Introduction

“Emergency” under the constitution means a situation which is not normal a situation which calls
for urgent remedial action. If we go by the dictionary meaning of the word “Emergency” then it
says that it is a situation which poses an immediate risk and requires urgent attention or ‘as a
failure of constitutional system to deliver reasonable conditions of life. It is mandatory for the
government to be prepared with all required measures to safeguard its people from any kinds of
crisis. Hence, the Government has been conferred powers to be prepared for any such situations
before it arrives. Even in the ancient times the principle of necessity was well recognized had
played a significant role. India being a democratic nation1, when reaches to such severe crisis
situations cannot deal with them in its normal process since it needs immediate action and
therefore the president is given the authority to proclaim emergency after he is satisfied after
discussion and advice with the council of ministers that it is the need of the hour. But that is the
time when the president is the only controlling authority and being a democratic state, it creates
the assumption of extraordinary powers in the hands of the president will be in derogation of the
civil and political rights normally ensured to the citizens by the democratic situations. That is the
reason why it is a topic of debate and discussion. During emergency, all the fundamental rights
of a citizen or an individual are suspended, except Article 20 and 21 where Article 20 talks about
certain rights which include protection in respect of conviction for certain offences and these
protections include expost facto law , double jeopardy and right against self-incrimination .
Article 21 talks about Right to Life and Personal Liberty wherein every individual from its very
birth has a right to live a meaningful and dignified life. The object of the fundamental right under
Article 21 is to prevent encroachment upon personal liberty and deprivation of life except
according to procedure established by law. Right to life means the right to lead meaningful,
complete and dignified life. The fundamental rights are one of the pillars of the Indian
Constitution Article 21 being core and since then these rights constitute the basic structure so
they cannot be distorted or deprived off. In a situation like emergency since it is already a
situation difficult to handle these rights seize temporarily which revive once the proclamation
period ends.

1 Asmit Chitransh, http://jurip.org/wp-content/uploads/2017/08/Asmit-Chitransh.pd f

Background

The emergency provisions are contained in part XVIII of the constitution, from Articles 352 to
360. The Article owes its genesis article 93 of The Government of India Act 1935, a section
which essentially dealt with the taking over of the Provincial Government by the Governor.
These provisions enable the Central Government to meet any abnormal situation effectively.
The rationality behind the incorporation of these provisions in the constitution is to safeguard the
sovereignty, unity, integrity, and security of the country, the democratic political system and the
Constitution.

During an emergency, the Central Government becomes all powerful and the states go into the
total control of the Centre. It converts the federal structure in to Unitary one without the formal
amendment of the Constitution. This kind of transformation of the political system from federal
structure during normal times to unitary during Emergency is a unique feature of the Indian
Constitution. In this context, Dr B.R. Ambedkar observed in the Constituent Assembly that:

‘All federal systems including American are placed in a tight mould of federalism. No matter
what the circumstances, it cannot change its form and shape. It can never be Unitary. On the
other hand, the Constitution of India can be unitary as well as federal according to the
requirements of time and circumstances. In normal times, it is framed to work as a federal
system. But in times of Emergency, it is so designed as to make it work as though it was a
unitary system’.

The constitution stimulates three types of emergencies:

 An emergency due to war, external aggression or armed rebellion (Article 352). This is
popularly known as ‘National Emergency’. However, the Constitution employs the
expression ‘Proclamation of Emergency’ 2to denote an emergency of this type.
 An Emergency due to failure of the constitutional machinery in the states (Article 356).
This is popularly known as ‘President’s Rule’. It is also known by two other names ‘State
Emergency’ or ‘Constitutional Emergency’. However, the Constitution does not use the
word ‘emergency’ for this situation.
 Financial Emergency due to threat to the financial stability or credit of India. (article 360)

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Meaning Of Failure Of Failure Of Constitutional Machinery Of State.

India adopted the Canadian model of federation which tilts the balance in favour of the Union.
The constitutional provisions empower the Union to give directions to the States in normal times
as well, because Article 355 enjoins on the Union the duty to protect States against any external
aggression and the internal disturbance3.

Aricle 3564 and Article 357 incorporated in the constitution of India gives the President , the
enormous power to impose president’s rule in any of the state where he on the receipt of the
report from the governor, or is satisfied that the situation has been arisen where state
Government fails to carry on in accordance with the provisions of the constitution. President may
by proclamation-

(a) 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 any body or authority in the State other
than the Legislature of the State;

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the
authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary
or desirable for giving effect to the objects of the Proclamation, including provisions for
suspending in whole or in part the operation of any provisions of this Constitution relating to any
body or authority in the State.[Art 356 (1).

This is an emergency provision where the Union Government may extend its power over the
state. Both the Houses of Parliament must ratify the proclamation of emergency and if any of the
House fails to ratify the proclamation with in two months the emergency may cease to operate. If
the Proclamation is ratified, the emergency will last long for six months.

3
4 Dr. Seema Sharma, http://lex-warrier.in/2014/04/article-356-constitution-critical-analysis/ ,
Grounds of Imposition

The President’s Rule can be proclaimed under Article 356 on two grounds: one mentioned in the
Article 356 itself and another in Article 365:

1) Article 356 empowers the President to issue a proclamation, if he is satisfied that a

situation has been arisen in which the Government of a State cannot be carried on in
accordance with the provisions of the Constitution. Notably, State Emergency or
President’s Rule can be invoked after a receipt of report submitted by the Governor of a
state to the President. Though Article 163(1) obliges the Governor to act according to the
advice tendered by his Council of Ministers excepting those matter with respect to which
the Constitution requires him to exercise his discretion, and because the furnishing of a
report under Article 356(1) is not so mentioned by the constitution as a function to be
exercised by him in his discretion, it is obvious that in the matter of the Governor
reporting to the President that there has been a breakdown of the Constitutional
machinery must necessarily be a matter in which the Governor cannot possibly act
according to the advice of the Council of Ministers.14 The reason is that as a result of
such report, if adverse, the State Government itself would be suspended, so that the
Governor’s Council of Ministers cannot be expected to sign their death warrant. In the
result, in making a report under Article 356(1), the Governor acts in his discretion, and as
an ‘agent’ of the President . 5
2) Article 365 says that whenever a state fails to comply with or to give effect to any
direction from the Centre, it will be lawful for the President to hold that a situation has
arisen in which the Government of the State cannot be carried on in accordance with the
provisions of the Constitution.

Parliamentary Approval And Duration

A proclamation imposing President’s Rule must be approved by both the Houses of Parliament,
with in two from months from the date of its issue. However, if the Proclamation of President’s
Rule is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok
5 Htt
p://jurip.org/wp-content/uploads/2017/08/Asmit-Chitransh.pdf
Sabha takes place during the period of two months without approving the proclamation, then the
proclamation survives until 30 days from the first sitting of the Lok Sabha after its
reconstitution, provided the Rajya Sabha approves it in mean times.

If approved by both the Houses of Parliament, President’s Rule continues for six months. It can
be extended for a maximum period of three years with the approval of the Parliament after every
six months. However, if the dissolution of Lok Sabhha takes place during the period of six
months without approving the further continuation of the President’s Rule, then the proclamation
survives until 30 days from the first sitting of the Lok Sabha after its reconstitution but only
when Rajya Sabha has in the meantime approved its continuance.

Every resolution approving the proclamation of President’s Rule or its continuation can be
passed by either House of Parliament only by simple majority that means a majority of the
members of that House present and voting.

The 44th Amendment Act of 1978 introduced a new provision to put restraint on the power of
Parliament to put restraint on the power of Parliament to extend a proclamation of President’s
Rule beyond one year. Thus it is provided that the President’s Rule can be extended by six
months at a time only when the following two conditions are fulfilled:

1) A proclamation of National Emergency should be in operation in the whole of India, or in

the whole or any part of the State and
2) The Election Commission must certify that the general elections to the legislative
Assembly of the concerned State cannot be held on account of difficulties.

A proclamation of President’s Rule may be revoked by the President at any time by a subsequent
proclamation. Such a proclamation does not require the parliament approval.

Consequences of Invoking President’s Rule

Under Article 356 (1)(a),The President can assume to himself the powers of the Governor.
acquires the following extraordinary powers when the President’s Rule is imposed in a State:

1) He can take up all the functions of the state government 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.6
3) He can take all other necessary steps including the suspension of the constitutional
provisions relating to any body or authority in the State.

Therefore, when the President’s Rule is imposed in a state, the President dismisses the State
Council of Ministers headed by Chief Minister. The state governor on behalf of President, carries
on the State administration with the help of the chief secretary of the state or the advisors
appointed by the President, this is the reason why a proclamation under Article 356 is popularly
known as the imposition of President’s Rule in a state. Further, president either suspends or
dissolves the state legislative assembly. The parliament is one who passes the state legislative
bills and state budget at the time of emergency.

When the state legislature is thus suspended or dissolved:

1) Under Article 357 (1)(a) The Parliament can delegate the power to make laws for the
state to the President or to any other authority specified by him in this regard,
2) The Parliament or in case of delegation, the President or any other specified authority
can make laws conferring powers and imposing duties on the Centre or its officers and
authorities. [Article 357(1)(b)]
3) The President can authorize when the Lok Sabha is not in session, expenditure from the
state consolidated fund pending its sanction by the Parliament [Article 357 (1)(c)]
4) The President can promulgate, when the Parliament is not in session, ordinances for the
governance of the state.

Thus, the life of law made by the Parliament or President during the the operation is not co-
terminus with the subsistence of the proclamation. This means that the law does not come to
an end automatically as soon as proclamation is revoked. It continues to be operative even
after the President’s Rule and is not revoked automatically the proclamation is revoked. This
provision means that though the power of Union to make laws for the State concerned on the
subject with in the State list ceases as soon as the proclamation under Article 356 (1) comes
to an end , Under Article 357 (2) the laws made during the existence of the proclamation

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continue to remain in force until they are altered repealed by the State Legislature. State
Legislature has a power to change these laws.

The President under Article 356(2) is not however authorized to assume himself the powers
vested in the concerned state High Court or suspend the provisions of the Constitution
pertaining to it. It means the constitutional position, status, powers and functions of the
concerned state high court remain same even during the President’s Rule. Such a
proclamation may be revoked or varied by a subsequent proclamation.

Misuse of Article 356

If we talk about Article 356 of the Indian Constitution, then it says that the sole purpose of
giving wide powers to Union Government is basically to maintain law and order in the
country along with the preservation of the unity and integrity of the nation. In Indian politics
the period until 1967 has been described as the period of “one dominant party system”.
During this period the imposition of President’s Rule was not frequent the reason behind
this was that the ruling party at the Centre and in States was same and the disputes arising
between them could be resolved through the mechanism of the party set up. However, the
fourth general elections saw the emergence of a multiparty and this ends the monopoly of
Congress. Thus Coalition ministries were formed in a number of States for first time. From
here began the saga of frequent misuse of Article 356 for political ands thereby disturbing the
federal structure of our Constitution and endangering democracy in our country.

The provision which was thought as a safety valve proved to be a political weapon of the
Centre against the States. The provision which was intended to be the dead letter has proved
to be the death letter for number of State Government because different grounds which were
never thought by the framers of the Constitution have been used for the imposition of
Presidents Rule in the States to suit the political interests of the party in power at the Centre.

Later, the Supreme Court reduced the scope for misuse of Article 356 by establishing certain
strict and mandating guidelines for imposing State Emergency and as a result of which, since
early 2000, the incidents of imposing President’s Rule have dropped substantially. According
to Sarkaria Commission, ‘Article 356 must be used “very sparingly” and “in extreme cases”
wherein there are no other viable alternatives to prevent complete failure of constitutional
machinery in the state. In Punjab and Jammu & Kashmir, State Emergency lasted for 3 years
which is the maximum till date.