National Emergency, and What It Does to the Federal Balance

And elections may be postponed. The proviso to article 172(1) permits the term of a Legislative Assembly to be extended by Parliament by up to one year at a time while a Proclamation of Emergency is in operation, not extending beyond six months after the Proclamation ceases; and the same is provided for the House of the People by article 83(2).

The three occasions, and why the third matters

1962, on the ground of external aggression, during the conflict with China; it continued until 1968.

1971, on the ground of external aggression, during the conflict with Pakistan; it was still in operation in 1975.

1975, on the ground of internal disturbance, with the 1971 Proclamation still running. Two emergencies were in force at once, which is why the Forty-fourth Amendment attended to the grounds as well as the procedure.

The federal consequence of 1975 is often overlooked. The Forty-second Amendment 1976, passed while the emergency was in force, moved education, forests, weights and measures, the protection of wild animals and birds, and the administration of justice and the constitution and organisation of all courts except the Supreme Court and the High Courts, from the State List to the Concurrent List. Those transfers were not undone by the Forty-fourth Amendment and are permanent.

So an emergency changed the federal division of powers for ever, and that is worth a sentence in any answer about the durability of the federal bargain.

A worked example

A Proclamation of Emergency on the ground of external aggression is in force. Parliament enacts a law regulating the sale of essential commodities within States, fixing prices and providing for seizure, and directs the States to enforce it through their own officers. It also modifies the Finance Commission's award for two years. Analyse each element and its life expectancy.

The legislation on a State subject. Trade and commerce within the State is Entry 26 of List II and production and supply of goods is Entry 27, so ordinarily Parliament could not legislate. Article 250 permits it while the Proclamation is in operation. Under article 250(2) the law ceases to have effect six months after the Proclamation ceases.

The direction to the States. Article 353(a) permits the Union to direct a State as to the manner in which its executive power is to be exercised, which is wider than article 256, and article 353(b) permits Parliament to impose duties on Union officers in a non-Union field.

The modification of the financial award. Article 354 permits the President to direct that articles 268 to 279 have effect subject to modifications for a specified period, and every such order must be laid before each House.

And the State's own law. If the State already has a price control law, article 251 keeps it alive but inoperative to the extent of the repugnancy while the Parliamentary law lasts, and it revives when that law ceases.

The example shows the design. Everything the Union gains is temporary and time-limited, everything is laid before Parliament, and the State's own competence is suspended rather than destroyed. That is a federation making provision for crisis rather than abandoning federalism.

The cases

The Emergency of 1975 is the reason the safeguards exist. In Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207. Facts. A Presidential Order under article 359 had suspended the right to move any court for the enforcement of articles 14, 21 and 22, and several High Courts had nevertheless entertained habeas corpus petitions from detenus. Held, by four to one. No person had any locus standi to move a High Court under article 226 for habeas corpus to challenge a detention on any ground including mala fides, and that section 16A(9) of the Maintenance of Internal Security Act was valid; Khanna J. dissented, holding that the State had no power to deprive a person of life or liberty without the authority of law and that the principle did not owe its existence to article 21 alone. Why it matters here is that although it is a rights case, its federal consequence was that a citizen in a State had no protection from any court, State or Union, which is the point at which a federal division of power stops meaning anything to the person it exists for.

And the case is no longer law. In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; AIR 2017 SC 4161. Facts. A reference to nine judges on whether the Constitution protects a right to privacy. Held. Unanimously that privacy is an intrinsic part of the right to life and personal liberty under article 21 and of the freedoms in Part III, and it expressly held that ADM Jabalpur is seriously flawed and stands overruled. Why it matters here is that a student may state the overruling with a case name rather than as an opinion.

Distinctions

What it does NOT mean

It does not mean the States cease to exist. Their governments and legislatures continue and their own legislative power survives, article 251 preserving it and making a repugnant State law merely inoperative.

It does not mean the changes are permanent. Article 250(2) puts a six-month sunset on a law made under it, and article 354 orders run for a specified period. What was permanent was the Forty-second Amendment's transfer of entries, and that was an amendment rather than an emergency power.

It does not mean article 356 and article 352 are alternatives. They address different situations, and both have been in force at once.

And it does not mean an emergency is unreviewable. The Thirty-eighth Amendment tried to make the satisfaction under article 352 final and conclusive, and the Forty-fourth Amendment removed that, so the ordinary principles of review apply.

Quick revision

Article 352: the Proclamation. Article 250: Parliament may legislate on any State List matter while it is in operation, the law lapsing six months after the Proclamation ceases. Article 251: the State's power survives and its repugnant law is only inoperative meanwhile. Article 353: the Union may direct a State as to the exercise of its executive power, and Parliament may confer powers and impose duties outside the Union List; the proviso extends this where the Proclamation runs in another part of India. Article 354: the President may modify articles 268 to 279 for a specified period, every order to be laid before each House. Articles 83(2) and 172(1) proviso: terms extendable by one year at a time, not beyond six months after the Proclamation ceases. Three Proclamations: 1962, 1971 and 1975, the last with the 1971 one still in force. The Forty-second Amendment, passed during the 1975 emergency, moved education, forests, weights and measures, protection of wild animals and birds, and the administration of justice from List II to List III, and those transfers are permanent. ADM Jabalpur, overruled in Puttaswamy.

Test yourself

1. Which three articles change the federal balance during an emergency, and what does each do? Article 250, which lets Parliament legislate on the State List; article 353, which lets the Union direct a State on the exercise of its executive power and lets Parliament impose duties outside the Union List; and article 354, which lets the President modify articles 268 to 279 on the distribution of revenue.

2. What happens to a law made under article 250 when the emergency ends? It ceases to have effect on the expiration of six months after the Proclamation ceases to operate, except as respects things done or omitted before that.

3. Does a State lose its legislative power during a national emergency? No. Article 251 preserves the State's power to make any law it is competent to make, and a State law repugnant to a law made under article 250 is inoperative only so long as the Parliamentary law continues.

4. Name one permanent federal change that an emergency produced. The Forty-second Amendment 1976, passed while the 1975 emergency was in force, moved education, forests, weights and measures, protection of wild animals and birds, and the administration of justice and the constitution of courts other than the Supreme Court and the High Courts, from the State List to the Concurrent List, and those transfers were not undone.

5. Distinguish article 352 from article 356 in three respects. Article 352 rests on war, external aggression or armed rebellion, extends to the whole or part of India, and leaves the State government in office. Article 356 rests on the failure of constitutional machinery, applies to one State, and dismisses or suspends its government.

6. Why does ADM Jabalpur belong in a federalism chapter as well as a rights chapter? Because its effect was that a citizen in a State had no remedy in any court, State or Union, which is the point at which the division of power between two governments ceases to mean anything to the person it exists to protect.