Emergency

CONTENTS
INTRODUCTION.............................................................................................................................. 6
Types of Emergencies ...................................................................................................................... 8

NATIONAL EMERGENCY ............................................................................................................ 9
Grounds of Declaration ................................................................................................................... 9

Territorial Extent of Proclamation............................................................................................... 11
Parliamentary Approval and Duration ........................................................................................ 11
Revocation of Proclamation .......................................................................................................... 12
Effects of National Emergency ..................................................................................................... 12
#Effect on the Centre-State Relations ....................................................................................... 12
#Effect on the Life of the Lok Sabha and State Assembly....................................................... 14
#Effect on the Fundamental Rights ........................................................................................... 14
Distinction between Art.358 & Art.359 ....................................................................................... 17
National Emergencies in India ..................................................................................................... 18
#Emergency 1:1962 ..................................................................................................................... 18
#Emergency 2:1971 ..................................................................................................................... 18
#Emergency 3:1975 ..................................................................................................................... 18
STATE EMERGENCY ................................................................................................................... 22
Grounds of Imposition .................................................................................................................. 25

Consequences of President’s Rule................................................................................................ 27
Use of Art.356 ................................................................................................................................. 29
Duration of Proclamation Issued under Art.356 ........................................................................ 30
#Constituion (44th Amendment) Act, 1978 ................................................................................ 30
Judicial Review ............................................................................................................................... 32
#View of High Courts ................................................................................................................. 32
#State of Rajasthan v. Union of India (1977) 3 SCC 592 ......................................................... 35
#High Court’s decision after Rajasthan case ............................................................................ 38
#S.R. Bommai v. Union of India (1994) 3 SCC 1 ...................................................................... 39
Cases of Proper & Improper Use .................................................................................................. 43
Comparing National Emergency and President’s Rule ............................................................. 44
1
FINANCIAL EMERGENCY ......................................................................................................... 46
Grounds of Declaration ................................................................................................................. 46

Effects of Financial Emergency .................................................................................................... 46
CRITICISM OF EMERGENCY PROVISIONS ...................................................................... 48
CONCLUSION ................................................................................................................................. 50
BIBLIOGRAPHY ............................................................................................................................ 51
2
LIST OF CASES
A. Sreeramulu Re ................................................................................................ 31
A.D.M Jabalpur v. Shiv Kant Shukla, 1976 AIR 1207, 1976 SCR 172.15, 17, 19
A.K. Roy v. Union of India, AIR 1982 SC 710, 721 .......................................... 25
Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106........................... 13
Bijayananda v. President of India ....................................................................... 32
Hanumantha Rao v. State of A.P ........................................................................ 31
Jabalpur Bus Operators' Association v. Union of India, AIR 1994 MP 62 ........ 25
K.K. Aboo v. Union of India .............................................................................. 30
Makhan Singh v. State of Punjab, AIR 1964 SC 381 ......................................... 18
Minerva Mills Ltd. and Ors. v. Union of India and Ors. AIR 1980 SC 178 ........ 9
Minerva Mills Ltd. and Ors. v. Union of India and Ors., ................................... 32
Rameshwar Prasad v. Union of India ........................................................... 23, 47
S.R Bommai v. Union of India ........................................................................... 47
S.R. Bommai v. Union of India (1994) 3 SCC 1 ................................................ 37
Special Reference No. 1 of 2002 ........................................................................ 23
State of Rajasthan v. Union of India (1977) 3 SCC 592..................................... 32
State of Rajasthan v. Union of India, AIR 1977 SC 1361, 1392 ........................ 25
Sunderlal Patwa v. Union of India ...................................................................... 37
3
INTRODUCTION
The meaning of “Emergency” under the Constitution is different from its meaning in
dictionary. Emergency in Constitution means abnormal situation which calls for urgent
remedial action, whereas the dictionary meaning of emergency that it is a situation when it
poses of immediate risk.
It is a responsibility of government to prepare for all the crisis with all the measures require to
safeguard its people. As India being a democratic nation, The President is given the authority
to proclaim emergency at the time of severe crisis. The President can proclaim emergency
when he is satisfied after advice and discussion with the Council of Ministers. Emergency
provisions are contained in Part XVIII of the Constitution, from Articles 352 to 360. Whenever
there is a threat in the constitutional machinery or threat to the national or financial creditability
of India, then The President of India can proclaim emergency in any part of India1.
During an Emergency, the Central government becomes all powerful and the states go into the
total control of the Centre. It converts the federal structure into a unitary one without a formal
amendment of the Constitution. This kind of transformation of the political system from federal
during normal times to unitary during Emergency is a unique feature of the Indian Constitution.
In this context, Dr. B.R. Ambedkar observed in the Constituent Assembly that2:
“All federal systems including American are placed in a tight mould of federalism. No
matter what the circumstances, it cannot change its form and shape. It can never be unitary.
On the other hand, the Constitution of India can be both unitary as well as federal according
to the requirements of time and circumstances. In normal times, it is framed to work as a federal
system. But in times of Emergency, it is so designed as to make it work as though it was a
unitary system.”
The emergency in nation is declared in procedure. During emergency all the fundamental right
of a citizen or an individual are suspended except Art.20 and 21where Art.20 talks about the
protection in respect of convection in certain offences and Art.21 talks about the right to life
1
https://www.bing.com/search?q=national+emergencies+India&form=EDGTCT&qs=AS&cvid=2adff47046f34
1(Last accessed on 06/06/2022)
2
Constituent Assembly Debates, Volume VII, p. 34.
4
and personal liberty in which every individual from its birth had a right to live meaningful and
dignified life. The Subjective Satisfaction of the president is the satisfaction that the security of
India is threatened or there are chances of its threatened by was or internal aggression or armed
rebellion and this cannot be change in the court of law, even when president had been actuated
mala fides. The executive is empowered with very great powers by the emergency provisions.
Certain members of the constitution assembly had expressed the view that the executive may
misuse the emergency powers.
In this context, Dr. B.R. Ambedkar pointed out that the Constitution itself provides with the
safeguards against the misuse of the emergency powers. -
 Firstly, it is to be exercised on the advice of the representatives of the people or the
Council of Ministers.
 Secondly, it must be laid in front of Parliament and cannot enforce for more than one
month without its approval.
If we talk about the National emergencies in India, third national emergency was not
declared at right time and declared not for the right purpose. Except the third national
emergency, the other two were declared at right and for the right purpose. Emergency
declared by Indira Gandhi in 1975 has resultant as the darkest period in Indian history from
1975 to 1977 of 21 months.
At the time of crisis, the democratic nation like India cannot deal with them in its normal
process, therefore the president is given the authority for the declaration of emergency and for
immediate actions.
5
Types of Emergencies
The Constitution stipulates three types of emergencies:
1. An emergency due to war, external aggression or armed rebellion3 (Article 352). This
is popularly known as ‘National Emergency’. However, the Constitution employs the
expression ‘proclamation of emergency’ to denote an emergency of this type.
2. An Emergency due to the failure of the constitutional machinery in the states (Article
356). This is popularly known as ‘President’s Rule’. It is also known by two other
names– ‘State Emergency’ or ‘Constitutional Emergency’.
3. Financial Emergency due to a threat to the financial stability or credit of India (Article
360)
3
The phrase ‘armed rebellion’ was inserted by the 44th Amendment Act of 1978, replacing the original phrase
‘internal disturbance’.
6
NATIONAL EMERGENCY
Art.352 of the Indian Constitution provides that if the President is satisfied that a grave
emergency exists whereby the security of India or any part of India is threatened, either by war
or external aggression or armed rebellion4, he may make a Proclamation of Emergency in the
respect of the whole of India or any part of India as may be specified in the Proclamation. The
Proclamation of Emergency made under clause (1) may be varied or revoked by the President
by a subsequent Proclamation [Cl. (2)].
Grounds of Declaration
The President can issue different proclamations on grounds of war, external aggression, armed
rebellion5, or imminent danger thereof, whether or not there is a proclamation already issued
by him and such proclamation is in operation. This provision was added by the 38th
Amendment Act of 1975.
 When a national emergency is declared on the ground of ‘war’ or ‘external aggression’,
it is known as ‘External Emergency’. On the other hand,
 When it is declared on the ground of ‘armed rebellion’6, it is known as ‘Internal
Emergency’.
Example:
 If India and Pakistan openly accept that they will use armed forces against each other
is simply war.
 If there is no formal declaration that there will be armed forces used against a country
is External aggression.
 And if because of these two grounds an emergency is proclaimed as an external
emergency.
Under the Art.352 of the Indian Constitution, it is also considered that the president can declare
a national emergency even before the actual occurrence of war or external aggression or armed
rebellion, if he is satisfied that there is an imminent danger.
4
Inserted by the Constitution (44th Amendment) Act, 1978
5
Ibid
6
Ibid
7
Huge influx of illegal migrants from Bangladesh resulting periodic clashes between the citizens
of India and these migrants resulting into loss of life and property has been held to be external
aggression7.
A proclamation of national emergency may be applicable to the entire country or only a part
of it. The 42nd Amendment Act of 1976 enabled the president to limit the operation of a
National Emergency to a specified part of India.
Originally, the Constitution mentioned ‘internal disturbance’ as the third ground for the
proclamation of a National Emergency, but the expression was too vague and had a wider
connotation. Hence, the 44th Amendment Act of 1978 substituted the words ‘armed rebellion’
for ‘internal disturbance’. Thus, it is no longer possible to declare a National Emergency on
the ground of ‘internal disturbance’ as was done in 1975 by the Congress government headed
by Indira Gandhi.
The President, however, can proclaim a national emergency only after receiving a written
recommendation from the cabinet8. This means that the emergency can be declared only on the
concurrence of the cabinet and not merely on the advice of the prime minister. In 1975, the
then Prime Minister, Indira Gandhi advised the president to proclaim emergency without
consulting her cabinet. The cabinet was informed of the proclamation after it was made, as a
fait accompli9. The 44th Amendment Act of 1978 introduced this safeguard to eliminate any
possibility of the prime minister alone taking a decision in this regard.
The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from
the judicial review. But, this provision was subsequently deleted by the 44th Amendment Act
of 1978. Further, in the Minerva Mills case10, (1980), the Supreme Court held that the
proclamation of a national emergency can be challenged in a court on the ground of mala fide
or that the declaration was based on wholly extraneous and irrelevant facts or is absurd or
perverse.
7
Sarbananda Sonowal v. Union of India, AIR 2005 SC 2920
8
Article 352 defines the term ‘Cabinet’ as the council consisting of the Prime Minister and other ministers of
the Cabinet rank.
9
something that has already happened in the past and cannot be changed now
10
Minerva Mills Ltd. and Ors. v. Union of India and Ors. AIR 1980 SC 1789
10
Territorial Extent of Proclamation
Art.352 enables the President to make a proclamation of emergency either “in respect of the
whole of India or of such part of the territory thereof as may be specified.” These words were
added by the Constitution (42nd Amendment) Act, 1976, which now enables the President to
confine the declaration of emergency to any part of the territory of India. If the situation
becomes normal in any part of the country emergency could be revoked from that part of the
country, but, it may continue to operate in other parts of the country.
Parliamentary Approval and Duration

The proclamation of Emergency must be approved by both the Houses of Parliament within
one month from the date of its issue. Originally, the period allowed for approval by the
Parliament was two months, but was reduced by the 44th Amendment Act of 1978. However,
if the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or
the dissolution of the Lok Sabha takes place during the period of one month without approving
the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok
Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it.
If approved by both the Houses of Parliament, the emergency continues for six months, and
can be extended to an indefinite period with an approval of the Parliament for every six months.
This provision for periodical parliamentary approval was also added by the 44th Amendment
Act of 1978. Before that, the emergency, once approved by the Parliament, could remain in
operation as long as the Executive (cabinet) desired. However, if the dissolution of the Lok
Sabha takes place during the period of six months without approving the further continuance
of Emergency, then the proclamation survives until 30 days from the first sitting of the Lok
Sabha after its reconstitution, provided the Rajya Sabha has in the mean-time approved its
continuation.
Every resolution approving the proclamation of emergency or its continuance must be passed
by either House of Parliament by a special majority, that is,
(a) a majority of the total membership of that house, and
(b) a majority of not less than two-thirds of the members of that house present and voting. This
special majority provision was introduced by the 44th Amendment Act of 1978. Previously,
such resolution could be passed by a simple majority of the Parliament.
11
Revocation of Proclamation
A proclamation of emergency may be revoked by the President at any time by a subsequent
proclamation. Such a proclamation does not require the parliamentary approval.
Further, the President must revoke a proclamation if the Lok Sabha passes a resolution
disapproving its continuation. Again, this safeguard was introduced by the 44th Amendment
Act of 1978. Before the amendment, a proclamation could be revoked by the president on his
own and the Lok Sabha had no control in this regard.
The 44th Amendment Act of 1978 also provided that, where one-tenth of the total number of
members of the Lok Sabha give a written notice to the Speaker (or to the president if the House
is not in session), a special sitting of the House should be held within 14 days for the purpose
of considering a resolution disapproving the continuation of the proclamation.
A resolution of disapproval is different from a resolution approving the continuation of a

proclamation in the following two respects:
1. The first one is required to be passed by the Lok Sabha only, while the second one needs to
be passed by the both Houses of Parliament.
2. The first one is to be adopted by a simple majority only, while the second one needs to be
adopted by a special majority
Effects of National Emergency

A proclamation of Emergency has drastic and wide-ranging effects on the political system.
These consequences can be grouped into three categories:
1. Effect on the Centre-state relations,
2. Effect on the life of the Lok Sabha and State assembly, and
3. Effect on the Fundamental Rights.
#Effect on the Centre-State Relations

While a proclamation of Emergency is in force, the normal fabric of the Centre-state relations
undergoes a basic change. This can be studied under three heads, namely, executive,
legislative and financial.
12
Executive
During a national emergency, the executive power of the Centre extends to directing any state
regarding the manner in which its executive power is to be exercised. In normal times, the
Centre can give executive directions to a state only on certain specified matters. However,
during a national emergency, the Centre becomes entitled to give executive directions to a
state on ‘any’ matter. Thus, the state governments are brought under the complete control of
the Centre, though they are not suspended.
Legislative
During a national emergency, the Parliament becomes empowered to make laws on any
subject mentioned in the State List. Although the legislative power of a state legislature is not
suspended, it becomes subject to the overriding power of the Parliament. Thus, the normal
distribution of the legislative powers between the Centre and states is suspended, though the
state Legislatures are not suspended. In brief, the Constitution becomes unitary rather than
federal.
The laws made by Parliament on the state subjects during a National Emergency become
inoperative six months after the emergency has ceased to operate.
Notably, while a proclamation of national emergency is in operation, the President can issue
ordinances on the state subjects also, if the Parliament is not in session.
Further, the Parliament can confer powers and impose duties upon the Centre or its officers
and authorities in respect of matters outside the Union List, in order to carry out the laws
made by it under its extended jurisdiction as a result of the proclamation of a National
Emergency.
The 42nd Amendment Act of 1976 provided that the two consequences mentioned above
(executive and legislative) extends not only to a state where the Emergency is in operation
but also to any other state.
Financial
While a proclamation of national emergency is in operation, the President can modify the
constitutional distribution of revenues between the centre and the states. This means that the
president can either reduce or cancel the transfer of finances from Centre to the states. Such
modification continues till the end of the financial year in which the Emergency ceases to
13
operate. Also, every such order of the President has to be laid before both the Houses of
Parliament.
#Effect on the Life of the Lok Sabha and State Assembly

While a proclamation of National Emergency is in operation, the life of the Lok Sabha may
be extended beyond its normal term (five years) by a law of Parliament for one year at a time
(for any length of time). However, this extension cannot continue beyond a period of six
months after the emergency has ceased to operate. For example, the term of the Fifth Lok
Sabha (1971–1977) was extended two times by one year at a time11.
Similarly, the Parliament may extend the normal tenure of a state legislative assembly (five
years) by one year each time (for any length of time) during a national emergency, subject to
a maximum period of six months after the Emergency has ceased to operate.
#Effect on the Fundamental Rights

Articles 358 and 359 describe the effect of a National Emergency on the Fundamental Rights.
Article 358 deals with the suspension of the Fundamental Rights guaranteed by Article 19,
while Article 359 deals with the suspension of other Fundamental Rights (except those
guaranteed by Articles 20 and 21).
These two provisions are explained below:
Suspension of Fundamental Rights Guaranteed by Art.19.

According to Article 358, when a proclamation of national emergency is made, the six
Fundamental Rights under Article 19 are automatically suspended. No separate order for their
suspension is required.
While a proclamation of national emergency is in operation, the state is freed from the
restrictions imposed by Article 19. In other words, the state can make any law or can take any
executive action abridging or taking away the six Fundamental Rights guaranteed by Art.19.
Any such law or executive action cannot be challenged on the ground that they are
11
The term of the Fifth Lok Sabha which was to expire on 18 March, 1976 was extended by one-year up to 18
March, 1977 by the House of the People (Extension of Duration) Act, 1976. It was extended for a further period
of one-year up to 18 March, 1978 by the House of the People (Extension of Duration) Amendment Act, 1976.
However, the House was dissolved on 18 January, 1977, after having been in existence for a period of five
years, ten months and six days.
14
inconsistent with the six Fundamental Rights guaranteed by Article 19. When the National
Emergency ceases to operate, Article 19 automatically revives and comes into force. Any law
made during Emergency, to the extent of inconsistency with Article 19, ceases to have effect.
However, no remedy lies for anything done during the Emergency even after the Emergency
expires. This means that the legislative and executive actions taken during the emergency
cannot be challenged even after the Emergency ceases to operate but the proclamation of
emergency, however, does not invalidated a law which was valid before the Proclamation of
Emergency.12
The 44th Amendment Act of 1978 restricted the scope of Article 358 in two ways-
 Firstly, the six Fundamental Rights under Article 19 can be suspended only when the
National Emergency is declared on the ground of war or external aggression and
not on the ground of armed rebellion.
 Secondly, only those laws which are related with the Emergency are protected from
being challenged and no other laws. Also, the executive action taken only under such
a law is protected.
In M. M. Pathak v. Union of India13, the Supreme Court had an occasion to consider the
effect of the expression “the things done or omitted to be done” in Article 358 after the
Proclamation of Emergency ceases. In that case a settlement was arrived at between LIC of
India and its employees in 1971 under which the LIC had agreed to pay in cash bonus to its
employees. In 1977, however, by the LIC (Modification of Settlement) Act, 1976 passed by
Parliament during emergency the settlement was made ineffective and thereof the employees
could not demand their bonus while the emergency was in force. The employees of the LIC
challenged the constitutional validity of the above Act. The Supreme Court held --- The
effect of Proclamation of Emergency on fundamental rights is that the rights guaranteed by
Articles 14 and 19 are not suspended during emergency but only their operation is
suspended. This means that only the validity of an attack based on Articles 14 and 19 is
suspended during the emergency. But once this embargo is lifted Articles 14 and 19 of the
Constitution, whose use was suspended, would strike down any legislation which would have
been invalid.
12
Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106.
13
AIR 1978 SC 803
15
Suspension of right of enforcement of Fundamental Rights Under Art.19
Article 359 authorises the president to suspend the right to move any court for the
enforcement of Fundamental Rights during a National Emergency. This means that under
Article 359, the Fundamental Rights as such are not suspended, but only their enforcement.
The said rights are theoretically alive but the right to seek remedy is suspended. The
suspension of enforcement relates to only those Fundamental Rights that are specified in the
Presidential Order. Further, the suspension could be for the period during the operation of
emergency or for a shorter period as mentioned in the order, and the suspension order may
extend to the whole or any part of the country. It should be laid before each House of
Parliament for approval.
While a Presidential Order is in force, the State can make any law or can take any executive
action abridging or taking away the specified Fundamental Rights. Any such law or executive
action cannot be challenged on the ground that they are inconsistent with the specified
Fundamental Rights. When the Order ceases to operate, any law so made, to the extent of
inconsistency with the specified Fundamental Rights, ceases to have effect. But no remedy
lies for anything done during the operation of the order even after the order ceases to operate.
This means that the legislative and executive actions taken during the operation of the Order
cannot be challenged even after the Order expires.
The 44th Amendment Act of 1978 restricted the scope of Article 359 in two ways.
 Firstly, the President cannot suspend the right to move the Court for the
enforcement of fundamental rights guaranteed by Articles 20 to 21. In other words,
the right to protection in respect of conviction for offences (Article 20) and the right
to life and personal liberty (Article 21) remain enforceable even during emergency.
 Secondly, only those laws which are related with the emergency are protected from
being challenged and not other laws and the executive action taken only under such a
law, is protected.
Thus, laws not related to the emergency can be challenged in a Court of law even during
the emergency. This amendment was a sequel to the decision of the Supreme Court in the
Habeas Corpus case14.
14
A.D.M Jabalpur v. Shiv Kant Shukla, 1976 AIR 1207, 1976 SCR 172
16
It is to be noted that unlike Art.358 under Art.359 the suspension of right to move any court
for the enforcement of fundamental rights is not automatic. It can be only be brought about
by a Presidential Order.
Distinction between Art.358 & Art.359

The differences between Articles 358 and 359 can be summarised as follows:
1. Article 358 is confined to Fundamental Rights under Article 19 only whereas Article 359
extends to all those Fundamental Rights whose enforcement is suspended by the Presidential
Order.
2. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the
emergency is declared. On the other hand, Article 359 does not automatically suspend any
Fundamental Right. It only empowers the president to suspend the enforcement of the
specified Fundamental Rights.
3. Article 358 operates only in case of External Emergency (that is, when the emergency is
declared on the grounds of war or external aggression) and not in the case of Internal
Emergency (i.e., when the Emergency is declared on the ground of armed rebellion). Article
359, on the other hand, operates in case of both External Emergency as well as Internal
Emergency.
4. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of
Emergency while Article 359 suspends the enforcement of Fundamental Rights for a period
specified by the president which may either be the entire duration of Emergency or a shorter
period.
5. Article 358 extends to the entire country whereas Article 359 may extend to the entire
country or a part of it.
6. Article 358 suspends Article 19 completely while Article 359 does not empower the
suspension of the enforcement of Articles 20 and 21.
7. Article 358 enables the State to make any law or take any executive action inconsistent
with Fundamental Rights under Article 19 while Article 359 enables the State to make any
law or take any executive action inconsistent with those Fundamental Rights whose
enforcement is suspended by the Presidential Order.
17
There is also a similarity between Article 358 and Article 359. Both provide
immunity from challenge to only those laws which are related with the Emergency and not
other laws. Also, the executive action taken only under such a law is protected by both.
National Emergencies in India

#Emergency 1:1962
During the War with China, the first emergency was proclaimed and lasted for six years
between October 1962 and January 1968. The battle against China concluded on 21 October
1962, but another war against Pakistan only began after the emergency. In the end, the Tashkent
deal was signed after international pressure and in January the then government dropped the
emergency.
#Emergency 2:1971
The second emergency declaration was due to the war between India and Pakistan. Three acts
were performed during that time. Maintenance of SA, Coffee POS Act, and In order to avoid
arrest it was decided to retain the Govt Protection of the Rule. However, these three actions
were extensively grossly overused, and numerous convictions, jail shootings, and gatherings
were observed this time. The war with Pakistan came to an end, but the emergency persisted,
and before the second emergency was revoked 3rd emergency was declared.
#Emergency 3:1975
The third emergency has been proclaimed due to internal unrest and this is India’s most
contentious emergency. The polls at which the court considered Smt. Indira Gandhi was barred
from public service for six years to be engaged in unethical practices it was held in the
Allahabad High Court.
She had brought the judgment to the Supreme court15, but the court had been on holiday at that
moment. On 25 June 1975, the Historical day, Smt. Indira Gandhi wrote to then-Honourable
President Fakhruddin Ali Ahmed16 a message to declare an emergency, despite the approval of
15
Smt. Indira Gandhi v. Raj Narain AIR 1975 SC 2299
16
Fakhruddin Ali Ahmed was an Indian lawyer and politician who served as the 5th president of India from
1974 to 1977.
18
the members of the cabinet. The much more stringent and compressed emergency was this
emergency. On 23 March 1977, it was withdrawn.
On June 27, 1975 the President issued an order under Article 359 (1) as follows:
"In exercise of powers conferred by clause (1) of Article 359 the President
hereby declares that the right of any person (including a foreigner) to move any court
for the enforcement of the rights conferred by Articles 14, 21 and 22 and all
proceedings pending in any court for the enforcement of the above-mentioned rights
shall remain suspended for the period during which the Proclamation of Emergency
made under clause (1) of Article 352 on the 3rd December and 25th June and both in
force."
In A. D. M. Jabalpur v. S. Shukla17, popularly known as the Habeas Corpus case18.the
respondents challenged the validity of the Proclamation of Emergency by the President under
Article 352 made on 25th June, 1975, and the order of detention made against them thereunder.
The respondents were detained under Section 3 of the MISA. They filed applications in
different High Courts for the issue of writ of habeas corpus. A preliminary objection was raised
on behalf of the State that the President's Order was a bar to invoke writ jurisdiction of the
High Courts. The High Courts held that notwithstanding the continuance of emergency and the
Presidential Order suspending the enforcement of rights conferred by Articles 19, 21, and 22
the High Court could examine whether an order of detention was in accordance with the
provisions of the MISA or whether the order was mala fide or was made on the basis of relevant
materials by which the detaining authority could have satisfied that the order was necessary.
The State appealed to the Supreme Court.
The main questions for the consideration of the Supreme Court were two: First. whether in
view of the Presidential Order, dated 27th June, 1975 and 8th January, 1976 made under clause
(1) of Article 359 any writ-petition under Article 226 would lie in a High Court for habeas
corpus to enforce the right to personal liberty of a person detained under the Act on the ground
that the order of detention was not in compliance with the Act. Secondly, if such a petition was
maintainable what the scope of judicial security particularly in view of the Presidential order
17
1976 AIR 1207, 1976 SCR 172
18
19
mentioning Art. 22 and Section 16-A of the MISA. Section 16-A of MISA prohibited the
detaining authority to communicate grounds of detention to the detenu.
The Supreme Court by a 4: 1 majority (A. N. Ray, C. J., Beg. Chandrachud and Bhagwati, JJ.-
Khanna, J., dissenting) held that in view of the Presidential Order dated 27th June, 1975 no
person had any locus standi (legal right) to move any writ-petition under Article 226 before a
High Court for habeas corpus or any other writ or order or direction to challenge the legality
of an order of detention on the ground that the order was not under or in compliance with the
Act or was illegal, or was vitiated by mala fides factual or legal or has based on extraneous
consideration.
The respondents had argued that the present appeal should be decided in the light of the Court's
rulings in the Makhan Singh's case19. In Makhan Singh's case the Court had held that if a
detenu challenged his detention on the ground that it violated statutory provisions or the
detention was vitiated with malice the challenge could not be barred of the Presidential Order
under Article 359 (1). The Court, however, held that the decision in Makhan Singh's case did
not apply in the present case.
The 1962 Presidential Order was a conditional order as it related to only those persons who
had been detained under Defence of India Act. The Presidential Order of June 27, 1975 was
"blanket" order and was not confined to persons detained under a particular law.
Mr. Justice Khanna, in his dissenting judgment, however, held that the difference in
phraseology in Presidential Order dated June 27, 1975 and that of the 1962 Presidential Order
could not justify the conclusion that because of the new Presidential Order a detention order
need not comply with the requirement of the law providing for preventive detention.
It was also argued that the object of Article 359 (1) was to bar moving the Supreme Court under
Art. 32 for the enforcement of fundamental rights without affecting in any manner the
enforcement of common law and statutory right to personal liberty under Article 226 before
the High Court. In brief, the contention was that Article 21 was not the sole repository of the
right to personal liberty. The Court, however, rejected this argument and held that Art. 21 was
19
Makhan Singh v. State of Punjab, AIR 1964 SC 381.
20
the sole repository of the right to life and personal liberty. The moment the right to move any
Court for enforcement of the Article 21, was suspended, no one could move any Court for any
redress.
In view of the 44th Amendment the law laid down in Habeas Corpus case20 is no longer a good
law. Henceforth, Arts. 21 and 22 cannot be suspended during the Proclamation of Emergency.
Consequently, a person will be entitled to challenge the validity of his detention even during
the operation of emergency.
20
21
STATE EMERGENCY
Article 356 is the constitutional mandate contained in Part XVIII under head "Emergency
Provisions" and marginal note "Provisions in case of failure of constitutional machinery in
States." It is clear from the positioning of this article that it is to be invoked in an emergent
situation, viz. the failure of constitutional machinery. Provision of this article is divided into 5
clauses. Clause 1 is concerned with condition for invocation of the article and its
consequences. Other clauses of the article deal with procedure for approval and extension of
duration of the invocation.
356. Provisions in case of failure of constitutional machinery in States. — (1) If the

President, on receipt of a report from the Governor 21[***] 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 this Constitution, the President may by
Proclamation—
a) assume to himself all or any of the functions of the Government of the State and all or any
of the powers vested in or exercisable by the Governor 22[***] or any body or authority in the
State other than the Legislature of the State;
b) declare that the powers of the Legislature of the State shall be exercisable by or under the
authority of Parliament;
c) make such incidental and consequential provisions as appear to the President to be

necessary or desirable for giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions of this
Constitution relating to any body or authority in the State:
Provided that nothing in this clause shall authorise the President to assume to
himself any of the powers vested in or exercisable by a High Court, or to suspend in
whole or in part the operation of any provision of this Constitution relating to High
Courts.
(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.
21
The words “or Rajpramukh” omitted by the Constitution (Seventh Amendment) Act, 1956, sec.29 and Sch.
(w.e.f. 1-11-1956)
22
The words “or Rajpramukh, as the case may be” omitted by the Constitution (Seventh Amendment) Act,
1956, sec.29 and Sch. (w.e.f. 1-11-1956)
22
(3) Every Proclamation under this article shall be laid before each House of Parliament and
shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate
at the expiration of two months unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a

previous Proclamation) is issued at a time when the House of the People is dissolved
or the dissolution of the House of the People takes place during the period of two
months referred to in this clause, and if a resolution approving the Proclamation has
been passed by the Council of States, but no resolution with respect to such
Proclamation has been passed by the House of the People before the expiration of
that period, the Proclamation shall cease to operate at the expiration of thirty days
from the date on which the House of the People first sits after its reconstitution unless
before the expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of the People.
(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a
period of [six months from the date of issue of the Proclamation:
Provided that if and so often as a resolution approving the continuance in

force of such a Proclamation is passed by both Houses of Parliament, the Proclamation
shall, unless revoked, continue in force for a further period of 2 [six months] from the date on
which under this clause it would otherwise have ceased to operate, but no such Proclamation
shall in any case remain in force for more than three years:
Provided further that if the dissolution of the House of the People takes place
during any such period of [six months] and a resolution approving the continuance in
force of such Proclamation has been passed by the Council of States, but no
resolution with respect to the continuance in force of such Proclamation has been
passed by the House of the People during the said period, the Proclamation shall
cease to operate at the expiration of thirty days from the date on which the House of
the People first sits after its reconstitution unless before the expiration of the said
period of thirty days a resolution approving the continuance in force of the
Proclamation has been also passed by the House of the People:
23
[Provided also that in the case of the Proclamation issued under clause (1) on
the 11th day of May, 1987 with respect to the State of Punjab, the reference in the
first proviso to this clause to “three years” shall be construed as a reference to 23[five
years]].
(5) Notwithstanding anything contained in clause (4), a resolution with respect to the
continuance in force of a Proclamation approved under clause (3) for any period beyond the
expiration of one year from the date of issue of such Proclamation shall not be passed by
either House of Parliament unless—
a) a Proclamation of Emergency is in operation, in the whole of India or, as

the case may be, in the whole or any part of the State, at the time of the passing of
such resolution, and
b) the Election Commission certifies that the continuance in force of the

Proclamation approved under clause (3) during the period specified in such
resolution is necessary on account of difficulties in holding general elections to the
Legislative Assembly of the State concerned:
Provided that nothing in this clause shall apply to the Proclamation issued under
clause (1) on the 11th day of May, 1987 with respect to the State of Punjab.
Article 356 talks about the failure of constitutional machinery in state which is also known as
the President’s rule. If the president on Governor’s report or otherwise is satisfied that the
situation has arisen such that the government can’t be carried in accordance with the
constitutional provisions then, he may issue a Proclamation. By that Proclamation:
(1) The President may assume to himself all or any of the powers vested in or exercisable
by the Governor to anybody or authority in the State.
(2) The President may declare that the powers of the Legislature of the State shall be
exercised by or under the authority of 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 Proclamation.
The President cannot, however, assume to himself, any of the powers vested in High Court
or suspend the operation of any provisions of the Constitution relating to the High Court.
23
Subs. by the Constitution (Sixty-Eight Amendment) Act, 1991, sec.2, for “four years” (w.e.f. 12-3-1991).
Earlier the words “four years” were substituted by the Constitution (Sixty-seventh amendment) Act, 1990, sec.2,
for the words “three years and six months” (w.e.f. 4-10-1990).
24
But at times, President may declare emergency when a report is not received from the governor.
This is justified in view of the obligation of the Centre imposed by Art.355 to ensure that the
Government of the State is carried on in accordance with the provisions of the Constitution.
This was done by President Venkataraman24 in 1991 in the state of Tamil Nadu even though
he didn’t receive a report from the governor25.
Grounds of Imposition
The President’s Rule can be proclaimed under Article 356 on two grounds–one mentioned in
Article 356 itself and another in Article 365:
1. Article 356 empowers the President to issue a proclamation, if he is satisfied that a
situation has arisen in which the government of a state cannot be carried on in
accordance with the provisions of the Constitution. Notably, the president can act either
on a report of the governor of the state or otherwise too (i.e., even without the
governor’s report).
2. Article 365 says that whenever a state fails to comply with or to give effect to any
direction from the Centre, it will be lawful for the president to hold that a situation has
arisen in which the government of the state cannot be carried on in accordance with the
provisions of the Constitution.
Even The Apex Court in Special Reference No. 1 of 200226, held that non-
observance of the provisions of Article 174(1), in case of pre mature dissolution of
Legislative Assembly of the State cannot be a ground for the invocation of Article 356(1)
in that State and ruled that framing of election schedule for the new Legislative Assembly
was the function of the Election Commission, but the infraction of Article 174(1), could
not be remedied by resort to Article 356(1) by the President.
24
Ramaswamy Venkataraman was a government official and lawyer who was President of India from 1987 to
1992.
25
On 30 January 1991, the DMK government which had come to power after winning the 1989 assembly
election, was dismissed by the Indian Prime minister Chandra Shekhar using Article 356 of the Indian
Constitution. President's rule was imposed on Tamil Nadu from 31 January.
26
AIR 2003 SC 87
25
However, in Rameshwar Prasad v. Union of India,27 the Apex Court has ruled that
“maladministration”, “Corruption by a State Government” would not be grounds for invoking
power under Art.356. Further, that “likelihood of defection” would not be a relevant
consideration for the Governor to report under Article 356.

A proclamation imposing President’s Rule must be approved by both the Houses of Parliament
within two months from the date of its issue. However, if the proclamation of President’s Rule
is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha
takes place during the period of two months without approving the proclamation, then the
proclamation survives until 30 days from the first sitting of the Lok Sabha after its
reconstitution, provided the Rajya Sabha approves it in the meantime.
If approved by both the Houses of Parliament, the President’s Rule continues for six months28.
It can be extended for a maximum period of three years29 with the approval of the Parliament,
every six months. However, if the dissolution of the Lok Sabha takes place during the period
of six months without approving the further continuation of the President’s Rule, then the
proclamation survives until 30 days from the first sitting of the Lok Sabha after its
reconstitution, provided the Rajya Sabha has in the meantime approved its continuance.
Every resolution approving the proclamation of President’s Rule or its continuation can be
passed by either House of Parliament only by a simple majority, that is, a majority of the
members of that House present and voting.
The 44th Amendment Act of 1978 introduced a new provision to put restraint on the power of
Parliament to extend a proclamation of President’s Rule beyond one year. Thus, it provided
that, beyond one year, the President’s Rule can be extended by six months at a time only when
the following two conditions are fulfilled:
27
AIR 2005 SC 4301
28
The 42nd Amendment Act of 1976 had raised the period of six months to one year. Thus, once approved by
both the Houses of Parliament, the proclamation of President’s Rule could continue for one year. But, the 44th
Amendment Act of 1978 again reduced the period to six months.
29
The President’s Rule imposed in May, 1987 in Punjab was allowed to continue for five years under the 68th
Amendment Act of 1991.
26
1. A proclamation of National Emergency should be in operation in the whole of India, or
in the whole or any part of the state; and
2. The Election Commission must certify that the general elections to the legislative
assembly of the concerned state cannot be held on account of difficulties.
A proclamation of President’s Rule may be revoked by the President at any time
by a subsequent proclamation. Such a proclamation does not require the parliamentary
approval.
Consequences of President’s Rule

The President acquires the following extraordinary powers when the President’s Rule is
imposed in a state:
1. He can take up the functions of the state government and powers vested in the governor
or any other executive authority in the state30.
2. He can declare that the powers of the state legislature are to be exercised by the
Parliament31.
3. He can take all other necessary steps including the suspension of the constitutional
provisions relating to any body or authority in the state.
Article 356 (1) (a) imposes a bar against the assumption by the President of the legislative
powers of the State Legislature, which can only be transferred to Parliament. Yet, the
provisions of Article 356 (1) (a) read with Article 357 do not operate as an absolute bar on any
expenditure which can be legally incurred by the President or under the Presidential authority
in accordance with pre-existing State laws authorising expenditure by other authorities or
bodies whose powers can be taken over by the President under Article 356 (1) (a)32.
Where the President after making a Proclamation under Article 356 (1) declares that the powers
of the State Legislature are to be exercised by the Parliament and the Parliament under Article
357 (1) (a) not only can confer on the President, the powers of the State Legislature to make
laws, but it can even authorise the President to delegate the powers so conferred to any authority
to be specified by him in that behalf. Under such circumstances, the Ordinances issued by the
President or his delegate under Article 357 (1) (a) partake fully of legislative character and are
made in the exercise of legislative power within the contemplation of the Constitution.33
30
Article 356 (1) (a)
31
Article 356 (1) (b)
32
State of Rajasthan v. Union of India, AIR 1977 SC 1361, 1392
33
A.K. Roy v. Union of India, AIR 1982 SC 710, 721
27
By virtue of Art. 357 (1) (a) the power to enact State laws can be conferred on the President by
the Parliament. There is nothing in this Article which could be read to curtail the authority of
Parliament to confer powers to enact laws of the State Legislature only when Parliament is not
in Session.34
Therefore, when the President’s Rule is imposed in a state, the President dismisses the
state council of ministers headed by the chief minister. The state governor, on behalf of the
President, carries on the state administration with the help of the chief secretary of the state or
the advisors appointed by the President. This is the reason why a proclamation under Article
356 is popularly known as the imposition of ‘President’s Rule’ in a state.
Further, the President either suspends or dissolves the state legislative assembly35. The
Parliament passes the state legislative bills and the state budget.
When the state legislature is thus suspended or dissolved:

1. the Parliament can delegate the power to make laws for the state to the President or to
any other authority specified by him in this regard,
2. the Parliament or in case of delegation, the President or any other specified authority
can make laws conferring powers and imposing duties on the Centre or its officers and
authorities,
3. the President can authorise, when the Lok Sabha is not in session, expenditure from the
state consolidated fund pending its sanction by the Parliament, and
4. the President can promulgate, when the Parliament is not in session, ordinances for the
governance of the state.
A law made by the Parliament or president or any other specified authority continues to be
operative even after the President’s Rule. This means that the period for which such a law
remains in force is not coterminous with the duration of the proclamation. But it can be repealed
or altered or re-enacted by the state legislature.
Though President can assume various powers in case of state emergency but still there are some
powers that he can’t assume which includes the powers vested in the concerned state high court
or which suspend the provisions of the Constitution relating to it.
34
Jabalpur Bus Operators' Association v. Union of India, AIR 1994 MP 62.
35
In case of dissolution, fresh elections are held for constituting a new legislative assembly in the state.
28
In other words, Power, Status, The Constitutional Position and functions of the
concerned state high court remains same as before the president’s rule.
Use of Art.356
Since 1950, the President’s Rule has been imposed on more than 130 occasions, that is, on an
average twice a year. Further, on a number of occasions, the President’s Rule has been
imposed in an arbitrary manner for political or personal reasons. Hence, Article 356 has
become one of the most controversial and most criticised provision of the Constitution.
For the first time, the President’s Rule was imposed in Punjab in 1951. By now, all most all
the states have been brought under the President’s Rule, once or twice or more. The
simplified details of this are given below –
Table 1. Imposition of President’s Rule in few States/UTs (1951–2019)
Sr. States/Union No. of time Years of Imposition
No. Territories imposed
1. Andhra Pradesh 3 195436, 1973, 2014
2. Arunachal Pradesh 2 1979, 2016
3. Assam 4 1979,1981,1982,1990
4. Bihar 8 1968,1969,1972,1977,1980,1995,1999,2005
5. Chhattisgarh --- --
6. Goa 5 1966, 1979, 1990, 1999, 2005
7. Gujarat 5 1971, 1974, 1976, 1980, 1996
8. Haryana 3 1967, 1977, 1991
9. Himachal Pradesh 2 1977, 1992
10. Delhi 1 2014
11. Jammu and 1 2019

Kashmir37
36
This was imposed in Andhra State.
37
The President’s Rule was imposed in the erstwhile state of Jammu and Kashmir on 8 times, that is, in 1977,
1986, 1990, 2002, 2015, 2016, 2018
29
Duration of Proclamation Issued under Art.356
Clause (3) of Article 356 requires that every Proclamation issued under Article 356 (1) shall
be laid before each House of Parliament. It is with a view to afford an opportunity to the
Parliament to approve the action taken by the Executive in regard to the situation prevailing
in the concerned State.
Clause (3) further provides that the Proclamation so laid before the Houses of the Parliament,
shall cease to have effect at the expiration of 2 months unless before the expiration of these
2 months, it has been approved by resolutions of both Houses of Parliament.
Thus, without the approval by the Houses of Parliament, a Proclamation relating to

State Emergency can continue in operation only for 2 months from the date it is made by
the President.
#Constituion (44th Amendment) Act, 1978

This amendment had amended Article 356 and restricted its scope. It substitutes the word
"six months" for the words "one year” as existed originally. Thus, it restored the position as
it stood before the 42nd Amendment.
A Proclamation of Emergency will, if approved by Parliament, continue for six months from
the date of the issue. For the further continuation of emergency, it must be approved by
Parliament each time. It has added a new clause (5) to Art. 356 in place of existing clause (5)
which is now omitted. This clause (5) provides that a resolution for the continuance of the
emergency beyond one year shall not be passed by either House of Parliament unless-
a) a Proclamation of Emergency is in operation at the time of the passing of such

resolution; and
b) the Election Commission certifies that the continuance in force of the Proclamation
under Art. 356 during the period specified in such resolution is necessary on account
of difficulties in holding general elections to the Legislative Assembly of the State
concerned. Prior to this Amendment there was no such condition and the Government
could extend the period upto the maximum of three years without sufficient cause.
30
Amended Cl. (5), Article 356, and inserted a new proviso in clause (5), namely, "provided
that in the case of the Proclamation issued under clause (1) on the 6th day of October, 1983
with respect to the State of Punjab, the reference in this clause to "any period beyond the
expiration of one year" shall be construed as reference to "any period beyond the expiration
of two years".
Under the existing clause (5) the Presidential Proclamation of October 6, 1983, with respect
to Punjab could not continue in force for more than one year unless the "special
circumstances" mentioned therein were satisfied. This was enacted to meet out the special
circumstances prevailing in the State of Punjab due to ongoing agitation by a group. Though
the Legislative Assembly was kept in suspended animation and a popular Government could
be installed, having regard to the prevailing situation in the State, yet the continuance of the
Proclamation beyond October 6, 1984, was necessary.
The amendment made Art. 356(5) inapplicable in the existing conditions in the State of
Punjab.

The amendment was made again in Art. 356 in order to provide for extension of the President
Rule in the State of Punjab for another six months as the situation there was not favourable
for holding Assembly elections. The amendment added a new proviso after clause (4) in
Art.356 which substituted the words “three years and six months” for the words “three
years” and also provided that the conditions laid down in Cl.(5) would not apply to the
Proclamation issued under Cl.(1) on 11th May, 1987 with respect to the State of Punjab.
The Constitution (67th Amendment) Act, 1990, extended the period of President Rule in the
State of Punjab for a further period of 6 months. Accordingly, it has substituted the words
“four years” for the words “three years and six months” in Cl. (4) of Art.356 of the
Constitution.
Further, the Constitution (68th Amendment) Act, 1991, extended the period of President Rule
in the State of Punjab for a further period of one year. Accordingly, it has substituted the
words “five years” for the words “four years” in Cl. (4) of Art.356 of the Constitution.
31
Judicial Review
Since the commencement of the Constitution Article 356 has been invoked on more than 130
occasions. Except on few occasions, the President has acted only when the Governor of the
State has reported the failure of the constitutional machinery in the State. Usually, President's
rule, invoking Article 356, has been imposed under the following situations
 a situation resulting from instability of the State Governments38

 a situation resulting from law-and-order problems39;
 frequent defections and change of loyalties by the legislators40;
 on the ground of corruption, maladministration, misuse of power for partisan ends41;
 the defeat of the ruling party in a State, at the Lok Sabha election.
In 1966, a new situation was created by the re-organisation of the State of Punjab and its
bifurcation into two States of Haryana and Punjab. The Punjab Ministry resigned and
President's rule was imposed for the peaceful partition of the State into two.
Many a time, a minority group forms the government in the State with the support of other
parties or independents. As soon as the support is withdrawn by these parties, the minority
government falls leading to the imposition of the President's rule.42
#View of High Courts

Imposition of President's rule in some States was challenged and the question of justiciability
of the Presidential proclamation arose for consideration by the High Courts. The conclusion
reached by them was that there could be no judicial review of the Presidential proclamation
although the reasons for reaching the conclusion varied.
The High Court of Kerala in K.K. Aboo v. Union of India43 found as a fact that the
Governor had made a thorough enquiry as to the possibility of formation of a constitutional
government in the State before he submitted his report to the President. It further held that the
38
For instance, Article 356 (1) was invoked in 1967 in Rajasthan; in 1968 in Uttar Pradesh; Bihar, Punjab and
West Bengal; in 1969 in Bihar; in 1996 in U.P.
39
For instance, Article 356 (1) was invoked in 1959 in 1987 in Punjab; in 1990 in J & K; in 1991 in Tamil
Nadu.
40
For instance, in 1984 in Sikkim; in 1988 in Tamil Nadu; in 1996 in Gujarat.
41
For instance, the dismissal of the D.M.K. Ministry in Tamil Nadu in 1976.
42
It so happened in 1979 in Assam and in 1991 Pondicherry and in Haryana; in 1991 in Meghalaya; in 1992 in
Manipur.
43
AIR 1965 Ker 229
32
President had ample material for his satisfaction before he promulgated the impugned
Proclamation dated 10-9-1964 dissolving the legislative assembly. In dealing with the
question of maintainability of the writ petition it concluded that it is not open to the Courts to
question the validity of a proclamation under Article 356.
By a Presidential proclamation dated 21-11-1967 President's rule was imposed in Haryana and
the Haryana Legislative Assembly was dissolved. The High Court dismissed the writ petition
challenging the proclamation for three reasons. -
 Firstly, the Court cannot go into the validity of the proclamation because the President
is not amenable to the jurisdiction of the Court in view of sub-art. (1) of Article 361.
 Secondly, reconsideration of the proclamation being specifically vested by the
Constitution in Parliament excluded the Court's jurisdiction.
 Thirdly, the Court had no jurisdiction to require disclosure of material forming basis of
the satisfaction of the President.
The Court however considered the merits of the Presidential proclamation and held that there
was ample and sufficient material in the report of the Governor that the administration of the
State had been paralysed and there was no real functioning44.
The Calcutta High Court held that "the validity or legality of the incidental and consequential
provisions contemplated by Article 356(1)(c) is not justiciable" because that is a matter entirely
for the satisfaction of the President.45
In A. Sreeramulu Re,46 a single judge of the Andhra Pradesh High Court, Justice Chinnappa
Reddy, held that a Presidential proclamation issued under Article 356 is not susceptible to
judicial review because the issue of the President's satisfaction under Article 356 is basically a
political issue, the Constitution does not enumerate the situations where President's rule can be
imposed and there are no "satisfactory criteria for a judicial determination" of what are relevant
considerations for invoking the power under Article 356. Consequently, the question is
intrinsically political and beyond the reach of the Courts. Moreover, any attempt to settle a
controversy raised by a proclamation under Article 356 will necessarily be followed by
tremendous consequences. The very vastness of those consequences makes it "impolitic or
44
AIR 1968 P&H 441
45
AIR 1973 Cal 233
46
AIR 1974 AP 106
33
inexpedient"47 for a Court to assume jurisdiction. On the assumption that there is limited power
of judicial review the Court held that there was sufficient justification for the President's
proclamation.
In a subsequent decision in Hanumantha Rao v. State of A.P.48 the Andhra Pradesh High
Court reached the zenith of abdication of judicial review. It held that Courts cannot examine
the appropriateness or adequacy of the grounds for the taking of a decision by the President,
nor any bad faith can be permitted to be attributed to him. The Court must keep a "judicial
hands-off" in connection with this Presidential exercise of emergency power.49
The legality of the Presidential proclamation dated 03-03-1973 dissolving the Orissa
Legislative Assembly was questioned in Bijayananda v. President of India50 before a
Division Bench of the Orissa High Court. The Court ruled that a Presidential proclamation is
not justiciable on the following grounds:
(a) the wide source of the information as contemplated by the expression 'otherwise' in
Article 356(1),
(b) the subjective nature of satisfaction,
(c) the provisions of Article 74(2) and Article 361(1) which preclude the Court from
testing the grounds of satisfaction,
(d) the provision for Parliamentary approval for continuance of the proclamation
beyond two months from the date of its promulgation, and
(e) the emergency provisions under Articles 352, 356 and 360 in Chapter XVIII of the
Constitution which render the satisfaction non-justiciable.
In the case of Minerva Mills Ltd. and Ors. v. Union of India and Ors51., the legitimacy of the
president’s motivation and determination through Article 351 is not impeded by judicial
review. However, the jurisdiction of the Court is confined to investigating is not whether the
restrictions of the Constitution were met. It will decide whether or not the President’s happiness
is true. It is not at all happiness, where fulfilment is founded on mistrust, irony, or irrelevance.
47
https://www.ebc-india.com/lawyer/articles/94v3a1.htm#Note12 (Accessed on 07/06/2022)
48
(1975) 2 AWR 277
49
https://www.ebc-india.com/lawyer/articles/94v3a1.htm#Note12 (Accessed on 07/06/2022)
50
AIR 1974 Ori 52
51
AIR 1980 SC 1789
34
#State of Rajasthan v. Union of India (1977) 3 SCC 592
In the general elections to Parliament held in March 1977 the ruling Congress party suffered
a massive defeat in nine States viz. Bihar, U.P., Himachal Pradesh, Haryana, Madhya
Pradesh, Orissa, Punjab, Rajasthan and West Bengal. On 17-04-1977, the union home
minister addressed a letter to the Chief Minister of each of these States asking them to advise
their respective Governors to dissolve the Assemblies and seek a fresh mandate from the
people. This was followed by a broadcast of the Law Minister whose theme was that the
government in the Congress ruled States had forfeited confidence of the electorate and their
continuance in office was undemocratic.
Six states, viz. the States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh,
and Orissa filed writ petitions in the Supreme Court under Article 32. The main submission
of the petitioners was that the Home Minister's letter and the radio broadcast of the Law
Minister constituted a clear threat of dissolution of the assemblies and disclosed grounds
which were prima facie outside the purview of Article 356 of the Constitution.
The central issue before the Court was about the availability of judicial review. This has been
delineated differently by the judges constituting the seven-judge bench.52 The area of judicial
review was narrowly carved out particularly having regard to Article 74(2) of the
Constitution which was construed to preclude the Court from scrutinising the material and
reasons in support of a Presidential proclamation. However, every judge rejected the
contention that judicial review of the Presidential proclamation was totally barred and on the
facts of the case held that the proposed action and exercise of power were not mala fide nor
vitiated by incorporation of irrelevant or extraneous matter53.
The leading judgment of Justices Bhagwati and A.C. Gupta54 categorically rejected the
contention that the exercise of power under Article 356 involved essentially a political
question and was not amenable to judicial determination. They held that
"merely because a question has a political complexion, that by itself is no ground why
the Court should shrink from performing its duty under the Constitution if it raises an
52
632 per Beg, C.J.; 644 per Chandrachud, J.; 662-663 per Bhagwati and A.C. Gupta, JJ.; 670 per Goswami, J.;
673 per Untwalia, J.; 694 per Fazal Ali, J.
53
Ibid, 629 para 78; 644 para 130; 665-666; 670; 675; 694
54
Ibid, 646
35
issue of constitutional determination ..... merely because a question has a political
colour, the Court cannot fold its hands in despair and declare 'judicial hands off'.55
After this categorical pronouncement the learned judges observed as follows:
"The satisfaction of the President is a subjective one and cannot be tested by

reference to any objective tests. There may be a wide range of situations which may arise and
their political implications and consequences may have to be evaluated in order to decide
whether the situation is such that the government of the State cannot be carried on in
accordance with the provisions of the Constitution. It is not a decision which can be based on
what the Supreme Court of the United States has described as 'judicially discoverable and
manageable standards'. It would largely be a political judgment based on assessment of
diverse and varied factors".56
Thereafter the scope of judicial review was formulated thus:
"But 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....57 This
is the narrow minimal area in which the exercise of power under Article 356, clause (1) is
subject to judicial review and apart from it, it cannot rest with the Court to challenge the
satisfaction of the President that the situation contemplated in that clause exists."58
It needs to be emphasised that the observations regarding a wide range of situations which
may arise were made in the context of the contention of the Union that no Presidential
proclamation was issued, the grounds stated in the letter of the Home Minister and the radio
talk of the Law Minister were not and could not be the sole basis of the contemplated action
and other situations could arise which the Court had no means of knowing or anticipating and
which could well warrant action under Article 356.
In view of their decision on this aspect, the learned judges thought it "not necessary to
consider the question"59 whether grounds articulated in the aforesaid letter and radio talk
were wholly extraneous and irrelevant to exercise of power under Article 356. Nonetheless
55
Ibid, 661
56
Ibid, 662
57
Ibid, 663
58
Ibid, 664
59
Ibid, 664, para 153
36
since the question was argued they expressed their opinion and held that the defeat of the
ruling party in a State at the Lok Sabha elections cannot by itself, without anything more,
support the inference that the government of the State cannot be carried on in accordance
with the provisions of the Constitution (emphasis added). But according to them the situation
was wholly different. It was not a case where just an ordinary defeat had been suffered by the
ruling party in a State at the elections to the Lok Sabha but there has been a total rout of its
candidates which reflected a wall of estrangement and resentment and antipathy in the hearts
of the people against the Government which may lead to instability and even the
administration may be paralysed. Therefore, on the facts this ground was held to be clearly a
relevant one.60
The Supreme Court in the Rajasthan case also laid down that a proclamation under Article
356(1) had immediate force and effect and was not dependent on the approval of both Houses
of Parliament.61 The Court also rejected the contention that the proclamation cannot be issued
when either or both Houses of Parliament are in session.62 It was further held that "even if the
Parliament disapproves the proclamation within the said period of two months, the
proclamation continues to be valid for two months" and that "even if both the Houses do not
approve or disapprove the proclamation, the government which has been dismissed or the
Assembly which may have been dissolved do not revive".63
In A.K. Roy v. Union of India,64 a Constitution Bench of the Supreme Court observed that
after the deletion of Clause 5 of the 44th Constitutional Amendment, which was in existence
when the Rajasthan case65 was decided "any observations made in the Rajasthan case on the
basis of that clause cannot any longer hold good".66
It may be pointed out that more than one member of the Bench in the Rajasthan case held
that judicial review was available notwithstanding Article 356(5) of the
60
Ibid, 665
61
Ibid, 655
62
Ibid, 655
63
Ibid, 656-57
64
(1982) 1 SCC 271
65
State of Rajasthan v. Union of India (1977) 3 SCC 592
66
Ibid, 297, para 27
37
Constitution.67 Consequently its deletion does not really enlarge the scope of judicial review
from what was laid down in that case.68
#High Court’s decision after Rajasthan case69

After the decision of the Supreme Court in the Rajasthan case70 the question of judicial review
of Presidential proclamation issued under Article 356 arose for consideration in the Gauhati
and Karnataka High Courts.
Challenge in the Guwahati High Court to Presidential rule imposed in Nagaland on 7-8-1988
led to a difference of opinion between Chief Justice Raghuvir and Justice Hansaria.71 The
Presidential satisfaction set out in the proclamation imposing President's rule in Nagaland was
based on the Governor's report and on "other information". Chief Justice Raghuvir held that
the Union of India cannot be compelled to tender any information to the Court because of
Article 74 of the Constitution. The learned Chief Justice further held that since the Nagaland
Legislative Assembly was dissolved by the two Houses of the Parliament no relief could be
granted.72
On the other hand, Justice Hansaria held that as the material which formed part of "other
information" was not before the Court and as the same did not form part of the advice tendered
by the Council of Ministers under Article 74(1), Union of India should be given an opportunity
to disclose the information to the Court. Justice Hansaria ruled that should the Union of India
fail to give the "other information" the Court would have no other alternative but to decide the
matter on the basis of the materials placed before it.73
Imposition of President's rule in the State of Karnataka on 21-4-1989 and dissolution of the
Legislative Assembly was challenged before the Karnataka High Court. The Presidential
satisfaction was based on the Governor's report and on "other information". The Full Bench
held74 that Presidential proclamation was justiciable. The Court declined to decide the scope of
Article 74(2) with reference to the question whether the "other information" could be called for
on the ground that the Courts should base their decision on the disclosed material and probing
67
Supra, f.n. 16 at 663
68
Supra, f.n. 6 at 270 Jeevan Reddy, J. has emphasised that by the deletion of Article 356 (5), "The cloud cast
by the clause on the power of judicial review has been lifted."
69
70
71
(1982) 2 Gau LJ 468
72
Ibid, 486, 488
73
bid, 517. Justice Hansaria's view has been accepted by Justice Jeevan Reddy in Bommai, supra f.n. 6 at 284
74
AIR 1990 Karn 5
38
at any greater depth would be to enter a field from which judges must scrupulously keep away.
The Court held that the facts stated in the two reports of the Governor were relevant. The Full
Bench further ruled that recourse to floor test was neither compulsory or obligatory on the part
of the Governor for reaching the conclusion that the ruling ministry had lost the confidence of
the House.
Appeals were carried to the Supreme Court from the above judgments of the Gauhati and the
Karnataka High Courts.
After the demolition of the Babri mosque at Ayodhya, President's rule was imposed in the
States of Uttar Pradesh, Rajasthan, Madhya Pradesh and Himachal Pradesh where the ruling
party was the Bharatiya Janata Party (BJP). Imposition of President's rule in Madhya Pradesh,
Rajasthan and Himachal Pradesh was assailed in the High Courts. The High Court of Madhya
Pradesh held that imposition of President's rule in Madhya Pradesh was unconstitutional and
there was no relevant material to justify the action Sunderlal Patwa v. Union of India75. The
Union of India filed an appeal to the Supreme Court.
#S.R. Bommai v. Union of India (1994) 3 SCC 1

Appeals from the judgments of the Gauhati, Karnataka and Madhya Pradesh High Courts and
the writ petitions filed in Rajasthan and Himachal Pradesh High Courts, which were transferred
to the Supreme Court, were heard by a nine-judge Bench. The arguments in the case
commenced in the first week of October 1993 and were concluded in the last week of December
1993. The hearing was interrupted thrice because of intervening Dussehra and Diwali holidays
and a brief absence of Justice Pandian from the Bench. The judgment was pronounced on
March 11, 1994.
Separate judgments have been delivered by Justices Pandian76, Ahmadi77, by Justice Verma for
himself and Justice Dayal78, by Justice Sawant on behalf of himself and Justice Kuldip Singh79,
by Justice K. Ramaswamy80, and by Justice Jeevan Reddy for himself and Justice
Agrawal.81 These judgments reveal sharp judicial divergence on many points. The majority
75
1993 Jab LJ 387 (FB)
76
Ibid, 65
77
Ibid, 67
78
Ibid, 83
79
Ibid, 87
80
Ibid, 150
81
Ibid, 210
39
judgments are of Justices Sawant, Kuldip Singh, Jeevan Reddy, Agrawal and Pandian. The
judges who are in the minority are Justices Ahmadi, Verma, Dayal and K. Ramaswamy.
At the outset it is necessary to determine what is the majority view and what is the declaration
of law by the Supreme Court in regard to the following questions:
(a) the interpretation of the expression in Article 356, namely "a situation has arisen in which
the government of the State cannot be carried on in accordance with the provisions of this
Constitution";
(b) the scope and area of judicial review in case of a Presidential proclamation issued under
Article 356 and the grounds for judicial interference;
(c) whether the norms and yardstick applied in adjudging the validity of administrative or
executive action are also applicable in determining the constitutionality of a Presidential
proclamation;
(d) the correct construction and ambit of Article 74(2);
(e) whether the power of dissolving legislative assemblies can be exercised only after the
Presidential proclamation is approved by both Houses of Parliament under Article 356(3) and
not before;
(f) whether it is permissible to take over some of the functions and powers of the State
government while at the same time keeping the State government in office;
(g) the correct interpretation of Article 365 of the Constitution;
(h) whether the doctrine of basic structure can be invoked for exercising power under Article
356;
(i) whether secularism is a basic feature of the Constitution;
(j) whether under our Constitution no party or organisation can simultaneously be a political
and a religious party;
(k) the requirement of a warning by the Centre to the State before issuing a Presidential
proclamation;
(l) the necessity of holding a floor test in order to determine whether the Ministry enjoys the
confidence of the House or has lost it;
(m) the status of the Sarkaria Commission82 report and the weight to be attached to its
recommendations;
82
The Sarkaria Commission was set up in 1983 by the central government of India. The Sarkaria Commission's
charter was to examine the central-state relationship on various portfolios and suggest changes within the
framework of Constitution of India.
40
(n) the extent to which the Supreme Court decision in State of Rajasthan83 is still good law;
(o) power of the Court to grant interim relief and its extent in case of a Presidential
proclamation;
(p) whether it will be open to the Court to restore the legislative assembly and the dismissed
Ministry in the event of a Presidential proclamation being adjudged invalid;
(q) whether the Court may consequent upon its determination of the invalidity of the
Presidential proclamation mould the relief and confer validity on acts done, orders passed and
laws made during the interregnum.
Now to the daunting task: What has the Supreme Court decided in Bommai case?84
Held (Karnataka) :
The majority of the Supreme Court declared that the Proclamation issued by the President must
be held to be not warranted by Article 356 (1). While looking into the facts of the case, the
Court held that the Governor's report and the facts stated therein appeared to be the only basis
of dismissing the Government and dissolving the Assembly under Article 356 (1). It was a case
where all canons of propriety were thrown to the wind and the undue haste made by the
Governor in inviting the President to issue the Proclamation under Article 356 (1) clearly
smacked of mala fide. A duly constituted Ministry, the Court held was dismissed
"on the basis of material which was neither tested nor allowed to be tested' and was no more
than the ipse dixit of the Governor".
Held (Madhya Pradesh, Rajasthan and Himachal Pradesh) :

All these Proclamations were upheld by the Supreme Court as constitutional as these were
based on the fact of violation of the secular features of the Constitution, which in the opinion
of the Court, was itself a ground to hold that a situation had arisen in which the Government of
the concerned States could not be carried on in accordance with the provisions of the
Constitution. In S.R. Bommai v. Union of India85 , the Supreme Court observed that in view
of the pluralist democracy and the federal structure that had been accepted under the
83
84
(1994) 3 SCC 1
85
(1994) 3 SCC 1
41
Constitution, the party or parties in power at the Centre and in the States might not be the same.
Therefore, "there is a need to confine the exercise of power under Article 356 (1) strictly to the
situation mentioned therein which is a condition precedent to the said exercise.”
Overall, In S.R. Bommai v. Union of India86 the following propositions have been laid down
by the Supreme Court on imposition of President’s Rule in a state under Article 356:
1. The presidential proclamation imposing President’s Rule is subject to judicial review.
2. The satisfaction of the President must be based on relevant material. The action of the
president can be struck down by the court if it is based on irrelevant or extraneous
grounds or if it was found to be malafide or perverse.
3. Burden lies on the Centre to prove that relevant material exist to justify the imposition
of the President’s Rule.
4. The court cannot go into the correctness of the material or its adequacy but it can see
whether it is relevant to the action.
5. If the court holds the presidential proclamation to be unconstitutional and invalid, it has
power to restore the dismissed state government and revive the state legislative
assembly if it was suspended or dissolved.
6. The state legislative assembly should be dissolved only after the Parliament has
approved the presidential proclamation. Until such approval is given, the president can
only suspend the assembly. In case the Parliament fails to approve the proclamation,
the assembly would get reactivated.
7. Secularism is one of the ‘basic features’ of the Constitution. Hence, a state government
pursuing anti-secular politics is liable to action under Article 356.
8. The question of the state government losing the confidence of the legislative assembly
should be decided on the floor of the House and until that is done the ministry should
not be unseated.
9. Where a new political party assumes power at the Centre, it will not have the authority
to dismiss ministries formed by other parties in the states.
10. The power under Article 356 is an exceptional power and should be used only
occasionally to meet the requirements of special situations.
86
(1994) 3 SCC 1
42
Cases of Proper & Improper Use
Based on the report of the Sarkaria Commission on Centre-state Relations (1988), the
Supreme Court in Bommai case (1994) enlisted the situations where the exercise of power
under Article 356 could be proper or improper87.
Imposition of President’s Rule in a state would be proper in the following situations:
1. Where after general elections to the assembly, no party secures a majority, that is,
‘Hung Assembly’.
2. Where the party having a majority in the assembly declines to form a ministry and the
governor cannot find a coalition ministry commanding a majority in the assembly.
3. Where a ministry resigns after its defeat in the assembly and no other party is willing
or able to form a ministry commanding a majority in the assembly.
4. Where a constitutional direction of the Central government is disregarded by the state
government.
5. Internal subversion where, for example, a government is deliberately acting against
the Constitution and the law or is fomenting a violent revolt.
6. Physical breakdown where the government wilfully refuses to discharge its
constitutional obligations endangering the security of the state.
The imposition of President’s Rule in a state would be improper under the following
situations:
1. Where a ministry resigns or is dismissed on losing majority support in the assembly

and the governor recommends imposition of President’s Rule without probing the
possibility of forming an alternative ministry.
2. Where the governor makes his own assessment of the support of a ministry in the
assembly and recommends imposition of President’s Rule without allowing the
ministry to prove its majority on the floor of the Assembly.
3. Where the ruling party enjoying majority support in the assembly has suffered a
massive defeat in the general elections to the Lok Sabha such as in 1977 and 1980.
4. Internal disturbances not amounting to internal subversion or physical breakdown.
5. Maladministration in the state or allegations of corruption against the minis-tryor
stringent financial exigencies of the state.
87
Report of the Commission on Centre- State Relations, Part I, p. 165–180 (1988)
43
6. Where the state government is not given prior warning to rectify itself except in case
of extreme urgency leading to disastrous consequences.
7. Where the power is used to sort out intraparty problems of the ruling party, or for a
purpose extraneous or irrelevant to the one for which it has been conferred by the
Constitution.
Comparing National Emergency and President’s Rule

Sr. No. National Emergency (Art.352) President’s Rule (Art.356)
It can be proclaimed only when the It can be proclaimed when the government
security of India or a part of it is of a state cannot be carried on in
1. threatened by war, external accordance with the provisions of the
aggression or armed rebellion. Constitution due to reasons which may not
have any connection with war, external
aggression or armed rebellion.
During its operation, the state During its operation, the state executive
2. executive and legislature continue and legislature continue to function and
to function and exercise the powers exercise the powers assigned to them
assigned to them under the under the Constitution. Its effect is that the
Constitution. Its effect is that the Centre gets concurrent powers of
Centre gets concurrent powers of administration and legislation in the state.
administration and legislation in the
state.
Under this, the Parliament can Under this, the Parliament can delegate
make laws on the subjects the power to make laws for the state to the
enumerated in the State List only by President or to any other authority
3. itself, that is, it cannot delegate the specified by him. So far, the practice has
same to any other body or been for the president to make laws for the
authority. state in consultation with the members of
Parliament from that state. Such laws are
known as President’s Acts.
There is no maximum period There is a maximum period prescribed for
prescribed for its operation. It can its operation, that is, three years.
4. be continued indefinitely with the Thereafter, it must come to an end and the
44
approval of Parliament for every normal constitutional machinery must be
six months. restored in the state.
Under this, the relationship of the Under this, the relationship of only the
5. Centre with all the states undergoes state under emergency with the Centre
a modification. undergoes a modification.
Every resolution of Parliament Every resolution of Parliament approving
6. approving its proclamation or its its proclamation or its continuance can be
continuance must be passed by a passed only by a simple majority.
special majority.
It affects fundamental rights of the It has no effect on Fundamental Rights of
7. citizens. the citizens.
8. Lok Sabha can pass a resolution for There is no such provision. It can be
its revocation. revoked by the President only on his own.
45
FINANCIAL EMERGENCY
The President of India declares a Financial Emergency if he believes that a situation has
emerged that endangers India's financial stability or credit, or any part of its territory. A
financial emergency in India is declared under Article 360 of the Indian Constitution.
Grounds of Declaration
Article 360 provides that if the President is satisfied that a situation has arisen due to which
the financial stability or credit of India or any part of its territory is threatened, then he may
by a proclamation make a declaration to that effect.
The 38th Amendment Act of 1975 made the satisfaction of the president in declaring a
Financial Emergency final and conclusive and not questionable in any court on any ground.
But this provision was subsequently deleted by the 44th Amendment Act of 1978 implying
that the satisfaction of the president is not beyond judicial review.

A proclamation declaring financial emergency must be approved by both the Houses of
Parliament within two months from the date of its issue. However, if the proclamation of
Financial Emergency is issued at a time when the Lok Sabha has been dissolved or the
dissolution of the Lok Sabha takes place during the period of two months without approving
the proclamation, then the proclamation survives until 30 days from the first sitting of the
Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime
approved it.
The duration of a proclamation of financial emergency will be in operation for two months
and unless approved by President it shall cease to operate at the expiry of two months period.
Effects of Financial Emergency

The consequences of the proclamation of a Financial Emergency are as follows:
1. The executive authority of the Centre extends to the giving of

(a) directions to any state to observe such canons of financial propriety as may be
specified in the directions; and
(b) such other directions to any state as the President may deem necessary and
adequate for the purpose.
2. Any such direction may include a provision requiring
46
(a) the reduction of salaries and allowances of all or any class of persons serving in
the state; and
(b) the reservation of all money bills or other financial bills for the consideration of
the President after they are passed by the legislature of the state.
3. The President may issue directions for the reduction of salaries and allowances of
(a) all or any class of persons serving the Union; and
(b) the judges of the Supreme Court and the High court.
Thus, during the operation of a financial emergency, the Centre acquires full control over the
states in financial matters. H.N. Kunzru88, a member of the Constituent Assembly, stated that
the financial emergency provisions pose a serious threat to the financial autonomy of the
states. Explaining the reasons for their inclusion in the Constitution, Dr. B.R. Ambedkar
observed in the Constituent Assembly89 :
“This Article more or less follows the pattern of what is called the National
Recovery Act of the United States passed in 1933, which gave the president power to
make similar provisions in order to remove the difficulties, both economic and
financial, that had overtaken the American people, as a result of the Great
Depression.”
No Financial Emergency has been declared so far.
88
Hridya Nath Kunzru (1 October 1887– 3 April 1978) was a member of the Constituent Assembly of India
(1946–50) that drew up the Constitution of India.
89
Constituent Assembly Debates, Volume X, p. 361–372
47
CRITICISM OF EMERGENCY PROVISIONS
Some members of the Constituent Assembly criticised the incorporation of emergency
provisions in the Constitution on the following grounds90:
1. The federal character of the Constitution will be destroyed and the Union will become all
powerful.
2. The powers of the State–both the Union and the units–will entirely be concentrated in the
hands of the Union executive.
3. The President will become a dictator.
4. The financial autonomy of the state will be nullified.
5. Fundamental rights will become meaningless and, as a result, the democratic foundations of
the Constitution will be destroyed.
Thus, H.V. Kamath91 observed: ‘I fear that by this single chapter we are seeking to lay the
foundation of a totalitarian state, a police state, a state completely opposed to all the ideals
and principles that we have held aloft during the last few decades, a State where the rights and
liberties of millions of innocent men and women will be in continuous jeopardy, a State where
if there be peace, it will be the peace of the grave and the void of the desert(. . .) It will be a
day of shame and sorrow when the President makes use of these Powers having no parallel in
any Constitution of the democratic countries of the world’92.
K.T. Shah93 described them as: ‘A chapter of reaction and retrogression. (. . .) I find one cannot
but notice two distinct currents of thought underlying and influencing throughout the
provisions of this chapter:
(a) to arm the Centre with special powers against the units and
(b) to arm the government against the people . . . Looking at all the provisions of this chapter
particularly and scrutinising the powers that have been given in almost every article, it seems
to me, the name only of liberty or democracy will remain under the Constitution’.
90
Quoted from M.V. Pylee, India’s Constitution, S Chand, Fifth Edition, 1994, p. 280.
91
Hari Vishnu Kamath (13 July 1907 – 1982) was an Indian Politician and member of the Constituent Assembly
of India.
92
Constituent Assembly Debates, Volume IX, p. 105.
93
Khushal Talaksi Shah was an Indian economist, advocate and socialist best known for his active role as a
member of the Constituent Assembly of India that was responsible for framing of the Indian Constitution.
48
H.N. Kunzru94 opined that ‘the emergency financial provisions pose a serious threat to the
financial autonomy of the States.’
T.T. Krishnamachari95 feared that ‘by means of these provisions the President and the
Executive would be exercising a form of constitutional dictatorship’96.
However, there were also protagonists of the emergency provisions in the Constituent
Assembly. Thus, Sir Alladi Krishnaswami Ayyar labelled them as ‘the very life-breath of the
Constitution’. Mahabir Tyagi opined that they would work as a ‘safety-valve’ and thereby help
in the maintenance of the Constitution97.
While defending the emergency provisions in the Constituent Assembly, Dr. B.R. Ambedkar
also accepted the possibility of their misuse. He observed, ‘I do not altogether deny that there
is a possibility of the Articles being abused or employed for political purposes”98.
94
Hridya Nath Kunzru (1 October 1887– 3 April 1978) was a member of the Constituent Assembly of India
(1946–50) that drew up the Constitution of India.
95
Tiruvellore Thattai Krishnamachari was an Indian politician who served as Finance Minister from 1956 to
1958 and from 1964 to 1966.
96
Constituent Assembly Debates, Volume IX, p. 123.
97
Ibid, p. 547.
98
Ibid, p. 177.
51

Emergency

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Emergency

Uploaded by

Copyright:

Available Formats

CONTENTS

Types of Emergencies ...................................................................................................................... 8

Grounds of Declaration ................................................................................................................... 9

Grounds of Imposition .................................................................................................................. 25

Grounds of Declaration ................................................................................................................. 46

Parliamentary Approval and Duration

A resolution of disapproval is different from a resolution approving the continuation of a

Effects of National Emergency

#Effect on the Centre-State Relations

#Effect on the Life of the Lok Sabha and State Assembly

#Effect on the Fundamental Rights

These two provisions are explained below:

Suspension of Fundamental Rights Guaranteed by Art.19.

Distinction between Art.358 & Art.359

National Emergencies in India

356. Provisions in case of failure of constitutional machinery in States. — (1) If the

c) make such incidental and consequential provisions as appear to the President to be

(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.

Provided that if any such Proclamation (not being a Proclamation revoking a

Provided that if and so often as a resolution approving the continuance in

a) a Proclamation of Emergency is in operation, in the whole of India or, as

b) the Election Commission certifies that the continuance in force of the

Parliamentary Approval and Duration

Consequences of President’s Rule

When the state legislature is thus suspended or dissolved:

1. Andhra Pradesh 3 195436, 1973, 2014

2. Arunachal Pradesh 2 1979, 2016

6. Goa 5 1966, 1979, 1990, 1999, 2005

7. Gujarat 5 1971, 1974, 1976, 1980, 1996

8. Haryana 3 1967, 1977, 1991

9. Himachal Pradesh 2 1977, 1992

10. Delhi 1 2014

11. Jammu and 1 2019

Thus, without the approval by the Houses of Parliament, a Proclamation relating to

#Constituion (44th Amendment) Act, 1978

a) a Proclamation of Emergency is in operation at the time of the passing of such

#Constituion (64th Amendment) Act, 1990

 a situation resulting from instability of the State Governments38

#View of High Courts

After this categorical pronouncement the learned judges observed as follows:

"The satisfaction of the President is a subjective one and cannot be tested by

Thereafter the scope of judicial review was formulated thus:

#High Court’s decision after Rajasthan case69

#S.R. Bommai v. Union of India (1994) 3 SCC 1

Held (Madhya Pradesh, Rajasthan and Himachal Pradesh) :

Imposition of President’s Rule in a state would be proper in the following situations:

1. Where a ministry resigns or is dismissed on losing majority support in the assembly

Comparing National Emergency and President’s Rule

Parliamentary Approval and Duration

Effects of Financial Emergency

1. The executive authority of the Centre extends to the giving of

No Financial Emergency has been declared so far.

You might also like