Indian Constitution is regarded as a document having a special legal sanctity which sets out the framework and the principal functions of the organs of a state and also declares the principles governing the operation of those organs. In recent times famous lawyers in India are seen discussing various provisions of law and establishing the supremacy of the Constitution. The famous Supreme Court lawyers often debate on the lack of proper functioning of the Government and gross violation of rights of the people.
The Constitution of India lays down the provision for declaring a state emergency and its consequences. Top lawyers in India often through legal aid camps, debates and talks lay great emphasis on the proper functioning of the Government, as a failure of constitutional machinery in state results in the Presidents Rule in a state.
The term emergency in layman's language may be defined as a situation of difficulty arising suddenly and demanding immediate action. The Indian Constitution lays down emergency provisions and Article 356 deals state emergency.
The Constitution clearly states under article 356 that if the president on the report of Governor or otherwise is satisfied that a situation has arisen in the State whereby the government of the state cannot be carried on in accordance with the constitutional provisions then he may issue a proclamation to that effect.
When a proclamation is issued under section 356 following consequences are witnessed:
1. The President may assume the powers vested in the Governor of the State
2. The President may declare that the powers of the State legislature be exercised by the Parliament
3. The President may make such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the object of the proclamation
It is, however, important to note that the president cannot assume to himself any of the powers vested in the High Court of such a State.
Once a proclamation is made the Parliament can confer on the President the power to make laws for such a State. It may even authorize the President to delegate such a power to any other authority. During the subsistence of proclamation, the State legislature remains suspended and dissolved but the fundamental rights enshrined under Part III of the Constitution remain unaffected.
This proclamation may be revoked or varied by the President by making a subsequent proclamation. It is not necessary under Article 356 that the President must act on the report of the Governor only he may even act without the report of the Governor as the Governor has only to report and not to recommend the President.
It has been accepted that where a state fails to give effect to or comply with the Union directives, then in such a situation it shall be lawful for the president to hold that such a situation has arisen in which the State Government cannot be carried on in accordance with the Constitutional provisions.
A proclamation issued under Article 356 declaring State emergency does not remain in effect for perpetuity. It is to be laid down before each House of the Parliament and unless both the Houses approve it by a resolution it shall cease to have effect at the expiration of two months. In case the proclamation is issued at the time when Lok Sabha is dissolved or the dissolution takes place during two months and the proclamation is passed by the Rajya Sabha and not the Lok Sabha then the proclamation will cease to operate at the expiry of 30 days from the date on which the new Lok Sabha meets unless before 30 days it is passed by the Lok Sabha. The tenure of proclamation can be extended by 6 months each time when both the houses pass a resolution approving the continuance of the proclamation. The maximum period for which the proclamation can remain in effect is 3 years from the date of its issue.
The grounds considered proper for invoking article 356 are:
1. Hung assembly scenario
2. Corruption; maladministration
3. Acting contrary to the Constitution of India/Union directives
4. Failure to meet an extraordinary situation
5. Security concern