An assignment on

“Emergency powers of the president in India”

Submitted by
Salman ali Siddiqui
Ll. m 1st sem.
2020llm24
Fb-8086

Submitted to
Prof. Badar
ahmad
 Contents
 Introduction
 National emergency
 Grounds for Proclamation of emergency
 Procedure of proclamation and satisfaction of the
president
 Constitutional consequences of proclamation
 44th amendment act and safeguard against emergency
powers
 Failure of constitutional machinery in state
 Grounds of proclamation
 Procedure of proclamation and its duration
 Impact of president's rule
 Financial emergency
 Grounds of financial emergency
 Duration of financial emergency
 Effects of financial emergency
 Conclusion
 
INTRODUCTION
There often occur abnormal situations that threaten a country on numerous
fronts including war, economic or financial breakdown, or aggression from within
the country, and require extraordinary responses to address them in order to
ensure the continuation of governance in accordance with the constitution.
Various constitutions around the world provide for emergency provisions to
address such situations. Traditionally, the invocation of emergency powers
facilitate a departure from the ordinary functioning of the organs of state.
They are extremely important but also dangerous, for they potentially provide
scope for the obliteration of the constitutional order.
The Indian Constitution provides for Emergency Powers under Part XVIII, to be
invoked in cases of a security threat due to war or external aggression or armed
rebellion or an imminent threat thereof, financial emergency, or a failure of
constitutional machinery in the state. The power to proclaim the state of
emergency vests with the President. The Centre has overriding powers to control
and directs all aspects of administration and legislation throughout the country.
However, the Constitution (Forty-Fourth Amendment) Act was enacted in 1978 to
provide for safeguards against the arbitrary exercise of power akin to that
exercised in June 1975.

The proclamations invoking the emergencies are based on the President’s

satisfaction, which is not his personal satisfaction, but that supplemented by the
recommendations of the Cabinet Ministers headed by the Prime Minister. The
issue of justifiability of the proclamation has been widely contested, and
addressed by the courts in various decisions.

It has come to be held through a series of decisions which shall be further

discussed, that a presidential proclamation issued under Article 356(1) is
amenable to the jurisdiction of courts on limited grounds.
The implications of the position enunciated by the court in later decisions, most
recently that of Rameshwar Prasad (VI) v. Union of India, where it was observed
that the grounds of review of a presidential proclamation issued under Article
356(1) of the Constitution shall extend to review of the proclamation issued under
Article 352(1) as well, shall be discussed. It has been held that judicial review as
part of the basic structure of the Constitution cannot be wholly excluded.
Therefore, the material based on which the presidential proclamation invoking
national emergency in the face of war, external aggression or armed attack has
been made amenable to judicial review on limited grounds.
It is to check whether there was any material upon which the president based his
satisfaction, whether the President acted mala fide and whether the power
exercised was ultra vires.
Proclamation of emergency As the effect of amending the constitution by
converting the federal fabric, for the certain duration, into a unitary state It also
adversely affect the enforcement of the fundamental rights of the people The
question to declare the emergency is left to the satisfaction of the executive for it
is obviously in the best position to judge the situation. At the same time, there is
the cool relative danger of the abuse of such extraordinary power leading to
totalitarianism. Adequate safeguards are, therefore, necessary to ensure that this
power is properly exercised and is not abused.
In this paper the power of the president to declare the Emergency and the
political and judicial safeguard upon it shall be discussed.
 PROCLAMATION OF EMERGENCY

Constitutionally speaking, as per Art. 366(18), the “proclamation of emergency”

refers only to a proclamation made under (1) of Article 3521.
Art.352(1) of the constitution provide that-
If the president is satisfied that a grave emergency exists whereby the security of
India or any part thereof is threatened, whether by war or external aggression Or
armed rebellion, he may make a proclamation of emergency in respect of the all
of India or any part of India. The president can declare the emergency not only
When war or external aggression or has actually occurred but also when he
perceives the imminent danger thereof2.
For the first time, a proclamation of emergency was issued by the president on
October 26 common 1962, on the ground of external aggression from Chinese
side and continued in force until January 10, 1968. For the second Time, it was
proclaimed on December 3, 1971 on the ground of external aggression from
Pakistan side. It was proclaimed, for the third time, on 25 th June, 1975 On the
ground of internal disturbance3.

GROUNDS FOR PROCLAMATION OF EMERGENCY

A proclamation of emergency may be made on the ground of

 War, or
 External aggression, or
 Armed rebellion4
1
The Constitution of India, part XIX 383
2
Id.373
3
Prof. Narendra Kumar, constitutional law of India, 971(Allahabad law agency, Haryana 8th ed. 2014)
4
Subs. By the Constitution (44th Amendment) Act, 1978,sec.37 (a) (I) for “internal disturbance”
War5
The term “war” May mean the existence of violent struggle between two
countries through the application of armed forces. When there is a formal
declaration of an attack from one country against another that does it exist “war”
between them.
External Aggression6
The expression external aggression include unilateral attacks with force by one
state against another state without formal declaration of war.
Armed rebellion
The expression internal disturbance is too vague and wide, it may cover a minor
disturbance of law and order or even a political agitation. With a view to exclude
the possibility of an emergency being proclaimed on the ground of internal
disturbance of any nature minor or grave the 44th amendment has substituted
the expression internal disturbance by the expression “armed rebellion” 7.
Emergency due to the armed rebellion may be imposed by the President of India
when a group of people rebel against the present government which will lead to
the destruction of lives and property8.
On 25th June, 1975, the emergency was declared on the ground of internal
disturbance by then Prime Minister Indira Gandhi because the opposition parties
had given a call to launch a movement with a view to compelling the Prime
Minister to resign from her post as election to the Lok Sabha was declared void by
the Allahabad High court9.

PROCEDURE OF PROCLAMATION & SATISFACTION OF THE PRESIDENT

5
Narendra Kumar, supra note 3 at 973
6
Id.
7
Ibid. 972
8
Shreya S. K Pandey, Emergency provisions under Indian Constitution, https://iblog.pleaders.in.ur (last visited
23/06/2021)
9
Narendra Kumar, supra note 3 at 972
The president shall not issue a proclamation under (1) or proclamation varying
such proclamation unless the decision of the Union cabinet ( i.e. the council
consisting of the Prime minister and other Ministers of cabinet rank appointed
under art. 75) that such a proclamation may be issued has been communicated to
him in writing. The proclamation must be laid before each house of parliament
and it shall cease to be in operation at the expiration of one month unless before
the expiry of the said period it has been approved by resolution of two-third
majority votes of the members present and voting which is not less than the
majority of total strength of the house. However, House of the people is dissolved
at the time of proclamation or dissolution takes place during the 1 st proclamation
but before ratifying the stipulation of thirty days, and if a resolution approving the
proclamation has been passed by the council of states, then, the proclamation
shall cease to operate at the expiration of thirty days from the date on which The
House of the people first sits after its reconstitution unless before the expiry of
the said period a resolution approving the proclamation has been also passed by
The House of the people10.
When both the Houses so ratify, it continues for the period of six months.
However, its duration can be extended by Parliament by similar ratification after
every six months. If variation is sought to be made in the nature or type of
emergency that is already proclaimed a fresh proclamation is needed. Variations
may be of two kinds: territorial Extent of the proclamation may be changed or
ground of its proclamation may be changed. Every proclamation requires fresh
ratification by the two Houses of parliament.
The president can proclaim emergency if he is satisfied that the security of India
or any part thereof is threatened either by war or external aggression or armed
rebellion.
The constitution (38 Amendment Act),1975 inserted (5) in Art.352 declaring the
satisfaction of the president in regard to the issuance of a proclamation of
emergency as final and conclusive and not to be questioned in any Court on any
ground11.

10
Dr. J. N. Pandey, constitutional law of India, 792(central law agency, Allahabad, Ed. 52nd 2015)
11
Kumar, Supra note 3 at 974
State of Rajasthan vs. Union of India12
Bhagwati. J. the proclamation of emergency is undoubtedly amenable to Judicial
review though on the ground Limited ground that no satisfaction as required by
article 352 was arrived at by the president in law or that the satisfaction was
absurd on mala fide or based on an extraneous or irrelevant ground.
In Minerva Mills Limited vs. Union of India13
Bhagwati, j. has held that there is no bar to Judicial review of the validity of a
proclamation of emergency issued by the president under article 352(1).It is to be
noted, however, noted that the word satisfaction used in article 352 does not
mean the personal satisfaction and other president but it is satisfaction of the
cabinet. The president shall declare emergency only on the written advice of the
cabinet and not merely on the advice of Prime minister. Thus, the procedural
requirement for the proclamation and real satisfaction of the Union Cabinet
provides a check against the abuse of emergency powers by the executive.

CONSTITUTIONAL CONSEQUENCES OF THE

PROCLAMATION14

1. Extension of centre's executive power

The executive power of the union extends to giving of direction to any state as to
the manner in which the executive power of the state is to be exercised and call
to extend to any state other than the state where emergency is in force Tech
Security of India any part of the territories threatened by activities in law in
relation to that part of the territory of India in which the proclamation of
emergency is an operation.

2. Parliament power to legislate on state subjects

The Parliament will be vested with unlimited power to make laws for the whole or
any part of India with regard to any of the matters enumerated in the State List.
12
AIR 1977 SC 1361
13
AIR 1980 SC 1789
14
Pandey, supra note 10
Laws so passed shall cease to have effect six months after the expiry of the
proclamation of emergency.

3. Extension of life of Lok Sabha

The Parliament can extend its own life for a period not exceeding one year at a
time. Such an extension of its term is not to last beyond six months, after the
expiry of the proclamation.

4. Centre empowered to alter distribution of revenue between the Union

and the State

The President during this abnormal period may by his order modify the provisions
relating to distribution of revenues between the Union and the States in order to
secure adequate revenues for the Government of India to meet baffling situation
created by emergency. Such orders are required to be laid before both the
Houses of Parliament. They are not to be valid beyond the financial year, in which
the proclamation of emergency ceases to operate.

5. Suspension of fundamental rights

The right to freedoms guaranteed by Art. 19 of the Constitution stands

suspended. The laws and executive actions in contravention of this right during
this period of emergency are authorized temporarily. But, soon after the
proclamation ceases such rights automatically revive and any law inconsistent
with article 19 during emergencies to have a fact to the extent of inconsistency
except as respects things done or omitted to be done before The law ceases have
effect have effect15.

The President is authorized to suspend the “right to constitutional remedies”

which is incorporated in the Constitution to protect Fundamental Rights (except
art. 20 & 21) and all proceedings pending in court for the enforcement of such
rights still remains suspended for the period during the proclamation is in force 16.

15
Pandey, supra note 14 at796
16
Id.
 44TH AMENDMENT ACT AND SAFEGUARDS AGAINST
EMERGENCIES POWER17

The 44th Amendment Act of 1978 proposed several safeguards to prevent abuse
and misuse of provisions concerning internal/external emergency.

Firstly, The proclamation can be issued only when security of India or any part of
its territory is threatened by armed rebellion.

Secondly emergency will be declared only on the written advice of the Cabinet.

Thirdly, the declaration of the emergency by the President without the approval
of the Parliament can remain in force for one month. Thus the period of two
months which was formerly required for such approval was reduced to one
month.

Fourthly, the approval of the Parliament shall require adoption of the resolution
in each House by absolute majority of the whole House and 2/3 majority of the
members present and voting.

Fifthly, the extension of duration in one instance cannot be of a period of more

than six months. However, no maximum time limit has been fixed.

Sixthly, at least 1/10th members of the Lok Sabha may requisition a special
session to reject the continuance of the proclamation. A special sitting of the
House will take place within 14 days of the receipt of notice addressed to the
Speaker.

Seventhly, such a proclamation is revocable or variable by a subsequent

proclamation. The Act made a special provision guaranteeing the right of the
media to report freely and without censorship of the proceedings in the

17
Dheeraj, Constitution and emergency powers of the Indian president, https://www.google.com/search
last visited 21/06/2021)
Parliament and the State Legislatures. Thus the rights to life and liberty have been
put on more secure footing.

Eighthly, Art. 19 will be suspended only when a proclamation of emergency is

declared on the ground of war or external aggression and not when emergency is
declared on the ground of Armed rebellion.

Ninthly, clause (2) of Art. 352 was inserted which says that-

Nothing in Clause (1) shall apply to

(A) Any law which doesn’t contain a recital to the effect that such law is in
relation to proclamation of emergency, or
(B) To any executive action taken otherwise than under a law containing such
recital18.

In Mohammed Yaqub vs. state of Jammu and Kashmir19

The Supreme court held that article 359 plus one vested categorical and unlimited
powers with the President to suspend the enforcement of fundamental right
during the operation of a proclamation of emergency and therefore are the
enforcement of the right was suspended the validity of the presidential order
could not be tested on the Anvil of the fundamental right which was thought to
be suspended.
A.D. M., Jabalpur vs Shivakant Shukla20
The Supreme court held that the suspension of the right one for the fundamental
rights under the presidential order made under article 359 clause 1 at the affected
the emergency provision contained in the constitution work by themselves the
rule of law during the operation of the proclamation of emergency.

18
Subhash c. Kashyap, Our Constitution: An introduction to Indian Constitution and constitutional law, 300(national
Book Trust India)
19
AIR 1968 SC 765
20
AIR 1976 SC 1207
 FAILURE OF THE CONSTITUTIONAL MACHINERY IN STATE
The origin of Art. 356 can be traced to sec. 95 of the Government of India Act,
1935. Where the Governor of the province, with the concurrence of the
Governor-general could take over the governance of the province in his own
hands. However, Art. 356 is different from the above said section in this respect
that under sec.93 of the Act the governor could suspend the operation of the
limited self-government whereas under Art. 356 it is the president who Is
empowered to suspend the federal system in a state. Dr. Ambedkar tried to
justify this provision by referring to Art. 355 which cast a duty on the Union
Government to protect every state against external aggression and internal
disturbance and to ensure that government of every state is carried on in
accordance with the provisions of the Constitution.
Art. 356 provides that21-
If the president, either in the receipt or a report from the governor of a state or
otherwise, satisfied that a situation has arisen in which the government of the
state cannot be carried on in accordance with the provisions of this Constitution,
he may make a proclamation to that effect.
GRONDS OF PROCLAMATION
The only ground on which a proclamation can be made under Art. 356 is “ failure
of the Constitutional Government In the state22”.
The sarkaria commission has put the legitimate grounds for Interventions into
four categories23:
1. Political crisis
2. Internal subversion
3. Physical breakdown
4. Non-compliance with the constitutional directions of the Union executive.
When an stable Government cannot be formed it becomes a political crisis.

21
The Constitution of India part xviii
22
Kumar, supra note 3 at 987
23
Ibid. At 995
Physical breakdown are of two types: Those breakdowns which may be brought
about by the natural calamities those which may be result of Total breakdown of
public order.
In the fourth category, article 365 of the constitution says when a situation arises
would be legitimate for the president to draw the conclusion that the
government of the state which has not complied with the union government’s
instruction, cannot be carried on in accordance with the constitution.

PROCEDURE OF PROCLAMATION AND IT’S DURATION

The proclamation of emergency shall be laid before each House of parliament and
unless both houses approved it by a resolution former shall ceases to have effect
at the expiration of two months. However, if any such proclamation is issued at
the time when the Lok Sabha dissolved or dissolution takes place during the
period of two months and the proclamation is passed by the Rajya Sabha, it shall
cease to operate at the expiry of 30 days from the date on which the new Lok
Sabha meets, unless before the expiry of 30 days it has also been passed by the
Lok Sabha.
The duration of proclamation can be extended by six months each time by both
Houses of Parliament passing approving its continuance. The maximum period For
which proclamation can remain in operation is 3 years from the date it is issued.
The proclamation can be continued beyond 1 year only if emergency under
article 352 is in operation in the whole of India or in the whole or any part of
India, and the election Commission certifies that it is not possible to hold
elections to the State legislature 24. It may be noted that in Punjab, the president’s
rule is period for 5 years25.
However, The proclamation may be revoked Or varied by the President on a
subsequent proclamation26.

24
Supra note 10 at 803
25
The Constitution of India Art.356(proviso to (5) 376 part XVIII,
26
Ibid. Art. 356(2)
In State of Rajasthan vs. Union of India27
the court held that the satisfaction of the president under Article.356 could not
be questioned. The president does not act only on the report of the governor but
on otherwise.
In S.R bommai vs. Union of India28
The 7 bench of judges unanimously held that presidents power under article 356
to dismiss a state government and imposition of president’s rule is subjected to
the Judicial review.
The court has laid down the following guidelines:
1. Presidential proclamation dissolving a state legislative assembly is subject
to judicial review.
2. The first State government works against secularism, player presidents rule
can be imposed.
3. No wholesale dismissal of opposition ruled States government when a new
political party assumes power at the centre.
4. If presidents rule is imposed only on a political consideration the court can
even restore the assembly.
5. Imposition of president’s rule and dissolution of state assembly cannot be
done together.
6. State assembly can be dissolved only after presidents approval approves
centre rule central rule.
7. The Supreme Court or a High Court can compel the union government to
disclose material on whose basis president’s rule is imposed on a state.
8. The power of the president under Art. 356 is a constitutional power, is not
absolute. The existence of a material is a pre-condition to form the
satisfaction to impose the presidents rule.
It was reaffirmed that a proclamation under Art. 356 is amenable to judicial
review. Though the subjective satisfaction of the president cannot be reviewed
by code but material on which satisfied is based is open to judicial review on
grounds of illegality, mala fide, extraneous considerations, abuse of power or
27
AIR 1977 SC 1361
28
AIR (1994) 3 SCC 1.
 fraud on power or irrelevance or irrationality. It was also had that the
secularism is a basic feature of the constitution and any state government,
which pursue unsecular policies is amenable to action under article 356.
In Rameshwar Prasad Vs. Union of India(Bihar assembly dissolution case) 29
The constitutional validity of notification dated 23 may, 2005 ordering
dissolution of legislative assembly of the state of Bihar was initially will stop in
a unique case of its kind even before the first meeting of the legislative
assembly, its dissolution had beer ordered on the ground that attempts were
being made to cobble a majority by illegal means and lay claim to form the
government in a state and if attempts continued, it would amount to
tampering with the constitutional provisions. Held at the presidential
proclamation dissolving state assembly in Bihar under article 356 were
unconstitutional and based on extraneous and irrelevant grounds. The court
said that in recommending the dissolution of Freshly elected somebody or
invoking the power under article 356, the governor or president, respectively
could not act on the grounds of immorality.
In special reference no. 1 of 2002(in re Gujarat assembly election matter) 30
In this case the interpretation of Art.174 and Art. 324 was in issue before the
supreme court under article 143 in its advisory opinion as referred by the
president. The court heard that article 174 close one does not apply to a
dissolved assembly but two alive assembly article 174 clause one neither
relates to election nor does it provide any outer limit for holding election For
constituting the assembly. The holding of elections the exclusive domain of the
election Commission under art. 324. Merely because the time schedule fixed
under article 174 cannot be adhered , that Percy cannot be a ground for
bringing into operation Art. 356.

IMPACT OF PRESIDENT'S RULE

29
(2006) 2SCC 1.
30
AIR 2003 SC 87.
 The President acquires the following extraordinary powers when the
President’s rule is imposed in a state:31

 He can take up the functions of the state government and powers vested
in the governor or any other executive authority in the state
.

 He can declare that the powers of the state legislature are to be exercised
by the parliament.
 He can take all other necessary steps including the suspension of the
constitutional provisions relating to any body or authority in the state
 Where the president ahs declared under Art. 356(1) (b) that the power of
the legislature of the state shall be exercisable by or under the authority of
parliament then32-
Parliament may-
 Conference on the president the power of the legislature of the state to
make laws, and
 Authorise him to delegate the power conferred on him by the parliament,
on any other authority to be specified by the president in that behalf,
 Or the president or other authority, in whom power to make laws is vested
may make laws
(I) For conferring of powers and imposing duties, or
(II) For authorizing the conferring of power and imposing, upon thhe Union
or officers and authorities thereof.
Any law made by the parliament or by the president or by other authority, in the
exercise of the power of the legislature of the state, shall continue in force, even
after the proclamation made under Art. 356(1) has ceased to operate, until
Altered or repealed or amended by a competent legislature or authority 33.

31
Supra note 10 at 802.
32
Supra note 3 at 990-991.
33
Supra note 1 Art, 357(2).
It is to be noted, that unlike Art. 352,under Art. 356 the state legislature remains
suspended and dissolved; however, fundamental rights remain unaffected.

FINANCIAL EMERGENCY

Art. 360 provides that if the president is satisfied that situation has arisen
whereby the financial stability or credit of India or part of the territory thereof is
threatened, he may by a proclamation make a declaration to that effect 34.

GROUNDS FOR PROCLAMATION OF FINANCIAL EMERGENCY

The grounds for declaration of is- “a threat to the financial stability or credit of
India or any part thereof”35.

DURATION OF FINANCIAL EMERGENCY

The proclamation is required to be laid down before each house of parliament.

The proclamation issued by the President shall cease to be in operation at the
expiry of two months unless it has been approved by both houses of parliament.
It may be revoked or varied by the president by a subsequent proclamation. But if
the Lok Sabha is dissolved during the period of two months and resolution is
approved by the Rajya Sabha, but not by the Lok Sabha then it shall cease to
operate at the expiry of 30 days from the dater on which the new Lok Sabha sits
unless before the expiry of 30 days a resolution approving preview proclamation
is passed by the Lok Sabha36.

34
Supra note 1 Art. 360.
35
Supra note 3 at 1001.
36
Supra note 10 at 820.
 EFFECTS OF FINANCIAL EMERGENCY
The object of issuing a proclamation of financial emergency is to achieve financial
Stability37
(A) stability. The effects followed by the proclamation are as follows-
Type equation here . The executive authority of Union extends-
 To the giving of directions to the states to observe such cannons of financial
propriety as may be specified in the directions, and
 To the giving of such other directions as the president may deem necessary
and adequate for the purpose,
 To the giving of directions requiring the reduction of salaries and
allowances of all or any class or persons serving in connection with the
affairs of the state,
 To the giving of directions requiring all money or financial bills are to be
reserved for the consideration of the president after they are passed by the
legislature of the state.
(B) During the period a proclamation of Financial emergency it shall be
competent for the president to issue directions for the reduction of salaries
and allowances of all Or any class of persons serving in connection with the
affairs of the Union including the judges of the supreme Court and the high
court.

37
Supra note 3 at 1002.
 CONCLUSION

The Constitution of India is unique in respect that it contains a completed scheme

for speedy Re-adjustment of the peace-time governmental machinery in
movements of national peril. These provisions may appear to be particularly in a
Constitution which professes to be built upon an edifice of fundamental rights
and democracy. It is far well that the Constitution guards against the forces of
disintegration. Events may take place threatening the very existence of the state
and if there are no safeguards against such eventualities the state together with
all that is desired to remain basic and immutable, will be swept away.
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4. Subhash C. Kashyap, Our Constitution: An introduction to
Indian Constitution and constitutional law, 300(national
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