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• ARITCLE 356: Under this article the President is vested with wide discretionary
powers when he is satisfied that the government of the state cannot be carried on in
accordance with the provision of the Constitution of India. Imposition of Emergency
during failure of constitutional machinery in state is called Presidents Rule and non-
compliance by any state with direction of Union given in the exercise of its executive
power is an express ground to impose such a rule. Such a proclamation to be
operative must be placed before the House of Parliament and with its approval it is
valid for six months. In S.R. Bommai v. Union Of India, a full bench of the Karnataka
high court produced different opinion about the imposition of the President’s Rule in
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Karnataka, while in other states the court held that it was in violation of the
constitution and would have restored the original position.
Under the President’s Rule the President is empowered with powers to suspend or
dissolve the State legislative Assembly. The provisions made by the president in view
of the Rule are incidental or consequential and must be necessary to give effect to
objects of the proclamation. Article 357 provides the manner in which the legislative
powers are exercised under the proclamation issued under Article 356.
In Nishi Kanta Mondal v. State of W.B, it was held that the Act enacted, in view of the
provisions of clause (2) of Article 357, shall continue to remain in force in spite of the
revocation of the Proclamation unless the Act is repealed or re-enacted with or
without modifications by an Act of appropriate legislature.
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While the Proclamation of Financial Emergency is operative as per Article 360 of the
constitution, powers are vested in the President to give directions to states regarding
financial matters, to reduce salaries and allowance of government servants and also
reserve all money bills. The salaries of the higher official including judges of the
Supreme Court can also be altered to make the country financially stable at times of
crisis.
Abuse of Power:
It is clear that the power extended to the Union Parliament in the Proclamation of Emergency
must be used in rarest of the rare cases. However it is not so, the power given to the
President to be used in extraordinary circumstances is widely used for political benefits of
individuals rather than public interest. This abuse of power can easily lead to sedition of the
Indian democracy. In a number of cases the power was distorted with political
considerations, sometimes there is also self interest of the individual that lie behind the
decisions taken during manoeuvre of Emergency. The 44th amendment ensured that internal
disturbance would no longer be ground for Proclamation of Emergency, where it lead to the
worst abuse of Emergency power at National level in 1975 and continued till 1977.
The power under Article 356 has been used frequently in India since 1950, especially in
states like Uttar Pradesh, Kerela and Punjab. At one instance this President’s Rule was
imposed purely on political grounds to overthrow the ministry formed by a different party.
By the 42nd amendment in 1976, it was exemplified as it affected almost sixty clauses of the
constitution. Therefore there is demand for either deletion or making provisions to restrict
misuse of these provisions.
Also in Ram Manohar Lohia v. State of Bihar, the order of detention under the Defence of
India Rules was held to be illegal because the actual order of detention in the case was not
in terms of the rules. Proclamation of Emergency provisions are legitimate action but must
be applied only when the situation demands. It should be used cautiously to avoid
interruption in the constitutional mechanism. Therefore, limitations should be placed to bring
the actions under constitutional limit. Government is responsible for all the acts and thus
scrutiny of the basis of rules is a necessity to deter abuse of power for political or other
purpose other than social welfare. Where state government fails to follow the directions of
the central government, proclamation of Emergency cannot be imposed.
Emergency intervention in the country must be for short term and it should deal with
Emergency situations only. The decision making power must not be vested in few hands, this
may lead to biased ground of imposing Proclamation. Expertise from different areas of work
must be involved in decision making process. Thus it is crystal clear that to prevent abuse of
power during Proclamation of Emergency three things should be kept in mind i.e functioning
democracy, protection of human rights and Rule of Law.
A Relative Study:
The Indian Constitution equips the central government with powers to function while
operation of Proclamation of Emergency whether National Emergency, Emergency due to
failure of constitutional machinery in states or Financial Emergency. The President is vested
with wide discretionary powers, subject to constitutional validity of the same. Similarly in
the European countries the Emergency measures must not exceed that what the situation
demands and they cannot be inconsistent with the states other obligations as per under the
International law.
One of the duties while exercising the power under Article 352 is the protection of human
rights. However Article 19 is suspended during operation of the proclamation but as soon as
the Emergency ceases, these rights must be reinstated to the individuals. In Bangladesh it is
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recommended that there should be immediate restoration of fundamental and democratic
rights of people after the Emergency ceases to operate.
As stated in S.R. Bommai v. Union of India, that grounds of Proclamation of Emergency must
be reasonable and are subject to judicial review, the ancient Romans placed automatic limit
of six months on Emergency dictatorship. According to them existence of reasonable cause is
must and the same should be proved and justified.
The President can declare an Emergency mentioned in Article 352 of the Constitution of
India only on written advice of the Union Cabinet, with further approval of the House of
Parliament within one month in case of National Emergency and within two months in case
of the other two types of Emergencies, from the date of its imposition. Also, in Germany, the
President can declare Emergency on request of the Chancellor with approval of Federal
Council.
Conclusion:
Where the Constitution provides for execution of power which may lead to infringement of
fundamental rights of the individual during Emergency, judicially guaranteed by Constitution
of India, there must also be effective control mechanism to ensure limitation of this power
within the ambit of the Constitution. The validity of actions must be reviewed to deter
political gains and give way to public interest. Despite the abuse of power the Emergency
provisions still have a role to play under conditions prevailing in India, though it still remains
a controversial issue in the country.