Emergency Provisions

 Emergency Provisions Part XVIII Articles 352-360

 Enable Central Govt to meet any abnormal situation effectively to
safeguard sovereignty, unity, integrity & security of the country
 Converts federal structure into unitary system without CAA
 American System rigid, always federal no matter what
 3 types of Emergencies:
o Article 352 Emergency due to war, external aggression, armed
rebellion called ‘National Emergency’, CoI -> ‘proclamation of
emergency’
o Article 356 Emergency due to failure of constitutuional
machinery in states, aka ‘President’s Rule’/State Emergency/
Constitutional Emergency, CoI -> doesn’t use word emergency
o Article 360 Financial Emergency due to threat to financial
stability or credit of India (ability of India to pay its debt).

Article 352 -> National Emergency:

Proclamation of Emergency: If the President is satisfied that a grave Emergency
exists, whereby security of India or any part of the territory is threatened
whether by war or external aggression or armed rebellion, he may by
Proclamation make a declaration to that effect in respect of whole of India or
such part of territiory ………………( armed rebellion -> added by 44th CAA 1978,
entire country or ‘part of it’ -> added by 42nd CAA 1976)
Ground of Declaration:
 War/external aggression/armed rebellion
 President can declare it even before actual occurrence of war… if there is
imminenet danger.
 President can issue different proclamations on diff grounds whether or
not there is proclamation already issued & in operation….(added by 38th
CAA 1975)
 War/ External Aggression External Emergency
 Armed Rebellion Internal Emergency
  Originally ‘Internal Disturbance’ -> 3rd ground but 44th CAA 1978 
Armed rebellion, because term was too vague (used by Indiraji in 1975)
 President can proclaim National Emergency only after receiving
written recomm from Cabinet…(Articl 352 defines Cabinet -> PM + other
Mins of cabinet rank)
 1975, Indira Gandhi advised President to proclaim emergency without
consulting cabinet, cabinet informed about it after proclamation as fait
accompli
 38th CAA 1975 Declaration of National Emergency immune from
judicial review, 44th CAA 1978 deleted this provision
 Minerva Mills Case, 1980 Proclamation of National Emergency can be
challenged on ground of malafide/ declaration was based on wholly
extraneous & irrelevant facts or is absurb/perverse

Parliamentary Approval & Duration:

 Must be approved by both Houses within 1 month of date of issue
o Originally 2 months, 44th CAA 1978 1 month
 If LS dissolved or dissolution takes place in that 1 month  proclamation
survives until 30 days from 1st sitting of LS after reconstitution, provided
RS has approved in meantime.
 If approved by by both Houses  Emergency continues for 6 months,
can be extended indefinitely with an approval of Parlia for every 6
months
o Periodical Parlia approval  added by 44th CAA 1978
o Before, once approved could remain in operation as long as
Executive (Cabinet) desired
 If LS dissolved during 6 months period without approval of further
continuance Proclamation survives until 30 days from 1st sitting of LS
after reconstitution, provided RS has approved in meantime
 Resolution approving proclamation of Emergency/ continuance 
Passed by each House by Special majority -> majority of total
membership of House + majority of not less than 2/3rd members Present
& Voting
o Added by 44th CAA 1978
o Before simple majority
Revocation of Proclamation:
 by President at any time by subsequent Proclamation Parliamentary
approval not required
 President must revoke if  LS passes resolution disapproving it
o Added by 44th CAA 1978
o Before only President can revoke, LS no control
o 1/10th of total members of LS give written notice to Speaker/
President if House not in session  special session to be held
within 14 days for purpose of considering resolution disapproving
the continuation of proclamation
 Resolution of Disapproval Requires to be passed only by LS only by
simple majority

Effects of National Emergency:

1) Effect on Centre-State Relations:
 Executive State Govt’s under complete control of Centre, not
suspended. Centre becomes entitled to give executive directions to state
on any matter
 Legislative Parliament empowered to make laws on subjects in State
List, legislative power of State subject to overridng power of Parliament,
normal distribution of legislative powers suspended
o Laws made by Parlia on State subjects during National Emergency
 inoperative 6 months after Emergency has ceased to operate
o President can issue ordinance on state subjects if Parliament not in
session during Emergency
o Parliament can confer powers & impose duties on Centre or its
officers/authorities wrt matters outside Union List in order to carry
out laws made by it
o Both Executive & Legislative consequences extends not only to a
State where Emergency is in operation but also to any other state
 Financial President can modify constitutional distribution of revenues
between centre & states, can either reduce/cancel transfer of finances
from Centre to States.
o Such modification continues till end of financial year in which the
Emergency ceases to operate.
 o Every order of President laid before both Houses of Parliament.

2) Effects on the Life of LS & State Assembly:

 Life of LS can be extended by law of Parliament  for 1 year at a time for
any length of time.
 Extension cannot continue beyond 6 months after emergency cease to
operate.
 5th LS term expire -> 18th March 1976, extended by 1 year & further by 1
more to 18th March 1978, but House dissolved on Jan 1977
 Similarly Parliament may extend tenure of State Legislative Assembly

3) Effect on Fundamental Rights:

Articl 358 deals with suspension of FR guaranteed by Article 19
Articl 359 suspension of other FR except those guaranteed by Articles 20, 21
 Article 358 Suspension of FR under Article 19:
o On proclamation of National Emergency 6 FRs under Article 19
are automatically suspended, extends to entire nation
o State can make any law/ take any executive action which abridges
or take away any rights conferred by Article 19
o When National Emergency ceases to operates Article 19
automatically revives, any law violative of it ceases to operate.
o No remedy for anything done during Emergency after it ceases
o 44th CAA 1978 restricted Article 358 scope in 2 ways
 Rights under article 19 suspended only on grounds 
External Aggression or War
 Laws related to Emergency are protected from being
challenged, not other laws -> executive action only under
such law is protected
 Article 359 Suspension of other FR except under Articles 20,21
o Authorises President to suspend right to move to any court for
enforcement of FRs during National Emergency.
 Only such rights as mentioned in Presidential Order.
 Suspension could be for the emergency period or shorter as
mentioned & may extend to whole or any part of country.
  Should be laid before both Houses
 FRs not automatically suspended when emergency
declared.
o Not FR but their enforcement is suspended-> right to remedy is
suspended, FR are theoretically alive
o When Presidential Order in force, State can make law abridging/
violating FR or take any such executive action & same cannot be
challenged on ground they are insconsistent with FRs
o When Order cease to operate, law inconsistent with FR cease to
have effect, no remedy for anything done during Emergency
o 44th CAA 1978 restricted Article 359 scope in 2 ways
 President cannot suspend right to move Court for
enforcement of FRs under Articles 20, 21
 Laws relating to emergency are protected from being
challenged, not others, executive action under such is prote

Declarations made so far:

 3 times 1962, 1971, 1975
 Oct 1962 Chinese aggression on NEFA now Arunachal Pradesh, in force
till 1968, so not proclaimed during 1965 war with Pak
 Dec 1971 in Wake of attack by Pakistan
 June 1975 1971 Emergency in operation, another proclamation made
in 1975 -> both revoked in 1977
 1962, 1971 External aggression
 1975 Internal Disturbance, certain ppl inciting police, armed forces
against discharge of their duties & normal functioning.
 1975 Emergency most controversial, widespread criticism
o Elections in 1977, Janata Party came to power
o Appointed Shah Commission to investigate circumstances that led
to 1975 Emergency Commission didn’t justify Emergency hence
44th CAA 1978 enacted to introduce no. of safeguards
President’s Rule:
Article 355 Duty of Union to protect every State against external aggression
& internal disturbance & ensure that Govt of every State is carried in
accordance with provisions of Constitution
Article 356 If President on receipt of report from Govenor of State is satisfied
that situation has arisen where Govt of State cannot be carried in accordance
with provisions of Constitution, may take over the Government of State
Grounds of Imposition:
 Centre takes over Govt of State under Article 356 due to failure of
constitutional machinery in state.
 Popularly known as  President’s Rule
 Aka State Emergency/ Constitutional Emergency
 Article 356 empowers President to take control of state if satisfied that
Govt of state cannot be carried in accordance with CoI, can act either on
Governor’s Report or otherwise too.
 Article 365 Whenever State fails to comply with or to give effect to any
direction from Centre it will be lawful for President to hold that situation
has arisen where Govt of State cannot be carried in accordance with CoI

Parliamentary Approval & Duration:

 Proclamation imposing President’s Rulemust be approved by both
Houses within 2 months from date of issue
 If LS dissolved or dissolution during those 2 months  proclamation
survives until 30 days from 1st sitting of LS after reconstitution, provided
RS approves it in mean time.
 Once approved Continues for 6 months
o Can be extended for max 3 years with approval of Parliament for
every 6 months.
o If LS dissolved in those 6 months without approving further
continuation, proclamation survives 30 days from 1st sitting of LS
provided RS has approved in the meantime.
o 42nd CAA 1976 raised period of 6 months to 1 year but 44th CAA
deleted it.
 o President’s Rule imposed in 1987 in Punjab allowed to continue
for 5 years under 68th CAA 1991.
o Resolution approving proclamation/ continuation simple
majority, majority of members present & voting
o 44th CAA 1978 introduced new provision to put restraint to extend
proclamation beyond 1 year, 2 conditions must be fulfilled
 Proclamation of National Emergency should be in operation
in whole of India or in whole or any part of State
 Election Commission must certify that General Elections to
legislative Assembly of concerned state cannot be held on
account of difficulties.
o Proclamation can be revoked by President at any time by
subsequent proclamation, parlia approval not required.

Consequences of President’s Rule:

 President acquires following powers:
I. Can take up functions of state govt & powers vested in Governor or any
other executive authority in state
II. Can declare that powers of state legislature to be exercised by
Parliament.
III. Can take all necessary steps including suspension of constitutional
provisions relating to any body or authority in state.
 During President’s Rule he dismisses State CoM headed by CM
o State Governor on behalf of President carries state
administration with help of Chief Secretary or advisors appointed
by President.
 President either dissolves/suspends State Legislative Assembly
o Parlia passes state legislative bills, budget
o In case of dissolution, fresh elections are conducted
 When state legislature suspended/dissolved
o Parliament can delegate power to make laws for State to President
or any other authority specified by him in this regard
o Parliament or in case delegation, the President or the authority
can make laws conferring powers & imposing duties on Centre or
its officers & authos
 o President can authorise when LS not in session, expenditure from
State Consolidated fund pending its sanction from Parliament.
 Law made by Parliament/President/Specified Autho operative even
after President’s Rule, can be repealed/altered by state legislature
 Constitutional posn, status, power & funcs of State HC remain same
during President’s rule, he cant assume/suspend it

Use of Article 356:

 Has been used 125+ times since 1950, mostly arbitrarily for
political/personal reasons
 After 1977 General elections Janata Party in power headed by Morarji
Desai imposed President’s Rule in 9 states (Held by Congress) on
ground Assemblies there didn’t represent wishes of electorate. When
Congress returned to power in 1980 it did same in 9 states
 Dr Ambedkar while replying to criticism of this provision in Constituen
Assembly said that this drastic power conferred by Article 356 would
remain a dead letter & be use as a measure of last resort.
 Dead letter Deadly weapon

Scope of Judicial Review:

 38th CAA 1975, President invoking Article 356 final, cant be challenged
 44th CAA 1978 deleted this provision
 Bommai Case 1994, SC Presidential proclamation imposing President’s
rule is subject to judicial review, must be on relevant material, burden
lies on Centre to justify.
o If malafide Court has power to resotre State Govt, revive
Assembly
o State Legislative Assmebly must be dissolved only after Parliament
has approved presidential proclamation, till then can be suspende

Case of Proper/Improper Use:

Based on report of Sarkaria Commission on Centre-State relation, SC in
Bommai Case 1994 enlisted situations of proper/improper use of Article 356:
Proper:
 Hung Assembly after general elections
 Party having majority declines to form govt, Gov cannot find coalition
 Ministry resigned due to defeat, no other party willing/able to form govt
 Constitutional direction of Centre disregarded by State Govt
 Govt acting against Constitution, violent revolt
 Physical breakdown, Govt refusing to discharge its constitutional
obligations
Improper:
 Ministry resigns due to defeat, Gov recomm President’s rule without
finding possibility of alternate govt
 Without allowing Ministry to prove its confidence based on extraneous
facts
 Internal disturbances not amounting to physical breakdown or internal
subversion
 Maldmnistration or allegations of corruption against ministers
 When state govt not given prior warning to rectify itself except in case of
extreme urgency
 When power is used to sort out intra party problems of ruling party

Financial Emergency: Articl 360

Grounds of Declaration:
 Aricle 360 Empowers President to proclaim financial emergency if
satisfied that situation has arisen where financial stability or credit of
India or any part of its territory is threatened.
 38th CAA 1995 -> satisfaction of President final cant be challenged, 44th
CAA 1978 deleted it.
Parliamentary Approval & duration:
 Must be Approved by both Houses within 2 months
 If LS dissoved at that time, it must be approved by LS within 30 days from
1st sitting provided RS has approved in mean time.
  Once approved by both Houses Financial Emergency continues
indefinitely, no max period prescribed & repeated parlia approval not req
 Resolution for approval Simple majority, majority of mems present &
voting
 Proclamation can be revoked by President at any time

Effects of Financial Emergency:

 Executive Authority of Centre extends to giving
o Directions to any state to observe canons of financial propriety
o Such other directions as President may deem necessary
 Directions may include
o Reducn of salary, allownaces of all/any class of persons serving in
state
o Reservation of money bills/other financial bills for consideration of
President after passed by legislature
 President may issue directions for reducn in salaries, allownaces of
o All/any class of persons serving the Union
o Judegs of SC, HC
 Centre acquires full control over States financial matters
 Dr BR Ambedkar Article 360 in line with National Recovery Act of USA
passed in 1933 which gave President power to make similar prvisions in
order to remove economic & financial difficulties as a result of Great
Depression. Accepted possibility of misuse.
 No financial Emergency declared so far
Criticism of the Emergency Provisions:
 Federal character will be destroyed, Union will become more powerful
 Concentration of power in Unio
 Financial autonomy of states will be nullified
 FR will become meaningless, Constitition will be destroyed
 The President & Ececutive would exercise a form of constitutional
dictatorship
For:
 Work as safety valve, help in maintenance of CoI