GS Paper 2

POLITY
Emergency Provisions

Dr. Shruti Joshi

“Democracy is not what happens at elections, but what happens in – between”.

Emergency provisions have been inserted to deal with extraordinary situations such
as war or an armed rebellion.

The constitution mentions three types of emergencies viz National Emergency,

President’s rule and Financial Emergency.

The emergency provisions are contained in Part XVIII of the Constitution of India,
from Article 352 to 360.
SOURCES OF EMERGENCY PROVISIONS
1. GOVERNMENT OF INDIA ACT, 1935
2. CONSTITUTION OF WEIMER REPUBLIC OF GERMANY

Rationale behind inclusion of emergency provisions in Constitution

“Constitution of India can be both unitary as well as federal according to the requirements of
time and circumstances. In normal times, it is framed to work as a federal system. But in times
of Emergency, it is so designed as to make it work as though it was a unitary system….” – Dr.
B.R. Ambedkar observed in the Constituent Assembly.
 National Emergency (Article 352)
 Under Article 352, the President can declare a national emergency on the basis of war,
external aggression or armed rebellion. The Constitution employs the expression
‘proclamation of emergency’ to denote an emergency of this type.

 EXAMPLES
 October 1962: Chinese aggression - It continued till January 1968.
 December 1971: Indo-Pak war - It continued till March 1977.
 June 1975: Internal political crisis - It continued till March 1977.
Note: After 1977, no such emergency has been pronounced.
 Grounds of declaration:

 The President can declare a national emergency even before the actual occurrence
of war or armed rebellion or external aggression.
 When a national emergency is declared on the grounds of ‘war’ or ‘external
aggression’, it is known as ‘External Emergency’.
 On the other hand, when it is declared on the grounds of ‘armed rebellion’, it is
known as ‘Internal Emergency’.
Changes in Article 352
• 38th Amendment Act (1975) allows President to issue different proclamations on grounds
o war, external aggression, armed rebellion, or imminent danger thereof.

• 42nd amendment Act, 1976 : This emergency can be imposed either for the whole of India
or could be restricted to certain territories. It enabled President to limit the operation of NE
to a specified part of India.

• 44th amendment Act, 1978 :

 Originally, the constitution had internal disturbance as one of the grounds for imposing
national emergency, however, this was dropped since the ground was ambiguous and open
to misuse. It was replaced by armed rebellion through the 44th amendment act, 1978.
 This emergency can be imposed by the President after receiving a written recommendation
from the cabinet. This provision was introduced through the 44th amendment act.
Issue of Article 352 and Judicial Review

 The 38th Constitution Amendment Act of 1975 made the declaration of National
Emergency immune to judicial review. But, this provision was subsequently
deleted by the 44th Amendment Act of 1978.

 In Minerva Mills case (1980), the Supreme Court held that National Emergency
can be challenged in the court on the ground of malafide or that the declaration
was based on wholly extraneous and irrelevant facts.
Parliamentary approval and duration of National Emergency

• The proclamation of emergency must be approved by both the houses of

parliament within one month from the date of its issue.

• However, if the proclamation of emergency is issued at a time when the Lok

Sabha has been dissolved or the dissolution takes place during the period of
one month without approving the proclamation, then the proclamation survives
until 30 days from the first sitting of Lok Sabha after its reconstitution,
provided the Rajya Sabha has in the meantime approved it.
• If approved by both the houses, the Emergency continues for 6 months and can
be extended to an indefinite period with an approval of the Parliament for every
six months.

• Every resolution approving the proclamation of emergency or its continuance

must be passed by either House of Parliament by a special majority.
Revocation of proclamation of National Emergency

• Lok Sabha can issue a resolution disapproving continuation.

• One-tenth of the total members of Lok Sabha gives a written recommendation

to Speaker, if house is in session or President otherwise.

• Special sitting shall be held within 14 days to consider the resolution.

• Resolution has to be passed by simple majority.

Effects of National Emergency
These effects can be grouped into 3 categories:

(I)Effects on the centre-state relations:

 Executive:
 Centre becomes entitled to give executive directions to a state on ‘any’ matter.
 State governments are brought under complete control of Cen tre, though they are not
suspended.
 Legislative:
 Although the legislative power of a state is not suspended, Parliament is
empowered to make laws on any subject mentioned in State List.
 Laws made by Parliament on state subjects become inoperative six months
after emergency has ceased to operate.
 President can issue ordinances on state subjects, if Parliament is not in session.
 Parliament can confer powers and impose duties upon Centre or its officers and
authorities in respect of matters outside Union list.
• Financial:
 The President can modify the constitutional distribution of revenues between the
centre and the states.
 President can reduce or cancel transfer of finances from Centre to states.
 NOTE:
o Any modification continues till the end of the financial year in which the Emergency
ceases to operate.
o Every such order has to be laid before both Houses.
(II)Effect on the life of the Lok Sabha and State Assembly:
• Lok Sabha---May be extended beyond its normal term (5 years) by a law of
Parliament for one year at a time (for any length of time).

• State Legislature---Parliament may extend the normal tenure of a state legislative

assembly (five years) by one year each time (for any length of time).

NOTE: Extension cannot continue beyond a period of six months after emergency
ceases to operate.
(III) Suspension of Fundamental rights under Article 19

Suspension of FR under Art. Suspension of FR under Art. 359

358

1)Deals with the suspension 1)Deals with the suspension of other

of the FR guaranteed by FR ( except those guaranteed by
Article 19. Article 20 & 21).
.

GS Paper 2 - International Relations Dr. Shruti Joshi

 2)Art. 359 authorises the President to suspend the right
to move any court for the enforcement of FR (whole or
2)Under Article 358, Six FR
any part of the country and for only those FR that are
under Art.19 are automatically
specified in the Presidential Order) during a National
suspended. No separate order for
Emergency. FR as such are not suspended, but only
their suspension is required.
their enforcement.

It should be laid before each House of Parliament for

approval.

GS Paper 2 - International Relations Dr. Shruti Joshi

3)The state can make any law or can take
any executive action abridging or taking 3)While a Presidential Order is in force, the
away the six FR guaranteed by Art.19 State can make any law or can take any
(cannot be challenged on the ground that executive action abridging or taking away the
they are inconsistent with six FR specified FR. No remedy lies for
guaranteed by Art.19) anything done during the operation of the
order even after the order ceases to operate.

4) When the National Emergency ceases

to operate, Art. 19 automatically revives
and comes into force. 4)When the Order ceases to operate, any law
so made, to the extent of inconsistency with
the specified FR, ceases to have effect.

GS Paper 2 - International Relations Dr. Shruti Joshi

5)Six FR under Art.19 can be suspended
only when the National Emergency is 5)President cannot suspend the right to move
declared “on the ground of war or the Court for the enforcement of FR
external aggression”. (44th CAA 1978) under Art. 20 to 21 (remain enforceable even
during emergency). (44th CAA 1978).

6)No remedy lies for anything done

during the Emergency even after the
Emergency expires (only those laws which 6)Only those laws which are related with the
are related with the Emergency, not other emergency are protected from being
laws) (44th CAA 1978) challenged and not other laws and the
executive action taken only under such a law,
is protected. (44th CAA 1978)

.
GS Paper 2 - International Relations Dr. Shruti Joshi
Declarations of Article 352 made so far:

This type of emergency has been proclaimed three times so far- in 1962, 1971 and 1975.
Safeguards added against misuse of Article 352 (44th Amendment Act 1978)
• 38TH AMENDMENT ACT (1975)--- Declaration of a NE immune to
judicial review.
• 44TH AMENDMENT ACT (1978) Above provision was deleted.
• MINERVA MILLS CASE (1980) Proclamation can be challenged on the
ground of:
 Malafide or
 Declaration was based on wholly extraneous and irrelevant facts or is absurd
or perverse.
 State Emergency or President’s Rule (Article 356)
Dr. B.R.Ambedkar observed: “ Hoped that the drastic power conferred by Article 356 would
remain a ‘dead letter’ and would be used only as a measure of last resort.”

Grounds of imposition:
• Article 356 empowers the President to issue a proclamation if he is satisfied that a
situation has arisen in which the government of a state cannot be carried on in
accordance with the provisions of the constitution.

• Article 365 says that whenever a state fails to comply with or to give effect to any
direction from the centre, it will be lawful for the President to hold that a situation has
arisen in which the government of the state cannot be carried on in accordance with the
provisions of the constitution.
Parliamentary approval and duration of President rule
• A proclamation imposing President’s rule must be approved by both the houses of
parliament within two months from the date of its issue.
• However, if the proclamation of President’s rule is issued at a time when the Lok Sabha
has been dissolved or the dissolution of the Lok Sabha takes place during the period of
two months without approving the proclamation, then the proclamation survives until
30 days from the first sitting of the Lok Sabha after its reconstitution, provided that the
Rajya Sabha approves it in the meantime.

• Proclamation may be revoked by President at any time by a subsequent proclamation.

Such a proclamation does not require parliamentary approval
Effects of the President’s rule:
The President acquires the following extraordinary powers when the President’s rule is
imposed in a state:

• 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.
Effects of the President’s rule:
1) PRESIDENT ACQUIRES EXTRAORDINARY POWERS
• Can take up functions of state government and powers vested in the governor or any other
executive authority in the state.
• Can declare that powers of state legislature are to be exercised by Parliament.
• He can take all other necessary steps including the suspension of the constitutional
provisions relating to anybody or authority in the state.

OTHER EFFECTS
• President dismisses the State Council of Ministers (however, the powers of the High Court
are not affected).
• Governor, on behalf of President, carries on the State administration with help of Chief
Secretary of the State, or the advisors appointed by President.
• State assembly may be dissolved or suspended depending upon prevailing circumstances.
Such a Proclamation may declare that the powers of the State Legislature shall be
exercisable by or under the authority of Parliament.
• Article 357: Parliament may confer the legislative power on the President and authorize
him to further delegate it to any other authority.
• Parliament can authorize President to sanction expenditure from Consolidated Fund of the
State.
President rule and Judicial review

• The 38th Amendment act of 1975 made the satisfaction of the President in invoking
Article 356 final and conclusive which would not be challenged in any court on an
ground.

• But, this provision was subsequently deleted by the 44th Amendment Act of 1978
implying that the satisfaction of the President is not beyond judicial review.
SAFE GUARDS
• It must be approved by both the Houses within two months from date of issue.
• Process: Simple Majority
• If the proclamation is issued at a time when:
 Lok Sabha is dissolved or
 Dissolution of Lok Sabha takes place during the period of two months without approving the proclamation.
• Then proclamation survives until 30 days from the first sitting of Lok Sabha after its reconstitution, provided Rajya
Sabha approves it in the mean time.
• If approved by both the Houses, the President's Rule continues for six months. It can be extended for a maximum
period of three years with the approval of the Parliament, every six months.
• 44th Amendment Act (1978): Beyond one year, President's Rule can be extended by six months at a time only when
the two conditions are fulfilled:
 Proclamation of National Emergency is there in whole or part of India;
 Election Commission must certify that general elections to legislative assembly of the concerned state cannot be held
on account of difficulties.
OBSERVATIONS OF VARIOUS COMMITTEES/COMMISSIONS
SARKARIA COMMISSION (1987)
• Article 356 should be used very sparingly as a matter of last resort.
• Any imposition should be accompanied with a report by Governor to President.
• No dissolution of Assembly till proclamation is ratified by Parliament.

NATIONAL COMMISSION FOR REVIEWING THE WORKING OF CONSTITUTION (2002)

• A warning should be issued to the errant State, in specific terms.
• Before taking action under Article 356, any explanation received from the State should be taken into
account.
• No dissolution of Assembly till proclamation is ratified by Parliament. Article 356 should be suitably
amended to ensure this.
• The Governor's report should be given wide publicity in all the media and in full.
• Safeguards corresponding to Article 352 should be incorporated in Article 356
PUNCHHI COMMISSION(2008)
Recommended imposition of localized emergency.
Duration should not exceed three months.
Amendments be made in Article 356 to incorporate the guidelines in S.R Bommai case (1994).

L AW COMMISSION
Situation could have been better handled by the use of Article 355, than imposition of Article
356
S.R. BOMMAI CASE, 1994
• No restriction on the court from examining the material on basis of which President formed his
satisfaction.
• The Proclamation is not immune from judicial review.
• Supreme Court or High Court can strike down the Proclamation if it is mala de or based on wholly
irrelevant or extraneous grounds.
• Power conferred by Article 356 is conditioned and not an absolute power.
• President shall not dissolve the assembly till approved by the Parliament.
• Centre should issue a warning notice to the erring state asking for reasons. Once the proclamation is
issued, the State Government has to go.
• There cannot be two Governments in one sphere.
• Secularism is a basic feature of the constitution and its violation by the State gover nment makes it
liable to be dismissed as per Article 356.
• Court can provide remedy and reinstate the government if intentions are proved malafide
 Financial Emergency (Article 360)

Grounds of declaration:
Article 360 empowers the president to proclaim a Financial Emergency if he is
satisfied that a situation has arisen due to which the financial stability or credit of
India or any part of its territory is threatened.
Parliamentary approval and duration:
A proclamation declaring financial emergency must be approved by both the Houses of
Parliament within two months from the date of its issue.

However, if the proclamation of Financial Emergency is issued at a time when the Lok
Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period
of two months without approving the proclamation, then the proclamation survives until 30
days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya
Sabha has in the meantime approved it.

Once approved by both the houses of Parliament, the Financial Emergency continues
indefinitely till it is revoked.
Effects of Financial Emergency
 Extension of the executive authority of the Union over the financial matters of
the States.
 Reduction of salaries and allowances of all or any class of persons serving in
the State.
 Reservation of all money bills or other financial bills for the consideration of
the President after they are passed by the legislature of the State.
 Direction from the President for the reduction of salaries and allowances of all
or any class of persons serving the Union; and the judges of the Supreme Court
and the High Courts.
Critical Analysis of Emergency Provisions
• Opinions in favour of inclusion of emergency provisions
Opinions against the inclusion of emergency provisions:
Practice question
1)Emergency was like a vaccination against dictatorship. It was painful and
caused fever, but strengthened the resistance of our democracy”. Comment (10
Marks)