Discuss about the State Emergency Provisions of the Constitution.

Discuss about the State Emergency Provisions of the Constitution.

Ans. Part XVIII of the Constitution speaks of emergency provisions. The emergency provisions therein can be classified into three categories: (a) Articles 352, 353, 354, 358 and 359 which relate to emergency proper -if we can use that expression, (b) Articles 355, 356 and 357 which deal with imposition of President’s rule in States in a certain situation and (c) Article 360 which speaks of financial emergency. Article 356 carries the marginal heading “Provisions in case of failure of constitutional machinery in States”. But neither clause (1) nor for that matter any other clause in the article employs the expression “failure of constitutional machinery”. On the other hand, the words used are similar to those occurring in article 355, namely, “a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution”. If the President is satisfied that such a situation has arisen, whether on the basis of a report received from the Governor of the State or otherwise, he may, by proclamation, take any or all of the three steps mentioned in sub-clauses (a), (b) and (c). It would be appropriate to read the entire clause (1) of article 356 at this stage:”(1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the 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: Provided that nothing in this clause shall authorize the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.”. Clause (2) says that such a Proclamation may be revoked or varied by a subsequent Proclamation. Clause (3) provides a check upon the power contained in clause (1). It says that “every Proclamation under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament” (The proviso to clause (3) provides certain details which it is not necessary to notice for the purpose of this paper). Clause (4) provides that “a Proclamation approved by both the Houses of Parliament shall, unless revoked, cease to operate on the expiration of a period of six months from the date of issue of the Proclamation (The 44th Amendment Act reduced the period in this clause from one year to six months). The proviso to clause (4), however, empowers such Proclamation to be extended, beyond six months subject to the approval of Parliament for a further period of six months at a time subject to an outer limit of three years. The second proviso to clause (4) provides for a specific situation which it is not necessary to refer to for the purpose of this paper. The third proviso to clause (4) is applicable to the State of Punjab and provides for a particular situation and is of no general relevance. Clause (5) has been substituted altogether by the 44th Amendment Act. The said clause was in fact inserted by the Constitution (38th) Amendment Act, 1975 with retrospective effect. The clause inserted by 38th Amendment Act barred judicial review of the Proclamation issued under clause (1). Inasmuch as, it has been substituted by the present clause (5), it is not necessary to deal with the language or effect of clause (5) as originally inserted. The present clause (5) provides certain details concerning the approval contemplated by clause (3) and is in fact a continuation of clause (4). Article 357 contains certain consequential provisions relating to exercise of legislative powers under Proclamation issued under article 356. It is not necessary to notice them in any detail. It is, however, necessary to refer to a few more articles relevant in this behalf. Article 365 which occurs in Part XIX – Miscellaneous – provides that “where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under -any-sf the provisions of this Constitution, it shall be lawful for the President to hotrthat a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution”. In the light of the language employed in article 365, namely, non-compliance with “directions given in the exercise of executive power of the Union under any of the provisions of this Constitution”, it is necessary to refer to articles 256 and 257 which provide for giving of such directions. The said articles occur in Chapter II – ‘Administrative Relations – General’ in Part XI which deals with relations between the Union and the States. Article 256 which carries the heading “Obligation of States and the Union” provides that “the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose”. Article 257 which carries the heading “Control of the Union over States in certain cases” provides in clause (1) that “the executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose”. Clause (2) of article 257 provides that “the executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance”. The proviso to clause (2) says that nothing in the said clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national waterways or to give appropriate directions to the States for their maintenance. Clause (3) says that the executive power of the Union to give directions extends to the measures to be taken for the protection of the Railways within the State. Clause (4) provides for reimbursement of the cost incurred by the State in complying with or carrying out the directions given under clauses (2) and (3). It is not really necessary to refer to articles 258 and 258A. article 258 empowers the President to entrust certain executive functions of the Union to the States with their consent. Similarly, article 258A provides for the States entrusting their executive functions to the Union with its consent. It is evident that article 355 insofar as it speaks of the obligation of the Union to protect the States from external aggression and internal disturbance appears to be influenced by article IV Section 4 of the United States Constitution which provides: “the United States shall guarantee to every State in this Union a republican form of government and shall protect each of them against invasion, and on application of the Legislature, or of the executive (when the Legislature cannot be convened) against domestic violence”. That part of article 355 which speaks of the obligation of the Union to ensure that the government of the States is carried on in accordance with the provisions of the Constitution appears to have been inspired both by article IV(4) of the U.S. Constitution and by section 61 of the Australian Constitution Act, which empowers the federal government to “maintain” the Constitution (see the Constituent Assembly debates -Vol. 9, Page 150 onwards), though the language was altered to make it more clear and specific, having regard to the Indian context. However, as stated hereinabove, our Constitution does not set out the manner in which the Union shall perform its obligation to protect the States against external aggression and internal disturbance. The American Constitution too does not prescribe the manner in which the federal government shall perform its three obligations contained in article IV(4).