The Emergency provisions in the Indian Constitution are found in Part XVIII, specifically from Articles 352 to 360. These provisions are designed to help the Central government effectively address any unusual or serious situations that may arise in the country. The main reason for including these provisions in the Constitution is to protect the country's sovereignty, unity, integrity, security, democratic political framework, and the Constitution itself.
When an Emergency is declared, the Central government gains significant powers, effectively overriding the powers of the states. This leads to a situation where the federal structure of governance temporarily becomes more centralized, resembling a unitary system without the need for a formal change to the Constitution. This ability to shift from a federal to a unitary system during times of crisis is a unique characteristic of the Indian Constitution. Notably, Dr. B.R. Ambedkar, who played a crucial role in framing the Constitution, pointed out that in contrast to other federal systems, like that of the United States, which cannot change their federal nature regardless of the situation, the Indian Constitution is flexible. It can operate as a federal system during regular times but switch to a unitary system in times of Emergency, depending on the needs of the situation.
The Indian Constitution recognizes three types of emergencies, each addressing different challenges the nation may face.
The first type is known as a 'National Emergency,' which can be declared under Article 352. This type of emergency arises in situations of war, external aggression, or armed rebellion. When this type of emergency is proclaimed, the government can enact laws and take actions necessary to protect the nation.
The second type of emergency is related to the failure of the constitutional processes in the states, which is covered under Article 356. This situation is referred to as 'President’s Rule' and can also be called ‘State Emergency’ or ‘Constitutional Emergency.' In this case, the central government assumes control over the state government when it is deemed that the governance has broken down.
The third type is known as a 'Financial Emergency,' under Article 360, which can be declared when there is a threat to India's financial stability or creditworthiness. During a financial emergency, the Central government can take measures to safeguard the country's financial health.
Understanding these provisions is essential since they highlight the balance between maintaining order and ensuring that the democratic processes are followed, even in challenging times. The roots of these articles are deeply embedded in the need to ensure that the government can respond effectively to crises while adhering to the fundamental principles of democracy and federalism that the Constitution upholds.
National Emergency in India
In India, a National Emergency can be declared under Article 352 of the Constitution when the country's security faces serious threats. These threats could stem from war, external aggression (like an attack from another country), or armed rebellion (which can be thought of as a violent uprising against the government). Importantly, the President of India can declare a National Emergency even if the actual war or attack hasn’t begun yet, provided the situation presents an immediate danger.
The President has the authority to issue different types of proclamations based on the nature of the threat. For example, if the emergency is due to war or external aggression, it is labeled as an "External Emergency." Conversely, if it is due to armed rebellion, it is referred to as an "Internal Emergency."
The National Emergency can apply to the whole country or just to a specific region. This flexibility was enhanced by the 42nd Amendment Act of 1976, which allowed the President to limit the declared emergency to particular areas of India, rather than automatically apply it nationwide.
Initially, the Constitution used the term "internal disturbance" as one of the grounds for a National Emergency. However, "internal disturbance" was considered too vague, leading to confusion over its meaning. As a result, the 44th Amendment Act of 1978 replaced "internal disturbance" with the clearer term "armed rebellion." This change ensured that the scope for declaring a National Emergency was more defined and less arbitrary, preventing misuse as had occurred during the Emergency declared by Indira Gandhi's government in 1975.
One critical procedural rule requires that the President can only proclaim a National Emergency after receiving a written recommendation from the cabinet. This means the decision must involve agreement from multiple senior officials in the government, not just the President or the Prime Minister. This rule was introduced after the controversial declaration of emergency in 1975, when Prime Minister Indira Gandhi had advised the President to declare the emergency without first consulting her cabinet. The cabinet was informed only after the emergency was declared, creating a situation where it appeared that one person made a significant decision without broader input.
To prevent such unilateral actions in the future, the 44th Amendment Act of 1978 added this requirement ensuring a democratic process in such crucial national matters. Additionally, the 38th Amendment Act of 1975 initially stated that once a National Emergency declaration was made, it could not be challenged in a court of law, essentially making it legally immune. However, this provision was rescinded by the 44th Amendment Act of 1978, allowing judicial oversight. In the landmark case known as 'Minerva Mills’ (1980), the Supreme Court of India established that a declaration of National Emergency could be scrutinized in court, particularly if it was made in bad faith or based on irrelevant or irrational reasons.
In summary, the mechanisms surrounding National Emergency in India, as outlined in various constitutional articles and amendments, aim to strike a balance between the need for immediate action during crises and the imperative of maintaining democratic governance and accountability. The establishment of checks and balances through cabinet approval and judiciary review highlights the importance of maintaining a system that prevents the misuse of such powerful provisions.
Parliamentary Approval and Duration of Emergency Proclamation in India
In India, when a national emergency is declared, it is important for the proclamation to receive approval from both Houses of Parliament within one month from its issuance. This requirement for quick approval ensures that the government does not operate under emergency conditions without proper checks.
Originally, the Constitution allowed Parliament two months to approve an emergency proclamation. However, this time frame was shortened to one month by the 44th Amendment Act in 1978. If an emergency is declared when the Lok Sabha (the lower house of Parliament) is not in session, or if it is dissolved during this approval period, the proclamation can remain in effect. It will last until 30 days after the Lok Sabha reconvenes, provided that the Rajya Sabha (the upper house of Parliament) has already approved it.
Once both Houses of Parliament approve the emergency proclamation, it is valid for six months. However, this period can be extended indefinitely, with Parliament needing to approve the extension every six months. This requirement for periodic approval was also introduced by the 44th Amendment Act. Before this amendment, if Parliament approved an emergency declaration, it could continue for as long as the Cabinet (the executive branch) desired, without needing further approval.
If the Lok Sabha is dissolved during the six-month period without approving the continuation of the emergency, the declaration remains in effect for another 30 days following the new Lok Sabha's first sitting, but only if the Rajya Sabha has approved it in the meantime.
For any resolution that seeks to approve the emergency proclamation or its extension, a special majority in either House of Parliament is required. This means that two criteria must be met: first, a majority of the total membership of that House must vote in favor, and second, at least two-thirds of those present and voting must also agree. This provision for a special majority was also a change made by the 44th Amendment Act, as prior to this, a simple majority was sufficient.
The legal framework governing these provisions can be found in Article 352, Article 356, and Article 360 of the Indian Constitution, which outline the various types of emergencies that can be declared and the accompanying procedures. This structured approach helps ensure that the power to declare a national emergency is not misused, thus protecting the rights of citizens while balancing the need for national security.
Overall, these amendments and articles serve to create a fair process in the delicate balance between governance and civil liberties during times of national crisis.
Revocation of Proclamation of Emergency in India
In India, a proclamation of emergency can be canceled by the President at any time through another proclamation. This means that the President does not need to ask the Parliament for permission to revoke an emergency declaration. However, the President is required to revoke the emergency if the Lok Sabha, which is the lower house of Parliament, passes a resolution that disagrees with continuing the emergency. This rule was established by the 44th Amendment Act of 1978 to ensure some checks on the President's power.
Before this amendment in 1978, the President had the full authority to revoke an emergency proclamation without needing any approval from the Lok Sabha. This gave the President a lot of unchecked power, which could potentially be misused. To improve the situation and ensure more democratic governance, the 44th Amendment made significant changes to how emergency proclamations are handled.
One important provision introduced by the 44th Amendment allows a group of members in the Lok Sabha to initiate a discussion about the emergency. If at least one-tenth of the total members write a notice to the Speaker (the head of the Lok Sabha) or to the President when the House isn't in session, a special meeting must be called within 14 days. During this meeting, the members will consider a resolution to disapprove the continuation of the emergency proclamation.
It’s essential to understand that there are two types of resolutions concerning emergency proclamations. First, a disapproval resolution is only needed from the Lok Sabha. This means that if the Lok Sabha expresses its disapproval by a simple majority of those present and voting, the emergency can be revoked. Second, if the government wants to continue the emergency, both houses of Parliament, which include the Rajya Sabha (the upper house), must pass a resolution approving its continuation. This requires a special majority which is a bit more difficult to achieve.
Relevant Constitutional Provisions
The authority regarding the proclamation of emergency in India primarily comes from Article 352, Article 356, and Article 360 of the Indian Constitution. Article 352 allows the President to proclaim a national emergency if there is a threat to the security of India or any part thereof. Article 356 permits the imposition of President's Rule in a state if the constitutional machinery fails. Lastly, Article 360 allows for a financial emergency to be declared if the financial stability or credit of India is threatened.
The 44th Amendment Act made significant changes to these provisions to safeguard democratic processes by adding checks and balances. It emphasized that while the President holds certain powers, the Parliament must play a key role in decisions about emergency situations.
In summary, the process for revoking a proclamation of emergency involves checks and balances introduced by amendments to the Constitution. The role of the Lok Sabha in expressing disapproval prevents the random exercise of power, ensuring more accountability in governance. These constitutional provisions are designed to protect the interests of the citizens and maintain the democratic framework of the country.
Effects of National Emergency in India
When a National Emergency is declared in India, it results in significant and extensive changes to the political landscape. These changes can be divided into three main areas: the relationship between the central government and state governments, the functioning of the Lok Sabha (the lower house of Parliament) and state assemblies, and the impact on Fundamental Rights of citizens.
Effect on Centre-State Relations
During a National Emergency, the usual dynamics of Centre-state relations change drastically. This alteration can be understood under three categories: executive, legislative, and financial.
In terms of the executive, the central government gains extensive authority. Usually, the Centre can only direct states on specified matters, but during an emergency, it gains the right to direct states on any issue. This means that state governments must follow the Centre’s directives, even though they are not officially suspended. The increased control of the Centre over the states is a significant shift in power during an emergency.
Looking at the legislative aspect, the Parliament (the central legislature) obtains the power to make laws on subjects that are usually under the jurisdiction of state legislatures. While state legislative bodies still operate, their power is reduced as Parliament's authority overrides theirs. Therefore, the Constitution, which usually supports a federal structure (where states have significant powers), becomes more centralized during an emergency. Any laws made by Parliament on state subjects during the emergency only remain valid for six months after the emergency ends.
In terms of finances, the President can change how money is shared between the Centre and the states during an emergency. This means that the Centre can reduce or stop the flow of funds to the states, affecting their financial health. This financial alteration stays in effect until the end of the financial year during which the emergency is declared. All such presidential orders to modify financial arrangements must be presented before both Houses of Parliament.
Effect on the Life of Lok Sabha and State Assemblies
The proclamation of a National Emergency has implications for the duration of the Lok Sabha and state assemblies. Typically, the Lok Sabha has a five-year term, but during an emergency, this term can be extended by Parliament for one year at a time. However, this extension can only continue for a maximum of six months after the emergency is lifted. For instance, the Fifth Lok Sabha was extended twice by a year each during the emergency period from 1971 to 1977. Similarly, state legislative assemblies can also have their terms extended under the same conditions as the Lok Sabha, providing significant control over the political landscape during emergencies.
Effect on Fundamental Rights
The Fundamental Rights guaranteed by the Indian Constitution are significantly impacted during a National Emergency, specifically through Articles 358 and 359.
Article 358 leads to the automatic suspension of the Fundamental Rights laid out in Article 19, which includes rights such as freedom of speech, assembly, and movement. When a National Emergency is declared, the government can enact laws or take actions that may infringe upon these rights without any requirement for a separate order. However, once the emergency ends, the right to freedom returns, and any laws made during the emergency that conflict with Article 19 are rendered void. Importantly, once a law is made under these circumstances, it cannot be challenged in court, even after the emergency passes.
The 44th Amendment Act of 1978 added limitations to Article 358. It stipulates that the suspension of Article 19 is only applicable when the emergency is declared due to war or external aggression, not in the case of internal disturbances. Moreover, it states that only laws relating to the emergency itself can be protected from challenges in court.
In contrast, Article 359 allows the President to suspend the right to approach the court for enforcement of Fundamental Rights during a National Emergency. This does not mean that these rights cease to exist; rather, individuals cannot seek legal remedies for the enforcement of these rights during the declared emergency. This suspension can affect specific rights as noted in the Presidential Order, and it can vary in duration. Like Article 358, laws and actions that contradict the suspended rights during this period cannot be contested after the emergency ends.
It is noteworthy that the 44th Amendment Act also enumerates protections for Fundamental Rights under Articles 20 and 21 during emergencies. Specifically, Article 20, which provides protection against arbitrary arrest and punishment, and Article 21, which ensures the right to life and personal liberty, remain enforceable even during a National Emergency.
In summary, a National Emergency has profound implications not only for the relationship between the Centre and states and the functioning of legislative bodies, but also on the essential rights granted to citizens under the Constitution. It leads to a concentration of power at the Centre and alters the regular functioning of democracy in India, highlighting the balance between governance and citizens' rights during critical times.
Understanding the Differences Between Articles 358 and 359 of the Indian Constitution
In the Indian Constitution, Articles 358 and 359 relate to the suspension of fundamental rights during emergencies. Although they may seem similar at first glance, they serve different purposes and have distinct implications for the rights of citizens. Let's break down these articles to understand their differences and what they entail.
Scope of Suspension
Article 358 deals specifically with the fundamental rights guaranteed under Article 19, which includes the right to freedom of speech and expression, the right to assemble peacefully, and the right to form associations. When a national emergency is declared due to war or external aggression, Article 358 automatically suspends these rights. In contrast, Article 359 has a broader scope. It allows for the suspension of enforcement for other fundamental rights as well, depending on what is specified in the presidential order.
Automatic vs. Conditional Suspension
One of the key differences is how these articles operate when an emergency is declared. Article 358 leads to an automatic suspension of rights under Article 19 as soon as the emergency is announced. However, Article 359 does not automatically suspend rights; instead, it gives the President the power to choose which rights' enforcement can be suspended. Therefore, the suspension under Article 359 is conditional and requires a presidential directive.
Types of Emergencies
Article 358 is applicable only in the case of an external emergency. This can occur if there is a declaration due to war or a threat from outside the country. On the other hand, Article 359 applies to both internal and external emergencies. Internal emergencies could arise due to armed rebellion or severe disturbances within the country. This means that while Article 358 is restricted to external threats, Article 359 has a wider application.
Duration of Suspension
When an emergency is declared, Article 358 suspends the rights under Article 19 for the entire period of emergency. In contrast, Article 359 allows the President to specify the duration for which certain rights will remain suspended, which can either be for the entire emergency period or just a shorter time frame.
Geographic Applicability
Article 358 applies to the entire nation without exception. However, Article 359 may apply to the whole country or just a specified region, depending on the nature of the presidential order. This flexibility is crucial for targeted enforcement of laws during an emergency.
Which Rights Are Affected?
Article 358 completely suspends rights under Article 19 but does not affect rights that are protected under Articles 20 (protection in respect of conviction for offenses) and 21 (protection of life and personal liberty). In contrast, Article 359 allows the suspension of rights enforcement, but it does not permit the suspension of Articles 20 and 21 either. This means that individuals are still protected under these essential rights, even during emergencies.
Legislative Power
Under Article 358, the government can make laws or take actions that contradict the fundamental rights specified in Article 19. Conversely, Article 359 enables the state to take actions that might not align with the specific rights it has chosen to suspend through the presidential order. This gives the government some leeway to act during emergencies but applies only to those rights whose enforcement is conditionally suspended.
Similarities
Despite their differences, Articles 358 and 359 share a commonality: both provide immunity to laws enacted during the emergency period. This means that any law related to the emergency is protected from legal challenges. Additionally, any executive action taken under such a law is also safeguarded from being contested.
Conclusion
To summarize, Articles 358 and 359 of the Indian Constitution create a legal framework for the suspension of fundamental rights during various emergencies. Article 358 specifically focuses on the rights under Article 19, automatically suspending them during an external emergency, while Article 359 encompasses a wider range of rights and depends on the President's discretion. Understanding the nuances between these articles is crucial for grasping the balance between individual rights and state power during times of crisis. These provisions highlight the complex interplay between safeguarding public order and ensuring citizens' fundamental rights remain preserved as much as possible, even in extraordinary circumstances.
Declarations of National Emergency in India
In India, a National Emergency can be declared under specific circumstances, and this has happened three times since the country gained independence. The first proclamation was made in October 1962 due to a military conflict with China over the North-East Frontier Agency, which is now known as Arunachal Pradesh. This emergency lasted until January 1968. The government did not need to declare another emergency during the war with Pakistan in 1965 because the 1962 proclamation was still in effect.
The second time a National Emergency was declared was in December 1971, following an attack by Pakistan. This emergency was still in effect when the government declared a third one in June 1975. The distinctions between these emergencies are crucial. The first two were declared because of "external aggression," meaning they were a response to threats or attacks from other countries. However, the third declaration in 1975 was based on "internal disturbance." This referred to issues within the country, where specific individuals were accused of inciting unrest among the police and armed forces, disrupting their normal duties.
The emergency declared in 1975 is the most well-known and controversial in India’s history. Many people criticized how the government misused the powers associated with this declaration, leading to widespread unrest among the citizens. After the emergency ended, elections were held for the Lok Sabha in 1977. The ruling Congress Party, led by Indira Gandhi, lost this election, and the Janata Party came to power. This new government established the Shah Commission to look into the reasons that led to the 1975 emergency. The commission did not find sufficient justification for declaring the emergency, which further fueled public dissent against the government's actions during that period.
In response to the controversies and the alleged misuse of emergency powers, the Indian government enacted the 44th Amendment Act in 1978. This amendment introduced several safeguards to prevent the misuse of the emergency provisions in the future. Notably, Article 352 of the Indian Constitution allows for the declaration of a national emergency in case of war or external aggression, while Article 356 provides for the imposition of President's Rule in states if they fail to function according to the provisions of the Constitution.
Overall, the history of these declarations showcases the tension between governmental authority and the protection of civil liberties in India. The lessons learned from these experiences have shaped how emergency powers are viewed and regulated in the Indian constitutional framework today.
President's Rule in India
President's Rule is a special situation in which the central government takes control of a state government. This is primarily based on the Indian Constitution, which provides specific guidelines for when this can happen. It's often referred to as "State Emergency" or "Constitutional Emergency."
The basis for imposing President's Rule is found in Article 355 and Article 356 of the Indian Constitution. Article 355 outlines the responsibility of the central government to protect each state from external threats and internal disturbances. It also requires that the state governments operate according to the Constitution. If a state fails to uphold these constitutional obligations, it can lead to President's Rule under Article 356.
According to Article 356, the President of India can declare President's Rule if they are convinced that a state government cannot function properly in accordance with the Constitution. This can happen if there are significant political issues or crises, civil unrest, or if the state government has lost the confidence of the majority in the legislative assembly. The President does not solely rely on the governor's report; they can act even without it if they feel the situation warrants such action.
Additionally, Article 365 complements this by stating that if a state government fails to follow directions given by the central government, it can also trigger a situation where the President assumes control. In essence, if a state does not comply with central directives, it indicates a breakdown in its governance.
When President's Rule is enacted, the state is governed directly by the central government, typically through the governor, who acts as the representative of the President. This measure is meant to restore order and ensure that the state returns to a functioning, constitutional government.
The imposition of President's Rule is not taken lightly and is subject to scrutiny. The Constitution requires that this rule be reviewed periodically, and it must be approved by the Parliament. Typically, President's Rule can last for six months but can be extended with parliamentary approval.
In summary, President's Rule is an important constitutional mechanism that enables the central government to intervene in state matters to restore constitutional order. However, it is meant to be a temporary solution, and its implementation is governed by strict provisions within the Constitution to prevent misuse of power and ensure democratic governance.
In India, President's Rule can be declared in a state when the government there is not functioning properly, allowing the central government to take control. This situation is governed by various laws and constitutional provisions, specifically laid out in Article 356 of the Indian Constitution.
Once President's Rule is declared, it must be approved by both Houses of Parliament—the Lok Sabha (House of the People) and the Rajya Sabha (Council of States)—within two months from the date it was issued. This ensures that there is a check on the powers of the President and that Parliament remains involved in significant decisions.
However, if the Lok Sabha is dissolved during this two-month period without approving the proclamation, the President's Rule can continue for a limited time. In this case, the rule lasts until 30 days after the first meeting of the Lok Sabha once it is reformed, but this is only valid if the Rajya Sabha approves it in the meantime.
If the proclamation is approved by both Houses of Parliament, it remains in effect for six months. Should the situation require, it can be extended for a maximum of three years. Each extension requires parliamentary approval every six months. But if the Lok Sabha gets dissolved during the first six-month period and has not yet approved any further extension, the proclamation will continue until 30 days after the new Lok Sabha convenes, as long as the Rajya Sabha has approved this continuation.
For Parliament to approve the proclamation of President's Rule or its extension, they need to pass the resolution by a simple majority. This means that more than half of the members present and voting must agree.
There have been amendments to these rules. A significant change was made by the 44th Amendment Act of 1978, which added conditions for extending President's Rule beyond one year. According to this amendment, beyond the initial year, it can only be extended in two specific situations: first, if a National Emergency is declared across the country or in the state in question, and second, if the Election Commission certifies that elections cannot be held due to certain difficulties.
Furthermore, if the President feels that it is necessary, they can revoke the proclamation of President's Rule at any time. This decision does not require parliamentary approval and can be done via a new proclamation. This power allows for flexibility in governance and a way to restore normalcy when circumstances permit.
Overall, the provisions for President's Rule reflect a balance between necessary governance in times of political instability and the crucial role of Parliament in overseeing and approving the decisions made by the President. Articles 356, 357, and the 44th Amendment Act of the Constitution are fundamental in guiding these processes, ensuring democracy is upheld even during challenging times.
Consequences of President’s Rule in India
When President's Rule is declared in a state, the President of India gains special powers to manage the state's administration. This typically happens when there is political instability, and the state government is unable to function effectively, often leading to the dismissal of the state council of ministers, which is headed by the chief minister.
Under Article 356 of the Indian Constitution, the President can take over the responsibilities of the state government. This means that the President can act in place of the Governor or any other political authority in the state. The President has the authority to declare that the Parliament will exercise the powers usually held by the state legislature. This allows for significant control over the state's affairs and governance.
In practice, when President's Rule is imposed, the Governor takes charge on behalf of the President. The Governor usually works alongside the chief secretary or appointed advisors to maintain the administration of the state. The procedure used is often referred to as the imposition of 'President's Rule' due to the authority given by Article 356.
While under President's Rule, the state legislative assembly can either be suspended or dissolved entirely. The Parliament then takes over, meaning that any legislative bills or state budgets that need passing are done at the national level rather than through the usual state channels.
Moreover, the Parliament can delegate law-making powers for the state to the President or to another authority that the President designates. This means that important decisions, including those that affect the state's finances, can be made without the usual local legislative input. For instance, if the Lok Sabha (the lower house of Parliament) is not in session, the President can authorize spending from the state’s consolidated fund until Parliament can approve it.
Any laws made during this period—whether by Parliament or the President—remain effective even after the President's Rule ends. This means that the laws do not automatically disappear when the state government is reinstated and can be altered or repealed by the state's legislature afterward.
It is essential to note that even during President's Rule, the powers held by the state high court remain untouched. The President cannot override the functions, status, or authority of the high court. This essential separation helps maintain judicial independence in the state.
Though President's Rule aims to restore order and governance, it operates under strict constitutional guidelines, ensuring that central authority does not entirely eclipse state responsibilities. This balance is crucial because the prolonged use of President’s Rule can lead to constitutional and democratic concerns.
In addition to Article 356, related provisions found in the Constitution, such as Article 357, offer further clarity on the powers of the Parliament concerning state governance during President's Rule. Understanding these articles is vital for grasping how such a significant measure can affect both state and national governance in India.
To summarize, President’s Rule is an extraordinary measure used to stabilize governance in a state when necessary, but it also includes specific constraints to maintain the balance between state and central authorities.
Use of Article 356 in India
Since India adopted its Constitution in 1950, Article 356 has been used over 125 times to impose what is known as "President's Rule" in various states. This situation occurs when the central government takes control of a state due to a breakdown of law and order or failure of the state government’s constitutional duties. However, the use of President's Rule has often been criticized because it can sometimes be used for political reasons rather than genuine need.
The very first instance of President's Rule was in Punjab in 1951. Since then, nearly every state in India has faced President's Rule at least once, with some experiencing it multiple times. The controversial nature of Article 356 became especially evident during the political shifts in the late 1970s. After the Internal Emergency period from 1975 to 1977, when elections were finally held, the Congress Party lost to the Janata Party. The Janata Party, led by Morarji Desai, imposed President's Rule in nine Congress-ruled states, arguing that the state assemblies no longer reflected the will of the voters. Remarkably, when the Congress Party regained power in 1980, they did exactly the same in nine states for similar reasons.
In 1992, the Congress Party imposed President's Rule again, but this time in three states governed by the Bharatiya Janata Party (BJP): Madhya Pradesh, Himachal Pradesh, and Rajasthan. They claimed these states weren’t following the central government's ban on certain religious organizations. This prompted legal challenges that reached the Supreme Court, which ruled on the validity of President’s Rule in a landmark case known as the “Bommai case” in 1994. The Supreme Court upheld the necessity for this rule in certain contexts but also set limitations on its arbitrary use. For instance, the court invalidated the President's Rule imposed in Nagaland, Karnataka, and Meghalaya, highlighting that these decisions did not align with constitutional principles.
Dr. B.R. Ambedkar, who was instrumental in drafting the Constitution, expressed hope that the powers granted by Article 356 would seldom be used and would serve as a last resort. He believed that central interference should only occur under clear constitutional circumstances. Ambedkar’s vision was that such articles would ideally remain unused, coining the notion of them being a ‘dead letter.’ Instead, Article 356 has often been wielded like a ‘deadly weapon’ against several state governments. This sentiment was echoed by H.V. Kamath, another prominent member of the Constituent Assembly, who remarked that while Dr. Ambedkar had passed away, the articles he helped design remained very much active and, at times, misused.
In summary, Article 356 has proven to be a pivotal yet controversial part of India's federal structure. It is addressed within the Constitution as part of the provisions for emergency governance under Article 356, which is designed to maintain the integrity and functionality of state governments. However, its frequent application has raised concerns over its misuse for political purposes rather than genuine governance issues. This complex interplay between state autonomy and central oversight remains a significant point of discussion in Indian politics.
Scope of Judicial Review in India
In India, the power of judicial review allows the higher courts to examine the validity of actions taken by the government. This power is especially significant when it comes to the imposition of President’s Rule in states, as outlined in Article 356 of the Indian Constitution.
Initially, the 38th Amendment Act of 1975 made the President's decision to impose President's Rule final, meaning that it couldn’t be challenged in any court. However, this provision was removed by the 44th Amendment Act of 1978. This change indicated that the President's satisfaction can be subject to judicial review, meaning courts can evaluate whether the President's actions were justified.
A landmark ruling by the Supreme Court in the Bommai case in 1994 set forth several important principles regarding the imposition of President’s Rule. According to this ruling, the President's proclamation is open to judicial review, which means that courts have the authority to analyze the reasons behind the President's decisions. The President's decision must be based on relevant information, and if the decision is found to be based on irrelevant or malicious reasons, the court can strike it down. It is the responsibility of the central government to demonstrate that valid reasons exist to support the imposition of President's Rule.
While the courts have the power to check if the information presented is relevant, they do not assess whether the information is correct or sufficient. If a court finds the proclamation unconstitutional, it can restore the dismissed state government and revive the state legislative assembly, should it have been suspended or dissolved.
Furthermore, the Constitution mandates that before dissolving the state legislative assembly, the Parliament must approve the presidential proclamation. If Parliament does not approve it, the assembly would be reactivated.
An essential part of the Indian Constitution is secularism, which is considered one of its basic features. Therefore, a state government engaging in anti-secular practices can be subject to Article 356. Moreover, the issue of a state government losing confidence in the legislative assembly should be resolved within the assembly itself, and until such a determination is made, the current government should not be removed from power.
When a new political party comes to power at the Centre, it does not hold the authority to dismiss state governments formed by other parties. It is also crucial to note that the power under Article 356 is meant for exceptional circumstances. It should not be used casually and should be reserved for unique situations that require urgent attention.
This intricate relationship between the President, state governments, and the judicial system underscores the checks and balances that are essential to maintaining democracy in India. Articles 356 and the related amendments highlight the importance of accountability and transparency in governance, ensuring that the rights of the states and their citizens are protected under Indian law.
The report from the Sarkaria Commission on Centre-state Relations in 1988 highlighted important details regarding when Article 356 of the Indian Constitution can be used. This article allows the President to take over the government of a state in certain situations, a process often referred to as "President's Rule." The Supreme Court, in its ruling in the Bommai case of 1994, further clarified the proper and improper uses of this power.
There are specific situations where imposing President's Rule is considered proper. One such situation occurs when, after elections, no single political party can form a government because no party has a clear majority; this is known as a "Hung Assembly." Another instance is when the party that has a majority refuses to form a government, leading the Governor to determine that no other coalition can achieve a majority either. Additionally, if a government resigns after losing a confidence vote, and no other party is available to take over, intervention may be justified.
President's Rule can also be applied if a state's government ignores directives from the Central government. Extreme circumstances, such as when a state government acts against the Constitution or encourages rebellion, may also warrant the imposition of President's Rule. Furthermore, if the state government is unable to fulfill its constitutional duties, putting the state's security at risk, the central government may step in.
On the other hand, there are also circumstances where applying President's Rule would be considered improper. For example, if a ministry resigns due to losing majority support, and the Governor suggests President's Rule without looking into whether an alternative government can be formed, this action could be deemed unjust. Similarly, if the Governor prematurely assesses a ministry's support without allowing it to demonstrate its majority in the assembly, this would not be a justifiable use of the power.
Another inappropriate scenario occurs when a party in power suffers a significant defeat in national elections, indicating a loss of public support, such as witnessed in the elections of 1977 and 1980. Other considerations include internal issues that do not rise to the level of subversion or breakdown, widespread allegations of corruption, or financial crises faced by the state. Moreover, if a state government is not given an opportunity to correct its faults before President's Rule is applied, except in dire situations, it would be considered an improper use of authority. Lastly, using this power to resolve internal conflicts within the ruling party or for aims unrelated to the ones outlined in the Constitution is also deemed inappropriate.
Overall, Article 356 has significant implications for the balance of power between the Central and state governments in India. Articles 352, 356, and 360 of the Constitution relate to the imposition of President's Rule, the declaration of a national emergency, and the financial emergency, respectively. Understanding these distinctions is vital for respecting the federal structure of governance in India and ensuring that the powers granted by the Constitution are used appropriately and sparingly.
Financial Emergency in India
In India, a Financial Emergency can be declared under Article 360 of the Constitution. This article gives the President of India the power to announce a Financial Emergency if they believe that there is a serious threat to the financial stability or credit of the country or any part of it. This situation might arise due to various reasons, such as economic crises, severe financial difficulties, or other conditions that may adversely impact the economy of the nation.
The 38th Amendment Act of 1975 initially made the President's decision to declare a Financial Emergency final and could not be challenged in court. This means that once the President decided to declare such an emergency, their satisfaction could not be questioned by any judicial authority. However, this provision raised concerns regarding the potential misuse of power, as it limited the role of the judiciary in reviewing such presidential actions.
To address these concerns, the 44th Amendment Act of 1978 made a significant change. It removed the clause that stated the President's satisfaction was beyond judicial scrutiny. As a result, now the declaration of a Financial Emergency can be examined by the courts, allowing for a system of checks and balances to prevent any potential abuse of power by the President.
When a Financial Emergency is declared, the central government can take various measures to restore financial stability. These measures might include the reduction of salaries of government officials, stricter control over public spending, and the authority to direct states to follow certain financial guidelines.
The situation in which a Financial Emergency is declared is typically serious, as it indicates that the government is facing an urgent and severe financial problem. This emergency status continues until the President is satisfied that the financial stability has been restored and can lift the emergency accordingly.
Overall, the ability to declare a Financial Emergency is an essential part of India's Constitution, as it provides the government with a mechanism to deal with dire financial situations while ensuring that there are checks to maintain the democratic principle of judicial review.
Parliamentary Approval and Duration of Financial Emergency
In India, a financial emergency is declared under Article 360 of the Constitution when the financial stability of the country is threatened. This declaration must receive approval from both houses of Parliament—the Lok Sabha (House of the People) and the Rajya Sabha (Council of States)—within two months from the date it is issued.
If the Lok Sabha happens to be dissolved at the time the financial emergency is proclaimed, or if it is dissolved during the two-month approval period, the declaration will still remain in effect. However, it can only continue until 30 days after the Lok Sabha reconvenes, but only if the Rajya Sabha has approved it in the meantime.
Once both houses have approved the financial emergency, it can continue for an indefinite period. This means there isn’t a maximum limit on how long it can last, and the government does not need to seek repeated approvals from Parliament to keep it going. The initial approval from either house requires only a simple majority, which means that more than half of the members who are present and vote must support the resolution.
Interestingly, the President of India can revoke the financial emergency at any time through another proclamation. This revocation does not need approval from Parliament, providing the President with significant control over the situation.
Legal Framework and Context
The authority to declare a financial emergency lies within the Constitution of India, specifically Article 360, which allows the President to proclaim such an emergency if they believe that the financial stability or credit of India is threatened. This provision aims to ensure that the government can respond effectively to financial crises.
Notably, the duration and approval process for a financial emergency reflect the balance of power between the executive and the legislature in India. While the President can initiate a financial emergency, the necessity for parliamentary approval ensures that elected representatives remain involved in significant decisions that affect the financial affairs of the country.
In summary, the process of declaring and managing a financial emergency in India is governed by specific constitutional provisions that aim to protect the financial stability of the nation while ensuring legislative oversight. This balance seeks to maintain democratic principles within the framework of governance, even during times of financial distress.
Effects of Financial Emergency
When a Financial Emergency is declared in India, several important changes take place, affecting both the central and state governments. A Financial Emergency is declared under Article 360 of the Indian Constitution and can only be done on the advice of the President of India. This provision allows the central government to manage financial issues more effectively when the financial situation of the country is under severe stress.
One of the main effects of declaring a Financial Emergency is that the central government gains expanded authority over the states. The President of India can issue directions to any state government, requiring them to maintain certain financial standards. These financial standards may include how the state manages its finances and ensuring that they adhere to ethical financial practices.
Additionally, the President has the power to direct states to lower the salaries and allowances of various public officials. This could involve all or specific categories of people working for the state. Moreover, any financial bills or money-related legislation passed by state legislatures must be sent to the President for consideration before they can be enacted. This gives the central government significant control over financial decisions at the state level.
The central government also has the authority to reduce salaries and allowances for employees working for the Union, including the judges of the Supreme Court and High Courts. This means that during a Financial Emergency, the central government can exert considerable influence over the financial operations of not just the states, but also of various central authorities and departments.
H.N. Kunzru, a member of the Constituent Assembly, expressed concerns that the provisions for a Financial Emergency could pose a serious threat to the financial independence of the states. This highlights a tension between the necessity for control during financial crises and the autonomy of state governments.
Dr. B.R. Ambedkar, who played a key role in drafting the Constitution, acknowledged the inspiration behind including these provisions. He noted that they were modeled after the National Recovery Act of the United States, which was enacted during the Great Depression in 1933 to empower the U.S. President to address economic difficulties. This comparison underlines the intention of the Financial Emergency provisions to enable the government to take decisive action in times of serious financial distress.
Despite the potential implications of this provision, it’s important to note that no Financial Emergency has been officially declared in India since the introduction of this mechanism. However, there was a significant financial crisis in 1991, which led to numerous economic reforms but did not result in a formal declaration of a Financial Emergency.
Understanding these provisions and their potential impacts is critical for grasping the complexities of financial governance in India and the balance of power between state and central authorities during times of economic distress.
During the discussions leading to the drafting of the Indian Constitution, members of the Constituent Assembly had strong opinions regarding the inclusion of emergency provisions. Some members raised concerns that these provisions could undermine the federal structure of the nation, which is designed to distribute powers between the central government (the Union) and individual states. They feared that the Union would become too powerful, placing all authority in the hands of the Union executive and particularly in those of the President. This concentration of power was viewed as a potential pathway to a dictatorial regime.
For instance, H.V. Kamath expressed his worries by stating that the provisions could pave the way for a totalitarian state, where the rights and freedoms of ordinary citizens would be continuously at risk. Kamath argued that if the government exerted power like that, it could result in a false sense of peace—a peace that lacks life and vibrancy. He suggested that if the President were to utilize these expansive powers, it could lead to shame and despair, as such powers found in the Constitution of India are rare among democracies globally.
Similarly, K.T. Shah criticized the provisions as regressive, indicating that they would empower the central government against the states while simultaneously disarming citizens by restricting their rights. T.T. Krishnamachari echoed these sentiments by stating that these measures could amount to a form of constitutional dictatorship, and H.N. Kunzru warned that the financial emergency provisions could threaten the fiscal autonomy of the states.
On the other hand, there were supporters of the emergency provisions within the assembly as well. For example, Sir Alladi Krishnaswami Ayyar argued that these provisions were essential for the Constitution’s integrity, describing them as the "very life-breath" necessary for maintaining stability. Mahabir Tyagi saw them as a "safety valve" intended to protect the Constitution in times of crisis.
Dr. B.R. Ambedkar, the principal architect of the Constitution, acknowledged the risks associated with these provisions. He admitted that there was a real possibility of them being misused for political gain, a sentiment that reflects an understanding of the delicate balance between power and accountability in governance.
The emergency provisions are outlined in Articles 352 to 360 of the Indian Constitution. Article 352 allows the President to proclaim a state of emergency in case of war, external aggression, or armed rebellion, while Article 356 enables the President to assume control of state affairs if a government in a state cannot function according to the Constitution. Article 360 provides for a financial emergency, allowing the central government to intervene in state financial matters.
These articles highlight the heavy responsibility placed on the government to act in the nation's interest while also serving as a reminder of the need for checks and balances. The concerns raised during the Constituent Assembly debates illuminate the ongoing dialogue about the power of the state versus individual freedoms, an issue that remains relevant in democratic discourse today.