DR.

RAM MANOHAR LOHIYA

NATIONAL LAW UNIVERSITY
LUCKNOW

Project work on Constitutional Law

EMERGENCY PROVISIONS IN INDIA

SUBMITTED TO: SUBMITTED BY:

Dr. Atul Kumar Tiwari Sanskriti Verma
Associate Professor Section – ‘B’
(Constitution Law) Enrollment Number-210101131
BA LLB. (Hons.) Semester-4
Dr. Ram Manohar Lohiya National Law University, Lucknow

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 ACKNOWLEDGMENT

I express my gratitude and deep regards to my professor Dr. ATUL KUMAR

TIWARI, for his guidance and constant supervision as well as for providing
necessary information regarding the project, also for his support in completing
the project. I extend my gratitude to my seniors, who constantly helped me find
the best source for research. Finally, I acknowledge the authorities as well as the
caretakers of Dr. Madhu Limaye library, who provided me with the means to
make this project. This project is a result of my efforts combined with my
family and friends’ constant encouragement without which this assignment
wouldn’t have been possible.

THANK YOU
SANSKRITI VERMA
ENROLLMENT NUMBER-210101131

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 DECLARATION

I hereby declare that the project report analysis of the “EMERGENCY

PROVISIONS IN INDIA” submitted by me to Dr. Ram Manohar Lohia
National Law University, Lucknow, Uttar Pradesh in partial fulfillment and
requirement for the award of the degree of B.A. LL.B.(Hons) is recorded of
bonafide project work carried out by me under the guidance of Dr. Atul Kumar
Tiwari

I further declare that all the information and data that has been analyzed, and the
work done by me is my piece of work and authentic to the best of my
knowledge under the supervision and guidance of my constitution professor.

SANSKRITI VERMA
ENROLLMENT NUMBER:21010113

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 INDEX
1- Introduction…………………………………………………………..5-6
Emergency Provisions: Types of Emergency
2- NATIONAL EMERGENCY…………………………………………6-7
3- 44th Amendment to the Indian Constitution………………………….8-10
Scenario prior to the introduction of the 44th Amendment Act, 1978
Changes Made By the 44th Amendment (emergency provisions)
State emergency as perceived by the 44th Amendment Act, 1978
4- STATE EMERGENCY……………………………………………...11-13
5- FINANCIAL EMERGENCY……………………………………….13-14
6- Effects of the proclamation of emergency on fundamental rights……..15
7- Suspension of Article.20 ,21 A.D.M. Jabalpur Vs. shivkant Shukla…..16
8- Conclusion……………………………………………………………...17
9- Bibliography……………………………………………………………18

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 EMERGENCY PROVISIONS IN INDIA

Introduction
India, or Bharat, is a federal republic of its "own kind." It is capable of unitary functionality
in an emergency. Dr. B. R. Ambedkar considered the Indian Federal Structure to be unique
since it becomes entirely unified in times of emergency. When the constitutional system
collapses, the mechanism takes on the characteristics of a unitary trait. The emergency
provisions are contained in Articles 352 to 360 of Part XVIII of the Constitution.

“A state of emergency in India refers to a period of governance that can be proclaimed by the
President of India during certain crisis situations. Under the advice of the cabinet of
ministers, the President can overrule many provisions of the Constitution, which guarantees
Fundamental Rights to the citizens of India.”

In certain situations, to safeguard the sovereignty, unity, integrity, and security of the country
and the democratic system of the constitution, the president of India can declare an
emergency, based on certain situations. Under an emergency, the President can overrule
certain provisions of the constitution including fundamental rights. Emergency provisions
alter the power structure, under this central government becomes all-powerful and converts
the federal structure into the unitary one without any formal amendment to the constitution.
The Emergency Provisions are contained in part XVIII of the Indian constitution from
articles 352 to 360. These provisions enable the central government to satisfy any abnormal
situation effectively. The central government becomes all-powerful during the emergency
period and the states go under the control of the union. The rationality behind the
incorporation of these provisions of the Indian constitution is to protect the Sovereignty,
Unity, Integrity, and Security of the nation, the democratic political system, and the
constitution. In this context, Dr. B.R. Ambedkar observed in the constituent assembly that:
All federal systems are placed within a tight mould of federalism consisting of America. No
matter what are the consequences, it cannot change its form and shape. On the other hand, the
Constitution of India can be both Unitary as well as Federal as per the situation. In normal
times, it is framed to work as a federal system but in times of emergency, the unitary system
prevails.

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“Emergency, according to the Black Law Dictionary, demands urgent intervention and
imminent warning because such a circumstance poses a danger to people and liberty within
the region. The socioeconomic structure struggles to achieve fair working standards. The
definition of emergency has become a political phenomenon. The key idea of creating clear
legislative arrangements for crises was to safeguard against the accidental advent of
autocracy in conjunction with domestic chaos, foreign assault, or war. The way natural
Federalism will respond to an emergency situation is a noteworthy aspect of the Constitution
Of India. Consequently, declaring an emergency is a very critical topic that has a negative
impact on people’s freedom. It must however only be released under extraordinary
conditions. A President can proclaim an emergency in compliance with Article 352(1), if he is
comfortable that there is a security concern to or part of India. The problem under
consideration will be whether the President’s happiness is justifiable or not.

Emergency Provisions: Types of Emergency

The State may override the different individual freedoms in the presidential state of emergency
and enforce those federal standards in Section XVIII of the Constitution.

Article 352 to Article 360 of the Indian Constitution allows for emergency arrangements.

• National emergency (Article 3521)

• State emergency (Article 3562)
• Financial emergency (Article 3603)

NATIONAL EMERGENCY

Article 352 of the Constitution stipulates a national emergency. National emergency. The
national emergency coincides with statutory requirements to be enforced when an unusual
situation affects or threatens part of the nation’s harmony, defense, prosperity, and
administration.

1
Constitution of India 1950, art 352.
2
Constitution of India 1950, art 356.
3
Constitution of India 1950, art 360.

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In compliance with Article 352 of the Constitution, emergency implementation when
conditions preceding were also present-

(i) Attack,

(ii) External intrusion or

(iii) Internal rebellion.

When the ground of emergency is war, external aggression, and armed rebellion, it is known
as National Emergency. (Note- Due to the vagueness of the term Internal disturbance, the
44th Amendment Act 1978 substituted it with Armed Rebellion).

National Emergency can be applied to the entire country or to any part of the country
(Limiting the operation to any part of the country is enabled by the 42nd Amendment Act
1976).

▪ Grounds of declaration:

o 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.

o The President can declare a national emergency even before the actual
occurrence of war or armed rebellion or external aggression.

o When a national emergency is declared on the grounds of ‘war’ or ‘external

aggression’, it is known as an ‘External Emergency’. On the other hand,
when it is declared on the grounds of ‘armed rebellion’, it is known as an
‘Internal Emergency’.

• This term ‘armed rebellion’ is inserted from

the 44th amendment. Before this term, it was known as an internal
disturbance.

▪ Proclamation of National Emergency and its Tenure

The President of the country can make a statement, but there is just something that is already
provided for. Only if the Cabinet requests in writing that the President order quite an

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emergency. The Houses of Parliament must, by an overwhelming vote, approve quite an
emergency declaration, and perhaps even the 2/3rd majority of the members present and voting
within one month, or the declaration shall stop functioning.

“If Lok Sabha is abolished or would not be at an Emergency management meeting, it shall be
accepted in the month and subsequently in the month after the beginning of this next meeting
by Rajya Sabha. The emergency continues to exist six years after the date of declaration until
ratification by Parliament.” Which ought to be continued after six months, the Legislature must
enact another provisional decision. This proved to be an emergency forever.

Tenure: After its approval by both houses of parliament and declaration by the President,
it continues for six months at a time and can be extended to an indefinite period with
parliamentary approval every six months. (Periodic parliamentary approval added by the 44th
Amendment Act 1978)

▪ Revoking emergency

The President of India may revoke the emergency by another declaration if the condition
improves. The 44th constitutional amendment requires ten percent or more Lok Sabha leaders
to share an application for and in the meeting of the Lok Sabha; they may disagree with the
emergency or cancel it by a mere majority. In such an incident, it is unserviceable
automatically.

44th Amendment to the Indian Constitution

The 44th Amendment to the Indian Constitution is an Act that was introduced into the
Constitution. With the introduction of the 42nd Amendment Act, of 1976, various provisions
of the Indian Constitution were subjected to modifications and alteration against the will of
the citizens of the nation. The same was enacted by the Indira Gandhi-led Indian National
Congress during the Emergency, declared under Article 352. To reverse those changes and
establish harmony between the State and its people, the Constitution (Forty-fourth
Amendment) Act, 1978 was welcomed. This article provides a detailed analysis of the 44th
amendment of the Indian Constitution.

Scenario prior to the introduction of the 44th Amendment Act, 1978

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Article 352 of the Indian Constitution was used to declare a national emergency in India.
Prior to the 44th Amendment Act, 1978, Article 352 of the Constitution stated that the
President of the country could declare an emergency if she or he was satisfied that a grave
threat to the security of the whole of India or territory of India remained, whether caused by
war, external aggression, or internal disturbances. According to Article 352, the President
issued the proclamation after Prime Minister Indira Gandhi decided and transmitted it to the
President without consulting her cabinet. Indira Gandhi’s Cabinet Ministers had undoubtedly
endorsed this decision a day later. The declaration was approved by a simple majority in both
chambers of the Parliament. The emergency might last as long as there was no new
Parliamentary decision, according to the previous rule. Following the 1975 emergency, the
laws surrounding the proclamation of emergency were carefully adjusted and specified. The
importance of free speech and dissent was re-established, and the rule of law was re-
established. However, because we are still in the early stages of democracy, there are many
unanswered questions.

Changes Made By the 44th Amendment (emergency provisions)

The 44th amendment considerably changed the Constitution’s emergency provisions so that
the executive did not harm it as Mrs. Indira Gandhi did in 1975. It also re-established some
changes made by the 42nd amendment. In this amendment, there are key elements:

• The “armed rebellion” as defined in Art 352, replaced the internal disturbance.

• The Cabinet shall inform the Cabinet in written work of the decision to declare an
emergency.

• Houses shall be issued an emergency declaration within such a month.

• The residences should be re-approved every six months to proceed with the urgent
situation.

• The urgency can be annulled by a simple majority of the houses present and voting
in this regard by adopting a settlement. Such a resolution may be moved by one-10
house member.

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 • Article 3584 provides that only war and external violence and not armed
insurrection shall be put in abeyance by Article 19. In addition, any statute that
contradicts Article 19 needs to repeat the relation with Article 358. If they break
Article 19, some other laws can also be questioned.

• Article 3595 stipulates that the freedom to transfer courts shall not be revoked unless
they have violated Section III, but Articles 20 and 21 will not be included.

• Brought back from 6 to 5 years the term Lok Sabha.

• President’s powers- The 44th Amendment Act also made modifications to the
power of the president. Article 74 (1) was revised, stating that the president can ask
the council of ministers to reconsider his advice. Still, the president can act on the
advice given after such reconsideration. Before the article was revised, the president
was required to act according to the advice given to him by the Council of Ministers.
• Changes in fundamental rights like property right, some rights were removed from
the Right list.

Article 19 (1)(f )and Article 31 of the constitution give citizens the right to keep,
acquire, and dispose of their property. Article 31 of the constitution, which deals with
property acquisition, has been removed by the 44th Amendment Act.

State emergency as perceived by the 44th Amendment Act, 1978

The following clauses are added to Article 356 pertaining to the President’s ability to make a
proclamation in the event of a state’s constitutional apparatus failing:

1. The clause relating to the breakdown of the constitutional machinery in the states
was revised to specify that a Proclamation issued under Article 356 would only be
in effect for six months in the first instance and that it could not last more than one
year in most cases.

2. However, if a proclamation of emergency is in effect and the Election Commission

certifies that extending the President’s rule beyond one year is necessary due to
difficulties in holding elections to the State’s Legislative Assembly, the

4
Constitution of India 1950, art 358.
5
Constitution of India 1950, art 359.

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 Proclamation’s period of operation can be extended beyond one year. This is
subject to a restriction of three years.

STATE EMERGENCY

President’s Rule is also known as State Emergency or Constitutional Emergency. If any state
fails to comply with the direction of the centre or there is any failure of constitutional
machinery, President’s rule can be imposed on such state. President’s decision to declare
President’s rule on any state can be based on the report of the Governor of the state or he can
act otherwise too. The Union Government’s responsibility is to ensure that perhaps the
administration of a state acts in accordance with the Constitution’s requirements. Article 356
states that, whether, on the reception of a briefing from the Governor of the State, and
otherwise, the President is pleased that a state government is unable to carry on in a smooth
manner, a state emergency declaration may be issued by that Leader. In this case, the
President’s declaration of emergency is labelled ‘announcement because of the breakdown
(or collapse) of legislative mechanisms.’

Art 3556 justifies it by saying that the centre is obliged to ensure that the government of the
state is carried on in accordance with the provisions of the Indian constitution. In that
circumstance, a proclamation by the president is called a proclamation due to the failure of
constitutional machinery in the state.

By that proclamation:

a. The president may assume to himself all or any of the powers vested in the Governor
or exercised by him to anybody or authority in the state.
b. The president may declare that the powers of the legislature of the state shall be
exercised by or under the authority of parliament.

6
Constitution of India 1950, art 355.

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 c. The president may make such consequential provisions as may appear to him to be
necessary or desirable for giving effect to the object of the proclamation.

The president cannot assume to himself any of the powers vested in the high court or suspend
the operation of any provisions of the constitution relating to the high court

Proclamation of State Emergency

Such an announcement, like the National Emergency, should have been sent for ratification
before all the Houses of Parliament. Permission must be issued in this situation within two
months; therefore, the declaration shall cease operating. If the Lok Sabha is disbanded after
some of these two months and has been authorized by the Rajya Sabha, then the resolution
shall cease to function on the 30th day after its restoration on the date of the first session of
the Lok Sabha because if the Lok Sabha has been approved well before expiry. An
announcement so authorized immediately stops to act at the end of a six-month cycle
following the date of the announcement, until withdrawn. Without revocation, its life can be
prolonged by six months, most times but not after three years. Afterward, the Reign of the
President has to be finished and the State has to restore regular legislative machinery. A new
clause was added in the 44th Amendment, which restricted Parliament’s jurisdiction to the
degree of an announcement made after 1 year under Article 356.

Revoking state emergency

Any such declaration can by a subsequent proclamation be repealed or varied. In each of the
following forms, a proclamation made in compliance with Article 356(1) expires:

1. Unless accepted before both Houses of Parliament within two months of its creation
[Article 356(3)].
2. In case of failure to gain the consent of either House within two months after sending
the declaration to the Houses of Parliament [Article 356(3)].

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 3. If no other proposal is adopted by the House of Parliament, following the adoption of
a first proposal [Article 356(4)], following six months from the date of the
declaration.

Subject to the overall maximum limit of three years from the date of the declaration
following six months from the date of the passing of the last resolutions authorizing the
Chamber of Parliament. The following conditions contained in article 356(5) must be
fulfilled to extend the proclamation after one year:

• Global Disaster in place already; or whether

• The Electoral Commission classifies that it cannot hold elections to the Legislative
Council.
• The date on which the proclamation of revocation is issued by the President [Article
356(2)].

In S.R. Bommai V. Union of India7,

Facts:

1. On Dec 15, 1992, President’s rule was imposed in three BJP ruled-states Madhya
Pradesh, Himachal Pradesh, and Rajasthan, and assemblies were dissolved on the
ground that these states were not implementing sincerely the ban imposed by the
centre on the religious organization.

2. The main grounds on which the government had been dismissed were that the chief
ministers of these states had connections with an organization that had been banned,
and secondly, that these governments had encouraged the Kar Sevaks to go to
Ayodhya. Thus, the premise was mere suspicion that they might refuse to enforce the
ban. There was no proof that they were not following the directions of the center.

Held:

1. The dismissal of the governments in Madhya Pradesh, Himachal Pradesh, and

Rajasthan in the wake of the Ayodhya incident of Dec 6, 1992, was valid and
imposition of the president’s rule in these states was constitutional.

7
S.R. Bommai v Union of India 1994 AIR 1918.

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 2. Secularism is a basic feature of the constitution and any state government which acts
against that ideal can be dismissed by the president.
3. It was held that in matters of religion, the state has no place. No party can
simultaneously be a non-secular party as well as a political party.

FINANCIAL EMERGENCY

It empowers the president to proclaim a financial emergency if he is satisfied that a situation

has arisen, where the financial stability or constancy, or credit of India or any part of its
territory is threatened. In other words, it means whenever the president has contended that the
economy of India is in danger, he may proclaim this emergency. The financial emergency
provided for in Article 360, is the third kind of emergency. It stipulates that even if the
President is convinced that India or any of its economic stability or credibility is at risk, he
may declare a financial emergency. The executive and legislative competencies would take
centre stage in such circumstances.

This Article has Never been used. A declaration is given pursuant to Art. 360—

• a corresponding proclamation may be withheld or varied.

• every House of Parliament shall be placed before it
• ceases to exist at the completion of two months, except as authorized in resolutions of
the two Houses of Parliament even before the expiration of that time.

Parliamentary Approval and Duration

A proclamation declaring a financial emergency must be approved by both houses of

parliament within two months from the date of its issue, it survives until 30 days from the
first sitting of Lok Sabha after its reconstruction if at the time of the proclamation, the Lok
Sabha was dissolved, or the dissolution of Lok Sabha was taking place. Once the
proclamation is approved by both houses of parliament the financial emergency continues
indefinitely, its time is unspecified till it is revoked. Repeated parliamentary approval is not
required for its continuation like the other two emergencies.

A resolution approving the proclamation of financial emergency can be passed by either

house of parliament only by a simple majority, i.e., a majority of the members present and

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voting of the house. It can be revoked by the president at any time by a subsequent
proclamation. Those proclamation does not require parliamentary approval.

Effects of Financial Emergency

The implications of the financial emergency are:

1. The president may reserve all the money bills or financial bills after they are passed
by the state legislature for maintaining financial constancy and the credit of the
nation.
2. The president may issue directions for the reduction of salaries and allowances of:

a. all or any class of persons serving in the state.

b. all or any class of persons serving the union and.
c. the judges of the supreme court and the high court.

Thus, during the proclamation of the financial emergency, the union acquires full control over
the states in financial matters.

Effects of the proclamation of emergency on the fundamental rights

• State laws will be overridden by federal law and the Union is allowed to control the
areas (such as policing) that are usually transferred to States.
• The Union is therefore authorized to take over or even directly manage the
mechanisms of fiscal and fiscal revenue. The Union is entitled to make definitive
decisions in the enactment by the State legislature of financial actions in the case of
financial crises.
• Any or more basic rights enshrined in Section III (articles 12 to 35) of the
Constitutional may be suspended by the Union – that may contain:

• freedom to practice any profession, occupation, trade, or business.

• freedom to assemble peacefully.
• freedom of equality before the law.
• freedom for movement across Indian territory.
• freedom to practice or propagate religion.
• freedom of speech and expression.

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 • Furthermore, it might be possible to revoke the ability to appeal the infringement of
the privileges alluded to above (the right to constitutional remedies). However, the
infringement of Articles 20 and 21 governing individual liberty, the right to secrecy,
protection from dual-threat, and protection from illegitimate prosecution and
detention will not be included under those provisions. Any person who believes that
his/her rights under those same categories are unfairly suspended may appeal a court
of law revocation.
• The Union can intend to revoke the constitutional role of a state parliamentary
assembly for a duration of six months and enforce federal legislation. This suspension
status can be extended at the end of this term (indefinitely several times) under
parliamentary elections until the Indian Electoral Commission certifies that free and
equal elections in the state are feasible to reinstate parliamentary elections.
• The House of Parliament can, however, enact every order for the above-mentioned
consequences as quickly as possible after the order is made.

Suspension of Article.208,219 A.D.M. Jabalpur Vs. shivkant Shukla10

The President issued orders under the Constitution of India, art. 359(1) suspending the right
of any person to move any court for enforcement of fundamental rights under arts. 14, 21 and
22, and 19 for the duration of the emergency. Following this declaration, hundreds of persons
were arrested and detained all over the country under the swoop of the Maintenance of
Internal Security Act, 1971 Various persons detained under Maintenance of Internal Security
Act, 1971, s. 3(1) filed petitions in different high courts for the issue of the writ of habeas
corpus.”

“The high court broadly took the view that the detention may be challenged on the grounds of
ultra vires, rejecting the preliminary objection of the government. Aggrieved by this the
government filed appeals, some under certificates granted by high courts and some under
special leave granted by the Supreme Court. Despite every high court ruling in favor of the
detenus. The Supreme Court ruled in favor of the government. What the court except for
Khanna, J. failed to realize is that the right to personal life and liberty are human rights and is
not a gift of the Constitution.” Article 4 recognizes the right to life and personal freedom as

8
Constitution of India 1950, art 20.
9
Constitution of India 1950, art 21.
10
A.D.M. Jabalpur Vs. shivkant Shukla 1976 AIR 1207.

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an ineffable right in emergency situations, even in the Universal Declaration on Civilian and
Democratic Life.

CONCLUSION

Emergency provisions were amended under the Constitution for the security of the country
and for the protection of its people, but these provisions delegate excessive power to the
Executives. This affects the federal character of the Constitution, and the union becomes all-
powerful. Although the need for Emergency provisions is understood there are some changes
required in the mechanism so that there is no violation of the fundamental rights of the
citizens and there is no misuse of the powers vested to the executives for their political
purposes. Having dealt with all the Emergency provisions, it is easy to see what the purpose
was behind to make such provisions in available in the Constitution in the first place. But
while we did our study for the same we did realise that even if these provisions are provided
for the security of the nation and also the protection of the people, the provisions in
themselves give a lot of drastic discretionary powers in the hands of the Executive. It affects
the federal structure of the nation essentially turning it into a unitary one while it seeks to
safeguard the interests of the state and the people. Though the need for that is understood, we
still think a system of checks and balances should be brought into place so that unlike in the
1975 emergency, there is no misuse of power by the ruling party and the executive.

Though suspension of Fundamental Rights has been time and again tried to be justified we
think that they are the most basic to the very existence of the citizens in a democracy. As the
experience has been so far we have observed in our study that inspite of the safety measures
that were added by the 44th Amendment to the Constitution in the emergency provisions
there is still chances for the unjust violation of the fundamental rights. Therefore as there is
provision in the other federal constitutions such as of the Australia and Canada the courts
should be given the power to agree to the extent the Centre can expand its powers, as it will

17
act as a built-in mechanism to check the arbitrary use of the discretionary powers available
under the emergency provisions to the parliament and the executive.

BIBLIOGRAPHY

1- Constitution of India 1950, art 352.

2- Constitution of India 1950, art 356.
3- Constitution of India 1950, art 360.
4- Constitution of India 1950, art 358.
5- Constitution of India 1950, art 359.
6- Constitution of India 1950, art 355.
7- S.R. Bommai v Union of India 1994 AIR 1918.
8- Constitution of India 1950, art 20.
9- Constitution of India 1950, art 21.
10- A.D.M. Jabalpur Vs. shivkant Shukla 1976 AIR 1207.
11- Dr. M.P. Jain, Constitutional Law of India, 8th Edition.

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