India i.e. Bharat is an “own kind” federal republic.

During an emergency, it
possesses unitary functionality. That’s why Dr. B. R Ambedkar declared the
Indian Federal structure special because throughout an emergency it
becomes fully unitary. In an emergency, the mechanism becomes a unitary
trait as the constitutional apparatus fails. Part XVIII of the
Constitution, Article 352 to 360 includes the emergency provisions.

The word emergency can be described as an unexpectedly occurring situation

that causes public authorities to act instantly within their particular powers.
The emergency is a disturbance from which a human’s civil rights, except
perhaps in Articles 20 and 21, are removed. An emergency is due to the
breakdown of the administrative machinery that triggers or allows the
government to urgently respond.

“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.

There is indeed a different aspect for all the emergency clauses contained in
the Constitution Of India. Consequently, Part XVIII is an aspect of our
Constitutional creativity. Often a country is surpassed by incidents and
powers that place its stability and the wellbeing of its people critically at risk.
It is unpredictable. Such conditions could entail the temporary suspension of
the individual freedoms of people to resolve the threats facing the world.

Democratic regimes are brought in emergency situations into a real problem

by having a clash among their primary duty to protect the dignity of the
government and their similarly significant responsibility to defend the human
interests of their people and those beyond their competence. The State is
obligated to choose between opposing sacrifices. This is the reason for
emergency provisions that are set down for the revocation of protected
constitutional rights in certain national constitutions.
Emergency steps are a peculiar aspect of the Indian Constitution, which
enables the Centre to assume expansive powers to deal with particular
situations. Any state can be completely managed by the Centre in an
emergency. It also permits the Centre to suspend citizens’ rights through the
emergency clause. There are significant reasons why scholars refuse to name
the Constitution Of India completely democratic. The constitution contains
emergence clauses.

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.

“In a variety of occasions, the courts have discussed the effect of the
declaration of an emergency on compulsory incarceration, the effect of the
revocation of Article 19 of the Emergency Proclamation and on the effect,
according to Article 359, of the President’s order. These decisions are
debated as and where necessary.” Dr. B.R. Ambedkar advocated the idea of
India as a federal republic, stating that even though citizen’s are split into
separate nations, they are representatives of India, which really is a
federation of the countries.

The concession of emergency powers was debated but Dr. Ambedkar said
those papers would never work and remained dead letters. However, it was
seen that Article 356 is furthermore violated, abused but scarcely used.

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 352)
 State emergency (Article 356)
 Financial emergency (Article 360)

Article 352 of the Constitution stipulates 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, defence, prosperity, and administration.

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.

Article 352 states that if, because of outside aggression or armed revolt, the
President is ‘comfortable’ that a dangerous situation occurs which endangers
the protection of India or indeed any portion of it, he will make a declaration
in that respect with or for almost all of India. Such a declaration, though,
may only be made through authorized advice of the cabinet of the Nation in
clause 3. Such a declaration must be put before the legislative house and
accepted from each chamber, or it will lapse after a month from the
declaration.

It must be remembered that it has been accounted for in the clarification of

Article 352 that neither the foreign invasion nor violent revolution has really
taken place in the event of an emergency declaration. It may be declared
even though foreign violence or military revolt is likely.

National emergencies in India

During the War with China, the first emergency was proclaimed and lasted
for six years between October 1962 and January 1968. The battle against
China concluded on 21 October 1962, but another war against Pakistan only
began after the emergency. In the end, the Tashkent deal was reached after
international pressure and in January the then government dropped the
emergency.
The second emergency declaration was due to the war between India and
Pakistan. Three acts were performed during that time. Maintenance of SA,
Coffee POS Act, and In order to avoid arrest it was decided to retain the
Govt Protection of the Rule. However, these three actions were extensively
grossly overused, and numerous convictions, jail shootings, and gatherings
were observed this time. The war with Pakistan came to an end, but the
emergency persisted, and before the second emergency was revoked 3rd
emergency was declared.

The third emergency has been proclaimed due to internal unrest and this is
India’s most contentious emergency. The polls at which the court considered
Smt. Indira Gandhi was barred from public service for six years to be
engaged in unethical practices it was held in the Allahabad High Court.

She had brought the judgment to the Supreme court, but the court had
been on holiday at that moment. On 25 June 1975, the Historical day, Smt.
Indira Gandhi wrote to then-Honourable President Fakhruddin Ali Ahmed a
message to declare an emergency, despite the approval of the members of
the cabinet. The much more stringent and compressed emergency was this
emergency. On 23 March 1977, it was withdrawn.

In the case of Minerva Mills vs the Indian Union, the legitimacy of the
president’s motivation and determination through Article 351 is not impeded
by judicial review. However, the jurisdiction of the Court is confined to
investigating is not whether the restrictions of the Constitution were met. It
will decide whether or not the President’s happiness is true. It is not at all
happiness, where fulfillment is founded on mistrust, irony, or irrelevance.

The procedure of proclaiming emergency

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 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 inside
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.

The procedure of 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.

The Union Government’s responsibility is to ensure that perhaps the

administration of a State takes action 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.’

An emergency of this kind may have the following effects:

1. the President, with the exception of the High Court, may assume all
or any of the responsibilities of state governments;
2. announce that state legislative powers should be exercised by, or
under, Parliament’s responsibility;
3. make the declaration subject matter necessary or suitable for its
execution.
Nevertheless, the President is not allowed to presume or terminate any
statutory obligation relating to the High Court. The President of India has
instituted a 126-fold rule in India until 2018. The presidential rule has been
used for a record of 35 occasions under Indira Gandhi’s rule.

The procedure of proclaiming 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.

The procedure of 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)].
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)].

Emergency provisions: effects and impact

Dicey says federalism is weak as it requires power-sharing between the
centre. This is a dysfunctional democratic government. Even so, all existing
federations managed to escape this deficiency by ensuring the federal
government assumes extraordinary leverage where there is a need, because
of emerging new internal or external conditions, for concerted intervention.
[The Constitution Of India] gives exceptional powers to the union for specific
forms of emergency. The constitutional main sources of energy authorize the
federal government, as necessary, to achieve the power of a unitary
structure.

The Indian Constitution provides for three distinct types of irregular

conditions that require that the constitution created a divergence from the
usual legislative machinery:

1. A war-related emergency, an outside invasion or armed revolt

[Article 352]. It is also recognized as a national pressing matter.
2. Failure of states with legislative machinery [Article 356]. Established
as the Presidential Guideline, too.
3. Financial Emergency [Article 360].

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
center stage in such a circumstance. It must also be accepted by Parliament,
as some of the other 2 emergencies. Both Members of Parliament must
approve it within two months. As long as the process requires, the financial
catastrophe can exist and might even be lifted with a corresponding
declaration.

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.
Effects of national emergency
The establishment of national emergencies has an effect both on people’s
interests and on the sovereignty of states:

1. The key consequence is that the constitution’s style of federalism

becomes unitary. The Centre’s powers are increasing and the
Parliament assumes authority, except in the fields alluded to in the
State List, to make legislation for the whole country or part thereof.
2. The Government of India is willing to provide orders to the countries
about how to exercise their executive authority.
3. The Lok Sabha will prolong the tenure by one year at a time during
an emergency era. But the same could be expanded beyond 6
months after the expiration of the proclamation. It is possible to
prolong the term of state legislatures in the same way.
4. The President is allowed during an emergency to change the laws on
the allocation between the Union and the States of wealth.
5. Under Article 19, human rights shall immediately be revoked and
this restriction shall extend until the conclusion of the emergency.
But according to the 44th amendment only in case of a declaration on the
grounds of war or external invasion, liberties specified under Article 19 can
be restricted. Everything becomes clear from the debate above that
emergencies not only suspend the sovereignty of the States but also make
the federal system of India unitary. It remains important because of its
comprehensive powers to deal with these irregular circumstances for the
Union Government.

Effect of state emergency

The emergency declaration triggered by the dissolution of a state’s legislative
machinery has the beneficial specifications:

1. The President may take over all or any of the positions of the State
Government or can appoint the Governor or any other
administrative authority for all or any of these roles.
2. The President is allowed to dissolve or terminate the State
Legislative Assembly. On behalf of the Government Legislature, he
will authorize Parliament to enact laws.
3. To give effect to the intent of the declaration, the President may
make any more adverse or subsequent clause appropriate.
Effects of financial emergency
A financial emergency declaration could have the following implications:

1. The government of the Union may provide guidance in economic

affairs to all the other States.
2. The President can recommend that the States minimize the wages
and benefits of any or all levels of the government officials.
3. After the State Legislature has approved them, the President can
order States to allocate all the money bills for Parliamentarians
attention.
4. The President may provide instruction to the national government
personnel, including supreme court judges and the high courts, to
reduce their pay and compensation.

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.

 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 19- Makhan Singh Vs. State of

Punjab
“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 art.19 was complete during the period in
question, and legislative and executive action which contravened art.19 could
not be questioned even after the emergency was over.”

 Suspension of Article.20,21 A.D.M. Jabalpur Vs.

shivkant shukla
“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 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.” Article 4 recognizes the
right to life and personal freedom as an ineffable right in emergency
situations, even in the Universal Declaration on Civilian and Democratic Life.

 Suspension of art.14 and 16 Arjun Singh vs. State of

Rajasthan
While it was not described in order that art 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 presidential order.

 Judgment and condition of art.356 S.R. Bommai Vs

Union of India
“The landmark case of S. R. Bommai v. Union of India, in the history of the
Indian Constitution has great implications in Center-State relations. 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.”

What are the observations of judges on Article 356 of the Constitution of

India 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 to 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.
The Governor may only proclaim an emergency if the two Houses of
Parliament have authorized it according to paragraph 3 of Article 356 not just
before. The President may only suspend the Legislative Assembly until such
consent by withdrawing the constitutional provisions pertaining to the
Legislative Assembly in compliance with subsection (c) of clause (1).
However, only as required for accomplishing the organizational aim of the
Declaration the termination of the National Assembly can be enforced.

In Article 35, Clause (3) lapses at the close of the two-month period and, in
that case, the rejected government revives in the event of a rejection or
disapproval from both Houses of the Parliament of the declaration. The
Legislative Assembly also reactivates whatever could have been
discontinued. Likewise, the actions, orders, and regulations adopted during
the two-month span do not, in the same manner, become unconstitutional or
invalid as the declaration falls.

In the case of the ratification of the Proclamation by both Houses in two

months, the terminated Government will eventually not restore the
declaration or removal until the expiration of the commencement era. The
Legislative Assembly shall not, likewise, resume after the expiration of the
time of declaration or its revocation, until the Legislative assembly was
dissolved after ratification under clause (3).

The court’s most significant argument in the case is that Article 74(2) merely
forbids an inquiry about whether or not the negotiators give the Chairman
their guidance. It does not preclude the Tribunal from asking the Council of
Ministers of the Union (Union of India) to reveal the information around
which the President had satisfied himself.

The information on which advice is offered is not included in the advice. Even
if the content is discussed by the President despite showing to him, it does
not share the recommendation personality. “The Proof Act’s articles 74(2)
and 123 protect numerous areas. The Minister or official involved can
demand right pursuant to Article 123 during the protection of the declaration.
In compliance with the rules of Section 123, where such right is asserted it
will be determined on one’s own criteria.”
S.N. National Emergency (352) President’s Rule (356)

It may be argued if, because of causes that

Only if the stability of India or a could have no relation with any war, an
part of it is threatened with external attack, or armed insurrection, the
1.
invasion, foreign interference or government of a State cannot be carried
military revolt may it be declared. out in compliance with the conditions of the
Constitution.

The State Governor would then be removed

The State Executive and the
and the State assembly dissolved or
Legislature continue acting and
disbanded during its service. It is ruled by
exercise their legislative functions.
2. the president and the parliament creates
The Centre has concomitant
regulations for the administration. In short,
regulatory and legislative powers
the Center assumes the administrative and
in the province.
legislative functions of the Administration.

The Parliament may assign to the President

and any other jurisdiction defined by it the
power to legislate for the Government. To
Parliament may only legislate on date, the President’s procedure has already
its own, i.e. not assign the same been in collaboration with parliamentarians
3. with any other agency or from that state and make legislation for the
jurisdiction, on the matters state.
mentioned in the State List.
There is a cumulative duration of three
years for its service. It must then be done

For its service, no limit duration is For its service, a period of 3 years is
recommended. The House will recommended. It must be done after that
4.
continue for every six months and the usual constitutional mechanism of
continually with its acceptance. the State must be reinstated.
This makes a transition to the
This will change only the interaction of the
5. arrangement between the Core
emergency state with both the Centre.
and all the Nations.
It affects people’s fundamental This has no influence on peoples’
6.
human rights (FR). constitutional rights.
A special majority should be
adopted with any proposal Each Parliament resolution that accepts or
7. accepted by Parliament to preserves the proclamation cannot be
proclaim or continue the accepted by a single majority.
declaration.
Such a clause is not in effect. It is only at
A proposal may be passed by Lok
8. its own choice that the President will
Sabha to cancel it.
relocate it.
It is clear to see, after grappling with all procedural requirements, what the
objective was to create those stipulations usable first and foremost in the
Constitution. However, although we did our analysis for the same reason, we
did note that even though the laws on national security and citizen’s welfare
are accounted for in these regions, the regulations alone give the Executive a
lot of dramatic latitudes.

It primarily impacts the nation’s territorial system and makes it majoritarian,

thus seeking to defend the needs of the community and the individual. While
recognizing the need for it, we agree that a check-and-balance mechanism
can also be placed in place such that, unlike the 1975 emergency, the
governing party and the executive cannot abuse authority.

While the revocation of human rights has repeatedly been justified, we agree
that they are fundamental to people’s very lives in a democracy. We have
found in our analysis since the 44th Amendment to the Constitution provides
that there are always ways to unjustly breach fundamental rights in
emergencies notwithstanding the protective provisions that were added
during this analysis.

As some other federal constitutions, such as Canada and Australia, provide

for the courts to decide on the degree to which the center can extend its
authority, so it will serve as the consolidated framework for confirming the
unconstitutional use of discretionary powers accessible to the executive and
legislative branches in compliance with emergency provisions.
 Constitution of India, 1950

 S.R Bommai v. Union of India, AIR 1994 SC 1918

 Indira Nehru Gandhi vs. Shri Raj Narain & Anr., AIR 1975 SC 2299

 Raj Narain v. State of Uttar Pradesh, AIR 1975 SC 865

 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

 State of Rajasthan & Ors v. Union of India, AIR 1977 SC 1361

 A.D.M Jabalpur v. Shiv Kant Shukla, AIR 1976 SC1207

 In the Name of Democracy: JP Movement and the Emergency(2017)

by Bipan Chandra

 Saving India from Indira: The Untold Story of Emergency(2009) by

Rama Goyal

 The Judgement: Inside Story of the Emergency in India (1977) by

Kuldip Nayar.