Parliamentary Control Over the Proclamation of Emergency

There are three types of emergency situations envisaged in part XVIII of our Constitution, namely, National Emergency [1] , Emergency in states due to failure of the constitutional machinery there [2] and Financial emergency [3] . The normal pattern in emergencies is for the executive power to be expanded and exercised in its discretion in order to deal with the abnormal situation which has arisen [4] and also makes serious inroads into the federal structure of our country [5] and on the rights of the citizens. [6]

Although the phrase “proclamation of Emergency” refers only to the emergency as described in Article 352 [7] for the purposes of this essay the author shall also analyse the provision dealing with failure of constitutional mechanism in states because of how frequently those provisions have been misused. Provisions regarding financial emergency, however, remain beyond the scope of this essay.

The question before the author is “What is the extent of Parliamentary control over the proclamation and continuance of emergency?”

For the purpose of answering the above question the author shall first compare and contrast the bare provisions for proclamation and continuance of emergency in both Art 352 and Art 356. This needs to be done because the Supreme Court in some cases has had to consider the question of whether the power to dissolve legislative assemblies can be invoked even before the proclamation has been approved by both Houses of Parliament under Art 356(3) or not.

The next part deals with the answer to this question as it takes us closer to the understanding the extent of parliamentary control over proclamation of Emergency and whether a proclamation which hasn’t been approved is an “incomplete” proclamation. The last part of the paper

Proclamation and Continuance of Emergency under Articles 352 and 356 of the Constitution

Article 352 of the constitution as we read it today is a result of the forty-fourth amendment which was a made due to misuse of its provisions during the emergency declared by Indira Gandhi’s government. The forty-second amendment had made the action taken under Art 352 beyond the scope of judicial review [8] . The Forty-fourth amendment however has brought the proclamation of emergency under both judicial and legislative scrutiny. [9] Under clause (1) the proclamation can only be made by the president if he is satisfied that the conditions mention in this clause are being met, however, he can only make such a proclamation if he gets written communication from the cabinet that the cabinet has decided to issue such proclamation. [10]

Under the article, within a month, the proclamation has to be approved by both houses of Parliament by a clear majority of total membership and a two-thirds majority of those present and voting. [11] The double majority clause in Article 352 was also brought in by the forty-forth amendment and has made the procedure for approval of proclamation is analogous to that for an Amendment under Article 368(2). [12] This makes sense because a proclamation of emergency can be viewed as temporary amendment of the constitution and therefore it is logical that the same method be used to approve it. If Lok Sabha has been dissolved in the meanwhile the proclamation has to approved within a month of the newly elected House being convened. The proclamation so approved has to reviewed and approved afresh every six months. [13]

Clause (7) lays down that Lok Sabha passes a resolution disapproving the continuance at any time, the President must revoke the proclamation, and if the resolution is one of variation of the proclamation the President must issue a proclamation accordingly. Clause (8) provides for a special sitting of Lok Sabha to be convened if a notice of disapproval has been given in writing by not less than one-tenth of the membership.

From a bear reading of the provisions of the Article, it is clear that once a proclamation has been made the Parliament has immense powers regarding its continuance. Clauses (7) and (8) basically lay down that the parliament can at any time bring an end to the continuance of emergency, however this was not the case prior to the 44th Amendment because at that time there was no limit on the continuance of the Proclamation, once it had received the approval of both Houses of Parliament, unless and until the President issued a Proclamation of revocation. [14]

The Parliament may not have much control with regards to the initial proclamation of emergency but there after the continuance of such an emergency is entirely in the hands of the Parliament and therefore

The power under Article 356 flows from the responsibility enumerated in art 355, which lays down a duty on the Union to protect every state against external aggression and internal disturbance and to ensure that governance is carried on in accordance with the Provisions of the Constitution.

Even in Article 356 the proclamation has to be made by the President [15] on receipt of a report by the Governor of the state or otherwise. The proclamation has to be ratified within two months by both Houses of Parliament. If the Lok Sabha stands dissolved, the proclamation ceases to operate at the end of thirty days after the reconstitution of the Lok Sabha, unless it is approved by the reconstituted body.

A proclamation, unless revoked, will cease to operate at the end of six months from its date of issue. Six-monthly extensions are permitted [16] , however, with the qualification that extensions beyond one year upto a total of three years are permissible provided that the criteria mentioned in Article 356(5) are satisfied, namely, a proclamation of emergency is in operation in the whole of India, or, in the whole or any part of the state at the time when the resolution for extension is passed, and second, the Election Commission certifies that the extension is necessary on account of the difficulties in holding general elections to the state legislative assemblies concerned. [17]

As is clear from the a simple reading of the text of the Article, the parliament has much more limited powers with regards to the continuance of emergency under art 356 as compared to under art 352. Firstly, the proclamation can stay in force for a period of two months without the approval of Parliament unlike the one month as under Article 352.

Secondly, even the parliament cannot keep the proclamation in continuance beyond a period of one year unless the conditions laid down in clause (5) are satisfied; and in any case the proclamation cannot extend beyond a period of three years.

The parliament also has little power with regard to ending of the proclamation before its expiry once it has been approved as there are no provisions similar clause (7) or (8) of Article 352.

Powers of President before Proclamation under 356(1) has been approved

The question to be answered here is whether the President can exercise all the powers open to him under Article 356(1) before the proclamation has been approved by the Parliament?

This question may seen foolish because of the reason that the Executive has been given such wide powers under the emergency provisions solely so that these powers can be used quickly to deal with an “emergency” situation. The parliament always has the option of revoking the action taken by the President in such situations at a later stage; however, there are some cases where the action taken in exercise of the powers under Article 356(1) may be of irrevocable nature, for example the dissolution of the legislative assembly [18] .

In State of Rajasthan v Union of India [19] the Supreme Court laid down that a proclamation under Article 356(1) had immediate force and effect and was not dependent on the approval of both Houses of Parliament and therefore the President can exercise all powers available to him. [20] And also that It was further held that even if the proclamation is disapproved within the period of two months it remains valid for two months and that even in the case where both the Houses do not approve or disapprove the proclamation, the Assembly which may have been dissolved does not revive. [21]

However the decision of the Supreme court in the Bomai [22] case over-ruled this decision and laid down that…………. that State legislative assembly cannot be dissolved merely upon issue of Presidential proclamation and before Parliamentary approval is accorded as required by Article 356(3). The plain language of the provision does not impose any such requirement. The impelling consideration for reading into the article such limitation was the anxiety to place a check on the executive and also to ensure that grant of final relief does not become difficult if not infructuous.

The Sakaria Commission also deals with this question in its report and has come to same conclusion as the court did in Bomai. They are of the view that if the President can dissolve the legislative assembly before the Parliament has had a chance to consider the proclamation, then the check on Executive power provided in Clause (3) would be wholly ineffective due to the irrevocable nature of such a proclamation. [23] They also recommended that the Article be amended to this effect. The commission also recommended that clauses similar to clause (7) and (8) of Article 352 be added to Article 356 in order to have more effective parliamentary control over the extraordinary powers under Article 356. [24]

From this it is possible to infer that the proclamation under Article 352(1) is not a “complete” one until approval of both Houses of Parliament; atleast to the extent that the President in exercising his powers cannot take any action which is irrevocable in nature.

Conclusion

After analysing the various provisions of Articles 352 and 356 the author has come to a conclusive answer to the question presented.

Firstly, under the provisions of Article 352 and 356 there is no direct control of Parliament with regard to proclamation of emergency. The proclamation under both articles can only be made by the President and that too only on the advice of the Council of Ministers. However, an indirect control can be inferred from the fact that the Council of Ministers is itself accountable to the Parliament.

Also, it can be said that a proclamation until it has approval of Parliament is in some way “incomplete”; because the executive in exercise of its powers cannot take any action which may be of “irrevocable” nature. Although this may seem ironic in light of the fact that this part of the constitution deals with “Emergency” provisions, however, this is necessary because otherwise the checks on the Executive’s powers would be rendered completely ineffective.

With regard to continuance of an emergency the Parliament has much wider powers. Under Clause (7) the parliament under Article 352 can at anytime get the Proclamation revoked or varied. And under clause (8) a special sitting of Lok Sabha can be convened if a notice of disapproval is signed by at least one-tenth of the membership of the house. All in all, the amendments made by the forty-fourth amendment have made the provisions of Article virtually air tight to any abuse of power, by providing Parliament with absolute control over the continuation of a proclamation of emergency.

However, the control of Parliament over continuance of a proclamation made under Article 356 is much lesser. This is ironic as of the two provisions the latter is the one which is much more frequently used and abused. The continuance in any case cannot be more than three years and even to continue it for a period of over one year conditions under clause (5) have to be met. This however is not surprising as Article 356 deals with “breakdown of Constitutional Mechanism in States” and as such it should be the endeavour of the government to restore the functioning of the mechanism rather than delay it indefinitely by continuance of Emergency. The author however agrees with the view of the Sarkaria Committee Report that clauses similar to clauses (7) and (8) of Article 352 need to be added to Article 356.