpretation to the “war” or “defence” power of the Centre. The courts, thus, gave greater area of operation to these powers, than its peace-time ambit, so as to enable it to do all those things which are necessary for the safety of the country or the effective prosecution of war[2]. In Canada, the “general power” of the Centre was interpreted by the courts broadly to make the Centre more powerful in war-time than it would be in the peace-time.[3] Thus, necessary adjustments in the Centre–State power balance in response to the emergency are effectuated through the process of judicial interpretation.

In India, the method provided to meet an emergency is more overt, direct and simpler because it depends on the central executive issuing the necessary proclamation and the incidents flowing, therefore, are settled by the Constitution itself, without making them dependent on the judicial attitude or interpretation. Part XVIII of the Constitution from Article 352 to 360 contains emergency provisions. Emergencies with regard to external aggression, armed rebellion, breakdown of the constitution machinery or financial crisis are laid down.

The emergency provisions of the Indian constitution are unique. Such provisions do not exist in Australia, Canada and the US. In these Constitutions, the final verdict rests with the courts to decide whether a particular act of the State is justifiable under the “war”, defence or emergency powers. The power to initiate actions on the event of emergency is exclusively an executive prerogative. Part XVIII of the Constitution visualises three kinds of emergency:

State Emergency [Art. 352]

Breakdown of constitutional machinery of the States, commonly called President’s Rule [Art. 356]

Financial emergency [Art. 360]

Also, two duties are imposed on the Centre by Article 355 of the Constitution:

To protect every State from external aggression and armed rebellion.

To ensure that the government of every State is carried on in accordance with the provisions of the Constitution.

MODE OF PROCLAMATION

Though in Part XVIII three kinds of emergencies have been described, but as provided in Article 366(18), the term “emergency” in its technical sense has been restricted to the emergency proclaimed under Article 352 of the Constitution. The Emergency provisions of the Constitution have been extensively amended by the 42nd Amendment (1976) and the 44th Amendment (1978) Acts, so that the resultant position may be stated for the convenience of the reader. The President has right to make a‘Proclamation of Emergency’ at any time if he is satisfied that the security of India or any part of its territory is threatened because of war or external aggression or  armed rebellion. The President can do so not only when war or external aggression or armed rebellion has actually occurred but also when he perceives imminent danger thereof. As a general what is important to note is that the proclamation of emergency enables the government to disregard the restrains on its powers imposed by the guarantee of fundamental rights and federal distribution of powers. If the government can manage the situation without any proclamation of emergency it need not do so. For example, the regular battle the security forces are fighting against the armed Maoists and the insurgents in the North – East comes within the definition of armed rebellion, but no emergency has been proclaimed, and wisely so. The experience of the internal emergency of 1975-77 has necessitated the insertion of clause (3) in Article 352 which is to the effect that the President shall proclaim emergency only when he gets a written advice for it based on a Cabinet decision of the government.

The most important safeguard against possible abuse of power is contained in those clauses of Article 352 which provide for parliamentary control and the 44th Amendment has further strengthened it. A proclamation remains in force only for 30 days and unless it is approved by each House of Parliament by two-thirds majority vote of the members present and voting which is not less than the majority of the total strength of the House; if the House of the People is dissolved at the time of the proclamation or dissolved after the proclamation but before ratifying the proclamation within the stipulated 30 days, it should ratify the proclamation within 30 days of its reconstitution. However, the Council of States must make the ratification within 30 days of the proclamation. When both the Houses ratify, it continues for six months. However, its duration can be extended by Parliament by similar ratifications after every six months. If verification is sought to be made in the nature or type of emergency that is already proclaimed, a fresh proclamation is needed. Variation can be of two kinds: Territorial extent of the emergency may be changed or the grounds of its proclamation may be changed. Every fresh proclamation requires fresh ratification by the two Houses of Parliament.

Emergency will automatically come to an end if its authorised duration or extended duration is over. It can be brought to an end even earlier if the President revokes it. Revocation does not require any parliamentary ratification. The President may make a declaration suo moto on the advice of the government. But he may also be made to revoke it if the House of the People so resolves by passing a simple majority vote. For moving such a resolution, at least one-tenth of the total number of Members of the House have to write to the Speaker of the House if the House is in session, and if the House is not in session such a notice has to be given to the President for calling a session of the House for the purpose. In either case a special sitting of the House is held for considering the motion. In any case, the sitting has to be held within 14 days from the date on which the notice is received by the Speaker or the President, as the case may be. If at the sitting the resolution is carried by majority vote, the President shall revoke the proclamation.   

EFFECTS OF PROCLAMATION

Four important effects of the proclamation mentioned in Article 353, 354, 358 and 359 are as follows:

The first important effect of the proclamation is :

Contrary to the normal circumstances, during proclamation of emergency, the Executive power of the Union extends to giving directions to the State as to the manner in which the executive power is to be exercised. The legislative power of the Union also is extended to making laws in the State List, for a State or a part thereof, and has an overriding effect. This includes power to impose duties on the Union and its officers. The President is given power to promulgate Ordinances in the matters included in the State List.

The second important effect of the proclamation is:

As per the provisions of these articles, the financial arrangements between the States and the Union as given under Articles 268 to 279 may also be altered by the order of the President during the proclamation of emergency, which is to be laid before each House of Parliament. This arrangement will cease to operate after the cessation of emergency.

  • The third effect of the proclamation of emergency is :

During proclamation of emergency, if the laws passed by the legislature or any executive action are inconsistent with Article 19 of the Constitution, it is not open to challenge either during or after the proclamation. However, after emergency, it ceases to operate.

In Makhan Singh Tarsikka v. State of Punjab[4], the Supreme Court observed that the continuation of a proclamation of emergency and the imposition of restrictions of fundamental rights during the emergency are matters which are best left to the executive, which would be able to assess the extent of the crises in a given situation. The argument that during such emergency, the executive may abuse its powers and the citizens would be left without a remedy was repelled by the court as being a political argument.

The fourth effect of proclamation of emergency is:

When the proclamation of emergency is in operation, enforcement of fundamental rights except Articles 20 and 21 may be suspended by the President in the whole or any part of India. This again has to be laid before each House of Parliament. The suspension of fundamental rights under Article 359 is the same as that of Article 358.

Article 359 came up for consideration in Mohd. Yakub v. State of J&K[5], wherein a number of habeas corpus petitions were filed to test the validity of arrest made under Rule 30(1) of the Defence of India Rules, 1962, and the President’s Order issued under Article 359(1) suspending the enforcement of fundamental rights under Articles 14, 21 and 22 during the period of emergency. Among the other grounds, it was contended that:

The President being an authority under Article 12, the order passed by him under Article 359 is a law within the meaning of Article 13(2) and is, therefore, liable to be tested under the anvil of the fundamental rights.

The enforcement of only such fundamental rights can be suspended which have nexus with the reasons, which have led to the proclamation of emergency.

In State of Maharashtra v. PrabhakarPandurangSanzgiri[6], the petitioner was detained under Rule 30(1) of the Defence of India Rules, 1962 and he wrote a book of scientific interest which was denied permission by the State Government for publication. The High Court directed, in this case, the government to allow the manuscript to be published. On appeal to Supreme Court, it was held that the State Government acted contrary to law, in refusing to send the manuscript out of jail for publication.

The issue of suspension of writ of habeas corpus during the period of emergency came up before the Supreme Court in ADM Jabalpur v. Shivkant Shukla[7]  (Habeas Corpus Case), in 1975, the President on the advice of the Prime Minister declared emergency under Article 352 on the ground that the security of India was threatened by internal disturbance and also issued an order under Article 359 suspending the right of access to the courts for the enforcement of fundamental rights enshrined in Articles 21, 22 and 14 of the Constitution. Parliament thereafter amended the Maintenance of Internal Security Act, 1971(MISA) and conferred extraordinary powers on the government to detain a person without a trial.A question arose with regard to whether the writ of Habeas Corpus under Article 226 can be issued to release the detenu on the ground that his detention was inconsistent with the provisions of the MISA or malafide. It was contended that the Presidential Order ’s object under Article 359 is to remove fetters on the legislatures, so that during the emergency, it is free to make laws in violation of the fundamental rights mentioned in the order and suspension of the right to implement fundamental rights cannot confer any right on the government to flout the law, be it emergency or something else.

In other words, the detenu has no locus standi to file the writ petition and question the reasons of grounds of detention. Thereafter, vide Constitution (44th Amendment) Act, 1978 it was clearly established that the enforcement of fundamental rights under Articles 20 and 21 cannot be suspended.

The Supreme Court in Union of India v. Bhanudas Krishna Gawde[8], following the Habeas Corpus Case, went one step further that the Presidential Orders issued under Article 359 are not circumscribed by any limitation and their applicability is not made dependent upon the fulfilment of any condition precedent. It was further held that these orders impose a blanket ban on any and every judicial enquiry or investigation into the validity of an order, depriving a person of his personal liberty, no matter whether it stems from the initial order directing the detention or from an order laying down the condition of his detention.

While clause 1 of Article 359 empowers the President to suspend the enforcement of fundamental rights named in such notification, it does not empower the President to suspend the fundamental right. This was stated in Attorney General for India v. AmratlalPrajivandas[9]. The court observed that the founding fathers did not think it necessary and only spoke of suspending the rights themselves. The suspension of enforcement of the rights does not mean in effect, the suspension of rights themselves. Therefore, during the period the Presidential Orders under Article 359(1) suspending operation of certain rights conferred by Part III is in operation, the State is empowered to make any law or to take any executive action consistent with such rights. All this so, because the emergency proclaimed to meet the threat to the security of India has to be effectively implemented. The requirements of emergency constitute both the foundation as well implied limitation on the power.

In Selvi v. State of Karnataka[10], it was stated that Articles 20 and 21 have a non-derogable status within Part III of our Constitution because the Constitution (44th Amendment) Act, 1978 mandated that right to move any court for enforcement of these cannot be suspended, even during the operation of proclamation of emergency.

FINANCIAL EMERGENCY

Proclamation of Financial Emergency

Under Article 360 the President is empowered to make a proclamation of financial emergency. This he can do after being satisfied “that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened”. The proclamation is required to be laid before each House of Parliament and remains in force for a period of two months unless revoked earlier. In order to continue it for a longer period it is necessary that it should be ratified by both the Houses of Parliament. In case the House of People is under dissolution at the time of the proclamation or it is dissolved during the period of two months after the proclamation without having ratified the proclamation, the proclamation will not cease to operate if the Council of States has approved it within the required period of two months. But the proclamation shall cease to operate after 30 days from the date of the first sitting of the House of the People after its reconstitution unless it has approved it before that date.

IMPACT

During the operation of the aforesaid emergency the Union Government becomes competent to give directions to any State to observe such canons of financial propriety as specified in the direction and “other directions as the President may deem necessary and adequate for the purpose”. In particular, the State may be required to reduce the salaries and allowances of all or a class of its employees. A state may also be required to reserve for the consideration of the President all money or other financial Bills after they have been passed by the legislature of the State. Financial emergency may also entail the reduction of the salary or allowances of all or any class of Union Government employees, including the judges of the Supreme Court and the High Courts.

FAILURE OF CONSTITUTIONAL MACHINERY IN A STATE

By Article 356, the President is empowered to issue a proclamation, if he is satisfied (on the basis of report of the Governor) that the government of the State cannot be carried in accordance with the provisions of the Constitution. Once a proclamation is made, he assumes to himself , the functions of the government of the State and declares that the powers of the legislature of the State shall vest in Parliament. These powers, however, do not include the powers relating to High Court.

Article 356 is read with the other relevant articles viz. Articles 256, 257, 355, 365. Article 355 also, inter alia, speaks of the duty of the Union to protect the State against external aggression and internal disturbance and to ensure that the government of the State is carried on in accordance with the Constitution, it is obvious that Article 356 is not the only one to take care of a situation of failure of constitutional machinery. The Union can also act under Article 355, i.e. without imposing President’s rule. Article 355 can stand on its own. Also, Union Government can issue directions under Articles 256 and 257. The scheme of the Constitution clearly suggests that before looking forward to issue a proclamation under Article 356, all other possible avenues should be explored. Dr. Ambedkar also said, “Article 356 should be used only as a matter of last resort.” Firstly, Union should ensured that it had done all that it could, in discharge of its duty under Article 355, and that it had issued the necessary directions under Articles 256 and 257 and that the State had failed to comply with or give effect to the directions.

DEFINING CONTOURS OF FAILURE OF CONSTITUTIONAL MACHINERY

Unfortunately, the present interpretation of the meaning of the term has been conditioned by large-scale abuse and wrong use of the wide powers given to the Union executive under Article 356. It has been put to wrong use by the Congress Party which has been in power for more than four decades, by the Janata Party which was in power hardly for two years, by the National Democratic Alliance (NDA) Government which was in power roughly for six years, and by the United Progressive Alliance (UPA) Government in its first incarnation. No individual Prime Minister can be spared or stigmatized, as some have tried to do –Pt. Jawaharlal Nehru was the first Prime Minister who put Article 356 to use in 1951 in Punjab and it was wrongful use of the power because it was meant to sort out some internal problems of the party. That it was his own party that was in power does not change the nature of the use of power. And if the government at the state level happens to be of a party different from that which is in power at the Centre, then it changes the whole dimension. Since except, for a short interlude of about two years, the Congress party had the monopoly of power at the Centre during the first four decades of the Republic, opposition parties–rules State Governments appeared to have developed the propensity of ranking up all kinds of issues relating to Centre–State relations and virtually demanding to give a relook to the federal provisions of the Constitution. This obviously provided a motive to the Central Government to dethrone a State Government wherever possible or feasible. Added to this was the possibility that the new State Assembly might be more advantageous in providing favourable members in the electoral collage for the election of the President of the India and also for the election of the member of the Council of the States.

Further, description leads to the power under Article 356 has often been abused and the motivations which have generally impelled the authorities for such an abuse. Still the power is a necessary and vital power which the Union Government must be possessed of as the Sarkaria Commission has recognized. The past cases of abuse compel us to delineate the valid and legitimate reasons for Central intervention. In their very nature they can be only broadly indicated as the Sarkaria Commission has done and this has got complete support from the Supreme Court in S.R.Bommai v. Union of India[11]

The Sarkaria Commission has put the legitimate grounds of intervention into four categories. These are:

  1. Political crisis;
  2. Internal subversion;
  3. Physical breakdown
  4. Non-compliance with constitutional directions of the Union executive.

The first category is illustrated by the cases where a stable government cannot be formed for one reason or the other. The majority of the cases wherein President’s rule has been declared during the last six decades after the commencement of the Constitution have been of this variety. Perhaps section 93, Government of India Act, 1935, to which Article 356 owes it ancestry was meant to tackle this very situation. But the framers of that Act has envisaged that a similar problem might arise at the level of the Federal Government also and they had provided in Section 45 of the Act that the Governor General could take over the responsibility even of those departments which have been handed over to the Ministers. However, the author is of the view if the stable government is not possible because of lack of majority support in the State Legislative Assembly, the Governor himself should handle the situation by dissolving the Assembly and having a fresh election. Moreover, a minority government is always possible which may get issue based support from opposition parties. After all, this is the only way by whereby the situation can be tackled at the Central level because there is nothing in the Constitution which is equivalent to Section 45 of the 1935 Act.

The third category which comprises cases of physical breakdown relates to two types of cases: those breakdowns which may be brought about by natural calamities and those which may be the result of total breakdown of public order. In both types of breakdown it is expected that the Union Government will provide all possible assistance to the State Government concerned instead of imposing President’s rule in the State because even after imposing the President’s rule in the State because even after imposing the President’s rule, the Union Government will have to rely largely on the State administrative machinery. In the case of natural calamity, the possible reason for imposing President’s rule can be the Union Government’s judgement that the State political leadership is incapable of rising to the occasion. And if there is breakdown of public order, the Union Government may be on the firmer ground to dismiss the State Council of Ministers.

In the fourth category of cases, Article 365 of the Constitution itself says that when such a situation arises it would be legitimate for the President to draw the conclusion that the Government of the State which has not complied with the Union Government’s instructions, cannot be carried on in accordance of the Constitution. For example, we cannot equate occasional non- compliance by one State with persistent defiance by another State. To be fair to the Union Government there does not appear to have been any case when the President’s rule was proclaimed for this reason.

It is the second category, the category consisting of cases of internal subversion which should be considered the most important. Apart from other familiar things subversion should also include subversions of basic constitutional values like democracy, pluralism, secularism, rule of law, unity and integrity of India, and others. Indeed in S.R Bommai v. Union of India[12]all the judges agreed that the dismissal of State Governments in Madhya Pradesh, Rajasthan and Himachal Pradesh was valid because under the then prevailing circumstances they could not be trusted to cooperate with the Union Government to uphold the values of secularism by working against communalist forces. Similarly when in 1959 E.M.S. Namboodiripad Government was dismissed because of fierce agitation going on against it, the basic complaint of the agitators was that the  government was guilty of subverting constitutional values of liberalism and rule of law. 

SUGGESTIONS AND CONCLUSION

The Constitution of India was framed and drafted after intensive studies, extensive debate and long deliberations. The most crucial provisions of emergency and proper control mechanisms were duly placed with caution and care. The same showed up quite effectively in  form of principles in the beginning. Over the years the provisions were observed to be inadequate offering ascend to the view that the prescribed mechanism was in practice, yet a failure. On one check the framers of the constitution named the Parliament for safeguarding the abuse of emergency provisions, by and by a similar government controls the entire Parliament and that can never be depended upon to give satisfactory shackles of control in emergency ridden executive.

India will do well in the event that it provides reasonable and adequate safeguards against abuse of emergency power. Constitutional safeguards failed in light of the fact that President did not dare to oppose the Cabinet or the Prime Minister, Parliamentary controls were bypassed, domination of brutal majority of one party, public apathy because of widespread ignorance and complete indifference in national and socio political matters, inclination of sheer political security to selfless national interest, want of morality and courage on the part of cabinet members and higher executives. Emergencies declared on account of external aggressions kept going too longer for a considerable length of time even after the hostilities ceased and imminent danger seemed no more. This was entirely unjustified.

As we know that the Emergency Provisions provide the President with sweeping powers to manage and deal with abnormal and extraordinary situations, any abuse of these forces can without much of a stretch prompt to subversion of democracy. In any case, the actual working of the Constitution for over five decades has exhibited that emergency powers were by and large utilized in the interest of the country notwithstanding a couple of  few cases where emergency was imposed due to political considerations. Despite misuse of emergency provisions in some of the States, there is a broad consensus that emergency provisions still have a role to play under the conditions prevailing in India..

Where the Constitution provides for execution of power which may lead to infringement of fundamental rights of the individual during Emergency, judicially ensured by the Constitution of India, there must likewise be compelling control mechanism to ensure limitation of this power within the ambit of the Constitution. The validity of actions must be evaluated to deter political gains and give way to public interest. Despite the abuse of power the Emergency provisions still have a role to play under conditions prevailing in India, however despite everything it still remains a controversial issue in the country.

Having dealt with all the Emergency provisions, it is easy to estimate what was the purpose behind them to make such provisions available in the Constitution in the first place. But during our study for the same, we did realise that despite of the fact that these provisions are provided for the security of the nation and also for the protection of the people, the provisions in themselves provide a lot of drastic discretionary powers in the hands of the Executive. It affects the federal structure of the nation essentially turning it into a unitary one while it seeks to protect or safeguard the interests of the state and the people. Though the need for that is understood, we still think a system of check and balance should be brought into place so that unlike 1975 emergency, there is no misuse of power by the ruling party and the executive.

Though suspension of Fundamental Rights has been time and again tried to be justified, we think that they are the most basic to the very existence of the citizens in a democracy. With our experience so far, we have observed in our study that in spite of the safety measures that were being added by the 44th Amendment to the Constitution in the emergency provisions, there are still certain chances for the unjust violation of the Fundamental Rights. Therefore, looking to other federal constitutions such as that of the Australia and Canada, the courts should be given the power to agree to the extent the Centre can expand its powers, as it will act as a built-in mechanism to check the arbitrary use of the discretionary powers available under the Emergency Provisions to the Parliament and the Executive.

[1]A.V Dicey, An Introduction to the Study of the Law of the Constitution, 143 (10th Edition, 2nd Indian Reprint, Macmillan and Universal P. Co., New Delhi, 1998).

[2]Corwin, Total War and the Constitution, 70.

[3] See, Murphy, “The War Power of the Dominion” 30 Can B.R. 791 (1952).

[4]AIR 1964 SC 381: (1964) 4 SCR 797.

[5]AIR 1968 SC 765: 1968 Cri LJ 972.

[6]AIR 1966 SC 424: (1966) 1 SCR 702.

[7]AIR 1976 SC 1207: (1976) 2 SCC 521.

[8] AIR 1977 SC 1027: (1977) 1 SCC 834.

[9] AIR 1994 SC 2179: (1994) 5 SCC 54.

[10] AIR 2010 SC 1974: (2010) 7 SCC 263.

[11]State of Rajasthan v. Union of India, (1977) 3 SCC 592: AIR 1977 SC 1361.

[12]Ibid, 6.4.12, 171- 73.