EMERGENCY PROVISIONS OF THE CONSTITUTION

The Indian Constitution contains Emergency provisions in Part XVIII, comprising Articles 352 to 360.
These provisions are aimed at enabling the Central government to effectively handle abnormal
situations that may threaten the sovereignty, unity, integrity, and security of the country, as well as the
democratic political system and the Constitution itself.

During an Emergency, the Central government gains extensive powers, and the states come under its
complete control. This transformation temporarily turns the federal structure into a unitary one, without
formally amending the Constitution. This unique feature allows the Indian Constitution to adapt to the
requirements of time and circumstances, functioning as a federal system during normal times and as
a unitary system during emergencies. Dr. B.R. Ambedkar, a key architect of the Constitution,
acknowledged this flexibility, highlighting the Constitution's ability to switch between federal and
unitary characteristics based on the prevailing conditions.

The Constitution outlines three types of emergencies.

1. The first type is 'National Emergency,' which can be proclaimed in response to war, external
aggression, or armed rebellion. The proclamation of emergency grants the Central
government extraordinary powers to address the situation effectively.

2. The second type is 'President's Rule' or 'State Emergency,' which arises when there is a
failure of the constitutional machinery in a state. In this situation, the state's administration
comes under the direct control of the Central government, ensuring that the constitutional
order is maintained.

3. The third type is 'Financial Emergency,' declared when there is a threat to India's financial
stability or credit. During a financial emergency, the Central government is empowered to take
necessary measures to address the financial crisis and safeguard the country's economic
interests.

Overall, the Emergency provisions in the Indian Constitution are designed to provide the government
with the necessary tools to manage critical situations effectively and ensure the stability and
well-being of the nation. However, these provisions are meant to be used sparingly and judiciously,
and their invocation is subject to constitutional checks and balances to prevent misuse of power.

A. NATIONAL EMERGENCY
1. Grounds of Declaration-
a. Under Article 352, the President can declare a national emergency if the security of
India or any part of it is threatened by war, external aggression, or armed rebellion.
b. The President can declare a national emergency even before the actual occurrence
of war, external aggression, or armed rebellion if there is an imminent danger.
c. Different proclamations can be issued for war, external aggression, armed rebellion,
or imminent danger, regardless of whether there is an existing proclamation in
operation. This provision was added by the 38th Amendment Act of 1975.
d. A national emergency can be declared for the entire country or only a specific part of
it, as enabled by the 42nd Amendment Act of 1976.
e. The term 'internal disturbance' originally mentioned as a ground for a National
Emergency was replaced by 'armed rebellion' through the 44th Amendment Act of
1978. The use of 'internal disturbance' was deemed vague and overly broad.
f. The President can proclaim a national emergency only after receiving a written
recommendation from the cabinet, ensuring concurrence from the entire cabinet, not
just the Prime Minister.

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 g. Judicial review of the declaration of a National Emergency was initially barred by the
38th Amendment Act of 1975 but was later reinstated by the 44th Amendment Act of
1978. The Supreme Court clarified that a proclamation can be challenged in court if it
is based on malafide intentions or irrelevant facts.

2. Parliamentary Approval and Duration

a. The proclamation of Emergency must be approved by both Houses of Parliament
within one month from its issue.
b. Originally, the approval period allowed was two months, but it was reduced to one
month by the 44th Amendment Act of 1978.
c. If the Lok Sabha is dissolved or dissolves during the one-month period without
approving the proclamation, it survives until 30 days from the first sitting of the
reconstituted Lok Sabha, provided the Rajya Sabha has approved it in the meantime.
d. If approved by both Houses, the emergency continues for six months and can be
extended indefinitely with parliamentary approval every six months.
e. Before the 44th Amendment Act of 1978, the emergency could remain in operation as
long as the Executive (cabinet) desired, once approved by Parliament.
f. If the Lok Sabha dissolves during the six-month period without approving further
continuation of Emergency, it survives until 30 days from the first sitting of the
reconstituted Lok Sabha, provided the Rajya Sabha has approved its continuation.
g. A special majority is required to pass the resolution approving the proclamation of
emergency or its continuance:
i. majority of the total membership of the House, and
ii. a majority of not less than two-thirds of the members present and voting.
The special majority provision was introduced by the 44th Amendment Act of 1978,
replacing the previous requirement of a simple majority.

3. Revocation of Proclamation of National Emergency

a. A proclamation of emergency can be revoked by the President at any time through a
subsequent proclamation.
b. Parliamentary approval is not required for the revocation of the emergency
proclamation.
c. The President must revoke the emergency proclamation if the Lok Sabha passes a
resolution disapproving its continuation.
d. The provision for the Lok Sabha to disapprove the continuation of the proclamation
was introduced by the 44th Amendment Act of 1978.
e. If one-tenth of the total 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 must be held within 14 days to consider a resolution disapproving the
continuation of the proclamation.
f. A resolution of disapproval is different from a resolution approving the continuation of
the proclamation:
i. The disapproval resolution is required to be passed by the Lok Sabha only,
while the approval resolution needs to be passed by both Houses of
Parliament.
ii. The disapproval resolution is adopted by a simple majority, while the approval
resolution requires a special majority.

4. Effects of Proclamation of National Emergency

The political system undergoes drastic and wide-ranging effects when a proclamation of Emergency is
declared. These consequences can be grouped into three categories:

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 I. Effect on Centre-state relations
II. Effect on the life of the Lok Sabha and State assemblies
III. Effect on Fundamental Rights

Overall, a proclamation of Emergency has significant implications for the political system, altering the
federal structure, affecting legislative terms, and restricting certain Fundamental Rights.

I. Effect on Centre-state relations

During a national emergency, the Centre-state relations undergo significant changes in the executive,
legislative, and financial aspects:

a. Executive:
i. The executive power of the Centre extends to directing any state on 'any' matter,
granting complete control over state governments without suspension.
b. Legislative:
i. The Parliament gains the power to make laws on any subject listed in the State List,
overriding the legislative power of state legislatures.
ii. State legislatures are not suspended, but their legislative powers are subject to
Parliament's overriding authority.
iii. The laws made by Parliament on state subjects become inoperative six months after
the emergency ceases.
iv. The President can issue ordinances on state subjects if Parliament is not in session.
c. Financial:
i. The President can modify the constitutional distribution of revenues between the
Centre and the states, reducing or cancelling the transfer of finances from Centre to
states.
ii. Such modifications remain in effect until the end of the financial year in which the
Emergency ceases to operate.
iii. All such orders of the President must be laid before both Houses of Parliament.

The 42nd Amendment Act of 1976 extends these consequences not only to a state where the
Emergency is in operation but also to any other state. Overall, a proclamation of national emergency
centralises power, temporarily suspending the federal nature of the Constitution.

II. Effect on life of Lok Sabha and state assemblies

During a proclamation of National Emergency, the life of the Lok Sabha and state legislative
assemblies can be extended beyond their normal terms as follows:

a. Lok Sabha:
i. The term of the Lok Sabha, which is normally five years, can be extended beyond its
normal duration by a law of Parliament.
ii. The extension can be for one year at a time, and there is no limit to the number of
times the term can be extended.
iii. However, the extension cannot continue beyond a period of six months after the
Emergency ceases to operate. For example, the term of the Fifth Lok Sabha
(1971–1977) was extended two times by one year at a time.

b. State Legislative Assemblies:

i. Similarly, the normal tenure of state legislative assemblies, which is five years, can be
extended by one year at a time through a law of the Parliament.
ii. The extension can be for any length of time but is subject to a maximum period of six
months after the Emergency ends.

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These provisions allow for the extension of the Lok Sabha and state assembly terms to ensure
continuity in governance during the Emergency period. However, the extensions cannot continue
indefinitely and are limited to six months after the Emergency is lifted.

III. Effect on the Fundamental Rights

During a National Emergency, the Fundamental Rights are affected in the following ways:

a. Suspension of Fundamental Rights under Article 19:

i. Article 358 automatically suspends the six Fundamental Rights guaranteed by Article
19 (freedom of speech, assembly, etc.) when a National Emergency is proclaimed.
ii. The state is freed from the restrictions imposed by Article 19 and can make laws or
take executive actions that abridge or take away these rights.
iii. Any such law or action cannot be challenged on the ground of inconsistency with the
suspended Fundamental Rights during the Emergency.
iv. When the Emergency ends, Article 19 automatically revives, and any law made
during the Emergency, conflicting with Article 19, ceases to have effect. However, no
remedy exists for actions taken during the Emergency even after it ends.

b. Suspension of other Fundamental Rights:

i. Under Article 359, the President can suspend the right to move any court for the
enforcement of Fundamental Rights during the Emergency.
ii. The Fundamental Rights themselves are not suspended, but their enforcement is
suspended as specified in the Presidential Order.
iii. The suspension applies only to the specified Fundamental Rights in the Order.
iv. The State can enact laws or take executive actions that abridge or take away the
specified Fundamental Rights during the Emergency.
v. Like Article 358, any such law or action cannot be challenged on grounds of
inconsistency with the suspended Fundamental Rights during the Emergency.
vi. When the Presidential Order ceases to operate, any law made under it, conflicting
with the specified Fundamental Rights, ceases to have effect. However, no remedy is
available for actions taken during the operation of the Order even after it expires.

The 44th Amendment Act of 1978 limited the scope of both Article 358 and Article 359. It restricted
the suspension of Fundamental Rights under Article 19 to only war or external aggression
emergencies (not armed rebellion). It also specified that only laws related to the emergency are
protected from challenge, and the suspension does not apply to Fundamental Rights guaranteed by
Articles 20 and 21.

5. Article 358 vs Article 359

Differences between Articles 358 and 359:
a. Article 358 applies to Fundamental Rights under Article 19 only, while Article 359 extends to
all the Fundamental Rights specified in the Presidential Order.
b. Article 358 automatically suspends Fundamental Rights under Article 19 when the
Emergency is declared, whereas Article 359 empowers the President to suspend the
enforcement of specified Fundamental Rights through a Presidential Order.
c. Article 358 applies only in case of External Emergency (war or external aggression), while
Article 359 applies in both External Emergency and Internal Emergency (armed rebellion).
d. Article 358 suspends Fundamental Rights under Article 19 for the entire Emergency duration,
while Article 359 suspends enforcement for a period specified by the President, which can be
the entire duration or a shorter period.
e. Article 358 applies to the entire country, whereas Article 359 may apply to the whole country
or a part of it.

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 f. Article 358 suspends Article 19 completely, while Article 359 does not empower the
suspension of enforcement of Articles 20 and 21.
g. Article 358 enables the State to make laws or take actions inconsistent with Fundamental
Rights under Article 19, while Article 359 enables the State to do the same for the specified
Fundamental Rights in the Presidential Order.

Similarity between Articles 358 and 359:

Both provide immunity from challenge to laws related to the Emergency, and executive actions taken
under such laws. Other laws and actions remain subject to challenge.

6. Declarations so far
a. National Emergency has been proclaimed three times: in 1962, 1971, and 1975.
b. The first proclamation in 1962 was due to Chinese aggression in the NEFA and lasted till
January 1968. A fresh proclamation was not needed during the 1965 war with Pakistan.
c. The second proclamation in 1971 was in response to the Pakistani attack. While this
Emergency was in force, a third proclamation was made in 1975 on the grounds of internal
disturbance.
d. The 1975 Emergency was the most controversial and faced widespread criticism for its
misuse of power.
e. In the 1977 Lok Sabha elections held after the Emergency, the Congress Party lost, and the
Janta Party came to power.
f. The new government appointed the Shah Commission to investigate the reasons behind the
1975 Emergency.
g. The Shah Commission did not justify the Emergency, leading to the enactment of the 44th
Amendment Act in 1978, introducing safeguards against the misuse of Emergency provisions.

B. PRESIDENT’S RULE
1. Grounds of imposition-
Article 355 imposes a duty on the Centre to ensure that the government of every state is carried on in
accordance with the Constitution. If the government of a state fails to function according to the
constitutional provisions, the President can proclaim 'President's Rule' or 'State Emergency' under
Article 356. This allows the Centre to take over the government of the state and govern it directly. The
President's Rule can be proclaimed based on two grounds
a. if the President is satisfied that the state's government cannot be carried on in
accordance with the Constitution, with or without the governor's report, and
b. if a state fails to comply with or give effect to any direction from the Centre.

2. Parliamentary approval and Duration

a. A proclamation imposing President's Rule must be approved by both Houses of
Parliament within two months.
b. If Lok Sabha is dissolved during the two-month period, the proclamation survives until
30 days from the first sitting of the reconstituted Lok Sabha, if Rajya Sabha approves
it in the meantime.
c. President's Rule continues for six months and can be extended for a maximum of
three years with Parliament's approval every six months.
d. If Lok Sabha is dissolved during the six-month period, the proclamation survives until
30 days from the first sitting of the reconstituted Lok Sabha, if Rajya Sabha approves
it.
e. Resolution for President's Rule approval needs a simple majority in either House of
Parliament.

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 f. Beyond one year, President's Rule can be extended in six-month increments if a
National Emergency is in operation and the Election Commission certifies difficulties
in holding state elections.
g. The President can revoke the proclamation of President's Rule at any time without
parliamentary approval.

3. Consequences of President’s rule

a. When President's Rule is imposed in a state, the President acquires extraordinary
powers.
b. The President can take up the functions of the state government and powers vested
in the governor or any other executive authority in the state.
c. He can declare that the powers of the state legislature are to be exercised by the
Parliament.
d. The President can take all necessary steps, including the suspension of constitutional
provisions relating to any body or authority in the state.
e. The state council of ministers headed by the chief minister is dismissed, and the state
governor carries on the state administration with the help of the chief secretary or
advisors appointed by the President.
f. The President may suspend or dissolve the state legislative assembly.
g. During the suspension or dissolution of the state legislature, the Parliament passes
state legislative bills and the state budget.
h. The Parliament can delegate the power to make laws for the state to the President or
any other authority specified by him.
i. Laws made during President's Rule continue to be operative even after the
proclamation, subject to repeal or alteration by the state legislature.
j. The President cannot assume the powers vested in the state high court or suspend
provisions of the Constitution relating to it. The state high court retains its
constitutional position, status, powers, and functions during President's Rule.

4. Use of Article 356

Since 1950, President's Rule has been imposed on more than 125 occasions, averaging twice a year.
It has been frequently used for political or personal reasons, making Article 356 one of the most
controversial and criticised provisions of the Constitution.

President's Rule has been imposed multiple times in various states since 1950. It has been used by
different political parties for different reasons, making it a controversial provision. For example, after
the internal emergency in 1977, the ruling Congress Party lost power, and the Janta Party imposed
President's Rule in nine states where Congress was in power. Similarly, when Congress returned to
power in 1980, it imposed President's Rule in nine states ruled by opposition parties.

In 1992, President's Rule was imposed in three BJP-ruled states by the Congress Party on the
grounds of non-compliance with a religious ban imposed by the Centre. The Supreme Court upheld
this proclamation's validity as secularism is considered a fundamental feature of the Constitution.
However, the court did not uphold the imposition of President's Rule in certain other states on different
grounds.

During the Constituent Assembly debates, Dr. B.R. Ambedkar hoped that Article 356's power would
remain a "dead letter" and be used as a measure of last resort. However, subsequent events have
shown that it has been used as a potent tool against several state governments and legislative
assemblies, contrary to initial expectations.

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 5. Scope of Judicial Review
The 38th Amendment Act of 1975 initially made the President's satisfaction in invoking Article 356
final and beyond judicial review. However, the 44th Amendment Act of 1978 deleted this provision,
indicating that the President's satisfaction is subject to judicial review.

In the Bommai case (1994), the Supreme Court established the following propositions regarding the
imposition of President's Rule in a state under Article 356:

a. The presidential proclamation imposing President's Rule can be reviewed by the court.
b. The President's satisfaction must be based on relevant material, and the court can strike
down the action if it is based on irrelevant or extraneous grounds, or if it is found to be
malafide or perverse.
c. The burden of proof lies on the Centre to demonstrate the existence of relevant material
justifying the imposition of President's Rule.
d. The court cannot question the correctness or adequacy of the material, but it can assess its
relevance to the action taken.
e. If the court deems the presidential proclamation unconstitutional and invalid, it can reinstate
the dismissed state government and revive the suspended or dissolved state legislative
assembly.
f. The state legislative assembly should only be dissolved after Parliament's approval of the
presidential proclamation. Until then, the President can only suspend the assembly, and if
Parliament fails to approve the proclamation, the assembly gets reactivated.
g. Secularism is considered one of the 'basic features' of the Constitution, making a state
government pursuing anti-secular politics liable to action under Article 356.
h. The question of the state government losing confidence should be decided on the floor of the
House before unseating the ministry.
i. A new political party assuming power at the Centre does not have the authority to dismiss
ministries formed by other parties in the states.
j. The power under Article 356 is exceptional and should only be used occasionally to address
special situations.

6. Proper and Improper use of the provision of President’s Rule-

The Supreme Court, based on the Sarkaria Commission's report, outlined the situations where the
imposition of President's Rule under Article 356 would be considered proper or improper:

Proper Situations for Imposition of President's Rule:

a. "Hung Assembly" situation where no party secures a majority after general elections to the
assembly.
b. Inability to form a ministry by the party having a majority, and the governor fails to find a
coalition ministry commanding a majority.
c. Resignation of a ministry after defeat in the assembly, and no other party is willing or able to
form a ministry with a majority.
d. Disregard the constitutional direction by the state government from the Central government.
e. Internal subversion, where the government acts against the Constitution and the law or
foments a violent revolt.
f. Physical breakdown, where the government deliberately refuses to fulfill constitutional
obligations, endangering the state's security.

Improper Situations for Imposition of President's Rule:

a. The Governor recommends imposition of President's Rule without exploring the possibility of
forming an alternative ministry after a ministry loses majority support in the assembly.

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 b. The Governor recommends President's Rule without allowing the ministry to prove its majority
in the assembly.
c. Imposition of President's Rule based on the ruling party's defeat in general elections to the
Lok Sabha.
d. Internal disturbances not amounting to internal subversion or physical breakdown.
e. Imposition based on allegations of maladministration, corruption against the ministry, or
stringent financial exigencies of the state.
f. No prior warning to the state government to rectify its actions, except in cases of extreme
urgency leading to disastrous consequences.
g. Misusing the power for sorting out intraparty problems of the ruling party or for purposes
extraneous or irrelevant to the one for which it was conferred by the Constitution.

C. FINANCIAL EMERGENCY
1. Grounds of Declaration
Article 360 of the Indian Constitution allows the President to declare a Financial Emergency if he is
satisfied that a situation has arisen that threatens the financial stability or credit of India or any part of
its territory.

The 38th Amendment Act of 1975 initially made the President's satisfaction in declaring a Financial
Emergency final and conclusive, immune from any judicial review. However, the 44th Amendment Act
of 1978 removed this provision, implying that the President's satisfaction in declaring a Financial
Emergency can be subjected to judicial review.

2. Parliamentary approval and dissolution

a. A proclamation of Financial Emergency must be approved by both Houses of
Parliament within two months from its issue.
b. If issued when Lok Sabha is dissolved, it survives until 30 days from the first sitting of
the reconstituted Lok Sabha, provided Rajya Sabha approves it.
c. Once approved by both Houses, Financial Emergency continues indefinitely until
revoked.
d. No maximum period is prescribed for its operation, and repeated parliamentary
approval is not required for continuation.
e. Approval resolution needs a simple majority in either House of Parliament.
f. The President can revoke Financial Emergency at any time by a subsequent
proclamation, without parliamentary approval.
3. Effects of Financial Emergency
a. During Financial Emergency, the executive authority of the Centre extends to giving
directions to states on financial propriety.
b. The directions may include the reduction of salaries and allowances of state
personnel and reservation of money bills for the President's consideration.
c. The President may also issue directions for the reduction of salaries and allowances
of Union personnel, Supreme Court judges, and high court judges.
d. The Centre gains full control over states in financial matters during a financial
emergency.

The financial emergency provisions were inspired by the National Recovery Act of the United States,
aiming to address economic and financial difficulties like the Great Depression.
No Financial Emergency has been declared to date, although a financial crisis occurred in 1991.

4. Criticism of the provisions of Financial Emergency

a. Critics of Emergency Provisions in the Constituent Assembly:

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 i. Destruction of federal character: Critics feared that the emergency provisions
would destroy the federal character of the Constitution, making the Union
all-powerful.
ii. Concentration of power in the Union executive: They believed that
emergency provisions would centralise all powers in the hands of the Union
executive, undermining the autonomy of the states.
iii. President becoming a dictator: Critics expressed concerns that the President
would become a dictator with unprecedented powers during emergencies.
iv. Nullification of financial autonomy: They argued that emergency provisions
would nullify the financial autonomy of the states.
v. Erosion of fundamental rights and democracy: Critics worried that the
provisions would render fundamental rights meaningless and undermine the
democratic foundations of the Constitution.

b. Supporters of Emergency Provisions in the Constituent Assembly:

i. Essential for Constitution's survival: Some saw emergency provisions as vital
for the Constitution's survival and stability.
ii. Safety valve: Proponents believed that these provisions could act as a "safety
valve" to maintain constitutional order during challenging situations.
iii. Possibility of misuse acknowledged: Dr. B.R. Ambedkar, while defending the
provisions, acknowledged the possibility of their misuse for political purposes.

Overall, the emergency provisions were a subject of intense debate during the Constituent Assembly
discussions, with strong arguments from both sides regarding their necessity and potential dangers.