By JAI ROHILLA

Emergency
The Emergency provisions are contained in Part XVIII of the Constitution, from Articles 352 to 360. These
provisions enable the Central government to meet any abnormal situation effectively. The rationality behind
the incorporation of these provisions in the Constitution is to safeguard the sovereignty, unity, integrity and
security of the country, the democratic political system, and the Constitution.
 Three types of Emergency
The Constitution stipulates three types of emergencies:

1. An emergency due to war, external aggression or armed rebellion (Article 352). This is popularly
known as ‘National Emergency’. However, the Constitution employs the expression ‘proclamation
of emergency’ to denote an emergency of this type.

2. An Emergency due to the failure of the constitutional machinery in the states (Article 356). This
is popularly knownas ‘President’s Rule’. It is also known by two other
names–‘State Emergency’ or ‘constitutional Emergency’.
However, the Constitution does not use the word ‘emergency’ for this situation.
3. Financial Emergency due to a threat to the financial stability or credit of India (Article 360).
 NATIONAL EMERGENCY
Grounds of Declaration

Under Article 352, the President can declare a national emergency when the security of India or a part of it is
threatened by. war or external aggression or armed rebellion
It may be noted that the president can declare a national emergency even before the actual occurrence of
war or external aggression or armed rebellion, if he is satisfied that there is an imminent danger.

When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as
‘External Emergency’. On the other hand, when it is declared on the ground of ‘armed rebellion’, it is
known as ‘Internal Emergency’.
Originally, the Constitution mentioned ‘internal disturbance’ as
the third ground for the proclamation of a National Emergency, but
the expression was too vague and had a wider connotation.

Hence, the 44th Amendment Act of 1978 substituted the words

‘armed rebellion’ for ‘internal disturbance’. Thus, it is no longer
possible to declare a National Emergency on the ground of
‘internal disturbance’ as was done in 1975 by the Congress
government headed by Indira Gandhi

The President, however, can proclaim a national emergency

only after receiving a written recommendation from the cabinet.
This means that the emergency can be declared only on the
concurrence of the cabinet and not merely on the advice of the
prime minister.
 A proclamation of national emergency may be applicable to the entire country or only a part
of it. The 42nd Amendment Act of 1976 enabled the president to limit the operation of a
National Emergency to a specified part of India

in the Minerva Mills case, (1980), the Supreme Court held that the proclamation of a national emergency can
be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous
and irrelevant facts or is absurd or perverse.
Parliamentary Approval and Duration

The proclamation of Emergency must be approved by both the

Houses of Parliament within one month from the date of its issue.
Originally, the period allowed for approval by the Parliament was
two months, but was reduced by the 44th Amendment Act of
1978.
However, if the proclamation of 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 one month 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.

If approved by both the Houses of Parliament, the emergency

continues for six months, and can be extended to an indefinite
period with an approval of the Parliament for every six months.
This provision for periodical parliamentary approval was also
added by the 44th Amendment Act of 1978. Before that, the
emergency, once approved by the Parliament, could remain in
operation as long as the Executive (cabinet) desired
If the dissolution of the Lok Sabha takes place during the
period of six months without approving the further
continuance of
Emergency, 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 mean-time approved its continuation

Every resolution approving the proclamation of emergency or

its continuance must be passed by either House of Parliament by
a special majority, that is,
(a) a majority of the total membership of that house, and
(b) A majority of not less than two-thirds of the members of that
house present and voting. This special majority provision was
introduced by the 44th Amendment Act of 1978. Previously,
such resolution could be passed by a simple majority of the
Parliament.
Revocation of Proclamation

A proclamation of emergency may be revoked by the President at

any time by a subsequent proclamation. Such a proclamation
does not require the parliamentary approval.

Further, the President must revoke a proclamation if the Lok

Sabha passes a resolution disapproving its continuation. Again,
this safeguard was introduced by the 44th Amendment Act of
1978. Before the amendment, a proclamation could be revoked by
the president on his own and the Lok Sabha had no control in this
regard.
The 44th Amendment Act of 1978 also provided that, where
one-tenth of the total number of members of the Lok Sabha give a
written notice to the Speaker (or to the president if the House is
not in session), a special sitting of the House should be held
within 14 days for the purpose of considering a resolution
disapproving the continuation of the proclamation.
A resolution of disapproval is different from a resolution
approving the continuation of a proclamation in the following two
respects:
1. The first one is required to be passed by the Lok Sabha
only, while the second one needs to be passed by the both
Houses of Parliament.
2. The first one is to be adopted by a simple majority only,
while the second one needs to be adopted by a special
majority.
Effects of National Emergency

1. Effect on the Centre-state relations,

2. Effect on the life of the Lok Sabha and State assembly, and
3. Effect on the Fundamental Rights

Effect on the Centre-State Relations

.
(a) Executive
During a national emergency, the executive power of the Centre extends to directing any
state regarding the manner in which its executive power is to be exercised.

In normal times, the Centre can give executive directions to a state only on certain
specified matters.
However, during a national emergency, the Centre becomes entitled to give executive
directions to a state on ‘any’ matter. Thus, the state governments are brought under the
complete control of the Centre, though they are not suspended.
 b) Legislative
During a national emergency, the Parliament becomes empowered to make laws on any subject
mentioned in the State List. The legislative power of a, itstate legislature is NOTSUSPENDED.
The Constitution becomes unitary rather than federal.

The laws made by Parliament on the state subjects during a National Emergency become
inoperative six months after the emergency has ceased to operate

Notably, while a proclamation of national emergency is in operation, the President can issue
ordinances on the state subjects also, if the Parliament is not in session.

The 42nd Amendment Act of 1976 provided that the two

consequences mentioned above (executive and legislative)
extends not only to a state where the Emergency is in operation
but also to any other state.
 Financial
While a proclamation of national emergency is in
operation, the President can modify the constitutional
distribution of revenues between the centre and the states.

This means that The president can either reduce or cancel

the transfer of finances
from Centre to the states.

Such modification continues till the end

of the financial year in which the Emergency ceases to
operate.

Also, every such order of the President has to be laid before

both the Houses of Parliament
 Effect on the Life of the Lok Sabha and State Assembly

While a proclamation of National Emergency is in operation, the life of the Lok Sabha
may be extended beyond its normal term (five years) by a law of Parliament for one
year at a time (for any length of time).

However, this extension cannot continue beyond a period of six months after the
emergency has ceased to operate.

For example, the term of the Fifth Lok Sabha (1971–1977) was
extended two times by one year at a time5 .

Similarly, the Parliament may extend the normal tenure of a state legislative assembly
(five years) by one year each time (for any length of time) during a national emergency,
subject to a maximum period of six months after the Emergency has ceased to
operate
Effect on the Fundamental Rights

Articles 358 and 359 describe the effect of a National Emergency

on the Fundamental Rights. Article 358 deals with the suspension
of the Fundamental Rights guaranteed by Article 19, while Article
359 deals with the suspension of other Fundamental Rights
(except those guaranteed by Articles 20 and 21).

Distinction Between Articles 358 and 359

The differences between Articles 358 and 359 can be summarised
as follows:
1. Article 358 is confined to Fundamental Rights under Article 19 only whereas Article
359 extends to all those Fundamental Rights whose enforcement is suspended by the
Presidential Order.

2. Article 358 automatically suspends the fundamental rights under Article 19 as soon as
the emergency is declared. On the other hand, Article 359 does not automatically suspend
any Fundamental Right. It only empowers the president to suspend the enforcement of
the specified Fundamental Rights.
3. Article 358 operates only in case of External Emergency (that is, when the emergency is
declared on the grounds of war or external aggression) and not in the case of Internal
Emergency (ie, when the Emergency is declared on the ground of armed rebellion). Article 359,
on the other hand, operates in case of both External Emergency as well as
Internal Emergency.

4. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of
Emergency while Article 359 suspends the enforcement of Fundamental Rights for a
period specified by the president which may either be the entire duration of Emergency or a
shorter period.

5. Article 358 extends to the entire country whereas Article 359 may extend to the entire
country or a part of it.

6. Article 358 suspends Article 19 completely while Article 359 does not empower the suspension
of the enforcement of Articles 20 and 21.
 Declarations Made So Far

This type of Emergency has been proclaimed three times so far–

in 1962, 1971 and 1975.
The first proclamation of National Emergency was issued in
October 1962 on account of Chinese aggression in the NEFA
(North-East Frontier Agency–now Arunachal Pradesh), and was in
force till January 1968. Hence, a fresh proclamation was not
needed at the time of war against Pakistan in 1965.
The second proclamation of national emergency was made in
December 1971 in the wake of attack by Pakistan. Even when this
Emergency was in operation, a third proclamation of National
Emergency was made in June 1975. Both the second and third
proclamations were revoked in March 1977.
The first two proclamations (1962 and 1971) were made on the
ground of ‘external aggression’, while the third proclamation
(1975) was made on the ground of ‘internal disturbance’, that is,
certain persons have been inciting the police and the armed
forces against the discharge of their duties and their normal
functioning
 PRESIDENT’S RULE
Grounds of Imposition

Article 355 imposes a duty on the Centre to ensure that the

government of every state is carried on in accordance with the
provisions of the Constitution.

It is this duty in the performance of which the Centre takes over the government
of a state under Article 356 in case of failure of constitutional machinery in
state.
This is popularly known as ‘President’s Rule’. It is also known as
‘State Emergency’ or ‘Constitutional Emergency’.
The President’s Rule can be proclaimed under Article 356 on
two grounds–
one mentioned in Article 356 itself
And
another in Article 365:

1. 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. Notably, the president can act either on a report of the governor
of the state or otherwise too (ie, even without the governor’s report).

2. 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

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 the
Rajya Sabha approves it in the mean time.

If approved by both the Houses of Parliament, 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.

However, if the dissolution of the Lok Sabha takes place during the period of six months
without approving the further continuation of the President’s Rule, 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 its continuance
Every resolution approving the proclamation of President’s Rule
or its continuation can be passed by either House of Parliament
only by a simple majority, that is, a majority of the members of that
House present and voting.
The 44th Amendment Act of 1978 introduced a new provision
to put restraint on the power of Parliament to extend a
proclamation of President’s Rule beyond one year. Thus, it
provided that, beyond one year, the President’s Rule can be
extended by six months at a time only when the following two
conditions are fulfilled:
1. a proclamation of National Emergency should be in
operation in the whole of India, or in the whole or any part of
the state; and
2. the Election Commission must certify that the general
elections to the legislative assembly of the concerned state
cannot be held on account of difficulties.
A proclamation of President’s Rule may be revoked by the
President at any time by a subsequent proclamation. Such a
proclamation does not require the parliamentary approval.
 Consequences of President’s Rule
The President acquires the following extraordinary powers when the President’s Rule is imposed
in a state:
1. He can take up the functions of the state government and powers vested in the governor
or any other executive authority in the state.

2. He can declare that the powers of the state legislature are to be exercised by the Parliament.

3. He can take all other necessary steps including the suspension of the constitutional
provisions relating to any body or authority in the state.

Therefore, when the President’s Rule is imposed in a state, the President dismisses the
state council of ministers headed by the chief minister.

The state governor, on behalf of the President, carries on the state administration with the
help of the chief secretary of the state or the advisors appointed by the President. This is the
reason why a proclamation under Article 356 is popularly known as the imposition of
‘President’s Rule
the President either suspends or dissolves the state
legislative assembly .

The Parliament passes the state legislative bills and the state budget.

When the state legislature is thus suspended or dissolved:

1. the Parliament can delegate the power to make laws for the state to the
President or to any other authority specified by him in this regard,

2. the Parliament or in case of delegation, the President or any other specified

authority can make laws conferring powers and imposing duties on the Centre or
its officers and authorities,

3. the President can authorise, when the Lok Sabha is not in session,
expenditure from the state consolidated fund pending its sanction by the
Parliament, and

4. the President can promulgate, when the Parliament is not in

session, ordinances for the governance of the state.
A law made by the Parliament or president or any other
specified authority continues to be operative even after the
President’s Rule.

This means that the period for which such a law

remains in force is not coterminous with the duration of the
proclamation. But it can be repealed or altered or re-enacted by
the state legislature.

It should be noted here that the President cannot assume to

himself the powers vested in the concerned state high court or
suspend the provisions of the Constitution relating to it.

In other words, the constitutional position, status, powers and functions of

the concerned state high court remain same even during the
President’s Rule.
 Scope of Judicial Review
The 38th Amendment Act of 1975 made the satisfaction of the President in invoking
Article 356 final and conclusive which could not be challenged in any court on any
ground.

But, this provision was subsequently deleted by the 44th Amendment Act of 1978
implying that the satisfaction of the President is not beyondjudicial review.

In Bommai case (1994), the following propositions have been laid down by the Supreme
Court on imposition of President’s Rule in a state under Article 356:

1. The presidential proclamation imposing President’s Rule is subject to judicial

review.

2. The satisfaction of the President must be based on relevant material. The action of
the president can be struck down by the court if it is based on irrelevant or extraneous
grounds or if it was found to be malafide or perverse.

3. Burden lies on the Centre to prove that relevant material exist to justify the
imposition of the President’s Rule.
4. The court cannot go into the correctness of the material or its adequacy but it can see
whether it is relevant to the action.

5. If the court holds the presidential proclamation to be unconstitutional and invalid, it has
power to restore the dismissed state government and revive the state legislative
assembly if it was suspended or dissolved.

6. The state legislative assembly should be dissolved only after the Parliament has
approved the presidential proclamation. Until such approval is given, the president can only
suspend the assembly. In case the Parliament fails to approve the proclamation, the
assembly would get reactivated.

7. Secularism is one of the ‘basic features’ of the Constitution. Hence, a state government
pursuing anti-secular politics is liable to action under Article 356.

8. The question of the state government losing the confidence of the legislative assembly
should be decided on the floor of the House and until that is done the ministry should not
be unseated.

9. Where a new political party assumes power at the Centre, it will not have the authority to
dismiss ministries formed by other parties in the states.

10. The power under Article 356 is an exceptional power and should be used only
occassionally to meet the requirements of special situations.
 Cases of Proper and Improper Use

Based on the report of the Sarkaria Commission on Centre-state Relations (1988), the Supreme
Court in Bommai case (1994) enlisted the situations where the exercise of power under Article
356 could be proper or improper .
Imposition of President’s Rule in a state would be proper in the following situations:

1. Where after general elections to the assembly, no party secures a majority, ‘Hung Assembly’.

2. Where the party having a majority in the assembly declines to form a ministry and the governor
cannot find a coalition ministry commanding a majority in the assembly.

3. Where a ministry resigns after its defeat in the assembly and no other party is willing or able to
form a ministry commanding a majority in the assembly.

4. Where a constitutional direction of the Central government is disregarded by the state

government

5. Internal subversion where, for example, a government is deliberately acting against the
Constitution and the law or is fomenting a violent revolt.

6. Physical breakdown where the government wilfully refuses to discharge its constitutional
obligations endangering the security of the state.
The imposition of President’s Rule in a state would be improper under the following

1. Where a ministry resigns or is dismissed on losing majority support in the assembly and the
governor recommend imposition of President’s Rule without probing the possibility of
forming an alternative ministry.

2. Where the governor makes his own assessment of the support of a ministry in the assembly
and recommends imposition of President’s Rule without allowing the ministry to prove its
majority on the floor of the Assembly.

3. Where the ruling party enjoying majority support in the assembly has suffered a massive
defeat in the general elections to the Lok Sabha such as in 1977 and 1980.

4. Internal disturbances not amounting to internal subversion or physical breakdown.

5. Maladministration in the state or allegations of corruption against the ministr or stringent

financial exigencies of the state.

6. Where the state government is not given prior warning to rectify itself except in case of
extreme urgency leading to disastrous consequences.

7. Where the power is used to sort out intraparty problems o f the ruling party, or for a purpose
extraneous or irrelevant to the one for which it has been conferred by the Constitution.
 FINANCIAL EMERGENCY
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.

The 38th Amendment Act of 1975 made the satisfaction of the

president in declaring a Financial Emergency final and conclusive
and not questionable in any court on any 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.

A proclamation of Financial Emergency may be revoked by the president at anytime by a

subsequent proclamation. Such a proclamation does not require the parliamentary approval.
 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.
This implies two things:
1. there is no maximum period prescribed for its operation; and
2. repeated parliamentary approval is not required for its continuation.

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

House of Parliament only by a simple majority, that is, a majority of the members of that
house present and voting.
 Effects of Financial Emergency
1. The executive authority of the Centre extends to the giving of
(a) directions to any state to observe such canons of financial propriety as may be specified in the
directions; and
(b) such other directions to any state as the President may deem necessary and adequate for the purpose.

2. Any such direction may include a provision requiring

(a) the reduction of salaries and allowances of all or any class of persons serving in the state; and
(b) the 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
.
3. The President may issue directions for the reduction of salaries and allowances of
(a) all or any class of persons serving the Union; and
(b) the judges of the Supreme Court and the high court
While a proclamation of Emergency is in operation, the duration of the Lok Sabha can be extended by
not exceeding
(a) three months
(b) nine months
(c) one year at a time
(d) two years at a time
Ans: (c) While

Which one of the following statements is not correct?

(a) So far , there have been the proclamations of Emergency in whole of India
(b) A written communication of the decision of the Union Cabinet is an essential pre condition for the issue of
proclamation of Emergency in whole of India by the President of India.
(c) Under no circumstances could the enforcement of Fundament al Rights under articles 20 and 21 of the
Constitution of India be denied even during Emergency.
(d) If the Lok Sabha passes a resolution disapproving theproclamationOf Emergency or its continuance, it shall be
revoked within two months
Ans : (d
Who was the President of India at the time of proclamation of emergency in the year 1976?
[2007-I]
(a) V.V Giri
(b) Giani Zail Singh
(c) Fakhr-ud-din Ali Ahmad
(d) Shankar Dayal Sharma
Ans. (c)

IN the SR Bommai vs Union of India case, which one among the following features of the
Constitution of India was
upheld by the Supreme Court as a basic structure?
(a) Liberalism [2013-II]
(b) Secularism
(c) Dignity of the human person
(d) Freedom of religion
Ans. (b)
Under Article 352 of the Constitution of India, an emergency can be declared it security of any part of
India is threatened by [2016-II]
1. war
2. external aggression
3. armed rebellion
4. internal disturbance
Select the correct answer using the code given below.
(a) 1, 2 and 3
(b) 2, 3 and 4
(c) 1, 3 and 4
(d) 1 and 2 only
Ans. (a)

When a Proclamation of Emergency is in operation, the right to move a Court for the enforcement of all
Fundamental Rights remains suspended, except (CDS-1-2019)
(a) Article 20 and Article 21
(b) Article 21 and Article 22
(c) Article 19 and Article 20
(d) Article 15 and Article 16
Ans. (a)
Which one of the following statements about emergency provisions under the Constitution of India
is not correct?
[2017-II]
(a) The powers of the Union Executive extend to giving directions to the States concerning the
exercise of their powers.
(b) The Union Executive can issue a provision relating to reduction of salaries of employees of the
State Governments.
(c) Governors have no emergency powers like the President of India.
(d) If the Governor of a State is satisfied that a situation has arisen whereby the financial stability
or credit of
the State is threatened, he may declare financial emergency in the State.
Ans. (d)

The idea of including the Emergency provisions in the Constitution of India has been borrowed from the [2009-I]
(a) Constitution of Canada
(b) Weimar Constitution of Germany
(c) Constitution of Ireland
(d) Constitution of the USA
Ans: (b)
The President of India can issue proclamation of Emergency [2014-II]
(a) on the advice of the Prime Minister
(b) on the advice of the Council of Ministers
(c) in his own discretion
(d) when the decision of the Union Cabinet for the issue of such proclamation has been communicated to
him in writing
Ans: (d)

The word socialist was inserted into the preamble to the constitution of India through which one of the following
Amendment Acts? [2018-II]
(a) 41st Amendment Act
(b) 42nd Amendment Act
(c) 43rd Amendment Act
(d) 44th Amendment Act
Ans: (b)

An emergency under Article 352 of the Constitution of India can be declared only during: [2015-II]
(a) War, external aggression or internal disturbance.
(b) War, external aggression or armed rebellion.
(c) Failure of Constitutional Machinery in the State.
(d) Financial instability in the country.
Ans: (b)