CHANDIGRAH UNIVERISTY

Assignment: - 3
Of
Constitution Law
Of
Proclamation of Emergency

sUbMITTEd by: - sUbMITTEd by:-

sOIbaM ROGER sIR JasKaRaN

19BLL1043
  PROCLaMaTION OF EMERGENCy
Part – XVIII of the Indian constitution titled as Emergency Provisions
contain Articles 352 to 360.

The constitution of India, envisages three types of emergencies.

These are –

1. Emergency arising from a threat to the security of India. It is

commonly known as “National Emergency” (Article- 352).
2. Failure of constitutional machinery in a state. In a common man’s
language, it is termed as “State Emergency” or “ President’s
Rule” or “Governor’s Rule” in the state (Article- 356) and
3. Financial Emergency (Article – 360)

Constitutionally speaking, the expression “Proclamation

of Emergency” refers only to a proclamation made under clause
(1) of Article 352. Therefore the expression “Proclamation of
emergency” to the term “Emergency” whenever, used should not
include the situations provided for under Articles 356 and 360.
For the First time, a Proclamation of Emergency was
issued but the President on October 26, 1962, on the ground of
external aggression from Chinese side. This Proclamation
continued in force until January 10, 1968, when it was withdrawn
by the president by making a fresh Proclamation. Then, on
December 3, 1971, another Proclamation of emergency was
issued on the ground external aggression from Pakistan side.
While this Proclamation was continuing in force, a fresh
 Proclamation of emergency was made by the President on June
25, 1975, on the ground of internal disturbance.

 aRTICLE – 352
The wake of the constitution of India have equipped the Union
under Article – 352 with absolute control during time of
emergency to preserve the integrity security and stability of the
country.

 PROCLaMaTION OF EMERGENCy
aRTICLE ExCLUdEs ThE OThER 2 KINds OF
EMERGENCy.

President can impose National Emergency if he is satisfied that

a grave situation exists or is likely to arise due to war, external
aggression or armed.

 ThE CONsTITUTION (44Th aMENdMENT)

aCT, 1978
After 44th Amendment, it is provided that the President can
make a Proclamation declaring Emergency, Only when he receives
in writing the decision of the Union Cabinet to this effect.

 GROUNds FOR PROCLaMaTION

OF EMERGENCy
 A Proclamation of Emergency may be made on the ground of
War, External aggression or armed rebellion.
Prior to the 44th Amendment, Article 352(1) provided that
the President could make a Proclamation declaring Emergency on
the ground of threat to the security of India. The security might be
threatened by:-
1. War, or
2. External Aggression or
3. Internal Disturbance

 dURaTION OF PROCLaMaTION OF EMERGENCy WITh

aPPROVaL (aRTICLE – 352[5] )
Once approved by house of parliament, Emergency may continue
in force for SIX MONTHS from the date of such approval.

sTaTE EMERGENCy

(aRTICLE 355 TO 357)

 aRTIClE – 355
Provides that it shall be the duty of the Union “to protect
every state against external aggression and internal disturbance
and to ensure that government of every state is carried on in
accordance with the provision of the constitution.

 CaSE :- ThE SUpREmE CoURT In ExTRa

jUdICIal ExECUTIon VICTIm FamIlIES
aSSoCIaTIon (EEVFaa) V. UnIon oF IndIa, said
that the situation, ought to be dealt with,
 but the civil administration with the services of the armed forces
that were available in and of the Civil power.

 FaIlURE oF ConSTITUTIonal
maChInERy In STaTE – pRESIdEnT ’S
RUlE In STaTE (aRTIClE- 356).

Article 356 provided: “If the president, either 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 state cannot be
carried on in accordance with the provisions of this Constitution,
he may make a proclamation to that effect”.
 GROUNds FOR PROCLaMaTION UNdER
aRTICLE - 356
The only ground on which a proclamation can be made under
article 356 is “the failure of the constitutional government in the
state”. Besides other situations the expression “failure of the
constitutional government in the state” includes failure on the
part of a state to comply with or to give effect to the directions
given by the Union Government.

 CasE LaW :- s.R. bOMMaI V. UNION OF INdIa

A full bench of the Karnataka high court produced different

opinion about the imposition of the President’s Rule in Karnataka,
While in other states the court held that it was in violation of the
constitution would have restored the original position.

 FINaNCIaL EMERGENCy
(aRTICLE – 360)
This Article explains Financial Emergency imposed by the
President in a situation of financial crises where the credit of India
or any part is threatened or in danger. The purpose of this article
is to alter the government machinery at the backdrop of the
financial stability of the country.
 EFFECTs OF PROCLaMaTION OF EMERGENCy
The effects of Proclamation of Emergency are given under Article -
353 of the constitution.
The power under is provisional and cannot be used without
reasonable care.
The most important effects are that during the operation of a
proclamation the federal nature of the government.
When the fundamental rights are concerned during
emergency arising out of near or external aggression Article – 19
is suspended.
During the continuance of Proclamation power is vested
in the President to suspend the right of individual to move to the
courts in case of infringement of their fundamental rights except
those under Article – 20 and Article – 21 under the constitution
of India.
  CasE LaW: bENNETT COLEMaN & CO.
V.
UNION OF INdIa
The Supreme Court held that the News print Policy of 1972 – 78 in
continuance of old policy made before the Proclamation of
Emergency was not protected during the operations of the
Proclamation from the attack under Article – 19.
 CasE LaW : NIshI KaNTa MONdaL
Vs
sTaTE OF WEsT bENGaL
It was held that the Act enacted in view of the provisions of
clauses (2) of Article – 357 shall continue to remain in force in
spite of the revocation of the Proclamation unless the Act is
repealed or re-enacted with or without modification by an Act of
appropriate legislature.

CONCLUsION:-
Where the constitution provides for execution of power which
may lead to infringement of the fundamental rights of the
individual during emergency, Judiciary guarantee by constitution
of India. There must also be effective control mechanism to
ensure limitation of this power within the ambit of constitution,
the validity of action must be reviewed to deter political gains and
give way to public interest. Despite the abuse of power the
emergency provisions still have a role to play under conditions
prevailing in India.