EMERGENCY

Black law’s dictionary defines emergency “as a failure of social system to deliver reasonable
conditions of life”. The term emergency may be defined as “circumstances arising suddenly that
calls for immediate action by the public authorities under the powers especially granted to them”.
Dr. B.R Ambedkar claimed that the Indian Federation was unique as during the times of
emergency it could convert itself into an entirely unitary system. In India, the emergency
provisions are such that the constitution itself enables the federal government acquire the
strength of unitary government whenever the situation demands

• National Emergency  1962 China 1971 Pakistan

– Article 352

• Failure of Constitutional Machinery in States

– Article 356

• Financial Emergency

– Article 360 

Art 352

Article 352 provides that if the President is satisfied that a grave emergency exists whereby the
security of India or any part of its territory is threatened by war, or external aggression or armed
rebellion, he may by proclamation, make a declaration to that effect. It may be in respect of the
whole India or any part of India, as required.The proclamation of emergency can take place not
only after the incidents of war or external aggression or armed rebellion but even before the
actual occurrence, if the President is satisfied that there is imminent danger thereof

According to the Constitution (Forty Fourth Amendment) Act, 1978, the President can declare
such an emergency only if the Cabinet headed by the Prime minister and other Ministers of
Cabinet rank recommends in writing doing so (incorporated to avoid the kind of situation of
1975 wherein on the oral advice of the prime minster, the Proclamation of emergency was
declared)

Procedure: ((intended to ensure an amount of accountability and legitimacy of executive

action))

Every proclamation needs to be laid before both Houses of Parliament. If both Houses of
Parliament do not approve of it within one month, it will cease to operate at the expiration of
thirty days from the date on which the proclamation was issued

If, Lok Sabha stands dissolved at the time of proclamation of emergency or is not in session it
has to be approved by the Rajya Sabha within one month and later on by the Lok Sabha also
within one month of the commencement of its next session

Once approved by the Parliament, the emergency remains in force for a period of six months
from the date of proclamation. In case it is to be extended beyond six months, another resolution
has to be passed by the Parliament. Such a Proclamation ceases to operate after one month unless
before that period it has been approved by resolutions in the Union Parliament. Thereby it
continues for 6 months. By repeating the resolutions every 6 months the Proclamation may
remain in force indefinitely.

THE 44thCONSTITUTION AMENDMENT AND ART 352

1-The expression internal disturbance was replaced by a more country expression that is armed

rebellion.

2-The national emergency to be proclaimed by the President of India on the written advice of

the cabinet.

3-Approval of the parliament has to be within one month by a special majority. Earlier the

amendment it was to be within two month at by the simple majority.

4-After the 44th amendment the approval of the parliament to be believed only for 6 month at a
time. Earlier no such provision.. was there. Until 44th amendment 1978, if Parliament approves
proclamation of National Emergency then it remains in operation on pleasure or desire of cabinet
or executive. (( Now Duration:1month_ 6+6….indefinite period))

5-The fundamental right under article 19 suspended

6-under article 359 of the Indian Constitution, article 20 and 21 cannot be suspended during

national emergency.

7- After the 42th Amendment of the constitution the state emergency was made immune from
judicial review. But later in the 44th Amendment the legality of President’s rule could be
challenged

EFFECTS.

Following are the effects of national emergency under article 352 of the Indian Constitution

1. The distribution of power between the centre and state is suspended and the parliament
can make any law on the subject of state list.
2. the Union can use its executive power to the extent of giving directions to the State
relating to the manner in which the executive powers shall be exercised by the State.
3. The term of the Lok Sabha and the legislative assembly can be extended for not more
than one year at a time.
4. Article 354, the distribution of revenue between the Union and the State can be altered by
the Centre.
5. Art 358,359

Procedure for revoking emergency

If the situation improves then the President can revoke the emergency through another
proclamation. The 44th Amendment of the Constitution provides that a requisition for the
meeting can be made by ten per cent or more members of the Lok Sabha and in that meeting; it
can disapprove or revoke the emergency by a simple majority. The emergency will immediately
become inoperative in such a case.
CASES:

 In Minerva Mills vs Union of India, 1980 it has been held that there can be no bar to
judicial review of determining the validity of the proclamation of emergency issued by
the President under Article 352(1). The court’s powers are limited only to examining
whether the limitations conferred by the Constitution have been observed or not. It can
check if the satisfaction of President is on valid grounds or not. If the President is
satisfied that grounds for national emergency exist but the same is based on absurd,
malafide or irrelevant grounds then it won’t be considered that the President is ‘satisfied’.
OR
held that even though the proclamation under Article 352 is the prerogative of the
President, there is no bar to judicial review of the validity of the proclamation of
emergency
However, court's power is not unlimited and extends only to examining whether the
limitations conferred by the constitution have been observed or not
 Makhan Singh v. State of Punjab AIR 1964: The validity of the suspension of the right
to move any court for the enforcement of Articles 14, 21 and 22 under the proclamation
of emergency declared during the Indo-China war was challenged. The Supreme Court
held that the rights were suspended only for legally detained persons and not applicable
to persons illegally detained under preventive detention law.
Supreme Court pointed out that a citizen would not be deprived of his right to move the
appropriate court for a writ of habeas corpus if his detention had been mala fide

 A.D.M. Jabalpur v. S. Shukla, AIR 1976 SC 1207

This case is also known as the Habeas Corpus (to produce the body) case as whenever
someone is arrested, this is the writ filed in the Supreme Court by the arrested person.
Earlier, when the Proclamation of Emergency was made, this writ was not considered as
a fundamental right under Article 21 and remained suspended.
The facts of the case were that on 26th June 1975 emergency was proclaimed by the
President of India due to internal disturbances. The said proclamation was followed by
another proclamation on 27th June 1975 where the President enforced the powers
conferred by Article 359(1) of the Constitution. In exercise of these powers, the right of
 any person including a foreigner to move to the court for the enforcement of Article 14,
21 and 22 of the Constitution and the proceedings pending in any court relating to the
enforcement of the above-mentioned articles will be curtailed.
Justice Khanna gave a dissenting opinion and observed that while the proclamation of
emergency is in operation, the person can not move to the court for enforcement of
fundamental rights but that does not prevent him from exercising his legal remedy.
Justice Khanna exclusively relied on the judgment delivered in the case of Makhan
Singh v. State of Punjab in which he specified: If a person while challenging the
validity of his detention order, pleads any right which is outside the scope of rights
mentioned in the order, his right to move to any court is not suspended, as it is outside the
rights specified in the order as well as the Presidential order itself.
Court declared Art. 21 to be the sole repository of liberty and when that has been
suspended in its totality, there cannot be any question of enjoyment of right to life and
liberty and no writ of Habeas Corpus is maintainable.
The judgment is criticized and many believe that the Court did not uphold the legitimacy
and supremacy of the Constitution

Art 356

Debated hotly among the political and intellectual circle- been issued nearly 100 times

Punjab 1952, Bihar, J&K, etc… the National Commission to Review the Working of the
Constitution (NCRWC) stated that in at least twenty out of the more than one hundred instances,
the invocation of Article 356 might be termed as a misuse

Article 355 of the Constitution of India enjoins a responsibility on the Union Government to
protect States against external aggression and internal disturbance.

Following is the meaning of the term breakdown of the constitutional machinery

a- if the formation of government is not possible in the state.

b- if a state government face to avoid the administrative direction given by the central
government according to the article 365 of the Indian Constitution.

c- in the case of Bommai in 1994 the supreme court held that the secularism is one of the basic

structure of the constitution and if a state government fails to abide by it or is unable to protect

it then it has to be considered the break down of the constitutional machinery in the state.

After the 42th Amendment of the constitution the state emergency was made immune from
judicial review. But later in the 44th Amendment the legality of President’s rule could be
challenged

Article 356 talks about the failure of constitutional machinery in state also known as the
President’s rule. If the president on Governor’s report or otherwise is satisfied that the situation
has arisen that the government can’t be carried in accordance with the constitutional provisions
then, he may issue State emergency.

Duration: The President may also proclaim under Art. 356, a failure of Constitutional machinery
in any State on receipt of a report from the Governor concerned of otherwise. Such a
Proclamation ceases to operate at the expiration of two months unless approved by resolutions of
both houses before that period expires. By such approval, the Proclamation continues for a
further period of six months from the date of issue of the Proclamation. It can be kept in force
for 1 year.

If a Proclamation under Art. 352, is also in force then by such resolutions it can be kept in force
for a maximum period of 3 years. Beyond the period of an year the proclamation can only be
continued if a) National emergency is pre-existing or b) the Election Commission certifies that it
is not possible to hold election in the state or that territory.

Duration: 2months_ 6months +6+…. Max 1 yr_ beyond 1 yr in 2 circumstances upto 3 yrs

The Consequences of state emergency are-

· The president assumes all the executive power of the state himself. The state administration
runs by him or any person appointed by him generally the Governor.
· During such proclamation, the state assembly is either dissolved or suspended. But the MLA’s
do not lose their membership of the Assembly.

· Parliament makes laws regarding the state list. The parliament only passes the budget for the
state.

· President also proclaims ordinances in the state.

During the state emergency the Union government has absolute control over the state except the
judiciary.

Cases:

State of Rajasthan v. Union of India, (1977),the issue of the availability of judicial review came
up. it was observed by Justice Fazal Ali: “As our constitution is wedded to the democratic
pattern of government, if a particular state government ceases to be democratic or acts in an
undemocratic fashion, it cannot be said that the government of the state is carried on in
accordance with the provisions of the constitution.” In the same judgment, Justice PN Bhagwati
observed: “The satisfaction of the President is a condition precedent to the exercise of power
under article 356 clause 1 and if it can be shown that there is no satisfaction of the president at
all, the exercise of the power would be constitutionally invalid. Of course by reason of cl. 1 sub
cl.5 of article 356 the satisfaction of the president is final and conclusive and cannot be assailed
on any ground….But one thing is certain that if the satisfaction is malafide or is based on wholly
extraneous and irrelevant grounds , the court would have jurisdiction to examine it, because in
that case there would be no satisfaction of the president in regard to the matter in which he is
required to be satisfied.”

In the historic case of S.R Bommai V. UOI, 1994 It was observed: “The exercise of the power
under article 356 is an extraordinary one and needs to be used sparingly when the situation
contemplated by article 356 warrants to maintain democratic form of government and to prevent
paralysing of the political process. Single or individual act or acts of violation of the constitution
for good, bad or indifferent administrations does not necessarily constitute failure of the
constitutional machinery or characterizes that a situation has arisen in which the government of
the state cannot be carried on in accordance with the constitution.”

It also laid down the following guidelines:

-Emergency imposed by Presidential Proclamation is subject to judicial review.

-The burden lies upon the Government of India to prove that relevant material existed to justify
the issue of proclamation.

-If the court strikes down the proclamation, it has the power to restore the dismissed state
government to office.

- Article 356 is justified only when there is a breakdown of constitutional machinery and not
administrative machinery

- Article 356 shall be used sparingly by the centre; otherwise it is likely to destroy the
constitutional structure between the centre and the states

In Rameshwar Prasad V. UOI , 2006 (Bihar Assembly Dissolution Case) it was held that the
presidential proclamation dissolving state assembly in Bihar under Art.356 was unconstitutional
on extraneous and irrelevant ground. The court said that the state governor misled the centre in
recommending dissolution of state assembly. The Supreme Court reviewed the constitutional
validity of the Union’s dissolution of the Bihar State legislative assembly and the proclamation
of President’s rule under Article 356 of the Constitution

Assembly elections that took place in Bihar in 2005 no party was able to garner majority. A
notification was issued on 7-3-2005 under Article 356 imposing President’s rule and the
Assembly was kept suspended. It was felt that this situation may encourage defection and horse
trading. The Governor felt that it would be desirable in the interest of the State that the Assembly
which had been kept in suspended animation be dissolved so that the electorate could be
provided with one more opportunity to seek the mandate of the people at an appropriate time to
be decided in due course. This was challenged and the following questions arose—
Is it permissible to dissolve the Legislative Assembly under Article 174 (2) (b) of the
Constitution without its first meeting taking place?

Whether the proclamation is illegal and unconstitutional?

The Court held that the dissolution of the State assembly and the proclamation of President’s rule
was unconstitutional and declared that it had the power to restore a dissolved assembly in an
appropriate case. However, as elections to the Bihar Assembly had been notified prior to the
decision of the Court, it refrained from restoring the State assembly in this case.

Difference Bwn 2

Under Article 352, the State Legislature and Executive continue to function but the Centre gets
the concurrent powers of the legislation and administration in the matters of the State. Under
Article 356, the executive, as well as legislative power, is vested in the Centre and the State
Legislature is dissolved.

Under Article 352, the relationship between the Centre and all the States changes but in the case
of Article 356 the relationship between the Centre and the State in which President’s Rule is
applied undergo a change.

Article 360

• If the President is satisfied that a situation has arisen whereby the financial stability
or credit of India or any part of it is threatened, he may declare a financial
emergency should be approved by Parliament as in the other two cases mentioned
above

The Proclamation of Financial Emergency shall cease to operate after 2 months unless it has
been approved by both the Houses of Parliament. By a subsequent Proclamation, Proclamation
of Financial Emergency can be revoked.

Effects:
Financial Emergency has the following effects:

 During a financial emergency, “the executive authority of the Union shall extend to the
giving of directions to any State, to observe such canons of financial propriety as may be
specified in the direction, or any other directions which the President may deem
necessary for the purpose

 The executive authority of the Union shall give directions to the State regarding the
maintenance of financial stability.

 It may include provisions for reduction of salaries and allowances of all or any class of
persons serving in the State. This includes Judges of the High Court and the Supreme
Court.

 The Money Bills shall be reserved for the approval of the President

No such proclamation has been issued under Article 360 so far