Introduction
Part XVIII (Articles 352–360) of the Indian Constitution contains the emergency provisions. These clauses enable the Central Government to handle exceptional events that might compromise the democratic political system, the Constitution itself, the sovereignty, unity, integrity, and security of the country, or any other aspect. The Centre takes broad authority during an emergency and the states come under its direct control. Without a formal constitutional change, this brief metamorphosis renders India’s federal system a unitary one.
Dr. B.R. Ambedkar on Emergency Provisions
Dr. B.R. Ambedkar highlighted this flexibility in the Constituent Assembly:
“All federal systems, including the American system, are placed in a tight mould of federalism. No matter what the circumstances, it cannot change its form and shape; it can never be unitary. On the other hand, the 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.“
Types of Emergency
The Indian Constitution provides for three types of emergencies:
- National Emergency (Article 352)
- Declared due to war, external aggression, or armed rebellion.
- Officially termed “Proclamation of Emergency” in the Constitution.
- Effect: The Centre assumes vast powers, and fundamental rights can be suspended.
- State Emergency / President’s Rule (Article 356)
- Declared when there is a failure of constitutional machinery in a state.
- Also known as “President’s Rule” or “Constitutional Emergency” (though the term “emergency” is not used in the Constitution for this situation).
- Effect: The state government is dismissed, and the Centre directly administers the state.
- Financial Emergency (Article 360)
- Declared when India’s financial stability or credit is threatened.
- Effect: The Centre can reduce government salaries, control financial operations, and direct states on financial matters
National Emergency (Article 352)
Grounds for Declaration
Under Article 352, the President can declare a National Emergency when the security of India or any part of it is threatened due to:
- War
- External Aggression
- Armed Rebellion (Previously termed as “Internal Disturbance”)
- Preemptive Declaration: The President can declare a National Emergency even before the actual occurrence of war, external aggression, or armed rebellion, if there is an imminent danger.
- Multiple Proclamations: The President can issue separate proclamations for different grounds (war, external aggression, armed rebellion) even if a previous proclamation is already in operation. (Added by the 38th Amendment Act, 1975).
Types of National Emergency
- External Emergency – Declared on the grounds of war or external aggression.
- Internal Emergency – Declared on the grounds of armed rebellion.
Scope of Application
- A National Emergency can be declared for the entire country or a specific part of India. (42nd Amendment Act, 1976 introduced this provision.)
Key Constitutional Amendments
- Original Provision: “Internal disturbance” was the original basis for declaring emergency under the Constitution, but this term was too ambiguous.
- The 44th Amendment Act of 1978 made the term “armed rebellion” more precise by replacing “internal disturbance.” The purpose of this amendment was to stop the abuse of the Emergency provisions, which occurred in 1975 when the government of Indira Gandhi declared an emergency on ambiguous grounds.
- The Declaration Procedure
- The Union Cabinet must submit a written recommendation before the President can declare a national emergency. (Act of 1978, 44th Amendment)
- For what reason was this safety measure implemented?
- Prime Minister Indira Gandhi suggested in 1975 that the President declare a state of emergency without first consulting the Cabinet.
- After the proclamation was made, the Cabinet was notified.
To prevent such unilateral decisions, the 44th Amendment made it mandatory for the entire Cabinet’s approval before declaring Emergency.
Judicial Review of National Emergency
- 38th Amendment Act, 1975: Made the proclamation of Emergency immune from judicial review.
- 44th Amendment Act, 1978: Revoked this immunity, allowing courts to review Emergency declarations.
- Supreme Court Ruling (Minerva Mills Case, 1980):
- The proclamation of Emergency can be challenged in court if:
- It is issued with malafide intent.
- It is based on extraneous, irrelevant, or absurd reasons.
- It is perverse or unconstitutional.
- The proclamation of Emergency can be challenged in court if:
Parliamentary Approval and Duration of National Emergency
Parliament’s approval
Within a month of the declaration of national emergency, both houses of parliament must approve it. (The 44th Amendment Act of 1978 shortened this period from two months to one month.)
- If the Lok Sabha is dissolved or gets dissolved within this one-month period without approving the Emergency, the proclamation remains valid until:
- 30 days from the first sitting of the newly reconstituted Lok Sabha,
- Provided the Rajya Sabha has approved the proclamation in the meantime.
Duration and Extension
- Once approved, the Emergency remains in force for six months.
- It can be extended indefinitely, but only with Parliamentary approval every six months. (This provision was added by the 44th Amendment Act, 1978. Before this, an Emergency could continue as long as the Executive (Cabinet) desired.)
- If the Lok Sabha is dissolved during this six-month period without approving an extension, the Emergency survives until 30 days from the first sitting of the newly reconstituted Lok Sabha, provided the Rajya Sabha has approved it.
Special Majority Requirement
- Every resolution approving or extending a National Emergency must be passed by both Houses of Parliament with a special majority, meaning:
- A majority of the total membership of the House, and
- A two-thirds majority of members present and voting.
- Before the 44th Amendment Act, 1978, such a resolution could be passed with a simple majority. This amendment introduced the special majority requirement to prevent the misuse of Emergency provisions.
Revocation of National Emergency
A National Emergency does not last indefinitely. In order to prevent the executive branch from abusing its emergency powers, the constitution contains explicit provisions for its revocation.
How Is It Possible to End a National Emergency?
By the President
- By issuing a new proclamation, the president can revoke the proclamation of emergency at any time.
- This revocation does not need parliamentary approval.
- By the Lok Sabha
- The President must end the Emergency if the Lok Sabha adopts a resolution opposing its continuation.
- The 44th Amendment Act of 1978 established this safeguard to stop the government from arbitrarily extending the state of emergency.
- The Lok Sabha lacked the authority to impose an Emergency revocation prior to this amendment. The President might carry on.
Procedure for Disapproval of Emergency
- If one-tenth of the total Lok Sabha members submit a written notice to:
- The Speaker, if the House is in session, or
- The President, if the House is not in session,
then a special sitting of the Lok Sabha must be convened within 14 days to consider a resolution disapproving the continuation of the Emergency.
Key Differences Between Approval and Disapproval Resolutions
| Aspect | Approval of Emergency | Disapproval of Emergency |
|---|---|---|
| Who Passes It? | Both Lok Sabha & Rajya Sabha | Only Lok Sabha |
| Majority Required? | Special majority (Majority of total membership & 2/3rd of members present and voting) | Simple majority |
Effects of National Emergency in India
A National Emergency severely transforms governance, influencing Centre-State relations, legislative tenures, and Fundamental Rights.
1. Effect on Centre-State Relations
- Executive: The Centre takes over the administration of the states, making directives on every subject.
- Legislative: Parliament may enact laws on State List subjects; state legislatures remain but in a subservient role.
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: The President may change financial allocations to states until the Emergency is over.
2. Effect on Lok Sabha & State Assemblies
- The term of Lok Sabha and the State Assemblies can be extended for more than five years by one year at a time.
- This cannot happen more than six months after revocation of Emergency.
3. Effect on Fundamental Rights
- Article 19 Rights (speech, movement, etc.) get automatically suspended but automatically revived on ending of Emergency.
- Article 359 permits suspension of court remedies under Fundamental Rights with the exception of Articles 20 & 21 (protection against conviction & right to life).
- Steps taken during the Emergency cannot be questioned afterwards.
- Safeguards by 44th Amendment (1978)
- Article 19 is suspended only in war/external aggression, but not armed rebellion.
- Courts are still open for Articles 20 & 21 violations.
- A National Emergency concentrates power in the Union government but is now limited to avoid abuse, as in the 1975 Emergency.
Distinction Between Articles 358 and 359
| Criteria | Article 358 | Article 359 |
|---|---|---|
| Scope | Applies only to Article 19 (Fundamental Rights). | Applies to any Fundamental Right whose enforcement is suspended by the Presidential Order. |
| Automatic vs. Discretionary Suspension | Automatically suspends Article 19 when an Emergency is declared. | Does not automatically suspend rights but empowers the President to suspend their enforcement. |
| Type of Emergency | Applies only in External Emergency (war/external aggression). | Applies to both External and Internal Emergency (including armed rebellion). |
| Duration | Suspends Article 19 for the entire duration of the Emergency. | Suspends enforcement for a specific period set by the President. |
| Geographical Application | Applies to the entire country. | Can apply to the entire country or a part of it. |
| Exempted Rights | Completely suspends Article 19. | Cannot suspend Articles 20 & 21 (protection in conviction & right to life). |
| State Actions & Laws | Allows the State to make laws or take actions inconsistent with Article 19. | Allows the State to make laws or take actions inconsistent with suspended Fundamental Rights. |
| Legal Protection | Protects only laws related to the Emergency from legal challenge. | Protects only laws related to the Emergency from legal challenge. |
| Executive Action | Executive actions taken under these laws cannot be challenged. | Executive actions taken under these laws cannot be challenged. |
National Emergency Declarations in India
| Year | Reason | Duration | Remarks |
|---|---|---|---|
| 1962 | Chinese Aggression in NEFA (now Arunachal Pradesh) | October 1962 – January 1968 | Declared during the Indo-China War; continued during the Indo-Pak War (1965) without a fresh proclamation. |
| 1971 | War with Pakistan | December 1971 – March 1977 | Declared due to external aggression during the Bangladesh Liberation War. |
| 1975 | Internal Disturbance | June 1975 – March 1977 | Declared by Indira Gandhi citing threats to law and order. Highly controversial, led to suspension of civil liberties. Overturned after Janata Party’s victory in 1977 elections. |
The basis for the 1962 and 1971 emergencies was external aggression. The 1975 Emergency was founded on internal unrest, which sparked political shifts and broad criticism. Shah Commission (1977) found the 1975 Emergency unjustified, leading to 44th Amendment (1978) to prevent misuse of Emergency provisions.
President’s Rule (Article 356)
Grounds of Imposition
- The President may enforce President’s Rule under Article 356 if he is convinced that a state government is unable to operate in accordance with the Constitution. This may or may not be based on a governor’s report.
- Furthermore, Article 365 stipulates that the President may presume that constitutional governance has collapsed if a state disregards the directives of the Center.
Duration and Parliamentary Approval
- It takes two months for both Houses of Parliament to approve a proclamation of President’s Rule. If accepted, it lasts for six months, and with parliamentary approval every six months, it can be extended for up to three years.
However, beyond one year, an extension is allowed only if:
- A National Emergency is in force.
- The Election Commission certifies that elections cannot be conducted.
The President can revoke the proclamation anytime without parliamentary approval.
Implications of the President’s Rule
- The president takes on executive authority over the state when the President’s Rule is enforced. Parliament may take over the state legislature’s legislative authority in the event that it is suspended or dissolved.
- If Parliament is not in session, the President may issue ordinances for governance and approve spending from the state’s consolidated fund.
- Crucially, the judiciary is unaffected and the President cannot assume the authority of the High Court, even though the legislative and executive branches move to the Center.
Application of Article 356
- More than 125 times since 1950, President’s Rule has been enforced, frequently for political rather than actual constitutional emergencies. Widespread criticism resulted from this, particularly in the 1970s and 1980s. The 44th Amendment (1978) introduced safeguards against its misuse.
- In the S. R. Bommai case (1994), the Supreme Court ruled that judicial review applies to the President’s Rule, ensuring that it cannot be misused arbitrarily.
Comparison: National Emergency vs. President’s Rule
| Criteria | National Emergency (Art. 352) | President’s Rule (Art. 356) |
|---|---|---|
| Grounds | Declared during war, external aggression, or armed rebellion. | Declared when a state government fails to function as per the Constitution. |
| Effect on State | State govt. continues, but the Centre gains control over administration and lawmaking. | State govt. is dismissed, legislature suspended or dissolved, and the President rules via the Governor. |
| Legislative Power | Parliament can make laws on State List subjects but cannot delegate this power. | Parliament can delegate law-making to the President or other authority. |
| Duration | No maximum limit, requires approval every 6 months. | Max: 3 years, with conditions after 1 year. |
| Centre-State Impact | Affects all states. | Affects only the concerned state. |
| Parliamentary Approval | Needs a special majority. | Needs a simple majority. |
| Fundamental Rights | Can be suspended (Article 19 & others via Article 359). | No effect on Fundamental Rights. |
| Revocation | The President or Lok Sabha can revoke. | Only the President can revoke. |
1951: Punjab saw the first implementation of President’s Rule.
1977: Citing a lack of public mandate, the Janata Party government overthrew Congress-led administrations in nine states following the Emergency.
1980: Congress, after regaining power, dismissed 9 Janata Party-led state governments, using the same justification.
1992: The Congress government imposed President’s Rule in Madhya Pradesh, Himachal Pradesh, and Rajasthan for allegedly not enforcing a religious ban. In the Bommai case (1994), the Supreme Court subsequently upheld it, citing secularism as a fundamental characteristic.
1988, 1989, 1991: The Supreme Court subsequently ruled that the impositions in Nagaland (1988), Karnataka (1989), and Meghalaya (1991) were unconstitutional.
Ambedkar’s Expectation vs. Reality:
Dr. B.R. Ambedkar hoped Article 356 would remain a “dead letter”, used only in extreme cases.
However, history shows frequent and controversial misuse, leading critics like H.V. Kamath to remark: “Dr. Ambedkar is dead, but the Articles are very much alive.”
Judicial Review of President’s Rule (Article 356)
1.Imposition of the President’s Rule
2.Is Judicial Review Permitted?
- There was no judicial review prior to the 44th Amendment (1978) (38th Amendment, 1975).
- Judicial review was allowed following the ratification of the 44th Amendment in 1978.
3.Supreme Court’s Bommai Case (1994) Guidelines:
- Presidential proclamations can be challenged in court.
- The President’s satisfaction must be based on relevant material.
- If action is based on irrelevant, malafide, or extraneous grounds, courts can strike it down.
- Burden of proof lies on the Centre to justify the imposition of President’s Rule.
- Courts cannot question the adequacy of material, only its relevance.
4. Judicial Outcomes:
- If Valid → President’s Rule continues.
- If Invalid → Courts can:
- Reinstate dismissed government.
- Revive dissolved state assembly.
5. Additional Safeguards:
- Only with parliamentary approval the state assembly can be dissolved.
- States that violate the “basic feature” of secularism risk being subject to Article 356.
- The House floor should be used to test legislative confidence.
- State governments cannot be dismissed because of a change in the federal government.
- Article 356 should be used sparingly because it is an emergency power and not a political instrument.
Proper & Improper Use of President’s Rule (Article 356)
(As per Sarkaria Commission & Bommai Case, 1994)
1. Proper Use
- Hung Assembly – No majority after elections.
- No Alternative Govt. – No party willing/able to form a ministry.
- Govt. Resigns – No viable replacement.
- Defiance of Centre – State disobeys constitutional directives.
- Internal Subversion – State acts against the Constitution.
- Governance Breakdown – Govt. refuses to function.
2. Improper Use
- Without Floor Test – Dismissal without Assembly vote.
- Lok Sabha Defeat – Misused after ruling party’s loss in national polls.
- Minor Disturbances – Used for routine law-and-order issues.
- Political Motives – Misused for corruption, financial crisis, or party disputes.
- No Warning – Imposed without allowing correction.
Financial Emergency (Article 360)
Grounds for Declaration
- Declared whenever there is a threat to India’s credit or financial stability.
- Judicial review was first prohibited by the 38th Amendment in 1975, but it was reinstated by the 44th Amendment in 1978.
Parliamentary Approval & Duration
- Must be approved within 2 months by both Houses.
- If Lok Sabha dissolves, it survives 30 days after its reconstitution (if Rajya Sabha has approved).
- No time limit for its continuation; remains until revoked.
- Simple majority needed for approval.
Effects of Financial Emergency
- Centre’s Control Over States:
- Directs on financial matters.
- Orders salary reductions for government employees.
- Requires money bills to be reserved for the President.
- Salary Cuts: Applies to Union employees & Judiciary (SC & HC judges).
Significance
- Strengthens Centre’s authority over states in financial crises.
- Inspired by the U.S. National Recovery Act (1933) during the Great Depression.
Never declared so far, despite the 1991 economic crisis.
Criticism of Emergency Provisions
1.Concerns Raised in the Constituent Assembly
- Federalism is being eroded by an overabundance of power concentration.
- Dictatorial Powers: The Union Executive and President gain absolute authority.
- State autonomy is lost, and states’ financial independence is revoked.
- Undermining democracy is a threat to fundamental rights.
- Fear of a police state is one of the totalitarian tendencies (H.V. Kamath)
2.Key Criticisms
- K.T. Shah: Provisions empower the Centre against both states and people.
- T.T. Krishnamachari: Warned of a constitutional dictatorship.
- H.N. Kunzru: Feared threat to states’ financial autonomy.
3.Support for Emergency Provisions
- Sir Alladi Krishnaswami Ayyar: Called them the “life-breath of the Constitution.”
- Mahabir Tyagi: Viewed them as a “safety valve” for stability.
- Dr. B.R. Ambedkar: Acknowledged risk of misuse for political purposes.
