Dr.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CONSTITUTION LAW- II

PROCLAMATION OF EMERGENCY IN LIGHT OF THE

CONSTITUTION

SUBMITTED TO: SUBMITTED BY:

Dr. ATUL KUMAR TIWARI SHIVANSH SHARMA
ASSOCIATE PROFESSOR Enrollment No. - 220101143
(LAW) B.A. LL.B. (Hons.)
Dr. Ram Manohar Lohiya National Law University 4th Semester, Section „B‟

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 ACKNOWLEDGEMENT

I express my gratitude and deep regards to my teacher, Dr. ATUL KUMAR TIWARI, for allowing me to
do this project. I would also like to thank him for his excellent guidance, monitoring, and constant
encouragement throughout this project. Without his motivation, inspiration, and efforts, I would not have
been able to do this project.

I also take this opportunity to express profound gratitude to my parents and mentors for providing me with
the morals and support to complete this task through various stages. I am also obliged to the Librarian of
Dr. Ram Manohar Lohiya National Law University for providing timely e-library access to me.

Lastly, I would also like to thank my family, friends, and colleagues for their constant encouragement,
without which this project would not have been possible.

-SHIVANSH SHARMA

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 DECLARATION

I at this moment declare that my project titled PROCLAMATION OF EMERGENCY IN LIGHT OF THE
CONSTITUTION submitted to Dr. Ram Manohar Lohiya National Law University, Lucknow, is a record
of original work done by me under the guidance of Dr. ATUL KUMAR TIWARI, Assistant Professor,
Law at Dr. Ram Manohar Lohiya National Law University and this project work is submitted in the
partial fulfillment of the requirements for the award of the degree of B.A. LLB.(Hons.) the project has not
formed the basis for awarding any degree, associate ship, fellowship, or other similar titles.

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 TABLE OF CONTENTS

INTRODUCTION ........................................................................................................................................ 5

DIFFERENT TYPES OF EMERGENCIES ............................................................................................. 7

GENERAL EMERGENCY (ARTICLE 352) ................................................................................................... 7

CONSTITUTIONAL EMERGENCY............................................................................................................... 7
FINANCIAL EMERGENCY ............................................................................................................................ 9
44th CONSTITUTIONAL AMENDMENT.............................................................................................. 10

FUNDAMENTAL RIGHTS AND EMERGENCY ................................................................................ 11

JUDICIAL INTERPRETATION ON SUSPENSION OF FUNDAMENTAL RIGHTS .................... 12

CONCLUSION........................................................................................................................................... 14

BIBLIOGRAPHY ...................................................................................................................................... 16

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 INTRODUCTION

An official declaration of an emergency may halt some routine administrative, legislative, and judicial
actions, warn the public to alter their usual behaviour, or direct government organizations to carry out
emergency preparedness measures. It can also be used as an excuse to suspend liberties and rights, even
though they are guaranteed by the constitution. Such pronouncements typically occur after a war
declaration or a situation of international or domestic armed conflict, during natural or man-made
disasters, during times of civil unrest, or after periods of civil unrest.

In certain nations, the constitution and/or a statute that restricts the use of authority govern the state of
emergency and its impact on human rights, freedoms, and governmental practise. For example, freedom
of movement may be suspended during an emergency, but non-derogable rights cannot. It is generally
forbidden to change the constitution or emergency law while one is in effect.

When the Constitution of India was being drafted, we were passing through a period of stress and strain.
Partition of the country, communal riots, the problem concerning the merger of the princely states,
including Kashmir, and many more problems of such nature created an abnormal atmosphere that was full
of apprehension. Therefore, the Constitution makers thought it proper to equip the Central government
with the necessary authority so that, in the hour of emergency, when the security and stability of the
country or any part thereof is threatened, the Central Government may act effectively to handle any such
grave situation. Therefore, some emergency provisions have been made in the Indian Constitution to
safeguard and protect the country's security, integrity, and stability.

Dr. B.R. Ambedkar upheld the concept that India is a federal system. He said that although the people are
divided into different states, they belong to India, a union of the states. There was a debate regarding
conferring Emergency powers on the head of the nation, but Dr. Ambedkar said that such articles would
never be brought into operation and would remain a dead letter. But the situation has proved to be
otherwise. Article 356 has been abused and misused but seldom has it been used.

A notable feature of the Indian constitution is the way in which normal peace time federalism can be
adapted to an emergency. The framers of the constitution felt that, in an emergency, the centre should
have overriding powers to control and direct all aspects of administration and legislation throughout the
country. Emergency provisions are enshrined in Part XVIII of the Constitution under Articles 352 - 360.
There are three types of Emergency that can be declared, they are as follows:

 Emergency arising from the threat to the security of India

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  Breakdown of constitutional machinery in a state
 Financial emergency

Proclamation of an emergency is a very serious matter as it disturbs the normal fabric of the constitution
and adversely affects the rights of the people. Such a proclamation should, therefore, be issued only in
exceptional circumstances and not merely to keep an unpopular government in office as happened in June
1975 when an emergency was declared on the ground of internal disturbance without there being adequate
justification for the same. As a consequence, thereof, the emergency provisions have been extensively
amended by the constitution, with a view to introducing a number of safeguards against abuse of power by
the executive in the name of emergency. Amendments thus have been made by the 44th amendment to the
emergency provisions of the constitution to make repetition of the 1975 situation extremely difficult,
which is not possible.1

The question which the topic deals with is-

a. Whether the president has exclusive power over applying the emergency provisions in India.

b. Whether the fundamental rights are affected when emergency provisions are applied.

1
Jain M P Indian Constitutional Law (5th edn 2008).
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 DIFFERENT TYPES OF EMERGENCIES

GENERAL EMERGENCY (ARTICLE 352)

An General emergency can be proclaimed when the security of the country is under threat or is under the
danger of a threat from hostile countries during times of war or external aggression or armed rebellion.
Emergency was declared under this provision for the first time in the wake of the war with China on
October 26, 1962. It continued up to January 10, 1968. Another proclamation of emergency took place on
December 3, 1971, in the wake of the India-Pakistan war. During its continuation, a third Emergency was
declared on June 25, 1975. It was revoked in 1977. Critics argue that the third emergency was intended
more to retain Mrs. Indira Gandhi2 in power than there was the actual threat. It was the darkest period for
Indian democracy as there were arbitrary detentions for a prolonged period and accusations of widespread
infringement of Fundamental Rights.

The procedure for the proclamation of emergency is that President can make a proclamation when the
cabinet communicates to him about such a proclamation to be issued in writing. Such a proclamation can
be revoked by a subsequent proclamation.3 The proclamation issued must be laid before both houses of
parliament within the period of one month, and for subsistence further, that must be passed by both houses
with an overwhelming majority of the house and 2/3 of the members present and voting. Unless at the
expiration of one-month such proclamation ceases to exist. If any such proclamation is issued at a time
when the House of the People has been dissolved, or if the dissolution of the House of the People takes
place during the period of one month referred to above, and the proclamation has not been approved by a
resolution passed by the House of the People before the expiration of the period, the proclamation shall
cease to operate at the expiration of 30 days from the date on which the House of the People first sits after
its, reconstitution, unless before that period resolutions approving the proclamation have been passed by
both Houses of Parliament. The proclamation so approved will operate for the next six months. When ten
percent or more Lok Sabha leaders 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.

CONSTITUTIONAL EMERGENCY

The most contentious and abused emergency provision is Article 356. If the President receives a report
from the Governor of a State stating that the constitutional machinery has broken down or that the
administration of the State can no longer be carried out in accordance with the provisions laid down in the

2
Maneka Gandhi v Union of India AIR 1978 SC 597.
3
Constitution of India art 352(2).
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Constitution of India, an emergency can be declared in that State. The President may do so even if he is
otherwise satisfied of a constitutional breakdown in a state. The provision allows dismissing the State
government and bringing it under President's Rule or Central Rule. Under such a condition, the Governor
of the State assumes all functions and carries out the administration in the State, on behalf of the
President, i.e., the Centre, with the aid of his advisors appointed by the President upon the
recommendation of the Union Council of Ministers.

There were several instances when Article 356 was brought into force in various States. The first instance
of dismissing a state government by invoking Article 356 even while it continued to enjoy the confidence
of the State Legislature occurred in 1959, in Kerala, when the Communist government of the day was
dismissed. It generated a major controversy and it was argued that it was a wrong decision as the
government commanded a majority in the State Assembly.4 On the other hand, the supporters of the
decision held that public dissatisfaction manifest in the form of agitation against the government and its
policies was reason enough to conclude that there, indeed, was a breakdown of law and order, and, hence,
it was correct to impose President's Rule.5 Other instances include the dismissal of State governments in
mass twice, in 1977 after the Janata Party swept the general elections and subsequently in 1979 when the
Congress Party returned to power. Other contentious occasions on which invoking the provision was
resorted are in 1984 in Andhra Pradesh and later in Karnataka when the S R Bommai government was
dismissed, and the court later subsequently held that the decision was incorrect. Whenever the
proclamation of emergency is made under Art. 356(1), the powers of the state legislature are to be
exercised by the parliament. Parliament can confer on the president the power to make laws for the states.
It is also to be noted that the word “satisfaction” in Art. 356 (1) does not mean the personal satisfaction of
the governor but it is the satisfaction of the cabinet. The satisfaction of the president is not altogether
beyond judicial review and may be brought within it, perhaps on the grounds of mala fides, or that the
satisfaction is based on wholly extraneous and irrelevant grounds or is absurd or perverse.6 In S.
R.Bommai v. Union of India7 the Karnataka HC has held that the proclamation issued under Art. 356 is
not wholly outside the part of Judicial Scrutiny and the court can examine whether the reasons disclosed
for issuing proclamation have rational nexus with the satisfaction reached under Art. 356. A proclamation
issued under Art. 356 shall be laid before both the houses of parliament and shall remain in operation for
two months unless before the expiry of the period it has been approved by both houses. If the Lok Sabha is
at that time dissolved within 30 days from the date, it is reconstituted.

4
Bakshi P M The Constitution of India (9th edn 2009).
5
BASU D D Commentary on the Constitution of India (5th edn 1990).
6
Minerva Mills Ltd v Union of India 1980 3 SCC 625
7
S R Bommai v Union of India 1994 3 SCC 1.
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FINANCIAL EMERGENCY

Financial emergency can be declared under Article 360 in conditions in which the financial stability or
credit of the country or any part of the country is threatened. However, as provided for in the Forty Fourth
Constitutional Amendment Act of 1979, such a proclamation needs to be approved by the both the Lok
Sabha and the Rajya Sabha within two months from the date of its proclamation, or, if the Lok Sabha is at
that time dissolved, within 30 days from the date it (the new house) is reconstituted. This kind of
emergency has not been applied so far.

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 44th CONSTITUTIONAL AMENDMENT

44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not
abused by the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done
by 42nd amendment. The following are important points of these amendments-

 "Internal disturbance" was replaced by "armed rebellion" under Article 352.

 The decision of proclamation of emergency must be communicated by the Cabinet in writing.
 Proclamation of emergency must be by the houses within one month.
 To continue the emergency, it must be re-approved by the houses every six months.
 Emergency can be revoked by passing a resolution to that effect by a simple majority of the houses
present and voting. 1/10 of the members of a house can move such a resolution.
 Article 358 - Under this article, article 19 will be suspended only upon war or external aggression
and not upon armed rebellion. Further, every such law that transgresses article 19 must recite that
it is connected to article 358. All other laws can still be challenged if they violate article 19.
 Article 359, under this article, suspension of the right to move courts for violation of part III will
not include Articles 20 and 21.
 Reversed back the term of Lok Sabha from 6 to 5 years.

In view of the special position sought to be given to fundamental rights, the right to property, which has
been the occasion for more than one amendment of the Constitution, would cease to be a fundamental
right and become only a legal right. Necessary amendments for this purpose are being made to Article 19,
and Article 31 is being deleted. A Proclamation of Emergency under Article 352 has virtually the effect of
amending the Constitution by converting it for the duration into that of a Unitary State and enabling the
citizen to move the courts for the enforcement of fundamental rights, including the right to life and liberty
to be suspended. Adequate safeguards are, therefore, necessary to ensure that this power is properly
exercised and is not abused. In order to ensure that a Proclamation is issued only after due consideration, it
is sought to be provided that an Emergency can be proclaimed only on the basis of written advice tendered
to the President by the Cabinet. In addition, as a Proclamation of Emergency virtually has the effect of
amending the Constitution, it is provided that the Proclamation would have to be approved by the two
Houses of Parliament by the same majority, which is necessary to amend the Constitution. As a further
check against the misuse of the Emergency provisions and to put the right to life and liberty on a secure
footing, it would be provided that the power to suspend the right to move the court for the enforcement of
a fundamental right cannot be exercised in respect of the fundamental right to life and liberty.

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 FUNDAMENTAL RIGHTS AND EMERGENCY

The Fundamental Rights are not absolute rights. The constitution therefore provides for the curtailment or
suspension of the Fundamental Rights in the following circumstances:

Article 352 the freedoms guaranteed by Article 19 are automatically suspended and would continue to be
so for the period of emergency.8 The suspension of rights guaranteed by Article 19 thus removes the
restriction on the legislative and executive powers of the state imposed by the constitution. Any law, or
executive order, made by the state during this period cannot be challenged on the ground that they are
inconsistent with the rights guaranteed under Article 19. Such laws shall, however, cease to have effect as
soon as the proclamation ceases, and then Article 19 is automatically revived and begins to operate. Art.
358, however, makes it clear that things done or omitted to be done during the emergency cannot be
challenged even after the emergency is over. Article 359 further empowers the president to suspend the
right to move to any court for the enforcement of rights conferred by Part III of the Constitution (except
Articles 20 and 21) during the continuance of an emergency. He may mention in his order the rights
whose enforcement is to be suspended. The order of the president may extend to the whole or any part of
the territory of India. It is to be noted that while under Article 358 of the rights conferred by Article 19 are
automatically suspended, the suspension under Article 359 can only be brought about by the order of the
president.9

Although the founding fathers of the Indian Republic guaranteed Indian citizens certain Fundamental
Rights, they realized that there might be a certain situation in the life of the nation when it was not
desirable to give absolute rights of freedom to the people. Hence they allowed the state to impose a
reasonable restriction upon clauses 2 to 6 of Article 19 (dealing with the Right to Freedom). The
Constitution allowed the state to impose more restrictions under Articles 358 and 359.10 The original
article 358 had provided that while the emergency was in operation under Article 352 due to war, external
aggression, and internal disturbance, then the state became entitled to take any executive action or make
any law for suspension of the Fundamental Rights.11 The Constitution (44th Amendment) Act, 1978
further provided that Article 19 could be suspended only if the proclamation of emergency under Article
352 was made due to a threat to the security of India or any part of the territory thereof by war or by
external aggression. It did not apply to internal disturbance.12

8
Shukla V N Constitution of India (14th edn EBC 2022).
9
Pandey J N The Constitutional Law of India (47th edn 2010).
10
R.Bommai v Union of India 1994 3 SCC 1.
11
R C Agarwal Constitutional Development and National Movement of India (13th edn 2005).
12
Ibid.
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JUDICIAL INTERPRETATION ON SUSPENSION OF FUNDAMENTAL RIGHTS

Makhan Singh vs. State of Punjab13

“Article 358 makes it clear that things done or omitted to be done during an emergency could not be
challenged even after the emergency was over. In other words, the suspension of article 19 was complete
during the period in question, and legislative and executive action which contravened article 19 could not
be questioned even after the emergency was over.”

A.D.M. Jabalpur vs. Shivkant Shukla14

“The President issued orders under the Constitution of India, Article 359(1) suspending the right of any
person to move any court for enforcement of fundamental rights under Articles 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, of 1971. Various
persons detained under the Maintenance of Internal Security Act, of 1971, section 3(1) filed petitions in
different high courts for the issue of the writ of habeas corpus.”

“The high courts 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 favour of the detenus. The Supreme Court ruled in favour of the
government. What the court, except for Khanna, J., failed to realise is that the right to personal life and
liberty are human rights and is not a gift of the Constitution.”

Arjun Singh vs. State of Rajasthan15

While it was not described in order that Article 16 should also be stopped, the Rajasthan high court held
that Article 16 was still operational even though article 14 had been terminated. The court stressed that
only those fundamental rights had been terminated in accordance with Article 359 as specifically and
explicitly specified in the order of the President.

13
Makhan Singh v State of Punjab1964 AIR 381
14
A D M Jabalpur v Shivkant Shukla1976 AIR 1207
15
Arjun Singh v State of Rajasthan AIR 1958 Raj 347
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S.R. Bommai vs. Union of India16

It is in this case that the Supreme Court boldly marked out the limitations within which Article 356 has to
function. The Supreme Court of India in its judgment in the case said that it is well settled that Article 356
is an extreme power and is to be used as the last method in cases where it is manifest that the
constitutional machinery in a State has collapsed. The views expressed by the bench in the case are similar
to the concern shown by the Sarkaria Commission.

In this case, the bench noted that the authority bestowed on the President by Article 356 is a conditional
force. It‟s not a complete force. The requirement that materials are present, including or including the
Governor‟s paper, is a prerequisite. The enjoyment of related materials must be defined and reasonable.

Similarly, the President has the authority to be exerted in Article 356 of the Constitution only if the
President is convinced that a condition exists in which a State‟s administration cannot be operated in
compliance with Constitutional requirements. According to our Constitution, the Council of Ministers of
the Union, with the Prime Minister in his head, is essentially the control. The happiness envisaged in the
essay is intangible. The subjective pleasure can therefore be challenged at the court of law whether it is
founded on intent.

16
S R Bommai v Union of India 1994 3 SCC 1.
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 CONCLUSION

The Constitution is supreme; it is the will of the people of the country. It sets the broad functional
parameters of governance. The Constitution was prepared after lengthy deliberations in the Constituent
Assembly, which began on 6 December 1946 and came into force on 26 January 1950. Thus the
constitution being supreme. India is a Republic and cannot be turned into a monarchy. Which means the
fundamental rights given to the citizens of India cannot be surrendered, because those are the most basic
and fundamental rights given to the citizens. However, there are some exceptions to these kinds of
situations where the Fundamental Rights are suspended, and those are the emergency period. When
emergency provisions are applied to a country, certain fundamental rights are always suspended during
this period, like Article 19 and various others. Along with the modernization of the country, the
jurisprudence of the constitution is getting complex and improvised in many manners. Although, the
conflict between the fundamental rights being a sacrosanct right cannot be suspended even during an
emergency is a never-ending debate. The reason behind the never-ending debate is that the fundamental
rights given in the constitution are of very basic character and, therefore, cannot be suspended even in any
kind of extraneous circumstances. But many landmark cases and judicial decisions are trying to end this
debate.

The history of the Indian Constitution with respect to Fundamental Rights and their stability with
emergency provisions is full of vagueness and ambiguity. Looking at the jurisprudential aspect, what we
can gather is that when it comes to the interest of the general public, their interest is always given
preference above individual interest. Also, in situations like emergencies, the president has a duty in order
to protect the general interest and proclaim an emergency. However, this duty or liability on the president
is not an absolute one; therefore, his proclamation can only be affected when the council of ministers and
other people affirms it. This leads us to the conclusion that all the fundamental rights that are normally
effective seize to have effect during an emergency, but Articles 20, and 21 are not suspended. In such
cases of emergency, prioritization of fundamental rights is what is required to be done, which in the
current situation has been done. That is by making a few exceptions that are not to be suspended even
during emergencies.

Therefore, the first hypothesis of the research project stands affirmed. That is, the president does not play
an authoritarian role subject to the application of the provision of emergency. Before he enforces a
national, state, or financial emergency, he has to take prior permission from the house of parliament.
Whereas the second hypothesis of the project stands negated, the reason for it is that the emergency
provisions are, after all, applied to the general public, and therefore it is their rights and duties that are
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suspended during that period, thus before enforcing the emergency the president and council of the
minister have to apply their mind. Although a major partition of fundamental rights is being suspended by
the executive, the judiciary has laid down through its interpretation that some of these fundamental rights
can‟t be taken away from the people; that is what is enshrined in Articles 20 and 21.

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 BIBLIOGRAPHY

 K. Jayasudha Reddy and Joy V. Joseph, “EXECUTIVE DISCRETION AND ARTICLE 356 OF
THE CONSTITUTION OF INDIA: A Comparative Critique”.
 Prof. M.P. Jain, “INDIAN CONSTITUTIONAL LAW”, 5th ed., 2008, Lexis Nexis
 Dr. J.N. Pandey, “The CONSTITUTIONAL law of INDIA, 47 ed., 2010, Central Law Agency.
 Dr. D.D. Basu, “Introduction to the Constitution of India”, 20th ed., 2009, Lexis Nexis
 EMERGENCY PROVISION IN INDIA- A CRITICAL ANAYLISIS
https://blog.ipleaders.in/emergency-provisions-india-critical-analysis-
2/#Types_of_emergency_in_the_Indian_Constitution

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