An emergency refers to a situation where the normal functioning of the government and civil liberties are temporarily suspended or curtailed due to a crisis or threat to the nation.
One of the notable features of the Constitution of India is the way in which “the normal peace-time federalism can be adapted to an emergency situation.” The framers of the Indian Constitution envisaged the need of emergency provisions where the Centre will have overriding powers to control and direct the administrative and legislative machinery of the country. The proclamation of emergency is a serious matter since it disturbs and muddle the normal fabric of the Constitution and rights of citizens. Therefore, emergency provisions, as the name suggests, must only be used in exceptional and unprecedented situation and not for merely keeping an unpopular government in office.
The emergency provision aqe contained in Part 18 of the constitution, from Article 352 – 360. These provisions enables the Central Govt. to meet any abnormal situation effectively.The rationality behind the incorporation of these provisions in the constitution is to safeguard the sovereignty, unity, integrity & security of the country, democratic political system and the constitution.
There are 3 types of Emergency : National Emergency (Article 352), Financial Emergency (Article 360) & State Emergency (President’s Rule) (Article 356).
National Emergency (Article 352) is an emergency due to war, external aggression, armed rebellion. However, the constitution employs the expression “proclamation of emergency” to denote an emergency of this type. This emergency has taken place 3 times in :- 1962-68(indo-china); 1971(indo-pak); 1975-77(internal disturbance).
Financial Emergency (Article 360) means an emergency due to threat to financial stability or credit of India.
State Emergency (President’s Rule) (Article 356) – When a state’s constitutional machinery malfunctions or its government doesn’t operate per the Constitution’s rules, an emergency is proclaimed. It can happen frequently because of political unrest or corruption. In these situations, India’s president has two options: he can either establish a caretaker administration or remove the state government and control the state directly through the governor.
When President declares state emergency:-
1. Governor sends report to President that state is not working according to law.
2. President satisfies otherwise himself that state is not working according to law.
3. Article 365- state does not work in accordance with the provision of law (state does not fulfil directions of the centre).
The President’s Rule can be proclaimed under article 356 on the following two grounds:
- Article 356 empowers the President to issue a proclamation if he satisfied that a situation has arisen in which the govt. of a state can’t be carried on as per the provisions of constitution. Notably, the President can act either- on a report of the governor of the state; or otherwise too, i.e., on its own;
- Article 365 says that whenever a state fails to comply with or to give effect to any directions from the centre, it will be lawful for the president to hold that such a situation has arisen in which the govt. can’t be carried on as per the provision of constitution.
Approval & Duration:
- – A proclamation imposing president’s rule must be approved by both the Houses of Parliament within 2 months from the date of its issue.
– However, if the Lok Sabha-
– has dissolved when proclamation was made; or
– dissolved during the period of 2 months without approving;
then the proclamation survives until 30 days from the 1st sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha approves it in the mean time.
– If approved by both the Houses of Parliament, the President’s Rule continues for 6 months. It can be entered for a maximum of 3 years with the approval of the parliament, every 6 months.
– Every resolution approving the proclamation of President’s Rule; or its continuation can be passed by either House of Parliament only by a simple majority;
The 44th amendment Act of 1978 introduced new provision to put restarint on the power of Parliament to extend a proclamation of President’s Rule beyond 1 year. Thus, it provided that beyond 1 year, the President’s Rule can be extended by 6 months at a time only when the following 2 conditions are satisfied:-
1. a proclamation of “National Emergency” should be in operation in – the whole of India; or – the whole or any part of the state;
2. the Election Commission must be certify that the general elections of the concerned state can’t be held on the account of difficulties.
– A proclamation of President’s Rule can be revoked by the President at any time by a subsequent proclamation. Such a proclamation doesn’t require the parliamentary approval. - Consequences of President’s Rule:
- 1. He can take up the functions of the state govt. and powers vested in the governor or any other executive authority in the state.
2. He can declare that the powers of the state legislature are to be exercised by the parliament.
3. He can take all other necessary steps including the suspension of the constitutional provisions relating to any body or authority in the state. - RELEVANT CASE LAWS
- S. R. BOMMAI VS UNION OF INDIA
- Facts: In 1985, the Janata Party won the Assembly elections in Karnataka and formed the government with Chief Minister Ramakrishna Hegde. Hegde was later replaced by SR Bommai in 1988. The state government was dismissed by using Article 356 due to majority loss from defections. Bommai’s request to test the majority was denied by the governor. Bommai sought relief in the high court, which ruled against him, leading to an appeal to the Supreme Court. In September 1988 a legislator from the Janata Dal, defected from the party along with 19 other members of the Legislative Assembly, withdrawing support from the Bommai government.
Issue: Whether the situation in which the power of judicial review is capable of exercise or, in other words, the controversy is justiciable.
Judgement: Both houses of Parliament must thoroughly analyse the Presidential Proclamation as per Article 356(3). The Supreme Court can subject the proclamation to judicial review and entertain writ petitions challenging its legality if they raise arguable questions. Clarified that the President’s power to dismiss a state government is not absolute but subject to limitations. If the proclamation is issued without the approval of both houses, it lapses within two months, and the state assembly resumes its function. Recognised that while Article 356 does not explicitly address the dissolution of the legislature, such powers can be inferred from it. Noted that Article 174(2), allowing the Governor to dissolve the Legislative Assembly, and Article 356(1)(a), enabling the President to confer upon himself the powers of the Governor and the state government, imply the power to dissolve the legislature. - Rameshwar Prasad vs Union of India
- Facts: In 2005, Bihar state legislature election was held and the party in majority formed the govt. but before the 1st meeting of the legislative assembly, President’s Rule was imposed on the ground that the party won the election through illegal means & formed the government on the grounds of immorality. The petitioners (members of the dissolved house) challenged the action of the governor.
Issue: Whether the presidential rule imposed was constitutional or not?
Judgement: It was held that, it was open to court to examine whether the Governor’s Report was based on material fact made bonafide duly verified or not in exercise of its power of Judicial Review. Therefore, the contention that the report of the governor was impermissible for the court to go into questions was rejected. According to article 356, president has the power to impose president’s rule in any state but it shall be imposed on the reasonable and relevant ground and not the ground of immorality as it can be immoral for another. So, it shouldn’t be seen undirectional. Therefore, the rule imposed was unconstitutional as imposition was not on a valid ground.
State of Rajasthan vs Union of India
Facts: When the general elections for Lok Sabha were held in the country in 1977, after the lifting of the emergency of 1975, the Congress Party was badly routed in several States by the Janata Party which won a large number of seats in the Lok Sabha and, thus, formed the Government at the Centre. In these States, Congress Governments were functioning at the time and they still had some more time to run before completion of the full term. The Central Home Minister Charan Singh wrote a letter to each of the Chief Ministers of these States suggesting that he should seek dissolution of the State Legislature from the Governor and obtain fresh mandate from the electorate. So, the president on the advice of Home Minister imposed president rule on those 9 states. Hence, the state of Rajasthan (along with other states) filed an original suit in the SC against UOI.
Issue: Is imposition of President Rule in States subject to judicial review?
Judgement: It was held that, the Court couldn’t interfere with the centre’s exercise of power under article 356 merely on the ground that it embraced political and executive policy and expediency unless some constitutional provision was being infringed. According to article 74(1), there shall be a commission to aid and advise the president who shall act as per such advice and court is restricted according to article 74(2) to inquire whether any, and if so what, advice was tendered by the Minister to president unless there is reasonable & relevant ground. Hence, the direction given by him to the president was to protect the democratic norms and it can’t be regarded as an irrelevant ground for the exercise of power under article 356 and the letter given by him were not malafide or irrelevant. Therefore, the imposition of rule was constitutional & valid and was not subject to judicial review.
PRESENT QUESTIONS:
Q. 2/2022. Rameshwar Prasad case apply here. According to article 356, president has the power to impose president’s rule in any state but it shall be imposed on the reasonable and relevant ground and not the ground of immorality as it can be immoral for another.
Q. 6/2020. In the light of the judgment and observations laid in Rameshwar Prasad case (supra), it is held that the dissolution of Legislative Assembly by the President is unconstitutional and based on extraneous ground. It is a clear case where attempt was to somehow or other prevent the formation of a Government by a political party. This is an improper ground and cannot be validated. The power under Article 356, according to Ambedkar the architect of the Indian Constitution, should normally remain a dead weapon and should be used only as a last resort.
