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Emergency Provisions In Indian Constitution – An In-Depth Look

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Part XVIII of the Indian Constitution contains the provisions of three types of Emergencies— (1) Article 352: National Emergency, (2) Article 356: State Emergency or President’s Rule, (3) Article 360: Financial Emergency.

In this article, all these three types of Emergencies have been discussed elaborately.

National Emergency Provisions in Indian Constitution

Article 352 of the Indian Constitution contains the provisions relating to the National Emergency. The provisions of the National Emergency are provided in the Constitution to make a temporary arrangement to meet an extraordinary circumstance. These provisions have no application in the usual peace-time. Nevertheless, these provisions, especially for their serious consequences, are often regarded as out of place in a democratic and federal setup. It can be looked into that such Emergency provisions do not exist in the Constitutions of other federations like Canada, the USA, and Australia. But, that does not mean that they dealt with World Wars- I and II by adopting ordinary peace-time arrangements to run the functions of the Governmental organs. Renowned British jurist and Constitutional theorist AV Dicey stated that federalism is a weak form of Government because of the distribution of powers between the Centre and State units. Nevertheless, in due course of time, it has been well settled that even the federal forms of Government can be potent sometimes than the unitary forms of Government, and the federations like the USA, Canada, and Australia have proved it time and again.

However, in the case of war, external aggressions, or other types of exigencies, the peace-time arrangements to run the functions of the Governmental organs as envisioned in the Constitution to be the fundamental principles of the Government are practically incapable of dealing with such exigencies. Extraordinary circumstances always demand extraordinary solutions. It is very evident that there are fundamental incompatibilities between requirements of the peace-time situations and war-time situations. Jhon A. Corwin, an American politician and jurist, well-noted that–

“Federalism as a system of counterpoise is no longer viable in the field of war-making.”[1]

The justification behind it was ideally given by the famous Australian academician and jurist Sir KC Wheare in the following words—

“While it is the essence of federalism to be pluralistic, it is the essence of the war power to be unitary, to be centralized and regimented, to be, in the modern word, ‘totalitarian’. There is an immediate contrast between the multiplicity of federalism with its divisions of authority, and the unity necessary if war is to be conducted efficiently… War leads to the transformation of a federal government into a unified state, with its plurality and multiplicity of jurisdictions co-ordinated for the unitary and totalitarian process of war.”[2]

History witnessed that Emergency situations had to be met by the arrangements deviating from the peace-time federal and democratic arrangements every time. Despite the similarities in dealing with Emergency situations, India has one fundamental difference compared to the other federations like the USA, Canada, and Australia. In all federations other than India, it can be noticed that such extraordinary situations were met by the interpretations given by the Courts from time to time. That is to say that the ultimate authority lies in the Courts to decide whether an Emergency exists (due to war, external aggression, or any other grounds) and, if so, how far the deviations from the usual Constitutional scheme can be allowed to meet such a situation. In those federations, the judiciary has to determine the legitimacy or permissibility of the actions of the Central Executive or Legislature during this time, but no part of the Constitution specifically deals with it.

Accordingly, necessary adjustments in the Centre-State power balance in response to the Emergency are effectuated through the process of judicial interpretation. Significantly, India has also dealt with such a situation, but in a different approach. The framers of the Indian Constitution felt it necessary to lay down the Emergency provisions in the Constitution itself in order to avert the ambiguities or confusions, rather than leaving it for judicial discretions. The reason is that the process followed by the other federations is somewhat uncertain as no one can be sure beforehand regarding which way the judicial decisions may go in respect of any disputed fact or situation, and the area of operation of the Central Executive and Legislature shall be solely dependent on the Court’s takes. Another reason for incorporating the Emergency provisions in the Indian Constitution is India’s elaborate distribution of powers scheme compared to the other federations. Even the Indian Constitution contains financial Emergency, which is not in the other federations. Comparing both types of mechanisms in India as well as in the other federations, it can be noticed—

“In the other federations, the powers of the Centre during emergency extend on sufferance of the judiciary. The courts have to agree to what extent the Centre can expand its powers. This is, therefore, a built-in control mechanism. In India, the control mechanism over the executive and the Parliament is rather weak during an emergency, as it rests, primarily, with Parliament and, secondarily, with the judiciary.”[3]

As of now, this National Emergency was declared three times in India— first in 1962 during the Indo-China war, second in 1971 during the Indo-Pak war, and lastly in 1975 due to internal disturbances.

This Emergency provision in Indian Constitution has been discussed in the following points—

Grounds on which Article 352 can be invoked

Article 352(1) of the Indian Constitution reads out—

“If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether, by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.”

As per the above provision, the President of India can issue a Proclamation under Article 352 of the Constitution declaring a National Emergency if he is satisfied that there is an imminent danger on the national security of the whole of the territory of India or any specific part thereof. However, the President is not bound to invoke this Article only upon the actual occurrence of any such event endangering the security of India or any part thereof. The explanation provided under Article 352(1) states that the President may declare National Emergency in India or any specific part thereof even if any such event endangering the security of India has not taken place on its face. The satisfaction of the President in respect of the likelihood of the occurrence of any such incident that may stake the national security is also sufficient to invoke this Article. Thus the President may act either being satisfied with the presence of such incident or apprehending any such imminent danger on the security of the nation or any particular part of it beforehand.

In the provision as given under Article 352(1), it is clarified that National Emergency can be invoked either in the whole of India or any specific part of India. That is to say that even if the security of any particular part of India has been threatened, National Emergency can be proclaimed in that specific part also, and it does not need to extend to all over India.

Here the satisfaction of the President in respect of the existence of any grave Emergency under this Article can be—

  1. War,
  2. External aggression,
  3. Armed rebellion.

Before 1978, National Emergency could be proclaimed in case of ‘internal disturbances’. In 1975, this provision was widely misused, and the Emergency was imposed on this ground. The expression ‘internal disturbances’ was so vast and vague that it could convey different meanings. There were sufficient scopes of its misuse, and many other grounds could be entered into the said expression. Even the Emergency could be imposed on any such ground that might not practically pose any serious threat to the nation’s security or any of its parts, solely because of political reasons. In order to restrict the misuse of this provision, the 44th Constitutional Amendment Act, 1978 was passed, and this expression was substituted by ‘armed rebellion’. After 1978, along with war and external aggression, National Emergency can be proclaimed only in case of armed rebellion, not on any other ground. The said amendment was essential because the Proclamation of the National Emergency has grave impacts on the fundamental rights of people as well as the federal structure of the Indian polity.

The Proclamation of National Emergency in 1978 also forced the Parliament to include one more safeguard to restrict the arbitrary and indiscriminate invocation of Article 352. It was witnessed in the 1975 Emergency that the President invoked Article 352 on the recommendation of the Prime Minister alone. Later on, after the Presidential Proclamation, the Union Cabinet Ministers were presented with a Fait Accompli.

In the 44th Constitutional Amendment, clause (3) was introduced. It provided that the President can only proclaim National Emergency under clause (1) or vary (though not revoke) by subsequent Proclamation under clause (2) if the Union Cabinet that consists of Prime Minister and other Ministers of Cabinet rank appointed under Article 75 recommends the issue of the same communicating to him in writing. The purpose of this amendment was to prevent the power of the President from proclaiming an Emergency on the aid and advice of the Prime Minister alone. The President can proclaim National Emergency only on the collective aid and advice of the Union Cabinet, not on that of the Prime Minister alone. That is to say, the decision of the issue of Presidential Proclamation invoking Article 352 must come from the Union Cabinet collectively, not by the Prime Minister alone without consulting the Cabinet.

Different Proclamations on different grounds

Article 352(9) empowers the President to issue different Proclamations on different grounds like war, external aggression, or armed rebellion, or imminent danger of war, external aggression, or armed rebellion irrespective of the Proclamation already issued under clause (1) that is in operation. That is to say, even if there is a Proclamation issued under clause (1) on a particular ground that is already in operation, it shall not restrict the President to issue another Proclamation on another ground. Suppose a Proclamation is issued under clause (1) already in force. In that case, the President may issue other Proclamations also on grounds other than the ground on which the earlier Proclamation is in operation under clause (9) of this Article. If more than one Proclamation is in operation, the President can likewise issue other Proclamations on different grounds other than the grounds on which the earlier Proclamations are already in operation under this clause. In such cases, all the pre-existing Proclamation or more than one Proclamation as the case may be, and the later issued Proclamations shall continue to be operative simultaneously.

This provision was inserted by the 38th  Constitutional Amendment Act, 1975, to remove all the legal hurdles as to declaring different Emergencies on different grounds and make them operational simultaneously. The same incident happened in 1975 when National Emergency was declared on the ground of internal disturbances (repealed by 44th Amendment), although another Emergency was already in operation at that time on the ground of external aggression declared in 1971.  The 44th Amendment did not alter this provision.

  • Illustration – The President issues a Proclamation of National Emergency on the ground of war under Article 352(1) on December 1, 2021, and the same is confirmed to continue after the approval of the Parliament to operate until June 1, 2022. Under clause (9), the President can also issue different Proclamations on different grounds like external aggression or armed rebellion during this period from December 1, 2021, to June 1, 2022. All the Proclamation thus issued during this period shall be operative simultaneously without affecting each other.

Parliamentary ratification of the Presidential Proclamation

Here, it is settled from the preceding discussion that being satisfied with the fact that a grave Emergency exists which may disrupt the security of the whole of India or any part of the Indian territory, whether, by external war or aggression, the President may issue a Proclamation under Article 352(1) in the whole India, or any part of India. However, the Presidential Proclamation alone is not sufficient to keep the same Proclamation operative for any period of more than one month. Clause (4) lays down the provisions for mandatory Parliamentary ratification of the Proclamation issued by the President within a given time frame. That is to say that the Proclamation must be approved by the resolutions passed by both Houses of Parliament subsequent to the invocation of Article 352 before the expiry of one month from the date the Proclamation is issued in order to keep it operative beyond that initial period of one month. To summarise the provision, Parliamentary ratification consists of two primary correlated conditions—

  • It must be laid before the each House of the Parliament within one month from the date of its issue, and
  • It must be approved by the resolutions passed by the each House of Parliament within the aforesaid time frame.

Any Proclamation thus issued has to be laid before each House of the Parliament; else, the said Proclamation shall cease to operate at the expiry of one month from the date the Proclamation is issued. Even in case the Proclamation has been laid before each House, but no resolutions have been passed ratifying the same within the said time frame of one month, it shall also become inoperative on the expiry of that same time frame.

Therefore, non-fulfilment of either of the correlated conditions described above dealing with Parliamentary ratification leads to automatic suspension of the Proclamation on the expiry of the stipulated time frame.

According to Article 352(2), any such Proclamation issued under clause (1) can be revoked or varied by a subsequent Proclamation. A Proclamation thus revoking or varying an earlier Proclamation does not require Parliamentary ratification, unlike a Proclamation issued under clause (1). However, the President can issue a subsequent Proclamation varying (not revoking) an earlier Proclamation only on the recommendation of the Union Cabinet, communicating to him in writing, although Parliamentary ratification is not necessary in this regard. It can be said that as per clause (2), a Proclamation varying an earlier Proclamation issued under clause (1) can also be revoked under this same clause.

Illustration

  1. The President makes a Proclamation under Article 352(1) in the whole of India or any part thereof on March 1, 2021, owing to some reasons. The same has to be laid before the each House of Parliament before April 1, 2021. Then each House shall pass resolutions approving the Proclamation before April 1 to keep it in force beyond the date, ie., after April 1 onwards. If the Proclamation fails to get approval from the each House of Parliament before April 1, it shall cease to operate from April 2 onwards.
  2. In the illustration- (a): On May 15, 2021, if a subsequent Proclamation is issued under Article 352(2) revoking the earlier Proclamation (issued on March 1, 2021), that earlier Proclamation shall cease to operate with immediate effect, and no Parliamentary ratification is required to enforce the revocation of the Proclamation. In such a case, there is no question regarding the Parliamentary approval and other procedures associated with the earlier Proclamation as the same has already become inoperative.

A situation may arise when a Proclamation is issued under Article 352(1); at that time, the House of People (Lok Sabha) is dissolved, or dissolution of the House of People occurs in the meantime of prescribed one month time period by the end of which the same Proclamation must be approved to keep it in force. The proviso of clause (4) talks about such a circumstance and gives the requisite solution. In such cases, the Council of States (Rajya Sabha) shall be authorized to pass a resolution ratifying the Proclamation within the one month to keep it operative beyond the specified period, although the House of People having been already or subsequently dissolved does not ratify the same at the same time. However, the Proclamation thus approved by only the Council of States can remain in force until the expiry of thirty days from the date the House of People first sits after its reconstitution. That is to say that the said Proclamation shall become automatically inoperative on the expiry of thirty days time frame from the reconstitution of the House of People if no resolution in the meantime has been passed by the same House ratifying the same Proclamation. Here, the thirty-day time frame is counted from the date the House of People sits for the first time after its reconstitution. To summarise the provision, a Proclamation under Article 352, which only the Upper House of the Parliament approves in the absence of the approval of Lower House, can only remain in force beyond the time frame of thirty days if it also gets approval from the Lower House after the House resumes its normal functioning.

  • Illustration: The President makes a Proclamation under Article 352(1) on March 1, 2021, in the whole of India or any part thereof owing to some reasons. In the meantime, on March 3, 2021, the House of People has been dissolved without approving the Proclamation. In the meantime, the Proclamation gets approval from the Council of States on March 20, only to continue to remain in operation beyond April 1, 2021. On April 20, the fresh election is held, and the House of People gets reconstituted, and it first sits on May 1. The Proclamation has to be approved by the House of People soon after May 1, before June 1, to continue to remain in force beyond the date, e., after June 1 onwards. If the Proclamation fails to get approval from the House of People before June 1, the Proclamation shall cease to operate from June 2 onwards.

Continuation of the Proclamation after its ratification by Parliament

A Proclamation, once approved by the Parliament, cannot remain in force for an indefinite period. Only if the circumstances demand, it can be continued beyond the prescribed period only in keeping view of the national interest. Article 352(5) lays emphasis on the periodic Parliamentary ratification to keep the same Proclamation operative for a further period of a maximum of six months. According to clause (5), a Proclamation under clause (1), once approved by the both Houses of Parliament, can remain in force until the expiry of a maximum of six months, counting from the date of passing of second of the resolutions approving the Proclamation under clause (4) if it has not been revoked before the said time frame. Here second of the resolutions means the resolution approving the Proclamation that has been passed later by any other Houses of Parliament under clause (4). For example, the House of People passes such a resolution on September 10, 2021, approving the Proclamation issued on September 1, 2021. The same Proclamation is also approved later by the Council of States by passing another resolution on September 20, 2021. The six months time frame referred to in clause (5) shall be counted from September 20 only, not September 10.

Thus, although approved by the Parliament, the Proclamation (if not revoked earlier) shall not remain in force and become automatically inoperative beyond the maximum period of six months unless the same Proclamation has been laid again before each House of Parliament and gets approval for further continuation within the same prescribed time frame of six months. That is to say, that to continue the life of a Proclamation even after the expiry of the initial six months counting from the date of its issue, each House of Parliament has to pass resolutions approving the same Proclamation for a further continuation within the same six months time frame as discussed above. However, again the maximum life that can be given to the Proclamation by approving its further continuation is a maximum period of six months, counting from the date it would otherwise have ceased to operate (i.e., from the very next day soon after the expiry of the initial six months time frame).

Therefore, once the original Proclamation gets Parliamentary approval for further continuation in the manner described above, it shall get a new life of further six months counting from the date it would otherwise have ceased to be operative.

On the other hand, as per Article 352(2), if a Presidential Proclamation subsequent to the continued Proclamation has been issued to revoke  the continued Proclamation at any time before the expiry of any maximum period of six months as described above, that continued Proclamation shall cease to operate with immediate effect without waiting for the expiry of the six months time frame. A continued Proclamation can also be varied under the said clause.

Note: The continued Proclamations are not any different Proclamations within the meaning of Article 352(2) because those are approved by the Parliament for the continuation of the original Proclamation. Those are simply the same as the original Proclamation issued under clause (1).

Illustrations

  1. A Presidential Proclamation under Article 352(1) has been issued in the whole of India, or any part thereof, on June 1, 2021. The House of People has passed a resolution approving the Proclamation on June 10, 2021, and later the same Proclamation has been approved by the Council of States by a resolution on June 20. Thus it is set to remain in force for a maximum period of six months (unless revoked earlier) from the date of passing of the second of the resolutions, e., from June 20 until December 20, 2021. This Proclamation shall automatically cease to operate from December 20, 2021, onwards. Then if both the Houses of Parliament again pass resolutions by November 1, 2021, approving its further continuation, the Proclamation shall not cease to operate on December 20; instead, it shall get a new life for a maximum period of another six months counting from December 20 (the date on which the Proclamation would have ceased to operate otherwise). That is to say that the renewed or continued Proclamation (unless revoked earlier) shall remain operative until June 20, 2022 (starting from December 20, 2021).
  2. In the illustration- (a): On August 10, 2021, if a Presidential Proclamation has been issued to revoke the earlier Proclamation (issued on June 20, 2021), the earlier Proclamation shall cease to operate with immediate effect, without waiting for its automatic expiry on December 1, 2021. In that case, there shall be no question regarding the Parliamentary approval for further continuation of the same earlier Proclamation.
  3. In the illustration- (a), On February 1, 2022, if a Presidential Proclamation has been issued to revoke the continued Proclamation that the Parliament has later approved (by November 1, 2021) for the further continuation of the original Proclamation (after December 20, 2021), the same continued Proclamation shall similarly cease to operate with immediate effect, without waiting for its automatic expiry on June 20, 2022.

Again, a situation may take place when the House of People has been dissolved during in any period of the initial six months, and the force of the original Proclamation is about to cease on the expiry of the same time frame, but the circumstances in the country demand the Proclamation be in force for another six months. In that case, as per the proviso of Article 352(4), the Council of States (Rajya Sabha) shall be authorized to pass a resolution approving the continuation of the same original Proclamation, although the House of People has not approved it. However, the continuation of the Proclamation must be approved by the House of People before thirty days, counting from the date it first sits after its reconstitution, else it shall cease to operate on the expiry of the same stipulated period of thirty days.

  • Illustration: A Presidential Proclamation under Article 356(1) has been issued in the whole of India or any part of India on June 1, 2021. The House of People has passed a resolution approving the Proclamation on June 10, 2021, and later the same Proclamation has been approved by the Council of States by a resolution on June 20. Then it can operate up to a maximum period of six months, e., from June 20 until December 20, 2021, as per clause (4). The circumstances in the country have not yet improved, and the Proclamation needs to be continued until June 20, 2022 (another six months from December 1, 2021). In the meantime, the House of People has been dissolved on October 15, 2021, without approving the continuation of the original Proclamation. As the force of the original Proclamation is about to cease, the Parliament must approve its continuation before December 20. The Council of States passes a resolution ratifying the continuation on November 30, in the absence of the approval of the House of People. Thus the same Proclamation continues to be in force. On January 1, 2022, the House of People gets reconstituted. Then it must approve the continuation of that original Proclamation before January 31, 2022 (thirty days from the date of its reconstitution) to keep the continued Proclamation operative until June 20, 2022. Non-fulfilment of the condition stated above leads to the cessation of the continued Proclamation on January 31, 2022.

Requirement of Parliamentary Ratification by Special Majority in both Houses

Before the 44th Constitutional Amendment, the National Emergency could be approved by the both Houses of Parliament in a Simple Majority. After the 1975 Emergency, Article 352(6) was introduced by 44th Amendment as a wholesome safeguard to the use of this provision. It was contended that the Proclamation of National Emergency involves several consequences, some of which viz. suspension of fundamental rights, conversion of the federal structure of polity to unitary, indirectly results in the amendment of the Constitution for the time the Emergency remains in force. For this reason, a Presidential Proclamation invoking National Emergency has to be approved by the each House of the Parliament according to the similar procedure followed in case of a Constitutional Amendment. Clause (6) thus mandates the Parliament to approve a Presidential Proclamation by Special Majority, in contrast to the Simple Majority in case of its initial approval for continuation beyond one month as described in clause (4), as well as its further continuation beyond six months as described in clause (5). Special Majority denotes the resolutions that have to be passed by each House of Parliament only by a majority of the total membership of that House and by a majority of not less than 2/3rd of the member of that House present and voting.

Limitations as to the continuation of National Emergency

Unlike State Emergency, there are no specific time limitations prescribed as to the continuation of a National Emergency, more than the initial six months time frame. It can be continued for even an indefinite period until the President is satisfied that the threats on the national security no more exist.

Modes of Suspension of National Emergency at a glance

Summarising the provisions of Article 352 mentioned above, the modes of suspension of a Proclamation of National Emergency made under this Article are as follows—

  1. In case the Proclamation soon after its issue is not laid before the each House of Parliament before the expiry of one month from the date of issue of the Proclamation or even if it is laid but not approved by both or any of the Houses before the same prescribed time frame.
  2. In case six months from the date the second of the resolutions was passed, no further resolutions are passed by both or any of the Houses of Parliament approving the continuation of the same Proclamation.
  3. In case of the dissolution of the House of People during any time of either of the Parliamentary ratifications as mentioned under clauses (4) and (5) of this Article, if not ratified by the House of People within thirty days from the date of its first sitting after reconstitution of the House.
  4. Revocation or variation of a Proclamation without the approval of Parliament: In case the President issues a subsequent Proclamation under Article 352(2) revoking or varying an earlier Proclamation (issued under clause (1)) without Parliamentary ratification during the operational period of the same Proclamation. This power of the President includes revoking or varying a continued Proclamation (made under clause (5)) also.
  5. Special provision containing revocation of a Proclamation with the approval of the House of People: Besides the provision of Article 352(2), a Proclamation of National Emergency (issued under clause (1)), (including a continued Proclamation thereof), despite being approved by each House of Parliament, or a Proclamation varying an earlier Proclamation (including a continued Proclamation thereof) can be revoked by the President with the approval of the House of People in that regard as per clause (7). In case the House of People passes a resolution disapproving the Proclamation of Emergency issued under clause (1), or the Proclamation varying an earlier Proclamation, the President shall be bound to revoke such Proclamation accordingly. In order to move a resolution for this purpose, a minimum of 1/10th of the total members of the Lok Sabha is required under clause (8) to give a signed notice conveying their intention in that regard to the Speaker, in case the Lok Sabha is in session or, to the President in case the Lok Sabha is not in session. Further, this same clause requires that a special sitting of the House shall be held for considering such resolutions within fourteen days, counting from the date the Speaker or the President as the case may be, receives that notice.

These two significant clauses (i.e., clauses (7) and (8) of Article 352) were inserted by the 44th Constitutional Amendment Act, 1978 to provide safeguards to the monopoly power of the Central Executive to take every final decision concerning the invocation, continuation, variation, or revocation of the Proclamation National Emergency. Before the 44th Amendment, it was entirely up to the Central Executive to decide when and how a Proclamation shall be revoked, varied, continued, etc. The House of People did not have any say in that decision. The 44th Amendment conferred power to the House of People to pass a resolution by a simple majority of the members of the House present and voting, disapproving any such Proclamation. Moreover, if the House of People passes such a resolution, the President shall be bound to revoke the Proclamation accordingly. On the other hand, it is not also up to the Executive or Government to decide as to when and how a session in the House of People shall be convened to consider the matter relating to moving resolutions disapproving any Proclamation because clause (8) stipulates that the session of House of People for that purpose must be convened within the prescribed period of fourteen days. It is the obligation of the Speaker or the President to call upon a session in the House to consider that matter upon receiving the signed notice.

Consequences of Proclamation of National Emergency under Article 352

During the operation of a National Emergency, the Union Parliament becomes entitled to make any laws to meet the extraordinary circumstances that arise when an Emergency is in operation without being trammeled by the usual scheme of distribution of powers. The ordinary scheme of distribution of legislative, executive, and revenue powers between the Centre and the States undergoes drastic changes. Although the State Legislatures continue to function during such Proclamation, the Parliament becomes omnipotent to do the things that are even exclusively in the State’s domain to meet the exigencies arising out of an Emergency. Thus, during the National Emergency, the peace-time arrangement of Centre-State relations gets suspended. That is to say that Article 352 conspicuously modifies the federal structure of the Indian Constitution. It also has major effects on the fundamental rights guaranteed in Part III. A Proclamation of National Emergency can have the following significant consequences—

I) Power of Parliament to make laws on subjects enumerated in the State List

Article 250 of the Constitution lays down the special provision regarding it. The Parliament can make the laws for the whole of India or any part thereof. As per the 101st Constitutional Amendment Act, 2016, the Parliament can also make laws in respect of the Goods and Services Tax provided under Article 246A. As per Article 250(1), although the State Legislatures continue to function and make laws in respect of the matters enumerated in State List and Concurrent List of Seventh Schedule, the Union Parliament becomes empowered to make any laws even in respect of the matters exclusively enumerated in the State List. That is to say that the Parliament can make any laws in respect of any subject enumerated in any of the three Lists mentioned in the Seventh Schedule.

However, Article 250(2) states that such laws made by the Parliament for which it would not have been competent to make, but for the issue of the Proclamation, the Parliament becomes competent to make, to the extent of such incompetency shall automatically cease to be in force on the expiry of six months counting from the date the Proclamation has ceased to operate. Therefore, the life of the laws made by the Parliament for the States in respect of subjects enumerated in the State List during the operation of Emergency shall end on the expiry of six months after the Proclamation has ceased to be in force. It is evident that the power of the Parliament to make such laws under Article 250(1) automatically comes to an end immediately on the date of the expiry of the Emergency.

The last part of Article 250(2) also stipulates one exception to the general rule as described above. It states that the actions already taken under such laws made under this Article or proceedings initiated thereunder before the laws become inoperative shall not be affected even after the laws have ceased to be operative on the expiry of said six-month time frame. For example, during the operation of a National Emergency, the Parliament makes a law providing for the Preventive detention of persons who commit a particular act. Even though the Parliament usually is not competent to make this particular law (since the law is made on a matter which falls in the State List), it becomes competent to make the same law only for the operation of the Emergency. This law will definitely become inoperative after the expiry of six-months from the date the Proclamation of the Emergency will cease to be in force. Yet, notwithstanding the fact that the law will become inoperative after the said six-months, actions that have been initiated against the persons under the said law during the operation of Emergency will not be affected in any manner due to the inoperation of that law. That is to say, the persons against whom actions have been initiated under that law (which in fact will become inoperative after the expiry of the six-months time frame) during the operation of Emergency can be prosecuted, and criminal proceedings can be carried on even after the law becoming inoperative at the expiry of that said six-months time frame.

  • Illustration: The President makes a Proclamation on June 20, 2021, under Article 352 proclaiming National Emergency in the whole of India or any part thereof, and the same gets approval of the Parliament on July 1. During the operation of the Emergency, the Parliament makes some laws specifically for the States of West Bengal, Odisha, Assam, Tripura, and Meghalaya. The operation of the Emergency comes to an end on January 1, 2022. After January 1, the Parliament is no longer entitled to make further laws in respect of the State matters. However, the laws already made by it during the operation of the Emergency shall only remain in force until July 1, 2022. After July 1, 2022, the life of such laws shall automatically come to an end. As an exception, the actions already taken under such laws made under this Article or proceedings initiated thereunder before the laws become inoperative on July 1, 2022, shall not be affected even after the laws have ceased to be operative.

II) Overriding effect of the Parliamentary laws during the operation of Emergency

Another notable provision is Article 251, which states that the legislations made by the Union Parliament shall prevail over the State legislations so long as the National Emergency is in operation. It is already discussed that, unlike State Emergency, the State Legislatures does not get dissolved or kept under suspended animation; instead, it continues to function as per its usual way of functioning and can make the laws on the subjects enumerated in State as well as Concurrent Lists during the operation of the National Emergency. However, Article 251 contains that if any conflict arises between a law made by a State Legislature on a subject of List II or List III and a law made by Union Parliament on the same subject, the law made by the Union Parliament shall prevail over the law made by the State Legislature. Thus during the operation of the Emergency, if any law or any particular provision thereof made by the State Legislature is found to be repugnant to the law made by the Parliament in that regard, the law made by the State Legislature to the extent of such repugnancy shall be inoperative, so long as the law made by the Parliament shall remain in force.

III) Effect on the exercise of executive powers by the States and the certain extraordinary powers of the Centre and Parliament

In regard to the executive powers of the States, the Centre becomes entitled to give directions to the States in the manner in which the executive power thereof is to be exercised as per Article 353(a). Article 353(b) states that the power of the Parliament to make laws on any matters includes the power to make laws conferring powers or imposing duties, or authorizing the conferring of powers and imposition of duties upon the Union, its officers, or any other authorities of Union in respect of that matter which is not enumerated in the Union List, i.e., which is either exclusively in the State List, or the Concurrent List.

IV) Special provision in order to prevent undesirable activities in the adjoining States of the area where the Emergency is in operation

The proviso appended in Article 353 states that in case the National Emergency has been imposed not in the whole of India, but only in a specific part of India, the power of the Centre under Article 353(a) and the power of the Parliament under Article 353(b) shall also extend to any State other than the State in which or any part of which the National Emergency has been imposed if the circumstances suggest that the security of India or any part thereof is being threatened because of the activities happening in the part in which the Emergency is already in operation. That is to say that the Centre may issue directions and make laws even in relation to any State (in which the Emergency is not in operation) adjoining to the State in which or any part of which the Emergency is in operation if it feels that some activities are happening there (where the Emergency is already in operation) that is disrupting or likely to disrupt the security of the whole of India or any part thereof. Thus this provision restricts the spread of unlawful or undesirable activities in the adjoining areas of the State or any part thereof where the Emergency is in operation to make the Emergency effectively enforced. The miscreants must not be allowed in an area to carry out and spread the network of some undesirable activities that are harmful to the security of the entire nation or any part thereof, taking advantage of the fact that the Emergency is not in operation in that particular area.

  • Illustration: National Emergency is imposed in the State of West Bengal or only in the Purulia and West Medinipur districts (only a part of the West Bengal, not in the whole of the State) by the Presidential Proclamation under Article 352(1) and approved by the Parliament within the requisite time period. The West Bengal or the mentioned specific districts thereof share domestic borders with the adjoining States of Jharkhand and Odisha, respectively. If the Centre is satisfied that some undesirable activities are happening in Purulia and West Medinipur districts and such activities are creating or likely to threaten the national security or security of any part and also create impediments in the strict enforcement of the Emergency in the areas in which the Emergency is in operation, the Centre can issue directions concerning the exercise of executive power to the States of Jharkhand and Odisha under Article 353(a), and the Parliament can also make laws under Article 353(b) in regard of those States, although no Emergency is imposed on those neighboring States of West Bengal or the parts thereof.

V) Effect on the distribution of revenues when the Proclamation of Emergency is in operation

As per Article 354(1), the President may declare that all or any of the provisions of Part XII (specifically Articles 268-279 dealing with the distribution of revenues between the Centre and States) shall remain effective during the operation of the Proclamation of Emergency, subject to some exceptions or modifications he may stipulate as he deems fit in regard to his order made under this Article. However, such an order shall not extend in any case beyond the expiry of the financial year in which the Proclamation ceases to operate. Article 354(2) requires that every Presidential order as soon as made under clause (1) shall be laid before each House of Parliament.

  • Illustration: In India, a financial year denotes the time period from April 1 of one year to March 31 of the following year. The President made an order under Article 354(1) on November 30, 2021, during the operation of a National Emergency (the Proclamation of which was issued on November 1, 2021, and approved by the Parliament on November 10). Although the same Proclamation shall remain in force until May 10, 2022 (if not revoked earlier), the life of the order of the President made under Article 354(1) for the same Proclamation has to come to an end on March 31, 2022, with the end of the financial year (FY 22). Also, as per Article 354(2), the Presidential order under clause (1) has to be laid before each House of Parliament soon after it is made; otherwise, the same order shall be invalid.

Another notable point is that the Parliament is empowered under Article 250 to levy such taxes that are ordinarily vested upon the States during the operation of the Proclamation of National Emergency.

Therefore, the usual peace-time financial arrangements between the Centre and States do not continue during the operation of Emergency. The justification is that the Centre has to bear more financial burdens due to the extraordinary expenditures that may occur to meet any exigencies during the Emergency compared to the normal peace-time. For that reason, the peace-time financial commitments by the Centre to the States are difficult to be fulfilled owing to the operation of Emergency. This typical financial arrangement of India during the Emergency is influenced by the war-time experiences of Australia and Canada.

VI) Extension of the lives of the Lok Sabha and the State Legislatures

The tenure of every Lok Sabha is five years ordinarily. A situation may arise when a National Emergency is in operation, but the life of the Lok Sabha is about to end. During such circumstances, holding a new election and constitution of the new Lok Sabha is very difficult. The proviso of Article 83(2) provides the solution and empowers the Parliament to extend the life of the existing Lok Sabha by law at a time for a maximum of one year. However, such an extension cannot be made for any period beyond the six months counting from the date the Proclamation has ceased to operate.

  • Illustration: A Lok Sabha was constituted on August 1, 2017, and its tenure is about to end on August 1, 2022, upon the completion of five years term. On May 25, 2022, a National Emergency has been proclaimed and approved by the Parliament on May 30, 2022. It is settled to be operative until November 30, 2022. Now, in such a situation to continue the functions of the House and avoid the complications of holding a fresh election, the Parliament by law can extend the life of the tenure of the same Lok Sabha up to August 1, 2023, at a time. However, the extension of the life of the Lok Sabha in such a way cannot be done for a period beyond May 30, 2023 (six months counting from November 30, 2022).

The proviso of Article 172(1) provides a similar provision for the extension of the tenure of State Legislatures by the Parliament by law beyond five years subject to the same limitation prescribed therein.

VII) Effects on the fundamental rights

It is irrefutable that the fundamental rights guaranteed to the citizens (sometimes to non-citizens as well) enshrined in Part III of the Constitution are sacrosanct in nature and inviolable for all time. Nevertheless, extraordinary circumstances require extraordinary solutions. A Proclamation of National Emergency being an extraordinary situation may demand some arrangements to meet the exigencies even though those are absolutely undesirable in the ordinary situation. Articles 358 and 359 contain the provisions regarding the effects of Emergency on the enforcement of fundamental rights. It is noteworthy that the fundamental rights do not get suspended under Articles 358 and 359; only the enforcement mechanism gets suspended. It means the fundamental rights shall remain alive but cannot be enforced in case of any violation of those rights.

(a) Suspension of the provisions of Article 19: According to Article 358(1), whenever a Proclamation of National Emergency under Article 352 comes into operation (whether in the whole of India or any part thereof), all fundamental rights guaranteed under Article 19 automatically get suspended, and there is no requirement of a special order made by the President in this regard. Under this Article, the State as defined under Article 12 of Part III is empowered to make any law and take any executive action during the operation of the Proclamation of Emergency even if it would be incompetent to do so ordinarily. That is to say that the State can make any law or take any executive action that may be inconsistent with the provisions contained in Part III (for which the State would not except for the operation of the Proclamation of Emergency have been competent) only during the operation of the Proclamation declaring Emergency, and the provisions of Article 19 shall not restrict the power of the State as stated in this Article. However, the laws thus made by the State for which it would not but for the Proclamation of Emergency have been competent to the extent of such incompetency shall cease to remain in force as soon as the Proclamation ceases to be operative. As an exception, the actions already taken under such laws made under this Article or proceedings initiated thereunder before the laws become inoperative shall not be affected even after the laws have ceased to be operative.

Notably, after the 44th Constitutional Amendment Act, 1978, this provision is relevant only if the National Emergency has been imposed on the grounds of ‘external aggression’ or ‘war’, but not on ‘armed rebellion’.

The proviso of Article 358(1) states that if the Emergency is imposed in any specific part of the territory of India, any such executive or legislative action as described under this Article can also be made in relation to or in any State or Union Territory or the part thereof, where Emergency is not in operation in case the security of India, or any part thereof is threatened by the undesirable activities in or in relation to the part of the territory of India where the Emergency is already in operation.

Article 358(2) provides that the rule contained in clause (1) of this Article shall not be applicable to any law, and any executive action taken under that law if such law does not contain any recital (i.e., a formal declaration) stating that the law is in relation to the Proclamation of Emergency when it is made.

(b) Suspension of the enforcement of the rights conferred by Part III: Article 359(1) empowers the President that he may issue an order declaring the right to move any Court (fundamental right to Constitutional remedies under Article 32 and 226) for the enforcement of the fundamental rights guaranteed under Part III as he may mention in that order and any proceedings pending before any Court for the enforcement of such rights be suspended. Such order containing the declaration of the suspension of the enforcement of any of the fundamental rights other than Article 19 (which is already given in Article 358 specifically) can be made by the President either for the entire period during which the Proclamation shall remain in force or any shorter period as he may mention in that order. Thus provision denotes that all fundamental rights except Article 19 shall not be automatically suspended during the Emergency.

The most significant point here to be noted is that the enforcement of Articles 20 and 21 cannot be suspended at any point in time as per Article 359(1), even during the operation of the Proclamation of National Emergency. This remarkable provision was inserted by the 44th Constitutional Amendment Act, 1978 which was brought to overturn the judgment of the Supreme Court in the infamous case- ADM Jabalpur vs. Shivkant Shukla[4] (also known as the Habeus Corpus case).

Whenever a Proclamation of National Emergency under Article 352 comes into operation (whether in the whole of India or any part thereof), and the President by his order under Article 359(1) suspends the enforcement of certain fundamental rights as he may mention specifically in such order, enforcement of all such fundamental rights guaranteed under any provisions of Part III (except Articles 20 and 21 and also Article 19) including the pending proceedings in that regard get thereby suspended.

Under Article 359(1A), the State as defined under Article 12 of Part III is empowered to make any law and take any executive action during the operation of the Proclamation of Emergency even if it would be incompetent to do so ordinarily. That is to say that the State can make any law or take any executive action that may be inconsistent with the provisions contained in Part III (for which the State would not except for the operation of the Proclamation of Emergency and the Presidential order made under clause (1) have been competent) only during the operation of the Proclamation declaring Emergency, and the provisions contained in Part III shall not restrict the power of the State as stated in this Article. However, the laws thus made by the State for which it would not but for the Proclamation of Emergency and thereby the order made by the President under clause (1) have been competent to the extent of such incompetency shall cease to remain in force as soon as the Presidential order made under clause (1) ceases to be operative. It is obvious from the provision of clause (1) that the order mentioned therein may also be made in a period shorter than the maximum period during which the Proclamation shall remain in force. In that case, the laws made under clause (1A) to the extent of the incompetency shall become inoperative as soon the force of the Presidential order ceases, not until the force of the Proclamation ceases. Simply explaining, here, the duration of the Presidential order must be taken into account, irrespective of the duration of the Proclamation.  As an exception, the actions already taken under such laws made under this Article or proceedings initiated thereunder before the laws become inoperative shall not be affected even after the laws have ceased to be operative. Moreover, the State shall still not be competent to make any law or take executive action that contravenes Articles 20 and 21 even during the operation of Proclamation of Emergency.

Article 358(1B) provides that the rule contained in clause (1) of this Article shall not be applicable to any law, and any executive action taken under that law if such law does not contain any recital (i.e., a formal declaration) stating that the law is in relation to the Proclamation of Emergency when it is made.

The proviso of Article 359(2) again states that if the Emergency is imposed in any specific part of the territory of India, any such executive or legislative action as described under this Article can only be extended in relation to or in any State or Union Territory or the part thereof, where Emergency is not in operation if the President is satisfied that the security of India or any part thereof is threatened by the undesirable activities in or in relation to the part of the territory of India where the Emergency is already in operation. That means only if it appears to the President to be necessary to extend the legislative and executive actions of the State for which it is empowered by clause (1A), he may do so.

Article 359(3) mandates that every order made by the President under clause (1) be as soon after it is made, shall be laid before each House of the Parliament.

Judicial Review of the Proclamation of National Emergency issued under Article 352(1)

It is already discussed that the National Emergency has been declared three times till now in India. However, the infamous National Emergency of 1975 declared by then Prime Minister of India Smt Indira Gandhi (Proclamation officially issued by President Fakhruddin Ali Ahmed) has always remained the most controversial issue regarding the imposition of National Emergency. This Emergency remained in force for a 21 months period of Emergency (June 25, 1975 – March 21, 1977). That is why this period is often characterized as the dark chapter of Indian democracy. The Emergency was declared on the ground of ‘internal disturbances’ as a result of the Allahabad High Court’s verdict in the case- Indira Nehru Gandhi vs. Raj Narain[5] invalidating Prime Minister Indira Gandhi’s election victory due to electoral malpractices. During this time, large-scale violation of the fundamental rights of the citizens and opposition leaders took place.

There were record illegal detentions of the opposition leaders along with custodial torture, press censorship, forced sterilization campaigns, and other types of human rights violations that occurred during that period, and these all were sufficient to transform India into a totalitarian regime. Frequent Constitutional Amendments were brought to change multiple vital provisions of the Constitution, basically subverting its soul, and thereby the entire Constitutional scheme of India was about to go astray. Most of the time, the primary purpose of all Constitutional Amendments was to bypass the powers of the Courts of judicial review. In this way, this disastrous invocation of Article 352 has resulted in the mockery of the fundamental democratic framework of the Indian Constitution. The propriety or legality of this controversial imposition of Emergency and maintainability of the justification thereof came into question several times. Judicial review of the Proclamation was the only ray of hope to get those questions answered. Thus the need for judicial scrutiny was first felt during this 1975 Emergency.

As per the expression of Article 352(1), the President may proclaim Emergency only if he is satisfied that the security of India of a part thereof is threatened or likely to be threatened. It is obvious that the question of whether there exists an existing or imminent threat to the security of India lies on the subjective satisfaction of the President acting in the aid and advice of the Union cabinet. Time and again, questions have arisen as to the justiciability of the subjective satisfaction of the President in proclaiming an Emergency. Whether a Proclamation issued by the President under clause (1) declaring National Emergency comes within the purview of judicial review or not first came before the Supreme Court in the caseBhut Nath Mete vs. State of West Bengal[6]. In this case, the Court took a passive stance in applying judicial scrutiny to examine the propriety or justifiability of the imposition of Emergency and held the Proclamations of Emergency immune from the scope of judicial review. The Court refused to examine the maintainability of the continuation of the Proclamation of Emergency issued under clause (1) and to declare it void since the Court considered it to be a political matter in its substance.

Later, after Bhut Nath Mete’s ruling in the year 1974, the 38th Constitutional Amendment Act, 1975, was brought in the following year, and clause (5) was inserted. According to this clause, the satisfaction of the President in this regard was made final and conclusive and could not be inquired into in any Court. That is to say that the Supreme Court and all other Courts would not have jurisdiction to entertain any matter relating to the issue of any Proclamation under clause (1) and the continuation thereof.  Thus, this amendment attempted to permanently end the confusion by closing the scope of judicial review before the Supreme Court would change its view. But, the 44th Constitutional Amendment Act, 1978 repealed this provision, and after this amendment, the position is exactly as it was before the 38th amendment. As it stands now,  it is again up to the Constitutional Courts to decide the justiciability of the Proclamation of National Emergency. This matter never came before the Supreme Court or any other Courts since 1977 because no National Emergency has been ever proclaimed in India since then.

Nevertheless, in the landmark case of Minerva Mills vs. Union of India[7], the Supreme Court ruled that ‘judicial review’ is part of the Basic Structure of the Indian Constitution. In this case, Justice PN Bhagwati emphasized that “whether the President in proclaiming the emergency under Article 352 had applied his mind, or whether he acted outside his powers, or acted mala fide in proclaiming the emergency could not be excluded from the scope of judicial review,”[8] He further noted that if clause (5) had not been repealed, the same could have definitely been declared unconstitutional, for being violative of the basic structure of the Constitution. After SR Bommai’s case, the position has been settled that the legality or maintainability of every Proclamation, be it on National Emergency, State Emergency, or Financial Emergency, must come within the purview of judicial review.

However, the Constitution after the 44th Constitutional Amendment intends to create checks on the powers of the Central Executive to invoke National Emergency under clause (1) by inserting some safeguards like clauses (3) (requiring the approval of the Cabinet), (4) and (5) (requiring initial and periodic Parliamentary ratifications). But, these safeguards are practically insubstantial nowadays since the Government enjoys the support of the majority political party and the Union Cabinet functions on the principles of collective responsibility. According to MP Jain, “a strong-willed Prime Minister may have his way as he may dominate his Cabinet as well as the party and, thus, mobilize support for the emergency even though, in effect, there may be no need for the same.” Similarly, “a pliant Parliament may support the Government making any parliamentary control of the emergency fictitious.”[9] From these aspects, the limited judicial review as an extra-parliamentary check to restrict the power of the Union Executive may appear to be ineluctable to protect the spirits of democracy in the country.

President’s Rule or State Emergency Provisions in Indian Constitution

In order to get a clearer insight, the provisions in respect of the State Emergency or President’s rule contained in Part XVIII of the Indian Constitution can be discussed in two interrelated points as follows—

1. Article- 355: Duty of the Union to protect States against external aggression and internal disturbances.

2. Article- 356: Provisions in case of failure of Constitutional machinery in States.

Duty of the Union to protect States against external aggression and internal disturbances

According to Article 355 of the Indian Constitution—

“Duty of the Union to protect States against external aggression and internal disturbance- 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.”

Therefore, this provision imposes a two-fold obligation on the Union—

1. To protect the States against external aggression and internal disturbances,

2. To ensure the Government of the State is carried on according to the Constitutional provisions.

Essentially, these two obligations, as mentioned above, are independent because the breakdown of Constitutional machinery in a State may occur even though no external aggression or internal disturbances exist. The expression- ‘external aggression’ has a broader meaning. It is not restricted only in case of aggression by external enemy forces during the war. Even a bloodless large-scale influx of illegal migrants from a foreign nation to any State of Indian territory can be regarded as ‘external aggression’.

On the other hand, it may be compared that Article 352 talks of ‘armed rebellion’ while Article 355 talks of the term ‘internal disturbances’ that has a broader scope than the former. It suggests that Article 352 cannot be invoked in the whole of India or any part thereof on the ground of ‘internal disturbances’, unless it includes ‘armed rebellion’. Talking from the perspectives of Articles 355 and 356, the former speaks about ‘internal disturbances’, whereas the latter speaks about ‘breakdown of Constitutional machinery in State’. Therefore, Article 355, read with Article 356, suggests that the expression- ‘internal disturbances’ does not necessarily mean only the breakdown of law and order or anything that satisfies the criteria of ‘internal disturbances’ unless the same ultimately results in the Constitutional breakdown in the State. However, if the ‘internal disturbances’ are caused by the breakdown of law and order, it being a State subject must be an aggravated form of disturbances that the State Government finds incapable of controlling with its available means. The Centre’s action is justifiable only if the State Government seeks its help, and the Centre has the Constitutional obligation to protect the States in such a situation. It does not mean that the Centre cannot intervene without its request, but such suo moto interventions have created controversies in many instances. In the case, Sarbananda Sonowal vs. Union of India[10], the Supreme Court held that

“Since the State of Assam is facing “external aggression and internal disturbance” on account of large-scale illegal migration of Bangladeshi nationals, it was the duty of the Union of India to take all measures for protection of the State of Assam from such external aggression and internal disturbance as enjoined in Article 355 of the Constitution.”[11]

Nevertheless, the most significant duty of the Union as placed by Article 355 is to ensure that the State Governments are being carried on strictly abiding by the Constitutional provisions. Accordingly, Article 356 incorporates the essential provisions conferring powers to the Union to discharge that duty.

It may be looked that like India, the Constitutions of other federations like the USA, and Australia also contain provisions imposing duties on the Centre to protect the States from invasions and on the applications (request) of the States to protect those against domestic violence by extending its powers. Therefore the major distinction between the duties of the Centre to protect the State in the other federations and the Indian context (as per Article 355) is that taking actions by the Centre upon receiving the requests is not necessary for India; however, that is necessary for other federations. Likewise, the Constitution of the USA imposes outstanding obligations to the Central Government to guarantee the republican form of Government in the States. Similarly, the Australian Constitution also authorizes the Central Executive to extend its powers whenever necessary for the execution and maintenance of the Constitution in the States. Nevertheless, the distinction between the Constitutions of those federations and the Constitution of India is that those Constitutions do not contain provisions as to taking over of the State Governments by the Central Government in case of the breakdown of the Constitutional machinery in the States that is however present in the Indian Constitution in Article 356.

Provisions in case of failure of Constitutional machinery in States

Article 356(1) of the Constitution reads as follows—

“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 the Constitution, the President may by Proclamation—

  • assume to himself all or any of the functions of the State Government, or the powers of the Governor, or anybody or authority in the State other than the State Legislature;
  • declare that the powers of the State Legislature are to be exercised by Parliament;
  • make such incidental provisions as may appear to him to be necessary or desirable for giving effect to the provisions of the Proclamation; the President may even suspend in whole or in part the provisions of the Constitution relating to anybody or authority in the State [Article 356 (1)].”

In order to discharge the duty of the Union as prescribed by Article 355, discussed in the preceding point, Article 356 of the Constitution of India lays down the provisions containing State Emergency or President’s rule. This Article empowers the Union Government to take over a State Government in case the Government machinery of that State is unable to function in accordance with the provisions of the Constitution. If the President is satisfied with the report of the Governor of the concerned State that the Government of the State cannot be carried on abiding by the Constitution in a given situation, he may make a Proclamation imposing President’s rule suspending the existing State Government in the exercise of the powers conferred by this Article.

However, the Constitution mandates that every such Proclamation shall only remain in force if each House of Parliament approves such Proclamations. In all Parliamentary approvals under this Article, necessary resolutions can be passed by a simple majority of each House of Parliament, although the same is not expressly mentioned here. Parliamentary ratifications are necessary to create a check on the Centre’s power. The reason behind it is that the President acts in aid and advice of the Union Council of Ministers. He may issue Proclamations unilaterally (also maybe without proper justifications, or because of political rivalry) under this Article, so there remain chances of the misuse of the provision. That is why the procedures of periodic Parliamentary ratifications are introduced in the Constitution so that the relevant facts and circumstances concerning the continuation of the Proclamation in a State for a certain period can be discussed among the members of the Houses of Parliament. The Proclamations can only be ratified after securing sufficient support of the majority members in each House.

It is significant to note that during the operation of a Proclamation issued under Article 356, only executive and legislative functions of that State Government can be taken over by the President and the Union Government respectively, but the powers vested in or exercisable by the High Court of the concerned State cannot be taken away. The President is also not authorized to suspend the operation of the whole or in part of the Constitution dealing with the powers of the High Court.

It is also pertinent to note that Article 356 only deals with the provisions of State Emergency in case of the failure of Constitutional machinery in States, not in the Union Territories. However, similar Emergency provisions are also present in The Governments of Union Territories Act, 1963 in certain Union Territories that have Local Legislatures, Council of Ministers, or both created by the Parliament under Article 239A. In any of such Union Territories, Emergency can be imposed in case of failure of Constitutional machinery in that concerned Union Territory or the Government of that concerned Union Territory cannot be carried on in accordance with provisions of the mentioned above Act of 1963 and Articles 239 and 239A of the Constitution. Article 239AB of the Constitution also provides special Emergency provisions for the Union Territory of Delhi (National Capital Territory).

The grounds under which the President’s rule can be imposed in a State, the procedure to be followed to make a Proclamation under the said Article, the consequences thereof, controversies relating to the misuse of the provision, justiciability of such Proclamation, and other noticeable aspects relating to the said topic may be discussed under the following points—

Grounds on which Article 356 can be invoked in a State

The cardinal ground on which Article 356 can be invoked is “failure of Constitutional machinery in a State.” This phrase often purports innumerable connotations because such breakdown of Constitutional machinery may occur in various circumstances—

1. In case there is a widespread breakdown of law and order mechanism in the State that is likely to threaten the peace, security, or public tranquility of the State and the entire nation.

2. In case the ruling party of the State loses the majority due to large-scale defections by the legislators, and there is no possibility of formation of an alternative Government in the meantime.

3. In case no political party is able to prove the required majority in the State Legislative Assembly in order to form a stable Government.

4. In case the State Government is not complying with the orders or directions issued by the Central Government in a given time that the concerned State Government has a Constitutional obligation to comply with.

5. In case the State Government is unable to prevent or control separatist activities inside the State or expressly or impliedly promoting separatism that may harm the unity and integrity of the nation.

6. In case there are severe allegations of corruption against the Ministers, bureaucrats, and other crucial Constitutional officeholders in the State that bring the smooth governance in the entire State in question. Nevertheless, this ground is debatable.

7. In case the Government of a State, despite being elected through a Constitutional and democratic process, wilfully disregards its Constitutional mandates and functions in such a manner that is subversive of the fundamental spirits or basic structures of the Constitution and due process of law.

Summing up all the possible grounds, if the extraordinary circumstances arising in a given time suggest that the functioning of the State Government is not subservient to the Constitutional framework, or the ordinary functioning of the State Government cannot be carried on, Article 356 can be invoked to meet such exigencies. Thus, Article 356 is designed by the Constitution makers to ensure that the State Governments are functioning adhering to the supreme law of the land. Accordingly, it strengthens the Centre’s hands by conferring extraordinary powers upon it so that it can discharge its obligation to protect the States as stipulated under Article 355.

As per Article 356(1), the President acts on receipt of the report from the Governor of the concerned State or otherwise. If the Governor is satisfied that the circumstances in a State are such that the Government in the concerned State cannot be carried on in accordance with the Constitution, he can make a report in his discretion to the President seeking President’s rule in the State, and he is under no obligation to consult with the Council of Ministers of the concerned State in this matter. However, the role of the Governor in such cases may prima facie come to be incongruous to that of the ordinary role of the Governor being the Chief Executive of the State. The Governor ordinarily acts in aid and advice of the Council of Ministers of the State, but here, the Governor seems to act against his own Government. But, it must be understood that the Governor of a State acts in a dual capacity- on the one hand, he is Constitutional head of the State, and on the other hand, he is the Centre’s representative in the State. The Governor takes oath under Article 159 of the Constitution that on the one hand, he will faithfully discharge the functions of the Governor of the State; on the other hand, he also takes the oath that he will preserve, protect and defend the Constitution and the law to the best of ability. Thus the Governor holds an independent Constitutional office that makes him duty-bound to perform his independent Constitutional obligation other than that of the mere Constitutional head of the State to preserve, protect and defend the Constitution.

Another notable point is that Article 356(1) also grants freedom to the Centre to take direct cognizance of any exigency arising in a State in a given time and make Proclamation accordingly under Article 356 in that State if it feels necessary without receiving the report from the Governor of the concerned State seeking the same. It is because the Constitution makers felt it necessary not to bind the Centre to act and discharge its Constitutional obligation only upon receiving the report from the Governor. Suppose, there may be a situation when the Centre relying on the facts within its knowledge or information collected by its own efforts, deems its intervention is necessary to meet a sudden Constitutional crisis in a State even though the Governor of the concerned State has not reported to the President in respect of the matter. In that case, if the Centre thinks that it ought to intervene in that stage, it is free to fulfill its Constitutional obligation without depending on the reports of the Governor.

Parliamentary ratification of the Presidential Proclamation

It is settled from the preceding discussion that being satisfied with a State Governor’s reports or other relevant facts, the President may issue a Proclamation under Article 356(1) in the State. However, the Presidential Proclamation alone is not sufficient to keep the same Proclamation operative in a State for any period of more than two months. Clause (3) lays down the provisions for mandatory Parliamentary ratification of the Proclamation issued by the President within a given time frame. That is to say that the Proclamation must be approved by the resolutions passed by both Houses of Parliament subsequent to the invocation of Article 356 before the expiry of two months from the date the Proclamation is issued in order to keep it operative beyond that initial period of two months. To summarise the provision, Parliamentary ratification consists of two primary correlated conditions—

  • It must be laid before the each House of the Parliament within two months from the date of its issue, and
  • It must be approved by the resolutions passed by the each House of Parliament within the aforesaid time frame.

Any Proclamation thus issued has to be laid before each House of the Parliament; else, the said Proclamation shall cease to operate at the expiry of two months from the date the Proclamation is issued. Even in case the Proclamation has been laid before each House, but no resolutions have been passed ratifying the same within the said time frame of two months, it shall also become inoperative on the expiry of that same time frame.

Therefore, non-fulfillment of either of the correlated conditions described above dealing with Parliamentary ratification leads to automatic suspension of the Proclamation on the expiry of the stipulated time frame.

According to Article 356(2), any such Proclamation issued under clause (1) can be revoked or varied by a subsequent Proclamation. A Proclamation thus revoking or varying an earlier Proclamation does not require Parliamentary ratification, unlike a Proclamation issued under clause (1). It can be said that as per clause (2), a Proclamation varying an earlier Proclamation issued under clause (1) can also be revoked under this same clause.

Illustration

  1. The President makes a Proclamation under Article 356(1) in the State of West Bengal on March 1, 2021, owing to some reasons. The same has to be laid before the each House of Parliament before May 1, 2021. Then each House shall pass resolutions approving the Proclamation before May 1 to keep it in force beyond the date, e., after May 1 onwards. If the Proclamation fails to get approval from the each House of Parliament before May 1, it shall cease to operate from May 2 onwards.
  2. In the illustration- (a): On April 15, 2021, if a subsequent Proclamation is issued under Article 356(2) revoking the earlier Proclamation (issued on March 1, 2021), that earlier Proclamation shall cease to operate with immediate effect, and no Parliamentary ratification is required to enforce the revocation of the Proclamation. In such a case, there is no question regarding the Parliamentary approval and other procedures associated with the earlier Proclamation as the same has already become inoperative.

A situation may arise when a Proclamation is issued under Article 356(1); at that time, the House of People (Lok Sabha) is dissolved, or dissolution of the House of People occurs in the meantime of prescribed two months time period by the end of which the same Proclamation must be approved to keep it in force. The proviso of clause (3) talks about such a circumstance and gives the requisite solution. In such cases, the Council of States (Rajya Sabha) shall be authorized to pass a resolution ratifying the Proclamation within the two months to keep it operative beyond the specified period, although the House of People having been already or subsequently dissolved does not ratify the same at the same time. However, the Proclamation thus approved by only the Council of States can remain in force until the expiry of thirty days from the date the House of People first sits after its reconstitution. That is to say that the said Proclamation shall become automatically inoperative on the expiry of thirty days time frame from the reconstitution of the House of People if no resolution in the meantime has been passed by the same House ratifying the same Proclamation. Here, the thirty-day time frame is counted from the date the House of People sits for the first time after its reconstitution. To summarise the provision, a Proclamation under Article 356, which only the Upper House of the Parliament approves in the absence of the approval of Lower House, can only remain in force beyond the time frame of thirty days if it also gets approval from the Lower House after the House resumes its normal functioning.

  • Illustration: The President makes a Proclamation under Article 356(1) on March 1, 2021, in the State of Odisha owing to some reasons. In the meantime, on March 3, 2021, the House of People has been dissolved without approving the Proclamation. In the meantime, the Proclamation gets approval from the Council of States on April 20, only to continue to remain in operation beyond May 1, 2021. On May 20, the fresh election is held, and the House of People gets reconstituted, and it first sits on June 1. The Proclamation has to be approved by the House of People soon after June 1, before July 1, to continue to remain in force beyond the date, e., after July 1 onwards. If the Proclamation fails to get approval from the House of People before July 1, the Proclamation shall cease to operate from July 2 onwards.

Continuation of the Proclamation after its ratification by Parliament:

A Proclamation, once approved by the Parliament, cannot remain in force for an indefinite period. Only if the circumstances demand in a State, the Proclamation can be continued beyond the prescribed period. Article 356(4) lays emphasis on the periodic Parliamentary ratification to keep the same Proclamation operative for a further period of a maximum of six months. According to clause (4), a Proclamation under clause (1) in a State, once approved by the both Houses of Parliament, can remain in force until the expiry of a maximum of six months, counting from the date the Proclamation was issued if it has not been revoked before the said time frame. Thus, although approved by the Parliament, the Proclamation (if not revoked earlier) shall not remain in force and become automatically inoperative beyond the maximum period of six months unless the same Proclamation has been laid again before each House of Parliament and gets approval for further continuation within the same prescribed time frame of six months. That is to say, that to continue the life of a Proclamation even after the expiry of the initial six months counting from the date of its issue, each House of Parliament has to pass resolutions approving the same Proclamation for a further continuation within the same six months time frame. However, again the maximum life that can be given to the Proclamation by approving its further continuation is a maximum period of six months, counting from the date it would otherwise have ceased to operate (i.e., from the very next day soon after the expiry of the initial six months time frame).

Therefore, once the original Proclamation gets Parliamentary approval for further continuation in the manner described above, it shall get a new life of further six months counting from the date it would otherwise have ceased to be operative.

On the other hand, if a Presidential Proclamation subsequent to the continued Proclamation under Article 356(2) has been issued to revoke or vary the continued Proclamation at any time before the expiry of any maximum period of six months as described above, that continued Proclamation shall cease to operate with immediate effect without waiting for the expiry of the six months time frame. It can be said that as per clause (2), a Proclamation varying a continued Proclamation can also be revoked under this same clause.

It is worth noting that all the stipulated periods of six months were inserted by the 44th Constitutional Amendment Act, 1978, substituting the earlier stipulations of one year.

Note: The continued Proclamations are not any different Proclamations because those are approved by the Parliament for the continuation of the original Proclamation. Those are simply the same as the original Proclamation issued under clause (1).

Illustrations:

  1. A Presidential Proclamation under Article 356(1) has been issued in the State of Uttar Pradesh on June 1, 2021. Both the Houses of Parliament have passed resolutions approving it by July 1, 2021, and thus it is set to remain in force for a maximum period of six months (unless revoked earlier) from the date of its issue, e., from June 1 until December 1, 2021. This Proclamation shall automatically cease to operate from December 2, 2021, onwards. Then if both the Houses of Parliament again pass resolutions by November 1, 2021, approving its further continuation, the Proclamation shall not cease to operate on December 1; rather, it shall get a new life for a maximum period of another six months counting from December 1 (the date on which the Proclamation would have ceased to operate otherwise). That is to say that the renewed or continued Proclamation (unless revoked earlier) shall remain operative until June 1, 2022 (starting from December 1, 2021).
  2. In the illustration- (a): On August 10, 2021, if a Presidential Proclamation has been issued to revoke the earlier Proclamation (issued on June 1, 2021), the earlier Proclamation shall cease to operate with immediate effect, without waiting for its automatic expiry on December 1, 2021. In that case, there shall be no question regarding the Parliamentary approval for further continuation of the same earlier Proclamation.
  3. In the illustration- (a), On February 1, 2022, if a Presidential Proclamation has been issued to revoke the continued Proclamation that the Parliament has later approved (on November 1, 2021) for the further continuation of the original Proclamation (after December 1, 2021), the same continued Proclamation shall similarly cease to operate with immediate effect, without waiting for its automatic expiry on June 1, 2022.

Again, a situation may take place when the House of People has been dissolved during in any period of the initial six months, and the force of the original Proclamation is about to cease on the expiry of the same time frame, but the circumstances in the State demand the Proclamation be in force for another six months. In that case, as per the proviso of Article 356(4), the Council of States (Rajya Sabha) shall be authorized to pass a resolution approving the continuation of the same original Proclamation, although the House of People has not approved it. However, the continuation of the Proclamation must be approved by the House of People before thirty days, counting from the date it first sits after its reconstitution, else it shall cease to operate on the expiry of the same stipulated period of thirty days.

  • Illustration: A Presidential Proclamation under Article 356(1) has been issued in the State of Gujarat on June 1, 2021. The same gets the approval of both Houses of Parliament by July 1, 2021, and then it can operate up to a maximum period of six months, e., from June 1 until December 1, 2021, as per clause (4). The circumstances in the State have not yet improved, and the Proclamation needs to be continued until June 1, 2022 (another six months from December 1, 2021). In the meantime, the House of People has been dissolved on October 15, 2021, without approving the continuation of the original Proclamation. As the force of the original Proclamation is about to cease, the Parliament must approve its continuation before December 1. The Council of States passes a resolution ratifying the continuation on October 30, in the absence of the approval of the House of People. Thus the original Proclamation continues to be in force. On January 1, 2022, the House of People gets reconstituted. Then it must approve the continuation of that original Proclamation before January 31, 2022 (thirty days from the date of its reconstitution) to keep the continued Proclamation operative until June 1, 2022. Non-fulfillment of the condition stated above leads to the cessation of the continued Proclamation on January 31, 2022.

Certain limitations in continuation of the Proclamation

The President’s rule cannot be imposed in a State for a prolonged period without proper justifications. It is subject to a few limitations stipulated under clause (5) and the first proviso of clause (4) of Article 356. To restrict the misuses of this extraordinary power vested under Article 356 in the Centre to ensure that the State Governments are functioning in subservience to the Constitutional provisions, the Constitution itself provides few safeguards imposing limitations on the unnecessary continuation of a particular Proclamation for an indefinite period by approving the same in every six months interval. Thus to create a check on the power of Parliament as conferred by clause (3) to continue a Proclamation in certain cases, the following limitations have been provided—

Limitation- 1: Article 356(5) stipulates that as an exception to clause (4), a Proclamation issued and subsequently approved by the Parliament in a State as per Articles 356(1) and 356(3), respectively, cannot be ratified by passing resolutions of either House of Parliament for further continuation beyond one year counting from the date of the issue of the said Proclamation unless either of the following instances is present—

  • A National Emergency under Article 352 is in operation in the whole of India or any specific part thereof, as the case may be when the resolutions for further continuation of a Proclamation are to be passed.
  • The Election Commission certifies that further continuation of the original Proclamation is necessary owing to the difficulties in holding general elections to the Legislative Assembly of the concerned State.

This provision suggests that the continuation of a Proclamation beyond its two consecutive six-month periods is possible only in the presence of the given two instances.

  • Illustration: The President issues Proclamation under Article 356(1) in the State of Bihar on June 1, 2021, and the same is subsequently ratified by the resolutions of both Houses of Parliament on July 1. When the force of the Proclamation is about to cease on December 1, 2021, it gets another extension by Parliamentary resolutions passed on November 1, 2021, ratifying its further continuation up to June 1, 2022. Thus, one year since the issue of the Proclamation completes on June 1, 2022 (e., June 1, 2021- June 1, 2022, a total of one year). To extend the same Proclamation for any period beyond June 1, 2022, the Parliament can pass further resolutions for continuation only in the extraordinary instances stipulated under clause (5). Otherwise, the Proclamation cannot be in force beyond June 1, 2022.

Limitation- 2: Although the Constitution sanctions the continuation of a Proclamation in State under Article 356(1) in certain extraordinary circumstances as discussed in the preceding limitation, the first proviso of clause (4) again stipulates that such continuations, in any case, cannot exceed a maximum period of three years counting the date of the issue of the Proclamation. Thus, the Proclamation in a State cannot remain operative indefinitely in any case beyond that maximum of three years period. That is to say that after the expiry of the said period, the normal Constitutional machinery of the concerned State has to be restored whatever be the circumstances.

  • Illustration: In the same illustration of Limitation- 1, the Proclamation under Article 356(1) issued in the State of Bihar can continue even beyond June 1, 2022, but cannot continue by similar further Parliamentary resolutions in the every six-month interval approving the continuations beyond June 1, 2024 (June 1, 2021- June 1, 2024, e., total of three years). After June 1, 2024, the normal functioning of the Constitutional machinery of the State has to be restored whatever be the circumstances.

Modes of Suspension of the President’s rule in a State at a glance:

Summarising the provisions of Article 356 mentioned above, the modes of suspension of a Proclamation in a State under this Article are as follows—

  1. In case the Proclamation soon after its issue is not laid before the each House of Parliament before the expiry of two months from the date of issue of the Proclamation or even if it is laid but not approved by both or any of the Houses before the same prescribed time frame.
  2. In case the six months from the issue of the Proclamation elapse, no resolutions are passed by both or any of the Houses of Parliament so to approve the further continuation of the same Proclamation.
  3. In case the six months of the last extension of the Proclamation (from the date on which the force of the original Proclamation would have ceased if it had not got approval by resolutions from Parliament for continuation) elapse and further continuation is not possible because of the limitations mentioned under Articles 356(4) and 356(5).
  4. In case of the dissolution of the House of People during any time of either of the Parliamentary ratifications as mentioned under clauses (3) and (4) of this Article, if not ratified by the House of People within thirty days from the date of its first sitting after reconstitution of the House.
  5. In case the President issues a subsequent Proclamation under Article 356(2) revoking or varying an earlier Proclamation (issued under clause (1)) without Parliamentary ratification during the operational period of the same Proclamation. This power of the President includes revoking or varying a continued Proclamation (made under clause (4)) also.

Consequences of the invocation of Article 356 in a State

The consequences of a Presidential Proclamation issued under Article 356 in a State can be comprehended from the joint reading of Articles 356(1) and 357(1). It may have the following consequences—

I. Executive functions of the State: As per Article 356(1)(a), the President can assume to himself all or any of the functions of the concerned State Government. He can also assume to himself the powers vested in or exercisable by the Governor of the concerned State or any other body or authority except the Legislature of the State. Since the President has assumed the powers of the Governor as well, he may dissolve the State Legislative Assembly and set the processes for a fresh election afoot. However, it is not compulsory to dissolve Legislative Assembly as it may be kept in suspended animation until its reconstitution. The Council of Ministers of the State does not remain in the office during this period. Either it voluntarily resigns, anticipating the imminent intervention of the Centre, or it can be dismissed from the office upon the dissolution of the State Legislative Assembly. Upon assuming the functions of the State Government, the President usually exercises his powers as the Chief Executive of the State through the State Governor. The Governor of the State carries on the administration of the State as a delegate of the President (Centre) during the continuation of the Proclamation. In such case, the Governor acts in the aid and advice of the Union Council of Ministers, not that of the State. That is to say that he becomes responsible to the Central Government that is ultimately responsible to the Union Parliament.

II. Legislative functions of the State: As per Article 356(1)(a), it is obvious that the President can also declare that the Legislature of the State shall be exercisable by or under the authority of the Union Parliament for the period the Proclamation shall be in force. Thus Parliament becomes entitled to carry out the legislative functions of the State during the time the Proclamation remains in force. It is significant to note that during this period, the Union Parliament becomes entitled to make laws for the concerned State on the subjects enumerated in the State List (List- II of Seventh Schedule) along with the Union List and Concurrent List. The Parliament being a very busy body, may find it quite burdensome to carry out the legislative affairs of both the entire nation with equal importance and the concerned State at the same time. Article 357(1) specifically speaks out in this regard—

(a) The Parliament shall be competent to confer the legislative functions of the State that is vested in the Parliament on the President by passing an Act. Accordingly, the President shall be authorized to make the laws for the concerned State on behalf of the Parliament. If necessary, he can also be authorized by Parliament further to delegate the functions so conferred on him to any other authority as he may specify subject to such conditions as he may deem fit to impose on his own behalf. Getting conferred with the legislative or law-making functions of the State, the President for this purpose passes President’s Acts to perform the legislative functions State concerned whether the Parliament is in session or not. The President’s Acts so made are required to be laid before the Parliament. The Parliament may also direct some specific modifications as it may think necessary, and the President has to carry out the same by enacting Amendment Acts. Often the delegating Act of the Parliament under sub-clause (a) of clause (1) of Article 357 contains provision for constituting a Parliamentary committee that shall assist the President in law-making processes, and the President shall make laws for the concerned State after consulting with it. Generally, all members of the Parliament hailing from the State concerned are appointed members of the committee.

(b) As per sub-clause (b) of clause (1) of Article 357, the Parliament, or the President, or any other authority in whom the law-making functions of the State have been vested under sub-clause (a), shall be competent to make laws conferring powers and imposing duties or authorizing conferment of powers and imposition of duties, upon the Union or officers and the authorities thereof.

(c) As per sub-clause (c) of clause (1) of Article 357, if the House of People is not in session, the President shall also be competent to authorize the expenditure from the Consolidated Fund of the State concerned until the Parliament approves such expenditure.

(d) As per clause (2) of Article 357, the laws made by the Parliament, or President, or any other authority under sub-clause (a) of clause (1), which Parliament, or the President, or any other authorities would not, but for the Proclamation in force, become entitled, shall continue to be in force in the concerned State even after the Proclamation ceases to be operative until repealed or altered or amended by a competent legislature. This provision applies only to the laws which the Parliament, President, or other authorities would not have been entitled to make, but by virtue of Article 357(1)(a), because of the operation of the Proclamation have become entitled (e.g., on the subjects mentioned in the State List). It means that the life of the laws made by the Parliament, President, or any other authority, as mentioned in Article 357(1)(a), during the operation of a Proclamation is not co-terminus with the subsistence of the same Proclamation. It is evident that the law-making power of the Parliament, President, or other authorities for the State as described above comes to an end with the end of the Proclamation. On the other hand, even if the life of the Proclamation comes to an end, the force of the laws already made during the operation of the said Proclamation as described above does not cease automatically and thus continues to be in force along with the other laws. However, the laws thus made can be repealed, altered, or amended by the State Legislature after its reconstitution.

  • Illustration: During the operation of Proclamation under Article 356 on June 1, 2021, in the State of Kerala, the Parliament, President, or other authorities have made certain laws relating to the subjects enumerated in the State List for the concerned State. As the subjects of the laws are enumerated in the State List, these laws are not to be made by the Parliament ordinarily as the law-making power on such subjects is vested in the State Legislature. However, the Parliament, President, or other authorities has made the laws exercising its powers under Article 357(1)(a). The Proclamation comes to an end on December 1, 2021. With the end of the Proclamation, the Parliament, President, or other authorities are no more entitled to make laws for the State. Nevertheless, the laws already made during the operation of the Proclamation do not cease to be in force automatically. After December 1, also such laws continue to operate. On January 1, 2022, the State Legislative Assembly, after its reconstitution, brings certain enactments and thus repeals those laws. Then after, January 1, the force of those laws shall cease.

From the above discussed two points, it is conspicuous that Article 356 modifies the federal structure of the Indian Constitution.

Controversies relating to the invocation of Article 356 and scope for Judicial Review

Renowned English historian, politician, and writer Sir Lord Acton truly said—

“Power tends to corrupt, and absolute power corrupts absolutely.”

Whenever someone or authority is vested with some prerogative or extraordinary powers for some reason, the possibilities of misuse of the powers go with it co-extensively. Invocation of Article 356 in Indian politics is not an exception. There is no doubt that the framers of the Indian Constitution entrusted the Centre to ensure the supremacy of the Constitution in the functioning of all democratic institutions, including the State Governments, and the conferred powers to the Centre accordingly by incorporating Articles 355 & 356. However, the Constitution makers did not contemplate the situation if the Centre invokes this provision arbitrarily or invokes it to depose a Constitutionally elected Government of a rival political party in the color of discharging its Constitutional obligation to protect a State from subverting the Constitutional framework, owing to political intolerance. They also did not provide adequate safeguards to it accordingly in order to restrict its misuse. After all, like the State Governments, the Central Government is also run by a political party. Having Governments of the different political parties in the Centre and States is quite natural in the multi-party political system in India. In most cases, Article 356 has been invoked on the grounds like political instability of the ruling party, non-availability of a political party to form a stable Government, and widespread breakdown of law and order in the State.

Such instances first occurred in the State of Kerala in 1959. There was Communist Government in Kerala and had the majority of two in the State Assembly consisting of 127 members. Within two years of its ruling, widespread discontent arose among the public against the policies of the Government. Accusations of subversions of the Constitution were made because Government was transplanting party cells in police, administration, and co-operatives in the State. Due to mass upsurge and widespread breakdown of law and order and the rule of law, the Central Government imposed President’s rule in the State on receipt of the report from the Governor, before the public agitation took a violent turn. The President’s rule remained in the State for six months until the fresh election, whereby a new political party came into power in Kerala. The Communist party termed the action of Centre political intolerance of the Congress party as Kerala was the only State where the Communist party was in power. Thus the President’s rule in Kerala first brought the controversies in light as to whether the ruling party of Central Government is using it in malice for political gain or not. The President’s rule in Kerala was followed by its impositions in other States quite frequently and sometimes in dramatic manners on various occasions (Punjab in 1966, Rajasthan and Haryana in 1967, Uttar Pradesh in 1968, Gujarat in 1974, Tamil Nadu in 1976, and so on). It can be found that except for the State of Telangana, every State of India (also Union Territory) has remained under President’s rule at least once (in most cases for multiple times) since the enactment of the Constitution till date. Notably, Kerala is the only State that has remained under the President’s rule for a maximum number of times until now.

Therefore, on the one hand, the invocation of Article 356 has been held justified, and as per the needs of the hour in some cases; on the other hand, there were also some instances when the maintainability of the Centre’s interventions has also come into question. For this reason, many times before the S.R. Bommai vs. Union of India[12] case, the interpretations of the phrase- a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution”, i.e., the circumstances in which Article 356 can be invoked and can be called the breakdown of Constitutional machinery, have been subject of several controversies, whether the term Constitution merely denotes the provisions of it or denotes other conventions, democratic spirits, fundamental notions on which it is based. The different political parties, independent intellectuals, or eminent jurists alleged the rampant misuse of Article 356 for political reasons because there were no reasonable or adequate grounds for invoking the same and subsequently dismissing a Government having a majority in the State Assembly. Even though no ground justified the functioning of a State Government was as such that was subverting the Constitution, the Centre intervened hastily to take over. Even the discretion of the Governor to report to the President seeking President’s rule and the subsequent satisfaction of the President have been questioned. It is already discussed that as the Centre directly appoints the Governor, he also acts as a representative of the Centre the State, and besides that, he also acts as the Constitutional Head of the State, bound to act as per the aid and advice of the State Council of Ministers. On the other hand, the President acts in aid and advice of the Union Council of Ministers. Thus, the Central Government may exert political influence on the President and the Governor of the State to invoke Article 356 and thereby dismiss the State Government, ruled by a rival political party or group.

Despite having the clear presence of malice in the action of the Centre on a number of occasions, its invocations could not be characterized as unwarranted or unconstitutional because the Parliament also approved the Presidential Proclamations with the vast majority (as the ruling parties in Centre enjoyed an absolute majority in both Houses). In all such cases, the Centre meticulously defended itself, stating that it cannot remain a mute spectator when the nation’s Constitutional fabric is being subverted due to a State Government’s malfunctioning as the same would amount to a violation of Article 355. Misuse of this provision for political gain peaked in 1977 when Janata Party Government in Centre dismissed 9 Congress party ruled State Governments, and again in 1980, same 9, State Governments ruled by Janata Party were dismissed when Congress party came into power in the Centre as if history repeats itself. The propriety of the wholesale use of Article 356, again in 1977 and 1980, has been widely questioned. These Proclamations were not based on any report from the Governors of the States concerned. Commenting on the use of Article 356 (1) in a wholesale manner in these 18 cases, the Sarkaria Commission has observed—

“In our opinion, these 18 cases are typical instances of wholesale misuse of Art. 356 for political purposes, extraneous to the one for which the power has been conferred by the Constitution.”[13]

Notably, the provisions of State Emergency under Article 356 of the Indian Constitution have been basically borrowed from the Government of India Act, 1935. However, no other Federal Constitutions in the world, including the United States, contain such a provision whereby the Union can take over a State Government owing to some reasons. In some most landmark judgments like Kesavananda Bharati vs. State of Kerala[14], S.R. Bommai vs. Union of India[15], the Supreme Court of India stated that federalism is part of the Basic Structure of the Indian Constitution. Evidently, using the overwhelming power by the Central Government under Article 356 arbitrarily and unscrupulously has been deemed a heavy onslaught on the federal structure of Indian polity.

From the instances mentioned above, there was no room for doubt left that Article 356 became an instrument in the hand of the Centre to pervert the federal scheme of the Indian Constitution by encroaching upon the spheres of the State Governments ruling by opponent political parties. Those instances can be regarded as the mockery of the basic spirits of federalism as envisaged by the Constitution framers. The only remedy in such cases was ‘judicial review’. The Centre’s actions under clause (1) were often challenged in respective High Courts. Unfortunately, the High Courts took mostly similar stances in all the cases and refused to go into the propriety or legality of the Proclamations holding that the subjective satisfaction of the President in proclaiming State Emergency does not come within the purview of scrutiny by the Courts. Even the 38th Constitutional Amendment Act, 1975 itself inserted clause (5) to eliminate all confusions and close the ways of judicial review, making it clear that “the satisfaction of the President is final and conclusive shall not be questioned in any Court on any ground.” However, this provision completely taking away the power of judicial review in such matters was deleted in the 44th Amendment. Some of the notable cases until 1977 were—

  1. Rao Birinder Singh vs. Union of India[16], in the Punjab & Haryana High Court,
  2. Jyotirmoy Bose vs. Union of India[17], in the Calcutta High Court,
  3. Bijayananda Patnaik vs. President of India[18], in the Orissa High Court.

In these cases, the High Courts took passive stances in applying judicial scrutiny and dismissed the petitions challenging the Proclamations issued under Article 356 in the respective States emphasizing the following grounds–

  • The Constitution itself has given the duty exclusively to the Union to ensure whether the State Governments are running as per the Constitution and accordingly conferred power specifically to the Union under Article 356 to take action in case of any violation thereof. The Court has no jurisdiction to require disclosure of materials forming the basis of the President’s satisfaction.
  • The Courts cannot inquire into the justness of the actions as the President himself proclaimed it in his own discretion exercising his Constitutional powers under Article 356(1), and this is not an executive action of the Union per se. Moreover, the President himself is not answerable to the Court in view of Article 361(1). Even the mala fides of the Governor of the State are also not justiciable because of the same Article.
  • Noting on the mala fide intention of the Prime Minister and his Council of Ministers on whose advice the President issues such Proclamations, the Court held that again the same could not be questioned in any Court because of the bar in judicial review of the advice given by the Council of Ministers as per Article 74(2). Thus the Courts cannot interfere in such matters because they embrace political and executive policy and expediency unless some Constitutional provisions are being infringed.
  • In view of the newly added Article 356(5) (which was later substituted by another provision in the 44th Amendment), it was impossible for the Courts to interfere in such matters.

The most significant rulings of the Supreme Court in this regard were—

State of Rajasthan vs. Union of India:

The first case that reached the Supreme Court regarding this matter was- State of Rajasthan vs. Union of India[19]. In this case, the Congress party was badly routed in the general election of 1977, upon the revocation of the 1975 National Emergency, and the Janta Party Government came into power. At that time, many States were still under Congress’s rule. The Union Home Minister Chaudhary Charan Singh issued a directive to those States under Congress’s rule to seek dissolution of Assembly Houses to the Governors of those respective States. The State of Rajasthan, along with other States, apprehending invocation of Article 356(1) in those States filed suit in order to forestall the same to the Supreme Court and pleaded with the Court to declare this action of the Home Minister illegal and unconstitutional. Unfortunately, the Supreme Court also adopted a similar stance as the High Courts and denied to entertain it. The Court held that the directive given by the Home Minister could not be characterized as mala fide, extraneous or irrelevant. Chief Justice MH Beg highlighted the Centre’s duty to protect the State under Article 355. The Court expressed its view that this Proclamation has two sides- one is preventive, and the other is curative. This Proclamation was intended either to safeguard against the failure of the constitutional machinery in a State or to repair the effects of a breakdown.  Justice PN Bhagwati however in a somewhat different tone stated that –

“The satisfaction of the President under Article 356 is a subjective one and cannot be tested by reference to any objective tests, or by judicially discoverable and manageable standards.”[20]

But, he also pointed out in a different but significant tone that-

“One thing is certain that if the satisfaction is mala fide or is based on wholly extraneous and irrelevant grounds, the Court would have jurisdiction to examine it, because in that case there would be no satisfaction of the President in regard to the matter in which he is required to be satisfied.”[21]

SR.Bommai vs. Union of India:

The landmark and historic verdict came from the Supreme Court in 1994 in the prominent case of S.R. Bommai vs. Union of India[22]. In this case, the Janta Dal Government, under the Chief Ministership of SR Bommai, was in power in Karnataka in 1989. Meanwhile, the majority support of the ruling party came into question due to large-scale defections. The Chief Minister sought floor-test to prove the majority of the party to the Governor, but the Governor paid no heed. He accordingly sent his report to the President seeking the invocation of Article 356 in the State due to the breakdown of Constitutional machinery on the grounds of loss of the majority of the ruling party and no possibility to form an alternative Government, and the President on receipt of the report issued the Proclamation for the same on April 1989. SR Bommai challenged this Proclamation to the Karnataka High Court by filing a writ petition, but the Court dismissed the plea. Then it was challenged before the Supreme Court. Significantly, at the same time, similar Proclamations were also issued in the States of Meghalaya and Nagaland by the Central Government, under the Premiership of Rajiv Gandhi. On the other hand, the Proclamations were also issued in the States of Madhya Pradesh, Himachal Pradesh, and Rajasthan, which were under the rule of the BJP during the 1992s. The reason behind these Proclamations was the large-scale breach of law and order conditions in the aftermath of the notorious incident of the Babri Masjid demolition, and the ruling BJP Governments were found to be sympathetic towards the miscreants of the incident. Among these BJP ruled States, the Government of Madhya Pradesh first challenged the Proclamation by filing a writ petition to the Madhya Pradesh High Court. The High Court invalidated the Proclamation holding that mere worsening law and order condition in the State could not be said as a complete breakdown of the Constitutional machinery and hence could not be the sole ground to invoke Article 356(1). This ruling of the Madhya Pradesh High Court was unprecedented because this was the first judicial ruling that invalidated a Presidential Proclamation invoking Article 356 upon finding it to be a lack of merit. The Central Government appealed to the Supreme Court, challenging this ruling of the Madhya Pradesh High Court.

The most significant fact in the SR Bommai’s case was that the Supreme Court was hearing 6 petitions challenging the Constitutional validities of invocation of Article 356 in the 6 States, namely, Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh, and Rajasthan, during 1989-1992 at the same time. In this case, the majority of judges of the Supreme Court came out of the stereotypical approaches taken by the Court in the earlier cases and they took activist stances by dispelling all longstanding confusions in respect of the judicial review of the Proclamations imposing President’s rule in States. The Constitution Bench of 9 judges delivered seven opinions while considering several issues relating to the petitions. The major takeaways as stated by the Supreme Court in this case were—

1. The President is empowered to issue Proclamations under Article 356(1), but he also acts on the aid and advice of the Council of Ministers as per Article 74(1). Therefore, the de facto power is vested in the Central Government to decide everything in this regard; hence the protection given to the President under Article 361(1) does not apply here.

2. The majority support of the ruling party, whenever it comes in question, has to be decided on the floor of the House, not in the chamber of the Governor, before recommending President’s rule in the State. If the ruling party gets defeated in the floor test, the Governor also has to look for possibilities to form an alternative Government before recommending the President’s rule.

3. The Court reiterated the opinion of Justice Bhagwati in the Rajasthan’s case that the Constitutionality of the Proclamation is undoubtedly justiciable to examine whether it was based on any materials, whether such materials are relevant, or whether it is based on entirely fictitious or extraneous grounds, or whether there is any malice in the part of the Union or the President acting in its advice. Even the Constitutional bar on judicial review under Article 356(5), as inserted by the 38th Amendment, did not exist as the same was repealed by 44th

4. The satisfaction of the President must be based on the relevant fact that the State Government cannot be carried on according to the Constitution. That is to say that the President must be satisfied upon considering the relevant material presented before him as a reasonable man having ordinary prudence shall also come to the same conclusion. If this requirement is fulfilled, the Proclamation shall not be open to judicial review. But if the material does not reasonably suggest that the State Government cannot be run according to the Constitution, the Proclamation shall be open to judicial review. According to Justice Jeevan Reddy, the power of the President is conditional, not absolute. If a Proclamation prima facie appears to be maintainable, it is for the Central Government to substantiate its validity.

5. The dissolution of the State Assemblies upon the issue of Proclamation is not inevitable, and it can only be done to achieve the purposes of the Proclamation. However, the dissolution of the Assembly before it gets approved by the Parliament within two months prescribed time frame shall be invalid per se. It can be kept under suspended animation in the meantime. If it fails to get approval or gets revoked before Parliamentary approval, the Assembly shall revive or get reactivated on the expiry of that time frame. If the Proclamation continues for six months from its issue date or is revoked earlier after it gets Parliamentary approval, the dissolved Assembly including the dismissed State Government shall not revive automatically on the expiry of that time frame. In case any Court invalidates such Proclamation issued in a State even though approved by Parliament, the Proclamation shall become void. In that case, both the State Government (if dismissed) and State Assembly (if dissolved) shall be revived.

6. One of the vital issues, in that case, was that the President acts in aid and advice of the Council of Ministers under Article 74(1), but whether the advice given to the President can be questioned in any Court as there is a bar for the same under Article 74(2). The Court interpreted clause (2) of Article 74 wisely to apply for limited judicial review in such matters. Justice Jeevan Reddy most significantly asserted—

Article 74 (2) does not bar the Court from calling upon the Union Council of Ministers to disclose to the Court the material upon which the President had formed the requisite satisfaction. The material on the basis of which advice was tendered does not become part of the advice. Even if the material is looked into by or shown to the President, it does not partake the character of advice.”[23]

If asked by the Court, the Central Government has to produce the materials on which basis the Proclamation is issued in order to defend its action. He further emphasized that the Court shall not inquire into the adequacy or propriety of the material, but the duty of the Court shall only be confined to checking the relevancy of the action taken or not. That is to say that limited judicial scrutiny is permissible to examine whether there exists any nexus between the material and the action taken by the Centre. Even if some parts of the actions taken are irrelevant to the material, but the rest is fine; the Court shall not inquire into it so long as some actions are relevant to the material. Here ‘material’ means the report of the Governor of a State or any other source that satisfies the President that the Government of the State cannot be carried on as per the Constitution.

In the final verdict, the Court overruled all the earlier judgments delivered by High Courts and the Supreme Court itself relating to the application of judicial review of the Proclamations issued under Article 356(1). The Court held the actions of the Union imposing President’s rule in the States of Karnataka, Meghalaya, and Nagaland were irrational, faulty, unconstitutional, and clearly out of mala fides; hence it was liable to be struck down. The Proclamations in those States were invalidated accordingly, and the State Governments and Legislative Assemblies were restored. Talking about the Proclamations issued in the States of Madhya Pradesh, Himachal Pradesh, and Rajasthan, the Court overruled the decision of the MP High Court that invalidated the Proclamation in the State of MP. The Supreme Court held that if a State Government cannot be carried on as per the principles of secularism, it can be treated as the complete breakdown of the Constitutional machinery of the State. Therefore, the Court upheld the Constitutionality of the Proclamations issued in these three States. Moreover, in this landmark verdict, the Apex Court also ruled that ‘Secularism’ is part of the ‘Basic Structure of the Constitution’. Applying the principles laid down in this historic case, the Courts have invalidated a number of Proclamations issued in different States after 1994, finding those to be irrational, unconstitutional, and sometimes motivated by legal and factual mala fides. Thus, the Apex Court saved the federal fabric of the Indian Constitution from going astray.

Financial Emergency Provisions in Indian Constitution

Article 360 of the Indian Constitution deals with the provisions relating to Financial Emergencies. According to MP Jain, the framers of the Constitution took into account the experiences of the other federations like Canada, the USA, and Australia during the Great Depression of the 1930s while incorporating this Article. During that period of depression, the Central Governments of those federations found themselves very stymied to take adequate measures in order to cope with such a situation. As Emergency measures to deal with the exigencies in those federations are mainly dependant on the judicial discretions, one legislation called the National Industrial Recovery Act, 1933 was passed by the US Congress to deal with the Financial Emergency caused by the Great Depression of the 1930s, and that was declared unconstitutional by the US Supreme Court in the case of A.L.A Schechter Poultry Corp. vs. United States[24]. During the Constituent Assembly debates, the arguments supporting the Financial Emergency were accepted as the Constitution makers did not want India to face such difficulties while coping with a financial exigency. These provisions were inserted to ensure that the Central Government can effectively deal with such economic emergencies without any hindrance. Notably, such an Emergency has never been imposed in India until now, although it has remained in discussions during the Covid-19 pandemic that severely affected the economic conditions not only in India but also in the entire world. It also involves tremendous effects on the Centre-State relations, mainly concerning financial matters. This Emergency provision has been discussed in the following points—

Grounds on which Article 360 can be invoked

As per Article 360(1), if the President may proclaim Financial Emergency upon being satisfied that a situation exists by reason of which the financial stability or credit of India or any specific part thereof has been threatened. Unlike, Article 352, the President cannot proclaim such Emergency upon apprehending any threat to the financial stability or credit of India or any part thereof.

Parliamentary Ratification of the Proclamations issued under Article 360(1)

Article 360(2)(b) requires that every Proclamation thus issued shall be laid before each House of Parliament. Unless laid before each House for ratifications, and if laid but fails to get approval from the Houses, the Proclamation shall automatically cease to operate on the expiry of two months from the date of its issue as per Article 360(2)(c). Like the other two Emergencies, as discussed earlier, if the dissolution of the House of People takes place during the two months time frame before the Proclamation gets approval from each House of Parliament, the Council of States can ratify the Proclamation by passing resolutions to keep it operative. However, the House of People has to approve the same Proclamation within thirty days from the date of its first sitting after its reconstitution. If the House of People does not ratify it by passing a resolution, the Proclamation shall cease to operate on the expiry of said thirty days time frame.

According to Article 360(2)(a), the President may revoke or vary the Proclamation by issuing a subsequent Proclamation in that regard.

Modes of suspension of a Proclamation of Financial Emergency at a glance

Summarising the provisions of Article 360 mentioned above, the modes of suspension of a Proclamation in India or any part thereof under this Article are as follows—

  1. In case the Proclamation soon after its issue is not laid before the each House of Parliament before the expiry of two months from the date of issue of the Proclamation or even if it is laid but not approved by both or any of the Houses before the same prescribed time frame.
  2. In case of the dissolution of the House of People during any time of either of the Parliamentary ratifications as mentioned under the proviso of clause (2) of this Article, if not ratified by the House of People within thirty days from the date of its first sitting after reconstitution of the House.
  3. In case the President issues another Proclamation under Article 360(2)(a) revoking the earlier Proclamation without Parliamentary ratification during the operational period of the same Proclamation. As per this provision, the President may also issue a subsequent Proclamation varying a Proclamation issued earlier under clause (1) in a similar manner.

Consequences of the Proclamation of Financial Emergency

Like the other two types of Emergencies, Article 360 also modifies the federal structure of the Indian Constitution to some extent. The consequences of Financial Emergency are—

1. Article: 360(3): During the operation of this Emergency, the Central Executive becomes entitled to supervise the financial actions of the States and give directions to any State to abide by such canons (i.e., specified standards) of financial propriety as may be specified in such directions. Besides that, the President may also give directions to the States as he may deem necessary and adequate for this purpose.

2. Article 360(4): As per Article 360(4)(a)(i), the directions as mentioned in the preceding Article may include a provision to the States requiring reduction of salaries and allowances of all or any class of persons or officers serving in connection with the States affairs.

As per Article 360(4)(a)(ii), the directions as mentioned earlier may also include a provision requiring the reservation of all money bills, financial bills, or any other bills relating to the expenditures from the consolidated funds of the States after being passed by the State Legislatures for the consideration of the President.

Article 360(4)(b) also authorizes the President to issue directions requiring the reduction of the salaries and allowances of all or any class of persons serving in connection with the Union affairs, including the judges of the High Courts and the Supreme Courts during the operation of a Proclamation of Financial Emergency.

Limitations of the continuation of such Proclamation and judicial review

Unlike Articles 352 and 356, Article 360 does not contain any provision to delimit the time frame up to which a Proclamation of Financial Emergency can remain in force once approved and also the continuation of that time frame. Therefore, such Proclamation can be in force for an indefinite period. Regarding the scope of judicial review, the 38th Constitutional Amendment Act, 1975 inserted Article 360(5) that put the satisfaction of the President in this regard entirely outside the scope of judicial scrutiny, although the 44th Amendment deleted the same provision. This question has never come up as clause (1) has never been invoked until now.

[1]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[2]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[3]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[4]1976 AIR 1207

[5] 1975 AIR 865

[6]1974 AIR 806

[7]1980 AIR 1789

[8]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[9]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[10](2007) 1 SCC 174

[11]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[12] 1994 AIR 1918

[13] MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[14]AIR 1973 SC 1461

[15]1994 AIR 1918

[16]AIR 1968 P H 441

[17]AIR 1971 Cal 122

[18]AIR 1974 Ori 52

[19]AIR 1977 SC 1361

[20]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[21]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[22]1994 AIR 1918

[23]MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed

[24]295 U.S. 495 (1935)

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Souvik Roychoudhury

An ambitious, earnest, and inquisitive 3rd Year Student of Law, hailing from West Bengal, India, pursuing BA.LL.B(Hons) course at SOA National Institute Law, SOA University, Bhubaneswar, Odisha- An avid lover of legal studies, research, and analysis, pertaining to diverse and dynamic areas of law- An assiduous writer unabashed in setting forth unbiased individual opinions based on own perspectives and perceptions, exploring different horizons of the different subjects of research - Special areas of interest include Indian Constitutional law, Criminal law, Human Rights and other areas of its similar kinds.


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