On this day in 1975, the Government of India proclaimed National Emergency.

The Constitution empowers the President of India to promulgate three types of emergency (Part 18)

 These are:

(a) National emergency under Art 352 (proclamation of emergency).

(b) Failure of constitutional machinery in a state under Article 356 (President’s rule).

(c) Financial emergency under Article 360.

LEARNING WITH TIMES

Duty of union to protect states (Article 355)

 “it shall be the duty of the union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of this constitution.”

It is this duty in the performance of which the Centre takes over the government of the state under Article 356 in case of failure of the constitutional machinery in the state.

Article 356: President’s rule in states

  If the President on governor’s report, or otherwise is satisfied that a situation has arisen in which government of a state can’t be carried on in accordance with the constitutional provisions, he may issue a proclamation to that effect.

• President may assume to himself all or any of the functions of the state government, or powers vested in governor, or anybody or authority in the state other than state legislature.
•  President may declare that powers of legislature of state shall be exercisable by parliament.
•  The president may make such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of the proclamation.
•  The president cannot, however, assume to himself, any of the powers vested in high court, or to suspend any constitutional provision relating to it.

The proclamation issued under article. The President may revoke or vary Article 356 through a subsequent proclamation.

Duration of proclamation under article 356

A proclamation relating to state emergency shall be laid before each house of parliament and unless both houses approve it by a resolution, it shall cease to have effect (except the one which revokes the earlier one) at the expiration of two months, unless in the meantime, it has been approved by resolutions of both houses of parliament. If approved, it will be valid for six months.

If any such proclamation is issued at the time when lok sabha is dissolved or the dissolution takes place during the period of two months and the proclamation is passed by the Rajya sabha but not by the lok sabha, it shall cease to operate at the expiry of 30 days from the date on which the new lok sabha meets, unless before the expiry of 30 days it has also been passed by the lok sabha.

Both houses of parliament can extend the duration of a proclamation by 6 months each time by passing resolutions approving its continuance. The proclamation can remain in operation for a maximum period of 3 years from the date it is issued under Article 356(1). Thereafter, the government must end the President’s rule and restore the normal constitutional machinery in the state.

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Article 356(5) [inserted by 44th amendment], however, lays down that beyond 1 year a proclamation can be continued only if emergency under article 352 were in operation in the whole of India or in the whole or any part of the concerned state, and the election commission certifies that it is not possible to hold elections to the state legislature. 

Exercise of legislative powers under proclamation issued under article 356 (article 357)

When the government makes a proclamation under Article 356(1), parliament exercises the powers of the state legislature.

 Parliament can confer on the president the power to make laws for the states. Parliament may also authorize the president to delegate such powers to any other authority as specified by him subject to such conditions as he may impose. The president may authorize (when the lok sabha is not in session), expenditure from the state consolidated fund pending its sanction by parliament.

Thus, the life of a law made by the parliament/ president during the operation of Article 356 does not come to an end automatically. An action by the state legislature is necessary to change these laws.

 Distinction between article 352 and article 356

•  Article 352 (‘national or internal emergency’) restricts central government’s intervention to a situation of war, external aggression, or armed rebellion. Article 356 (‘state emergency’) applies to a situation of failure of constitutional machinery in a state.
• That means under article 352, the relationship of all states with the centre undergoes a change.
• Under article. 356, the state legislature remains suspended and dissolved. Parliament makes laws for the state, and the governor administers the state on behalf of the president 
  In case of national emergency, the state governments and legislatures continue to function normally and exercise the powers assigned to them under the constitution. All that happens under article. 352 is that the centre gets concurrent powers of legislation in state matters and thus it can make the states follow a uniform all-India policy.
• While article. 352 affects fundamental rights, fundamental rights remain unaffected under article. 356.
• Parliament must approve a proclamation under Article 352 within a month and then every six months thereafter. it can continue indefinitely
• Parliament must approve the proclamation under Article 356 within two months and then every six months thereafter. The proclamation can remain in force for a maximum period of three years
  
                                    Judicial review of presidential action under article 356
• In spite of the broad ambit of the power under Article 356, one could challenge a presidential proclamation if the government exercised the power mala fide, on “constitutionally or legally prohibited” grounds, or for “extraneous or collateral purposes.”
  In the historic judgment – S.R. Bommai versUs Union of India; the Supreme Court has laid down various guidelines in regard to the use of article.
• The verdict concluded that the power of the President to dismiss a State government is not absolute.  The verdict said the President should exercise the power only after both Houses of Parliament approve the proclamation imposing his or her rule
   
• Also the Court made it amply clear that a Presidential Proclamation under Article 356 is subject to judicial review.
• The verdict also categorically ruled that the floor of the Assembly is the only forum that should test the majority of the government of the day.
  Sarkaria commission’s recommendations
                                              The Sarkaria Commission has recommended that the government use the president’s rule only in the event of a political crisis, internal subversion, physical breakdown, or non-compliance with constitutional directives of the union executive. The commission has pointed out that the government must secure parliament’s approval before imposing the president’s rule. 
• The commission inter alia recommended that the government should give a warning in specific terms to the erring state before invoking Article 356. The government should exhaust all alternatives to contain the situation and make all attempts to resolve the crisis at the state level. The government may dispense with such alternatives only in cases of extreme urgency. 
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