Chapter 4: Impact of emergency under different constitutions

Topics for study:

(a) Express emergency provisions under Constitutions

(b) Justifiability of the proclamation of emergency
(c) Impact of emergency on the rights

(a) Express emergency provisions under Constitutions

1. National Emergency:
a. Article 352 provides that if the President is satisfied that a grave emergency exists whereby the security
of India or any part of its territory is threatened by war, or external aggression or armed rebellion, he
may by proclamation, make a declaration to that effect.
b. The proclamation of emergency can take place not only after the incidents of war or external aggression
or armed rebellion but even before the actual occurrence, if the President is satisfied that there is
imminent danger thereof.
c. According to the Constitution (Forty Fourth Amendment) Act, 1978, the President can declare such an
emergency only if the Cabinet headed by the Prime minister and other Ministers of Cabinet rank
recommends in writing doing so.
d. This was incorporated to avoid the kind of situation of 1975 wherein on the oral advice of the prime
minster, the Proclamation of emergency was declared.

Procedure for proclaiming emergency:

1. Every proclamation needs to be laid before both Houses of Parliament.

If both Houses of Parliament do not approve of it within one month, it will cease to operate at the expiration of
thirty days from the date on which the proclamation was issued.

2. This is intended to ensure an amount of accountability and legitimacy of executive action.

In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in session, it has to
be approved by the Rajya Sabha within one month and later on by the Lok Sabha also within one month of the
commencement of its next session.

Once approved by the Parliament, the emergency remains in force for a period of six months from the date of
proclamation.

In case it is to be extended beyond six months, another resolution has to be passed by the Parliament Procedure
of revoking emergency .

. The proclamation of the emergency can be revoked by another proclamation by the President of India. The
Constitution (Forty Fourth Amendment) Act 1978, has added certain control mechanisms to be exercised by the
House of the People if it passes a resolution to that effect.

If the House of the People is not in session, then ten per cent or more members of that House can issue a notice
in writing to the speaker if the House is in session or to the president if the House is not in session for the
revocation of the emergency and if passed by a simple majority emergency will immediately become
inoperative.

If the notice is given to the President, he shall convene the session of the House of the People for a special
sitting within fourteen days from the date on which such notice is received by the Speaker or as the case may be
by the President, for the purpose of considering such resolution.

2. State Emergency:

1 .Article 356 has been debated hotly among the political and intellectual circle.37Article 355 of the
Constitution of India enjoins a responsibility on the Union Government to protect States against external
aggression and internal disturbance.

2. In pursuance of this goal Article 356 provides that if the President is satisfied on receipt of a report from the
Governor or otherwise that a situation has arisen in which the Government of a State cannot be carried on in
accordance with the provisions of the Constitution, he is empowered to issue a proclamation under Article 356.

3. The proclamation may be revoked subsequently; if not, it shall be laid before both Houses of Parliament, if
Parliament does not approve of it within two months, it will become ineffective.

Effect of a proclamation issued under Article 356 :

The proclamation issued under article 356 due to the breakdown of constitutional machinery in a State has the
following effects:

i. The president may assume to himself all or any of the functions of the government of the State and all or
any of the powers vested in or exercisable by the Governor or anybody or authority in the state other
than the Legislature of the state;he may declare that the powers of the State legislature shall be
exercisable by or under the authority of Parliament;

Landmark decision:

S. R. Bommai v. Union of India,1994

The Supreme Court's ruling in the Bommai’s case highlighted clearly the many conditions for the valid
exercise of the power under Article 356.

They are:

 Article 356 should be used sparingly as to not to disturb the delicate balance of power between Centre
and states. Federalism constitutes a basic structure of the constitution;
 The essential condition for the intervention by the Centre is the political instability of the State, that is,
the virtual breakdown of the parliamentary system of the government.
 The Union will watch the situation of instability with utmost caution and provide every opportunity for
the formation of an alternative ministry.
 The power conferred by Article 356 upon the President is a conditioned power. It is not an absolute
power. An objective analysis of conditions must precede before the imposition of president’s rule by
invoking Article 356.
 The State's Assembly must not be dissolved before both Houses of Parliament have approved the
proclamation made by the President under Article 356. Until such approval, the President can only
 suspend the Legislative Assembly by suspending the provisions of Constitution relating to the
Legislative Assembly.
 Judicial review is part of basic structure and hence court will have the power to consider independently
whether in fact conditions so existed as to warrant exercise of the power under article 356. Once a prima
facie case is made out, the burden of proof will lie on the Government of India to justify the action.

3. Financial Emergency:

1.If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any
part of it is threatened, he may declare a financial emergency under Article 360.

2. The proclamation in this case also should be approved by Parliament as in the other two cases mentioned
above. During a financial emergency, “the executive authority of the Union shall extend to the giving of
directions to any State, to observe such canons of financial propriety as may be specified in the direction, or any
other directions which the President may deem necessary for the purpose.”

3.Such directions may include those requiring the reduction of salaries and allowances of Government servants
and even those of Judges of the Supreme Court and the High Courts.

4. However, it is interesting to note that no such proclamation has been issued under article 360 so far.

Justifiability of the proclamation of emergency:

This point can be cleared with the help of few caelaws:

1. K.K. Aboo vs. Union of lndia ,1965

In this first Case the Kerala High Court considered the legality and constitutionality of the Presidential
Proclamation of dissolving the Kerala Legislative Assembly after elections in March, 1965 without giving a
chance to the assembly to be assembled.

The facts in this Case are that a general election of Legislative Assembly was held in February I March, 1965,
for the purpose of constituting a new Legislative Assembly in the State, but it led to an inconclusive result as it
gave no clear majority to any political party.

The CPI(M) had won fourty seats in the House of I03 and had emerged as the single largest party.

The then Governor of Kerala, A.P. Jain, after a brief discussion with leaders of various political parties
regarding the formation of a ministry, reported to the President that no political party could form a stable
government in the existing circumstances. Consequently, President's Rule was imposed in Kerala on March 24,
1965 along with the dissolution of the State Legislative Assembly.

This action was challenged in the Kerala High Court.

The Kerela High Court ruled that Article 356 empowered the President to proclaim the President's Rule when
he is satisfied that a Constitutional Government is not possible in the State and that Article does not prescribe
any condition for use of this power. Speaking for the Court M. Madhavan Nair J., held that the validity of
Proclamation under Article 356, cannot be challenged in Courts.

It is matter of personal satisfaction of the President, who is Constitutional head. It can be questioned in
Parliament which can withhold its approval. Thus, the Court refused to go into the Constitutionality of the
Proclamation.

The validity of Proclamation under Article 356 cannot be challenged in Courts. It is a matter of personal
satisfaction of the President, who is the constitutional head. However, it can be questioned in Parliament which
can withhold its approval. The Court held that "The President who is an integral part of the Parliament (vide
Article 79) may not be the executive head but the constitutional head of India. If that be the correct view, a
challenge of his Proclamation under Article 356 behind his back cannot be heard in a Court of law

2. In S.R. Bommai V. Union of India, 1994

The Supreme Court has rendered a landmark decision on Art. 356 (1) in S.R. Bommai V. India. The case arose
in the context of the followings facts.

The scope of judicial scrutiny is therefore confined to an examination whether the disclosed reasons bear any
rational nexus to the action proposed or Proclamation issued.

Bommai appealed to the Supreme Court against the High Court decision. Besides the Karnataka Proclamation,
the Supreme Court was also called upon to decide the validity of similar Proclamations under Art. 356 (1) in the
States of Meghalaya and Nagaland.

A Bench of nine Judges was constituted in Bommai Case to consider the various issues arising in the several
cases, and seven opinions were delivered. While some of the judges (AHMADI, VERMA, RAMASWAMY, JJ.)
adopted a passive attitude towards 'judicial review' of the Presidential Proclamation under Art. 356(1), others
adopted somewhat activist stance.

On the basis of consensus among the judges, the following propositions can be enunciated in relation to Art.
356 (1) and the scope of judicial review there under:

1) The President exercises his power under Art. 356 (1) on the advice of the council of ministers to which, in
effect, the power really belongs though it may be formally vested in the President.

2) The question whether the incumbent State Chief Minister has lost his majority support in the Assembly has to
be decided not in the Governor's chamber but 'on the floor of the House'. There should be test of strength
between the Government and others on the floor or the house before recommending imposition of the
president's rule in the State.

The Court ruled that the Karnataka High Court was wrong in holding that floor test was neither compulsory nor
obligatory nor a pre-requisite to sending the Report to the president recommending action under Art. 356 (1)

3) The Governor should explore the possibility of installing an 164 alternative ministry, when the erstwhile
ministry loses support in the house.

4) The validity of the Proclamation issued under Art. 356 (1), is justiciable on such grounds as: whether it was
issued on the basis of any material at all, or whether the material was relevant, or whether the Proclamation was
issued in the mala fide exercise of the power, or was based wholly on extraneous and/or irrelevant ground.
 5) There should be material before the President indicating that the Government of the State cannot be carried
on in accordance with the Constitution. The 'material' in question before the President should be such as would
induce a reasonable man to come to the conclusion in question. Once such 'material' is shown to exist, 'the
satisfaction' of the President based on such 'material' will not be open to question. But if no such 'material' exists,
or if the 'material' before the President cannot reasonably suggest that the State Government cannot be carried
on in accordance with the Constitution, the Proclamation made by the President is open to challenge.

6) When a prima facie case is made out against the validity of the Proclamation, it is for the Central
Government to prove that the relevant material did in fact exist. Such material may 165 be the Report of the
Governor or any other material.

7) The dissolution of the Legislative Assembly in the State is not automatic consequence of the issuance of the
Proclamation. The dissolution of the assembly is also not a must in every case. It should be done only when it is
found to be necessary for achieving the purposes of the Proclamation.

8) The provisions in Art. 356(3) are intended to be a check on the powers of the President under Art. 356(1). If
the Proclamation is not approved within two months by the two Houses of Parliament, it automatically lapses.
This means that the President ought not to take any irreversible action till the Proclamation is approved by the
Houses of Parliament. Therefore, the State Assembly ought not to be dissolved.

The State Legislative Assembly should be kept in suspended animation in the meantime. Once the Parliament
has put its seal of approval on the Proclamation, the State Assembly can then be dissolved. The Assembly
which was suspended will revive and get reactivated if the Proclamation is not approved by Parliament.

2. State of Rajasthan V. Union of India', 1977

that the Proclamation is valid when issued under Art. 356 (1), and the State Legislature can be
dissolved by the Centre without waiting for its approval by the houses of Parliament. But, in
Bommai, the Court has disagreed 166 with this view and for a very good reason. If the Proclamation
is not approved by Parliament, it automatically lapses after two months. How is the State
Government to run there after? It would be inevitable that the dissolved Assembly be revived for no
fresh elections can be held for the house within the short period of two months. Bommai view avoids
any such embarrassment to the central Government.
3. Jagdambika Pal v. Union of India 1999,
In Uttar Pradesh in 1998 when Governor Romesh Bhandari, being of the view that Chief Minister
Kalyan Singh Ministry had lost majority in the Assembly dismissed him without giving him
opportunity to prove his majority on the floor of the House and appointed Shri Jagdambika Pal as the
Chief Minister which was challenged by Shri Kalyan Singh before the High Court which by an
interim order put Shri Kalyan again position as Chief Minister.
This order was challenged by Shri Jagdambika Pal before the Supreme Court which directed a
"composite floor test" to be held between the contending parties which resulted in Shri Kalyan Singh
securing majority. Accordingly, the impugned interim order of the High Court was made absolute.

(A) Impact of emergency on the rights:

1. During national emergency, the Constitution empowers the President to suspend the right to
move any court of law for the enforcement of any of the fundamental Rights.
2. The Constitution (Forty Fourth Amendment) Act 1978, inserted a restraint on the unbridled
power of executive.
3. After the Constitution (Forty Fourth Amendment) Act, Article 21 of the Constitution which
guarantees right to life and personal liberty cannot be suspended even during emergency.
4. The Constitution (Forty Fourth Amendment) Act 1978 incorporated certain safeguards to protect
the liberties of people during emergency. After this amendment, Article 21 of the Constitution
which guarantees right to life and liberty, cannot be suspended even during emergency