EMERGENCY PROVISIONS Student Notes:

Contents
1. Introduction .......................................................................................................................... 2
1.1. What is an Emergency? .................................................................................................. 2
2. National Emergency (Article 352) .......................................................................................... 2
2.1. Grounds for National Emergency .................................................................................... 2
2.2. Territorial extent............................................................................................................. 3
2.3. Procedures and safeguards ............................................................................................. 3
2.4. Impacts of National Emergency ...................................................................................... 4
2.5. Instances of imposition of Article 352 ............................................................................. 5
2.6. Judicial Review and Article 352 ....................................................................................... 6
3. State Emergency (Articles 356 and 365)................................................................................. 6
3.1. Grounds for President’s Rule .......................................................................................... 6
3.2. Procedures and safeguards ............................................................................................. 6
3.3. Difference between National Emergency & President rule .............................................. 7
3.4. Effects of State Emergency.............................................................................................. 7
3.5. Instances of imposition of Article 356 ............................................................................. 8
3.6. Observations of various Committees/Commissions ........................................................ 8
3.7. Judicial review and Article 356 ........................................................................................ 9
4. Financial Emergency (Article 360) .........................................................................................11
4.1. Grounds for Financial Emergency...................................................................................11
4.2. Procedures and safeguards ............................................................................................11
4.3. Effects of Financial Emergency .......................................................................................11
5. Criticisms of Emergency Provisions .......................................................................................11
6. Important Articles related to Emergency Provisions..............................................................12
7. UPSC Previous Years Questions.............................................................................................12
8. Vision IAS Previous Years Questions......................................................................................12

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1. Introduction Student Notes:

The Constitution of India has provided certain Emergency provisions to enable the state in
dealing with any abnormal situation in a competent manner. They allow the state to defend the
sovereignty, unity, integrity and security of the country. Further, they also act as a bulwark to
preserve the democratic political system, and the Constitution itself. These provisions are
contained in its Part XVIII, from Articles 352 to 360.
1.1. What is an Emergency?
During an Emergency, the Union government becomes all powerful and the federal structure
gets converted into a unitary one without a formal Sources of Emergency Provisions
amendment of the Constitution. This kind of These framework of emergency
transformation of the political system from ‘federal provisions was influenced by the
during normal times’ to ‘unitary during emergency’ is a relevant provisions of the
unique feature of the Indian Constitution. Government of India Act, 1935 and
the Constitution of Weimer Republic
In doing so, the Constitution of India has envisaged of Germany.
three kinds of emergencies–
1. National Emergency- An emergency due to war, external aggression or armed rebellion.
2. State Emergency- An emergency due to the failure of the constitutional machinery in the
states.
3. Financial Emergency- An emergency due to a threat to the financial stability or credit of
India.

2. National Emergency (Article 352)

2.1. Grounds for National Emergency
• Under Article 352, the President can declare a national
emergency, when the security of India or a part of it is The Constitution employs the
expression ‘proclamation of
threatened by war, external aggression or armed
emergency’ to denote an
rebellion. emergency of this type.
o 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’, it is known as
‘Internal Emergency’
• 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’.
o The term ‘internal disturbance’ was replaced because there was an opinion that this
particular term had been misinterpreted, leading to political victimization of the
states.
• It may be noted 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.
o This provision has been provided for situations, wherein the executive may be able to
pre-empt any imminent crisis.
• The President can also issue different proclamations on grounds of war, external
aggression, armed rebellion, or imminent danger thereof, whether or not there is a
proclamation already issued by him and such proclamation is in operation.
o This provision was added by the 38th Amendment Act of 1975.

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2.2. Territorial extent Student Notes:

• 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.

2.3. Procedures and safeguards

• Concurrence of the Cabinet- The President can proclaim a national emergency only after
receiving a written recommendation from the Cabinet.
o 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.
o The 44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility
of the Prime Minister alone taking a decision in this regard as happened during 1975.
• Approval from the Parliament- The proclamation of National Emergency must be approved
(ratified) by both the Houses of the Parliament within one month from the date of its issue
by a special majority.
o Originally, the period allowed for approval by the Parliament was two months, but it
was reduced by the 44th Amendment Act of 1978.
o 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 Use of special majority has a special
month without approving the proclamation, significance: Since the emergency tilts
the polity in favor of the Union
then the proclamation survives until 30 days
Government, it can be considered as a
from the first sitting of the Lok Sabha after its virtual amendment of the Constitution,
reconstitution, provided the Rajya Sabha has thereby requiring a special majority to
in the meantime approved it. change the balance of powers between
o If the Lok Sabha stands dissolved at the time the States and the Center.
of the declaration of emergency, then it must
be approved by the reconstituted Lok Sabha within thirty days from its first sitting,
provided the Rajya Sabha has approved it in the meantime.
• Duration of Emergency- After approval 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.
o This provision for periodical Parliamentary approval was also added by the 44th
Amendment Act of 1978.
o All such resolutions must be passed by a special majority, that is, majority of the total
membership of that house and majority of not less than two-thirds of the members of
that House present and voting (this special majority provision was also introduced by
the 44th Const. Amendment, 1978)
• Revocation of National Emergency – Lok Sabha has the powers to initiate proceedings for
the discontinuation of the emergency. Lok Sabha can issue a notice in writing, signed by
not less than one-tenth of the total members, with the intention to move a resolution. This
resolution should be addressed to the Speaker, if the house is in session or the President
otherwise.
o A special sitting of the house shall be held within 14 days from the date on which
such notice is received for the purpose of considering such a resolution. The resolution
has to be passed by a simple majority to cancel the emergency. It can additionally be
re-invoked by the President on the advice of Council of Ministers.

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2.4. Impacts of National Emergency Student Notes:

• The declaration of National Emergency brings about a lot of change in the constitutional set
up of the country. The immediate effect of such a declaration is that the federal structure of
the country is folded to a unitary one for purposes of uniformity of administration.
• The President acquires certain extra ordinary powers. He can issue directions or
instructions to any State indicating the manner in which their executive power is to be
exercised.
• These effects can be classified in the following way (refer the infographics)-
1. Effect on Centre-State Relations
2. Effect on life of legislature
3. Effect on the Fundamental Rights

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 Student Notes:

2.5. Instances of imposition of Article 352

• Such an emergency under Article 352 has been invoked thrice.
o First, in October 1962 at the time of Chinese aggression this emergency was proclaimed
for the first time and continued till January 1968.
o For the second time, it was declared in December 1971, at the time of Indo-Pak war
and it continued up to March 1977.

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 o For the third time, the President declared it in June 1975 on account of internal political Student Notes:
crisis that continued till March 1977.
• Post 1977, no such emergency has been pronounced and the 44th Amendment to the
Constitution introduced its own safeguards with regard to the said provision.
2.6. Judicial Review and Article 352
• The 38th Amendment Act of 1975 made the declaration of a National Emergency immune
from judicial review.
o But this provision was subsequently deleted by the 44th Amendment Act of 1978.
• Further, in the Minerva Mills case (1980), the Supreme Court held that the proclamation of
a National Emergency can be challenged in a court on the ground of malafide or that the
declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.

3. State Emergency (Articles 356 and 365)

Article 356 of the Constitution was one of the most keenly debated and discussed in the
Constituent Assembly. In the words of Dr. Ambedkar “such
articles will never be called into operation and that they • State Emergency is also
known as President’s Rule or
would remain a dead letter”. Such a hope got buried within
Constitutional Emergency.
one year of the working of the Constitution, when in June
• However, the Constitution
1951, the Punjab Government was dismissed despite does not use the word
having a clear majority in the Assembly. Since then, till ‘emergency’ for this situation.
now Article 356 has been used approximately 120 times.
3.1. Grounds for President’s Rule
• The President’s Rule can be proclaimed under Article 356 on two grounds—one mentioned
in Article 356 itself and another in Article 365.
o Art 356 provides for the proclamation by the President of India, on receipt of report
from the Governor of a State or otherwise, 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.
o Article 365 is said be a precursor to article 356. Article 365 imposes a duty on the Union
to ensure that the government in every state is carried on as per the provisions of the
Constitution. Whereas Article 356 confers power upon the Union to ensure that Article
355 becomes effective.
3.2. Procedures and safeguards
• The proclamation should be approved by a simple majority within two months by both the
Houses of Parliament, otherwise it ceases to exist after two months. Thereafter, it remains
in force for six months. This period can be extended for another six months if it is further
approved by both the Houses.
• 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. But, no such
approval may be given, continuing the operation of a Proclamation beyond one year from
the date of its issue except under certain conditions as mentioned below:
o Proclamation of Emergency is in operation in the State or in the whole of India
o Election Commission has certified that general elections cannot be held in the state.
Even if the above conditions are met, emergency cannot be extended beyond a period
of three years.
• There is no provision in Article 356, similar to that in Article 352, which enables the Lok
Sabha to disapprove the resolution for the continuance in force of such a Proclamation.
• 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.

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3.3. Difference between National Emergency & President rule : Student Notes:

3.4. Effects of State Emergency

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 state.
2. He can declare that the powers of the state legislature are to be exercised by the
Parliament.
3. He can take all other necessary steps including the suspension of the constitutional
provisions relating to anybody or authority in the state.
• When the President’s Rule is imposed in a state, the President dismisses the State Council
of Ministers, headed by the Chief Minister (however, the powers of the High Court are not
affected). 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.
• State assembly may be dissolved or suspended depending upon prevailing circumstances.
o Such a Proclamation may declare that the powers of the State Legislature shall be
exercisable by or under the authority of Parliament.
• As per Article 357, the Parliament may confer this legislative power on the President and
authorize him to further delegate it to any other authority.

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 o The Parliament can authorize the President to sanction expenditure from the Student Notes:
Consolidated Fund of the State.

3.5. Instances of imposition of Article 356

• Jammu and Kashmir (2019): J&K was placed under Governor’s Rule after one of the
coalition partners pulled out of government. Governor’s rule was proclaimed under the
section 92 of the Constitution of J&K with President of India’s concurrence.
• Arunachal Pradesh and Uttarakhand (2017): President’s Rule was imposed in two states.
In Uttarakhand, the role the Centre played was scrutinized and the President’s
proclamation was challenged; whereas in Arunachal Pradesh, the Governor was
reprimanded. The Congress reclaimed power in Uttarakhand after the Supreme Court
directed a floor test and in Arunachal Pradesh, the “unconstitutional” use of powers by the
Governor was proclaimed as adequate to hand over the reins to the Congress government.
• Delhi 2014: Delhi was put under President’s rule in February 2014, when Chief Minister
Arvind Kejriwal resigned. The Assembly was placed under suspended animation and this
promulgation was approved by the Parliament in the budget session. The assembly has still
not been dissolved. By June, the first six-month period would end and then it would either
be extended by six months or fresh elections would be held after dissolving the assembly.
• Bihar 2005-06: Bihar assembly was dissolved in 2005 after President’s rule had been
declared in the state, three months before, as the state assembly elections had resulted in
a hung assembly. The decision, when challenged in the Supreme Court resulted in the
Governor drawing the ire of the Court for not discharging constitutional duties with a
sense of impartiality. As per the Court, there were hidden political motives in this
particular action, so as to prevent the formation of government by a particular party.
When the Governor justified his actions on basis of fear of defection the court asserted
that it is the Speaker’s duty to prevent defection, while the Governor’s duty is limited to
swear in the party with majority.
3.6. Observations of various Committees/Commissions
Sarkaria Commission (1987)
• Article 356 should be used very sparingly, in extreme cases and only as a matter of last
resort.
• The Commission also recommended that any imposition of Article 356 should be
accompanied with a report by Governor to the President with relevant facts and details.
• No dissolution of Assembly till proclamation is ratified by the parliament
National Commission for Reviewing the Working of Constitution (2002)
• A warning should be issued to the errant State, in specific terms, that it is not carrying on
the government of the State in accordance with the Constitution. Before taking action
under Article 356, any explanation received from the State should be taken into account.
• The State Legislative Assembly should not be dissolved either by the Governor or the
President before the proclamation issued under article 356(1) has been laid before
Parliament and it has had an opportunity to consider it. Article 356 should be suitably
amended to ensure this.
• The Governor's report, on the basis of which a proclamation under Article 356(1) is issued,
should be given wide publicity in all the media and in full.
• Safeguards corresponding to that of Article 352 should be incorporated in Article 356 to
enable Parliament to review continuance in force of a proclamation.

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Punchhi Commission (2008) Student Notes:
• The commission recommended imposition of localized emergency i.e. only a district or a
part of a district to be brought under Governor’s rule instead of the entire state. Such an
imposition should not be of a duration exceeding three months.
• It also recommended suitable amendments be made in Article 356 to incorporate the
guidelines of Supreme Court in S.R Bommai case (1994) with regards to invoking of the
article.
Law Commission
• Situation could have been better handled by the use of Article 355, than imposition of
Article 356. As per the Commission, hardly any effort has been made to operationalize the
Article 355.

3.7. Judicial review and Article 356

The question of judicial review under Article 356 has come up for consideration before the
Courts in several circumstances.
The first such instance was in the Kerala High Court in K.K. Aboo v. Union of India case. In that
case the Court refused to go into the constitutionality of the proclamation under Article 356.
The scope was considered in greater detail in a later case in 1974 where it was held that judicial
review was barred for a proclamation under Article 356 as the Presidential satisfaction is
basically a political issue and the Court did not want to go into an intrinsic political question.
Thus, the Courts for a long time gave support to the action of the Central Government.
Interestingly, none of them came for consideration before the Supreme Court.
The principle that such Presidential Proclamation is not immune from judicial review was first
established in the case of State of Rajasthan v. Union of India and has been expanded in the
case of S.R. Bommai v. Union of India.
State of Rajasthan v. Union of India case judgment, 1977
• The Court does judicial review on limited grounds.
• It said that immunity for Presidential action, could not exist in case of mala fide or
irrelevant grounds.
During the State of Rajasthan case, Article 356 contained clause (5), which was inserted by the
Thirty-Eighth Amendment by which the satisfaction of the President was made final and
conclusive and that satisfaction was not open to be questioned in any court on any ground.
Clause (5) was deleted by the 44th amendment in 1978.
S.R. Bommai case Judgment,1994
• As per the Supreme Court, Article 74(2) (which states that advice given by CoM cannot be
enquired into by judiciary) does not impose any restriction on the court from examining the
material on basis of which President formed his satisfaction.
• The Proclamation under Article 356 is not immune from judicial review. The Supreme
Court or the High Court can strike down the Proclamation if it is found to be mala fide or
based on wholly irrelevant or extraneous grounds.
• The power conferred by Article 356 upon the President is a conditioned power. It is not an
absolute power. It also stated that the power of President is limited by article 356(3), which
requires parliamentary approval of the emergency. This implies that President shall not
dissolve the assembly till the time it is approved by the Parliament.
• It stated that as far as possible the Centre should issue a warning notice to the erring state
asking for reasons

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• Once the Student Notes:
proclamation is
issued, the
Government has
to go. There is no
room for holding
that the
President can
take over some
of the functions
and powers of
the State
Government
while keeping the
State
Government in
office. There
cannot be two
Governments in
one sphere.
• Secularism is a
basic feature of
the constitution
and its violation
by the State
government
makes it liable to
be dismissed as
per article 356.
• The Court also
reiterated its
power to provide
remedy and
reinstate the
government if intentions are proved malafide.
Rameshwar Prasad & Ors vs Union of India, 2006 (The defection case)
• One of the questions of far reaching consequence that arose in this case was whether the
dissolution of Assembly under Article 356 of the Constitution of India can be ordered to
prevent the staking of claim by a political party on the ground that the majority has been
obtained by illegal means and defection(horse trading) are rampant. The court observed:
o That the scope of Judicial Review was broadened in the case of S.R. Bommai.
o It examined the merits of the Governor’s report and came to the conclusion that for
fighting social evils like defection, Article 356 cannot be invoked. As the Governor’s
report did not give any reason for the Presidential Proclamation except defection, so,
the Proclamation was declared as unconstitutional.
o On whether Article 361 grants immunity* to the Governor the Court said that such
immunity does not take away power of the Court to examine validity of the action,
including on the ground of malafide.
The Supreme Court has thus created safeguards with regard to the utilization of Article 356.
Several expert committees have lauded such safeguards to be adopted through constitutional
amendments to ensure smooth Centre-State relations and effective Constitutional governance.

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Emergence of coalition governments has restricted the imposition of the President’s rule in the Student Notes:
states. The arbitrariness, which was associated with the one party rule at the Centre has gone
and this has greatly brought down the number of cases of President’s rule.
* The Governor is not answerable to any Court for exercise and performance of powers and
duties of his office or for any act done or purporting to be done by him in the exercise of those
powers and duties.

4. Financial Emergency (Article 360)

4.1. Grounds for Financial Emergency
• The President proclaims Financial Emergency under Article 360, if he is satisfied that the
financial stability or credibility of India, or any part thereof is threatened.
o The satisfaction of the President is not beyond judicial review.

4.2. Procedures and safeguards

• This proclamation must be approved within two months from the date of its issue by the
Parliament. If the Lok Sabha is dissolved within that period of two months, the
proclamation has to be approved within thirty days of the first sitting of the newly
constituted Lok Sabha. It can continue for an indefinite period, till it is revoked by the
President.
• There is no maximum period prescribed for its operation; and repeated parliamentary
approval is not required for its continuation
• A resolution approving the proclamation of financial emergency can be passed by either
House of Parliament only by a simple majority.
• Financial Emergency may be revoked by the president at anytime by a subsequent
proclamation. Such a proclamation does not require the parliamentary approval.
4.3. Effects of Financial Emergency
• During the period of Financial Emergency, the President can give directions to the States to
observe the canons of financial propriety.
• He can issue directions to reduce the salaries and allowances of all or any class of persons
serving under the State, or the Union including the judges of the Supreme Court and High
Court.
• All money and financial bills passed by the State Legislature can be reserved for the
President’s consideration during the period of Financial Emergency.
• A state of Financial Emergency has not been declared so far in the country, even though
the country did face a severe economic crisis in the years 1990-1991.

5. Criticisms of Emergency Provisions

• Violates the fundamental rights of citizens- During the national emergency imposed
between 1975-1977, various violations of fundamental rights of citizens were reported by
the Shah Commission which was setup to inquire into all the excesses committed in that
period. It was noted that various police excesses, torture and family planning atrocities
were committed by the state authorities.
• Imposed on political grounds- The president’s rule have been imposed on political grounds
to prevent a party from forming or running a government.
• Not exhausting all options- Under the president’s rule, the state assemblies have been
dissolved without giving a chance to other political parties to form governments.
• Compromises the federal spirit of the Constitution- The emergency provisions were
provided in the Constitution as an exceptional tool in the hands of the Union government.
According to the Sarkaria Commission’s Report, which analysed 75 cases of President’s Rule

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 from June 1951 to May 1987, and found that Article 356 was not meant for use in 52 out of Student Notes:
these 75 cases. No other provision has been used, misused and abused like Article 356 of
the Constitution.

6. Important Articles related to Emergency Provisions

Article 352 Proclamation of Emergency
Article 353 Effect of Proclamation of Emergency
Article 354 Application of provisions relating to distribution of revenues while a
Proclamation of Emergency is in operation
Article 355 Duty of the Union to protect states against external aggression and internal
disturbance
Article 356 Provisions in case of failure of constitutional machinery in states
Article 357 Exercise of legislative powers under proclamation issued under Article 356
Article 358 Suspension of provisions of Article 19 during Emergencies
Article 359 Suspension of the enforcement of the rights conferred by Part III during
Emergencies
Application of this part to the state of Punjab under Article 359A was repealed
Article 360 Provisions as to Financial Emergency

7. UPSC Previous Years Questions

Mains
1. Under what circumstances can the Financial Emergency be proclaimed by the President of
India? What consequences follow when such a declaration remains in force? (2018)
Prelims
• Which of the following are not necessarily the consequences of the proclamation of the
President’s rule in a State?
1. Dissolution of the State Legislative Assembly
2. Removal of the Council of Ministers in the State
3. Dissolution of the local bodies
Select the correct answer using the code given below:
(a) 1 and 2 only (b) 1 and 3 only (c) 2 and 3 only (d) 1, 2 and 3
• If the President of India exercises his power as provided under Article 356 of the
Constitution of a particular State, then
(a) the Assembly of the State is automatically dissolved.
(b) the powers of the Legislature of that State shall be exercisable by or under the
authority of the Parliament.
(c) Article 19 is suspended in that State.
(d) the President can make laws relating to that State

8. Vision IAS Previous Years Questions

1. Compare and contrast the National Emergency and President's Rule in terms of their
declaration and effects on fundamental rights as well as centre-state relations. 2019-
1228-14
Approach:
• Explain different grounds of imposition of national emergency and President’s rule.
• Compare and contrast their effects on fundamental rights.
• State their impact on centre-state relations.

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Answer: Student Notes:
National emergency under article 352 can be proclaimed when the security of India or
a part of it is threatened by war, external aggression or armed rebellion. President’s
rule is an emergency declared under article 356 due to the failure of the constitutional
machinery in the states. It can be proclaimed when the government of a state cannot
be carried on in accordance with the provisions of the Constitution due to reasons
which may not have any connection with war, external aggression or armed rebellion.
Effects on Fundamental rights
When a proclamation of national emergency is made, the six fundamental Rights under
article 19 are automatically suspended on the ground of war or external aggression.
The president can also suspend the right to move any court for the enforcement of
Fundamental Rights during a National Emergency except for article 20 and 21. Also,
only those laws which are related with the emergency are protected from being
challenged and not the other laws. Also, the executive action taken only under such a
law is protected.
President's rule, on the other hand, has no effect on Fundamental Rights of the citizens.
Effects on Centre-state relations
While a proclamation of national emergency is in force, the normal fabric of the
Centre–state relations undergoes a basic change in the following manner:
• Executive: the Centre becomes entitled to give executive directions to a state on
‘any’ matter.
• Legislative: 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. The
President can issue ordinances on the state subjects also, if the Parliament is not in
session.
• Financial: The President can modify the constitutional distribution of revenues
between the centre and the states and the modification continue till the end of the
financial year in which the Emergency ceases to operate.
During President’s rule the state government is dismissed. The state legislature is
either suspended or dissolved. The president administers the state through the
governor and the Parliament makes laws for the state. In brief, the executive and
legislative powers of the state are assumed by the Centre. The Parliament can delegate
the power to make laws for the state to the President or to any other authority
specified by him. In general, the practice has been for the president to make laws for
the state in consultation with the members of Parliament from that state. Such laws are
known as President’s Acts.

2. Explain the grounds on which a National Emergency can be declared and highlight its
effects on Centre-state relations and Fundamental Rights.
Approach:
• Briefly explain the meaning of National Emergency as envisaged in the constitution.
• Mention the grounds on which the National Emergency can be declared.
• Discuss the effects of National Emergency on Centre-state relations and
Fundamental Rights separately.
• Briefly conclude the answer recommending its minimal use.

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Answer: Student Notes:
The provision of National Emergency was inserted in the constitution to enable the
Central government to meet any abnormal situation effectively and to safeguard the
sovereignty, unity, integrity and security of the country.
Under Article 352, the President can declare a national emergency when the security of
India or a part of it is threatened by war or external aggression or armed rebellion after
receiving a written recommendation from the cabinet. It can also be declared pre-
emptively (in case of imminent danger). It has been proclaimed only three times so far
—in 1962, 1971 and 1975.
Effect of National Emergency on Centre-State Relations – It converts the federal
structure into a unitary one without a formal amendment of the Constitution.
Specifically, consider the effect on:
• Executive – The Centre becomes entitled to give executive directions to a state on
‘any’ matter unlike in normal times where executive directions can only be on
certain specified matters. Thus, the state governments are brought under the
complete control of the Centre, though they are not suspended.
• Legislative – The Parliament is empowered to make laws on any subject in the State
List. Although the legislative power of a state legislature is not suspended, it
becomes subservient to the Parliament. The President can also issue ordinances on
the state subjects, if Parliament is not in session.
• Financial - The President is empowered to modify the constitutional distribution of
revenues between the centre and the states. Hence, the President can either
reduce or cancel the transfer of finances from Centre to the states.
Effect of National Emergency on Fundamental Rights – It allows the Centre to curtail or
suspend freedom of the citizens, as is detailed below:
• Under Article 358, the six Fundamental Rights under Article 19 are automatically
suspended, requiring no separate order.
• Under Article 359, the remaining Fundamental Rights (except Article 20 and 21)
can be suspended only through a specific order of the President. These rights are
not suspended, but only the right to seek remedy or their enforcement is
suspended.
The state can make any law or take action that takes away the rights under Article 19 or
other specified right under Article 359. Any such law or executive action cannot be
challenged on the ground of inconsistency. Further, the legislative and executive actions
during the emergency cannot be challenged even after the emergency ceases to
operate.
When the National Emergency ceases to operate, Article 19 is automatically revived.
Any law made during Emergency, to the extent of inconsistency, ceases to have effect.
The proclamation of emergency is a serious matter as it disturbs the normal fabric of
the Constitution and curtails the rights of the states (federal structure) as well people
(fundamental rights) and hence, must be used sparingly.

DELHI JAIPUR PUNE HYDERABAD AHMEDABAD LUCKNOW CHANDIGARH

14 www.visionias.in # 8468022022 ©Vision IAS
3. What was hoped to be a 'dead-letter' of the Constitution has become one of the most Student Notes:
controversial provisions. Discuss in the context of Article 356. 2019-20-1220
Approach:
• Briefly explain Article 356 and the grounds for its imposition.
• Explain why it was hoped to be a ‘dead-letter’.
• Discuss how it has become the most controversial provisions of the Constitution.
Answer:
Article 356 of the Indian Constitution empowers the Centre to take over the State
Government on certain grounds. Popularly known as the President’s rule it authorizes
the President to assume both legislative and executive powers of the state.
Grounds for imposition:
• Art. 355: It shall be the duty of the Union to protect every State against external
aggression and internal disturbance and to ensure that the government of every
State is carried on in accordance with the provisions of this Constitution.
• Art. 365: When State fails to comply with or give effect to any direction from the
Centre.
It was hoped to be a dead-letter and was supposed to be used as a measure of last
resort because:
• It is an extraordinary device in the hands of the Centre.
• It alters and infringes upon the federal feature of the Indian Constitution.
• It goes against the people’s mandate by removing the democratically elected State
Government.
It has become controversial due to the following reasons:
• Frequent use: Since 1950, the President’s Rule has been imposed on over 100
occasions.
• Imposition on arbitrary grounds for political or personal reasons.
• Imposition when there are different parties at the Centre and State level.
• The expression ‘breakdown of constitutional machinery’ is not defined in the
Constitution.
• Misuse of Art. 365 as ‘directions from the Centre’ are vague and unexplained.
• Biased and distorted reports sent by the Governor to the Centre, which results in
imposition of President’s rule.
• A law made by the Parliament during State Emergency continues to be operative
even after it.
The Sarkaria Commission has recommended rare use of this article i.e. only after all the
other alternatives are exhausted. In S.R.Bommai vs. Union of India (1994), the SC held
that the President’s proclamation imposing President’s rule is subject to judicial review
and is liable to be struck down if it is based on irrelevant and malafide
sources/intentions. The courts can reinstate the State Government in such a case. This
was recently upheld in the Nabam Rebia and etc. vs. Deputy Speaker and Ors. 2016.
Even after the SC ruling, many State governments were dismissed without the
compulsory floor test. Therefore, it is imperative to follow the SC directives in letter and
spirit to promote the ideal of cooperative federalism.

DELHI JAIPUR PUNE HYDERABAD AHMEDABAD LUCKNOW CHANDIGARH

15 www.visionias.in # 8468022022 ©Vision IAS
4. Highlight the extent of President's powers under Article 352. Comment on the judicial Student Notes:
scrutiny of proclamation and the exercise of executive powers under National
Emergency. How is this power different from the one bestowed under Article
356?2018-19-1049
Approach:
• Stating the mandate of Article 352, highlight the President’s power under 352.
• State the role of judicial scrutiny and exercise of executive powers when National
Emergency comes in operation.
• Mention the differences in the nature of powers between Article 352 and 356 on
various parameters.
Answer:
Part XVIII of the Constitution outlines the procedure in which the normal Federal
Constitution can be adapted to abnormal situations effectively and confers
extraordinary powers upon the Union. These Emergency provisions help in guarding the
democracy against the forces of disintegration, thus safeguarding the sovereignty,
integrity and security of the country.
Extent of President's powers under Article 352
President can declare a national emergency if he/she is satisfied that a grave
emergency exists whereby the security of India or a part of it is threatened by war or
external aggression or armed rebellion. When doing so, President has following powers:
• President can issue directions to the states as to the manner in which the executive
power of the states is to be exercised.
• In the event of military conflict, the President is also authorised to suspend Article
19. He can also restrict the enforcement of all fundamental rights except for article
20 and 21
However, the President cannot act unilaterally. Such a proclamation can be declared
only on the written advice of the Cabinet subject to the approval by both the Houses of
Parliament.
Judicial scrutiny of proclamation
Earlier, President's 'satisfaction' amounted to 'subjective satisfaction', which could not
be challenged in a court of law under any circumstances. But Supreme Court in the
Minerva Mills case held that there is no bar to judicial review of the validity of a
Proclamation of Emergency issued by the President under Article 352 (1).
Constitutionality of Proclamation can be questioned in the court of law on the grounds
of mala-fide intention.
However, court's power is limited only to examining whether the limitations conferred
by the Constitution have been observed or not. Court cannot go further into question
of correctness of the facts and circumstances on which the satisfaction of the
Government is based.
Exercise of Executive Powers
• During the operation of a Proclamation of Emergency the executive power of the
Union extends to directing any State regarding the manner in which its executive
power is to be exercised.
• Unlike normal times, when Centre can only issue directions on certain specified
matters, during the Emergency, Centre becomes entitled to give executive
directions to a state on 'any' matter.

DELHI JAIPUR PUNE HYDERABAD AHMEDABAD LUCKNOW CHANDIGARH

16 www.visionias.in # 8468022022 ©Vision IAS
 • Thus, the distribution of powers stands suspended and state governments are Student Notes:
brought under the effective control of the Central government.
Difference in the nature of powers between Article 352 and Article 356

Parameter Article 352 Article 356

Effect on legislative State Legislature and the State executive is dismissed and
and executive State Executive continue to state legislature is either
functions function. Centre gets suspended or dissolved.
concurrent powers of President administers the state
legislation and administration through the Governor and
in State matters. Parliament makes laws for the
state.

Centre-State Nature of relationship of all Relationship of only one state

Relationship the states changes with changes with the Centre
respect to the Centre

Law making powers Only Parliament can make Parliament can delegate the law
laws on the subjects making power to President or
enumerated in the State List. any other authority.

Effect on It affects Fundamental Rights. It does not affect Fundamental

Fundamental Rights Rights.

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