Emergency Powers of Indian President
The Indian Constitution has vested extensive powers to the Union Government or the President to deal with abnormal conditions in times of emergency.
The Constitution of India in Part XVIII provides three different types of emergency (National, State and Financial) and in each case the President is empowered to declare the emergency.
The emergency provisions of our Constitution (Articles 352-360) are enumerated as follows:
1. Proclamation of National Emergency (due to war or armed rebellion or external aggression).
2. Proclamation of State Emergency (due to the failure of constitutional machinery), and
3. Proclamation of Financial Emergency (due to badly shaken of financial stability).
National Emergency (Article 352):
The President of India, after receiving a written communication of the decision of the Union Cabinet—the Prime Minister and other Ministers of the Cabinet rank—may issue a proclamation of emergency when the security of India or any part thereof is threatened or is likely to be threatened by war or foreign attack or aimed rebellion.
Every such proclamation is required to be laid before each House of Parliament. It ceases to operate at the expiration of one month unless it has been approved by a majority of total numbership of each of the two Houses (Lok Sabha and Rajya Sabha) and two-thirds majority of those present and voting. The normal duration of a proclamation of national emergency is six (6) month from the date of approval. This may be extended for another six months by another resolution. Further, the Forty-Fourth Amendment Act (1978) lays down that the one-tenth (1/10) of the total members of Lok Sabha may give notice to the Speaker of their intention of holding a special session of the House to discuss disapproval of such an emergency. And the discussion on this resolution must be held within 14 days.
We are to note that the national emergency was invoked in October 1962 (China’s attack), December 1971 (Bangladesh liberation movement) and June 1975 (Internal Security threatened).
Effects of National Emergency
The effects of proclamation of national emergency are:
1. During a proclamation of national emergency, the executive power of every State in India is to be exercised in accordance with the directions given by the Union Government. Again, it is the duty of the Union to protect every State against external aggression or internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution.
2. The Parliament is vested with unlimited power to make laws for the whole or any part of the country on the subjects of the State List. Further, the President has the power to promulgate ordinances if the Parliament is not in session. Lastly, the tenure of the Lok Sabha and of the Bidhan Sabhas of the States can be extended by the Parliament by laws for a period of one (1) year at a time.
3. While a proclamation of national emergency is in operation, the President may by order make the necessary alterations in the distribution of revenues between the Union and the State Governments.
4. The fundamental rights of six freedoms in Article 19-freedoms of expression, assembly, associations, movement or profession etc. stand automatically suspended. Further, the President may by order also suspend the constitutional right of citizens to move any court (Supreme Court or High Court) for the enforcement of any of the fundamental rights (except life and personal liberty of Articles 20 and 21) enumerated in Part III of our Constitution.
President’s Rule in a State Emergency (Article: 356)
The emergency (due to failure of constitutional machinery) in a State can be proclaimed if the President of India is satisfied with the report of a Governor or otherwise, or on his own initiative that a situation has arisen in which that State Government cannot be carried on in accordance with the provisions of the Constitution.
The proclamation of State Emergency needs ratification by the Parliament within two months. After the parliament’s approval, it may continue for six (6) months at a time subject to the maximum period of three (3) years. However, the Forty-Fourth Amendment Act of 1978 clearly lies down that the President’s Rule can be extended beyond one year only when the National Emergency is in operation and the Election Commission certifies that holding elections to that State Legislative Assembly is difficult.
It may be pointed that during the last 50 years, almost all the States have been at one time or the other, put under the President’s Rule.
Effects of State Emergency
The effects of the proclamation of State Emergency are as follows:
1. The President of our Republic can assume to himself all or any of the functions of the concerned State Government as well as the powers of the Governor, except the powers vested in the High Court. .
2. The powers of the State Legislature are exercisable by or under the authority of the Parliament. Again, the Union Parliament can confer the power of legislation on the President and can also authorize him to delegate such powers to any other authority.
3. According to the Supreme Court, the State Legislature remains suspended. But the Legislative Assembly (Bidhan Sabha) cannot dissolve unless it is approved by the Union Parliament.
4. When the Lok Sabha is not in session, the President can authorize expenditure from the Consolidated Fund of the State, pending subsequent sanction of such expenditure by the Parliament.
It may be noted that the fundamental rights and the judicial remedies cannot be suspended during this emergency.
Financial Emergency (Article 360)
According to Article 360 of Indian Consitution, The President of India is empowered to proclaim a State of financial emergency if he is ” 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 normal duration of 4 proclamation of financial emergency is two (2) months. However, such a proclamation must be laid before each House of Parliament. If it has been approved by resolutions of both Houses of Parliament by a majority of total membership voting separately, such a proclamation will remain in force for an indefinite period. We are to note that the financial emergency has not so far declared in our country.
Effects 0f Financial Emergency
The effects of financial emergency are as follows:
1. The President of India may give directions to the States to observe certain canons of financial propriety and also other directions necessary and adequate for maintaining financial stability in the country.
2. The President of India may direct a State to reserve all money-bills and other financial bills for his consideration after they have been passed by that State Legislature. Again, the President may also modify air normal allocation of revenues between the Centre and the States.
3. The President of India may issue directions for the reduction of salaries and allowances of all or any class of persons serving under the Union and the State Governments including the Judges of the Supreme Court and the High Courts.
It may be noted that the fundamental rights cannot be restricted, nor judicial remedied suspended during this emergency.
In times of emergency—national, state or financial—all powers are concentrated in the hands of the Union Government. The emergencies make our fundamental rights less meaningful.
On the other hand, the justification of emergency provisions lies in the fact that when the existence of the State itself is in danger due to external attack or internal disturbance or financial instability, the Union Government must be armed with full powers to avert or meet that danger. And it is well that, at such a time, the restraints are placed on the good of the individuals in the safety and security of the State and the State is not bothered by judicial interferences.
The founding fathers of our Constitution have not only wanted to give a democratic Constitution but also provided a solid foundation of national unity and integrity. So, these emergency provisions are expected to be used in such real situations.
However, these powers should never be misused to meet out the political ends of the party in power. This can be checked by strong public opinion and democratic forces which are essential for the success of our federal-cum-parliamentary democracy.