EMERGENCY PROVISIONS

A state of emergency in India refers to a period of governance under an altered constitutional setup
that can be proclaimed by the President of India, when they perceives grave threats to the nation
from internal and external sources or from financial situations of crisis. Under the advice of the
cabinet of ministers and by invoking relevant provisions of the Constitution of India, the President
can proclaim national emergency or financial emergency or imposition of president’s rule in the
concerned state. Such proclamation alters certain provisions of the constitution, which guarantee
fundamental rights to the citizens of India and govern devolution of powers to the states.
Proclamation of an emergency is a very serious matter as it disturbs the normal fabric of the
Constitution and adversely affects the rights of the people. Such a proclamation should, therefore,
be issued only in exceptional circumstances. The term emergency maybe defined as a difficult
situation arising suddenly and demanding immediate action by public authorities under powers
specially granted to them by the Constitution. The Emergency provisions are contained in Part
XVIII of the Constitution, from Articles 352 to 360. 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. The Constitution of India
stipulates three types of emergency.

1. National Emergency (Article 352)

2. State Emergency (Article 356)

3. Financial Emergency (Article 360)

National Emergency (Article 352)

Under Article 352(1), 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 by proclamation impose national emergency. Such a proclamation may be made
in respect of the whole of India, or such part of the Indian territory as may be specified in the
proclamation. Article 352(1) means that the proclamation imposing emergency need not extend to
the whole of India. It can be restricted to a part of the Indian territory. A proclamation of emergency
can also be made before the actual occurrence of war, external aggression or armed rebellion.

Safeguards introduced by 44th amendment act, 1978.

1. Before 44th amendment act, 1978, an emergency could be declared on the grounds of war,
external aggression or ‘internal disturbance’. The expression ‘internal disturbance’ was too
vague and broad. The 44th Constitutional Amendment substituted the words ‘armed
rebellion’ for ‘internal disturbance’ to exclude the possibility of imposition of emergency
on the ground of ‘internal disturbance’ only not involving armed rebellion, as happened in
1975.. As a proclamation of emergency under Article 352 has a very serious impact on the
powers of the States as well as the Fundamental Rights of the people the substitution of the
words ‘internal disturbance’ by the words “armed rebellion” limit the invocation of Article
352 only to more serious situations where there is a threat to the security of the country, or
a part thereof.
2. In 1975 that the President proclaimed emergency on the advice of the Prime Minister alone
and without any collective consultation with the Council of Ministers. The 44th
Amendment act introduced a clause via Art. 352(3), mandating that the President cannot
issue a proclamation of emergency or a proclamation varying it, unless the decision of the
Union Cabinet (that is 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. This means that the decision to issue such a proclamation
has to be arrived at collectively by the Cabinet and not by the Prime Minister alone without
consulting the Cabinet.
3. Every proclamation imposing national emergency is to be laid before each House of
Parliament. A proclamation will automatically cease after one month if it is not approved
by resolutions of both Houses of Parliament. Earlier the period allowed for parliamentary
 approval of the proclamation was two months. The 44th Amendment act has reduced it to
one month.
4. Before the 44th Amendment act the resolution approving the imposition of the national
emergency was to be passed by a simple majority in each House of the parliament. 44th
Amendment act lays down that a resolution approving the proclamation of emergency (or
one varying it) has to be passed by each House by a majority of the total membership of
each House and not less than two-thirds of the majority of the members present and voting
in each House.
5. Before the 44th Amendment once approved by the two Houses, the proclamation imposing
emergency could remain in force as long as the government desired. There was no
provision for periodical parliamentary review of the need for continuance of the
emergency. 44th Amendment act lays down that once approved by Parliament, the
proclamation of emergency remains in force, only for six months from the date of the
passing of resolution by the parliament. For continuance of the emergency beyond the
period of six months parliamentary approval is needed again. Thus, each time Parliament
approves the proclamation, its life is extended for six months.
6. Another safeguard introduced by the 44th Amendment is that the President shall revoke a
proclamation of emergency issued under if the Lok Sabha passes a resolution disapproving
the continuance of the proclamation of emergency by a simple majority of the members of
the House present and voting. Earlier the power to revoke the proclamation vested in the
executive and the Lok Sabha had no say in the matter. Now, the government has to
withdraw the emergency if the Lok Sabha passes a resolution disapproving the continuance
of emergency. The Forty-fourth Amendment introduced another safeguard if not less than
1/10th of the total members of the Lok Sabha by giving a notice in writing to the Speaker
if the House is in session, or to the President, if the House is not in session put forward
their intention to move a resolution disapproving the proclamation of emergency, a special
sitting of the House is to be held within 14 days from the date on which such notice is
received by the President and the Speaker.
CONSEQUENCES OF A PROCLAMATION OF EMERGENCY

There is a transformation in the behaviour of the Indian federalism. The normal fabric of the
Centre-State relations undergoes a fundamental change the normal peace-time distribution of
legislative powers is suspended. Although the State Governments continue to operate, the Central
Government becomes omnipotent and the normal distribution of legislative, executive and taxing
powers, and the scheme of distribution of revenue between the Centre and the States is altered to
a great extent. Under (Art. 250) Parliament becomes empowered to make a law with respect to any
matter in the State List and such a law made by the parliament during the time emergency is in
force remains in operation till six months after the proclamation ceases to operate. To meet the
challenges posed by the emergency the Parliament has been authorized to enact any law that it
may regard necessary without being restricted by the peace time scheme of distribution of powers
between the centre and the state and such Central law would prevail over any law passed by the
state legislature on the same matter as covered by such central law. Further the Centre is authorized
to give directions to a State with respect to the manner in which the state will exercise its executive
power. As the Parliament can make a law with respect to the matters in the State list, it can give
directions even in the area normally allotted to the States. While the proclamation of emergency is
in operation, the President by an order modify the distribution of revenue between the Centre and
the States This provision exonerates the Centre from its obligation to transfer revenue to the States
so that financial capacity of the centre to deal with the emergency is not impaired. The reason is
that during an emergency, the Central financial needs become greater than its peacetime
commitments and, therefore, the normal financial arrangements between the Centre and the States
cannot continue to function. During an emergency Parliament can also levy any tax which
ordinarily falls within the jurisdiction of the States.

During the operation of the proclamation of emergency, the life of the Lok Sabha can be extended
beyond its term of five period by the Parliament by passing a law for up to one year each time, till
a period not extending beyond six months after the proclamation of emergency ceases to operate.
Parliament continues to function normally during the emergency. However, to avoid any confusion
which might arise from holding fresh elections during the period of the emergency, if the life of
Lok Sabha comes to an end, this provision enables the same to be extended for the period of
emergency.

IMPACT ON FUNDAMENTAL RIGHTS

Emergency has a debilitating effect on the fundamental right of the people. In India the
proclamation of the emergency impact the fundamental rights of the people. Under Article 358 of
the constitution as soon as the proclamation of the emergency is made under article 352 the
fundamental rights provided under article 19 gets automatically suspended. This means that Article
does not operate as a restriction on the exercise of legislative powers and executive powers by the
state. The state can pass any law and the executive can take any action violating fundamental rights
provided under Article 19 of the constitution during the time emergency is in operation but such
act and executive action will not declared invalid by the courts on the grounds of violation of the
fundamental rights. The imposition of emergency in 1975 was followed by violation of the
fundamental rights of the people on large scale as article 19 was suspended and redressal from the
courts was not available. Thus by 44th amendment act article 358 was amended to the effect that
article 19 shall not be suspended if the proclamation of emergency is made on the grounds of armed
rebellion thus restricting the scope of article 358, now article 19 can only be suspended if the
emergency is declared on the grounds of war or external aggression. Secondly 44th amendment
act inserted a safeguard that only law that are enacted in relation to emergency and not any other
law would be immune from being challenged. Thus any law that as enacted before the imposition
of emergency would not be immune from challenges on the ground of violation of article 19. Any
action taken under such law if it violates article 19 would be challenged before the courts.
Additionally clause 2 of the article 358 states that a law and the executive action taken under that
law to be protected from challenge before the court should contain a recital that such law is in
relation to the proclamation of the emergency. Article 19 is restored as soon as proclamation of
emergency ceases to exist but any action taken by the government during the time the proclamation
of emergency is in force would not be challenged on the ground of violation of Fundamental right
after the emergency is revoked.
Article 359: Article 359 provides that after the proclamation of emergency is issued, the president
can make an order and by that order suspend the right of the individuals to approach the courts for
the purpose of enforcement of the fundamental rights except the fundamental rights provided under
article 20 and 21. The order suspending the right of the individuals to approach the courts for the
purpose of violation of the fundamental rights can be issued with respect to all the fundamental
rights expect article 20 and 21 or with respect to certain fundamental rights or even any one of the
fundamental right. Such order can be issued with respect to whole of territory of India or any part
of territory of India and for period either till the extent of emergency or for a limited period. The
exception with respect to article 20 and 21 was created by the 44th amendment act. When the
emergency was imposed in 1975 the fundamental right to personal liberty was brutally violated by
arbitrary arrests and detentions. Though the Courts tried to protect the fundamental rights of the
people by declaring in JL Sethia vs state of west Bengal 1964 that even after the right to approach
the courts for the purpose of enforcement of the fundamental rights have been suspended by the
order of the president but a person detained under a detention order can challenge the detention on
the grounds that the detention was malafide or any ground mentioned in the detention order was
irrelevant. In Arjun Singh vs state of Rajasthan 1975 the court held that only the fundamental
right with respect to whom the right to approach the courts for the purpose of its enforcement has
been suspended will be impacted by the order of the president, any other right that is not mentioned
in the order will remain intact. The Supreme Court in ADM Jabalpur vs Shivkant Shukla 1976
held that the once an order has been issued by the president under article 359 suspending the right
to move court for enforcement of certain fundamental rights, then any any order issued by the
government providing for preventive detention cannot be challenged on the ground of malafides
or that it is violative of the law under which such detention is made. Additionaly the court held
that once right to move court for violation of article 21 is suspended then a writ of habeas corpus
cannot be filed to enforce article 21 on any other grounds as it would amount to enforcement of
article 21, which is suspended by the presidential order. 44th amendment act exempted article 20
and 21 from the scope of order of the president issued article 359. Now The state can pass any law
and the executive can take any action violating fundamental rights except article 20, 21 mentioned
in the order issued by the president under article 359 of the constitution during the time emergency
is in operation and the right to move to the court for the enforcement such act and executive action
will be suspended. Secondly 44th amendment act inserted a safeguard that only law that are
enacted in relation to emergency and not any other law would be immune under article 359. Thus
any law that was enacted before the imposition of emergency or any law that does not contain the
recital that it is in relation to the emergency would not be immune from challenges on the ground
of violation of fundamental rights.

PRESIDENT’S RULE IN THE STATES. CENTRE’S DUTY TO PROTECT THE STATES

Article 355 imposes a twofold duty on the Centre:—

(i) to protect every State against external aggression and internal disturbance, and
(ii) to ensure that the government of every State is carried on in accordance with the
provisions of the Constitution.

The two parts of Art. 355 are not interdependent as constitutional break-down can take place in a
State even without any external agression or internal disturbance. Such provisions are also found
in other federal constitutions as well. The American Constitution places a duty on the Central
Government to guarantee to every State a Republican form of government and to protect a State
against invasion. The Australian Constitution provides in express terms that the Centre shall
protect every State against invasion. Article 355 does not stipulate that a State should request the
Centre before it could send its forces into a State to counter the breakdown of law and order therein.
In India, law and order is a State subject and, therefore, Central intervention under Article 355
would be justifiable only in case of aggravated form of disturbance, which a State finds beyond its
means to control. Ordinarily the Centre sends help to a State on request by the State Government.
Article 355 uses the term internal disturbance whereas article 356 provides for the proclamation
of the president’s rule in the states on the grounds of “breakdown of the constitutional machinery”
in the state that means that a proclamation of the president’s rule cannot be constitutionally
justified if the internal disturbance does not result in breakdown of the constitutional machinery in
the state.
FAILURE OF CONSTITUTIONAL MACHINERY IN A STATE Articles 356 and 357 provide
for meeting a situation arising from the failure of the constitutional machinery in a State. Article
356 provides that If the President either on receipt of a report from the Governor of a State or
otherwise is satisfied that a situation has arisen in which the Government of the State cannot be
carried on in accordance with the provisions of the Constitution, the President may issue a
proclamation by which he can:

(a) assume all or any of the functions of the State Government or the powers of the Governor of
the state or any other body or authority in the State other than the State Legislature.

(b) declare that the powers and functions of the State Legislature will be exercised by Parliament.

(c) make such incidental provisions that are necessary or desirable for giving effect to the
provisions of the proclamation.

(d) the President may even suspend in wholly or partially the provisions of the Constitution relating
to any body or authority in the State.

However, the President under article 356 is not authorised to assume the powers of the High Court,
or to suspend any constitutional provision related to the high court of the state.

In exercising powers under Art. 356, the President is to act with the aid and advice of his Council
of Ministers. Under Art. 356(1), the President acts on a report of the Governor, or on information
received otherwise. The Centre has freedom to act even without the Governor’s report when on
the basis of the facts within its knowledge, it thinks that it should act in fulfilment of its
constitutional obligation. Every proclamation issued by the president under Article 356(1) has to
be laid before each House of Parliament for approval and if the proclamation is not approved by
both the houses of the parliament within two months of its issuance then the proclamation will
cease to operate. Every proclamation issued by the president under article 356(1) will remain in
effect till the month of six period from the date of its issuance by the president. The life of the
proclamation can be extended by six months each time by both Houses passing resolutions
approving its continuance. In this way, each time Parliament ratifies the proclamation, its life is
extended for another six months. The idea behind periodic parliamentary ratification of the
proclamation under Art. 356 is to give an opportunity to Parliament to review the situation
prevailing in the concerned State so that the union government does not feel free to keep the
proclamation in force longer than what is absolutely necessary. The maximum period for which a
proclamation can remain in force in a State is three years. After the expiry of period of three years
the President’s rule in the state must come to an end and the normal constitutional machinery shall
be restored in the State. The Forty-fourth Amendment 1978 has introduced a new safeguard to put
restraint on the power of Parliament to extend a proclamation issued under Art. 356 beyond a
period of one year. The Houses of Parliament shall pass a resolution approving continuance of
proclamation imposing president’s rule in the state beyond a period of one year only if following
two conditions are satisfied:

1. Proclamation of national emergency is in operation the whole of India or the concerned State,
or a part of the State and at the time of passing of such a resolution by the parliament and

2. the Election Commission certifies that the continuance in force of the proclamation under Art.
356(president’s rule) is necessary due to difficulties in holding general elections to the concerned
State Legislative Assembly. The effect of the clause is that normally a proclamation under Art. 356
remains in force in a State for one year at the most, but, under special circumstances mentioned
above, it can remain in force up to three years which is the maximum ceiling.

IMPACT OF THE PROCLAMATION OF THE PRESIDENT’S RULE. LEGISLATION

FOR THE STATE: When a proclamation issued by the president under Art 356(1) declares that
the powers of the State Legislature are to be exercised by or under the authority of Parliament.
Parliament can make laws for the state on any matter on the state list provided that the such law
made by the parliament will remain in force in the state till the time it is amended or repealed by
the state legislature on it reconstitution. It is thus clear from the above that the life of a law made
by Parliament or the President during the operation of Article 356 is not co-terminus with the
subsistence of the proclamation. The law does not come to an end automatically as soon as the
proclamation is revoked. Under article 356(1)(a) the parliament can also confer on the President
the power of the State Legislature to make laws. Parliament being a busy body may find it
extremely burdensome to exercise the legislative power for the concerned State therefore the
Parliament by passing an Act can delegate the legislative power for the State concerned for the
duration of the emergency to the President. Each Act passed by the President is laid before
Parliament which can direct any modifications to be made therein. The President can also be
authorised by Parliament to delegate the power to make laws with respect to the state legislature
conferred on him, to any other authority specified by him. The President may also authorize
expenditure from the State Consolidated Fund when the Lok Sabha is not in session however such
expenditure shall be approved by the Parliament later. The President may assume all or any
function of the State Government and all or any of the powers exercisable by the Governor.
Usually, the President, after assumption of the powers of the State Government, exercises these
powers through the State Governor The administration of the State, under the proclamation under
Art. 356(1), is carried on by the State Governor as a delegate of the Centre. In effect, the Governor
acts on the advice of the Union Ministry and not the State Ministry. The Council of Ministers in
the State does not remain in office. It usually resigns suo-motu in anticipation of the Centre’s
action. If it does not do so, it can be dismissed from office. Under Art.356(1)(a), the President can
assume the powers of the Governor. One of the Governor’s powers is to dissolve the Legislative
Assembly. Consequently, when the President issues a proclamation and assumes the Governor’s
powers, the power to dissolve the Assembly and hold fresh elections is automatically transferred
to the President. Therefore, the Presidential proclamation may dissolve the State Legislature and
arrangements for holding fresh elections can be made, but it is not always necessary to dissolve
the State Legislature whenever a proclamation is issued. Many times the State Legislature has been
kept in suspended animation rather than dissolving them altogether.

ARTICLE 356 VS. ARTICLE 352 While Article 352 is invoked in a situation of war, external
aggression, or armed rebellion, Article 356 applies to a situation of failure of constitutional
machinery in a State. Article 352 does not suspends the Constitution in a State. The State
Governments and Legislatures continue to function normally and exercise the powers assigned to
them under the Constitution. All that happens under Art. 352 is that the Centre gets concurrent
powers of legislation in State matters and the power to issue directions to the state regarding
exercise of their executive power. On the other hand, under Art. 356, the State Legislature ceases
to function as it is either dissolved or kept in suspended animation. Laws for the State are made by
Parliament and the Governor administers the State on behalf of the President. While Article 352
affects Fundamental Rights, Article 356 does not affects the fundamental rights in any manner.

WHEN CAN ARTICLE 356 BE INVOKED? Under Article 356(1) the expression “the
government of the State cannot be carried on in accordance with the provisions of this
Constitution” can have multiple connotations. There are certain situations under which the
president’s rule can be imposed such as:

(1) No party in the Assembly has a majority in the State Legislative Assembly to be able to form
the government.

(2) A government in office loses its majority due to defections and no alternative government can
be formed.

(3) A government may have majority support in the House, but it may function in a manner
subversive of the Constitution. For example it may promote fissiparous tendencies such as
encouraging cession from the union.

(4) The State Government does not comply with the directions issued by the Central Government
under various constitutional provisions such as article 256 and 257.

(5) Security of the State may be threatened by breakdown of law and order in the State.

JUSTICIABILITY OF THE PROCLAMATION UNDER ARTICLE 356 The question

regarding the justifiability of the president’s rule has been raised before the court multiple times.
Since the enactment of the constitution, the union government has imposed president’s rule in
multiple states on different grounds and the decision of the president to invoke article 356 has been
challenged before the courts on the ground that president while issuing the proclamation under
article 356 has acted in a malafide manner. When the general elections for Lok Sabha were held in
the country in 1977, the Janata Party won a large number of seats in the Lok Sabha and, thus,
formed the government at the Centre. The Central Home Minister, Charan Singh, wrote a letter to
each of the Chief Ministers of the States run by congress governments suggesting that he should
seek dissolution of the State Legislature from the Governor and obtain fresh mandate from the
electorate. The State of Rajasthan along with several other States filed an original suit in the
Supreme Court against the Union of India under Art. 131 praying the Court to declare this
‘directive’ of the Home Minister as unconstitutional and illegal. The Supreme Court, dismissed the
suit unanimously however, it observed Article 356 can be used by the Centre for securing
compliance with democratic norms by the States, if a particular State Government ceases to be
democratic or acts in an undemocratic fashion, it cannot be said that the government of the State
is carried on in accordance with the provisions of the Constitution and thus article 356 can be
invoked but to invoke article 356, the condition required is the satisfaction of the President that
the situation in the state has arisen where the government cannot be run in accordance with the
constitution, so if it can be shown that there is no satisfaction of the President at all i.e the decision
to impose the president’s rule is malafide or is not based on any reasonable ground but on some
irrelevant or extraneous ground or on some constitutionally prohibited ground then the court can
review the imposition of president’s rule in the state. (State of Rajasthan v. Union of India 1977)
The Supreme Court in S.R. Bommai v. India 1994 rendered a landmark decision on Art. 356(1)
of the constitution. In 1989, the Janata Dal Ministry headed by Shri S.R. Bommai was in office in
Karnataka. A number of members defected from the party and there arose a question mark on the
majority support in the House for the Bommai’s Ministry. The Chief Minister proposed to the
Governor that the Assembly session be called to test the strength of the Ministry on the floor of
the House. But the Governor ignored this suggestion. He also did not explore the possibility of an
alternative government but reported to the President that as Shri Bommai had lost the majority
support in the House, and as no other party was in a position to form the government, action be
taken under Art. 356(1). Accordingly, the President issued the proclamation in April, 1989.
Bommai challenged the validity of the proclamation. A Bench of nine Judges laid down following
propositions relation to Art. 356(1) and the scope of judicial review with respect to president’s
rule.

1. The President exercises his power under Art. 356(1) only on the advice of the Council of
Ministers

2. The question whether the State Chief Minister has lost his majority support in the Assembly has
to be decided on the floor of the House. There should be a majority test between the government
and others on the floor of the House before recommending imposition of the President’s rule in
the State.

3. The Governor should explore the possibility of installing an alternative Ministry, when the
incumbent Ministry loses support in the House.

4. The validity of the proclamation issued under Art. 356(1) can be judicially reviewed on such
grounds as whether it was issued on the basis of any material at all, or whether the material was
relevant, or whether the proclamation was issued in the mala fide exercise of the power, or was
based wholly on extraneous and/or irrelevant grounds.

5. There should be material before the President indicating that the Government of the State cannot
be carried on in accordance with the Constitution. The material in question before the President
should be such as would induce a reasonable man to come to the conclusion that the situation in
the state has arisen where the government cannot be run in accordance with the constitution. If no
such material exists, or if the material before the President cannot reasonably suggest that the State
Government cannot be carried on in accordance with the Constitution, the proclamation made by
the President can be challenged before the court.

6. The dissolution of the Legislative Assembly in the State is not an automatic consequence of the
issuance of the proclamation. The dissolution of the Assembly is also not essential in every case.
It should be done only when it is found to be necessary for achieving the purposes of the
proclamation.

7. Once the proclamation is approved by Parliament, and then it lapses at the end of six months,
or it is revoked earlier, neither the dismissed State Government, nor the dissolved legislature will
revive.

8. If the Court invalidates the proclamation, even if approved by the Parliament, the action of the
President becomes invalid. The State Government, if dismissed, is revived and the State Assembly,
if dissolved, will be restored.

The significance of the Bommai judgement can be ascertained from the fact that after this
judgement many instances of the proclamation of the president’s rule in the states were invalidated
by the court such as in the case of Karnataka, Nagaland, Meghalaya on the grounds as laid down
in the judgement. Thus the practice of imposition of the president’s rule by the Union on irrelevant
grounds such as different political parties running the union and the state governments or by
without following the due procedure such as conduct of floor test to establish the majority in the
legislative assembly has been reduced to a significant extent.

FINANCIAL EMERGENCY The proclamation of financial emergency under article 360

increases the supervision of the Centre on the States in financial matters. Perhaps, the framers of
the Constitution adopted the idea underlying from the experiences of the federations of the U.S.A.,
Canada and Australia during the depression of the 1930’s when the Central Government found
itself incapable in taking effective action to meet the situation. Under Article 360 If the President
is satisfied that a situation has arisen whereby the financial stability or credit of India, or any part
thereof, is threatened, he may by a proclamation make a declaration to that effect. When such a
proclamation is in operation, the Centre can give directions to any State government regarding
observance of propriety in financial matters. The central government can direct the state
government to reduce the salaries and allowances of all or any class of persons serving under the
state government. The Centre can also mandate that all money bills, or financial bills or those
which involve expenditure from the State Consolidated Fund shall be reserved for the President’s
consideration after being passed by the State Legislature. The President can also issue directions
for reducing the salaries and allowances of persons serving the Union including the Supreme Court
and the High Court Judges. A proclamation issued under Art. 360(1) has to be laid before each
House of Parliament the proclamation it ceases to have effect after two months if it is not approved
by resolutions of both Houses of Parliament.