emergency provisions
The Emergency Provisions of the Indian Constitution are enshrined under Articles 352 to 360 in Part XVIII. The framers of the Constitution recognized the need for such provisions, drawing lessons from World War II. Emergencies arise when a country faces severe threats to its stability, both from external aggressors and internal upheavals. Since federal systems divide powers between Union and State governments, they are considered relatively weaker in times of crisis. To address this, the Emergency Provisions empower the Central Government to assume overriding authority, effectively transforming the federal framework into a unitary system without requiring constitutional amendments.
The Indian Constitution is unique in its adaptability, operating as a federal system in ordinary times and shifting towards a unitary system in extraordinary circumstances. It acknowledges three distinct forms of emergency:
This provision allows the declaration of emergency in the event of war, external aggression, or armed rebellion. Popularly known as the National Emergency, it grants sweeping powers to the Union Government to safeguard the nation.
When the governance of a state fails to conform to the Constitution, Article 356 empowers the President to impose direct rule. This is commonly called President’s Rule, and also known as State Emergency or Constitutional Emergency. Although the word “emergency” is not explicitly used in this context. Article 365 complements this clause by allowing Presidential action if a state disregards directions from the Union especially matters on union and residuary list.
This provision comes into play when India’s financial stability or credit is seriously threatened. The Financial Emergency centralizes fiscal powers, ensuring economic security.
The 38th Amendment (1975) made Presidential proclamations of National Emergency immune from judicial review. Presidents could issue multiple proclamations simultaneously, whether or not there is a Proclamation already in existence and in operation and ordinances and laws under Articles 123 and 250 were deemed non-justiciable. Furthermore, fundamental rights such as Articles 14, 19, 20, and 21 could be suspended under Article 359 until the 44th Amendment (1978) nullified them. The same amendment replaced the vague phrase “internal disturbances” with the more precise term armed rebellion, curbing potential misuse by the Executive.
The President may declare a National Emergency if India’s security, or any part thereof, is endangered by war, external aggression, or armed rebellion. Such a proclamation can even precede the actual occurrence, provided there is imminent danger.
The President can proclaim emergency provisions only after the written recommendation of Union Cabinet, consisting of Prime Minister and other Ministers of Cabinet rank.
A proclamation of Emergency provisions can take place in entire India or a particular region of India as mentioned in the Clause 1 Article 352. The union gains complete control over the State executive and the Parliament makes the law instead of the state legislature.
Earlier, Presidents could declare an emergency solely on the Prime Minister’s advice. This unrestricted power was misused during the 1975 Emergency under Indira Gandhi, when the Cabinet was informed only after the proclamation.
The 44th Amendment (1978) corrected this by mandating a written recommendation from the Union Cabinet before such proclamations.
Parliament must approve of the emergency within a month by a special majority through Article 368—defined as a two-thirds majority of members present and voting, plus an absolute majority of the total membership.
Once approved, the proclamation lasts six months but may be extended indefinitely with further parliamentary approval in every six months. If the Lok Sabha is dissolved during this process, the Rajya Sabha’s approval ensures its survival until 30 days after the new Lok Sabha convenes.
The Supreme Court has held in Minerva Mills v. Union of India (1980) that a proclamation of National Emergency can be reviewed judicially if it is motivated by mala fide intentions or based on irrelevant grounds.
The Union (centre) gains complete control over state executives. Directions from the Union can extend to any matter, unlike in normal times when they are restricted to communication or railway protection. Under Article 353 (b), power of the Union executive and the parliament over a state can also be extended to those regions which are not part of the proclamation of the emergency provisions. Under Article 255, it is the duty of the Union to protect states against external aggression and internal disturbance.
Parliament assumes authority over state Legislature to legislate on matters from the State List as mentioned in the Article 250. Although State legislatures are not suspended, the federal distribution of legislative powers is temporarily overridden. During such emergencies, Union and State legislatures are not dissolved, but the balance of power shifts heavily toward the Centre. The Lok Sabha’s term may be extended by one year at a time, though not beyond six months after the emergency ceases. The one year extension is such that 6 months of Approval of proclamation and 6 months post discontinuation. Similar rule applies to State Assemblies as well.
All the Laws ( under article 250) and ordinances (under article 123) enacted during the emergency become invalid after revocation of emergency, unless repealed, altered, or amended by competent authorities for continuation.
Under Article 254, The President may alter the financial distribution between the Centre and States, including reducing or halting state transfers. All Money Bills require Presidential assent. However, such fiscal orders cease after the financial year in which the emergency ends unless approved by Parliament.
Article 358:
The proclamation of emergency on grounds of war or external aggression suspends the six freedoms guaranteed under Article 19. Citizens cannot seek judicial enforcement of these rights, and the State may pass laws or take executive action restricting them. However, after the 44th Amendment (1978), Article 19 can only be suspended in cases of war or external aggression, not armed rebellion.
Article 359:
The President may suspend enforcement of other fundamental rights during emergencies, but such orders require parliamentary approval. Importantly, rights under Article 20 (protection against conviction for offences) and Article 21 (right to life and liberty) cannot be suspended, ensuring a basic safeguard for citizens. While presidential orders are operative, any legislative or executive action taken cannot be challenged, even after the order ceases.
India has witnessed the National Emergency thrice:
The makers of the Constitution clearly recognized that several regions within the country lacked a past tradition of deeply rooted parliamentary governance. Consequently, they realized that a breakdown of the constitutional machinery in a State could not be considered impossible. Thus, it was considered essential for the Union to carry the responsibility of ensuring that every State government functions strictly in accordance with the provisions of the Constitution.
In such cases, the State Emergency Provisions, also known as the President’s Rule, can be enforced under Article 356, supported by two key Emergency provisions:
According to Article 355, it is the responsibility of the Union to protect every State from external aggression as well as internal disturbance. Alongside this, the Union must ensure that governance in every State is carried on as per constitutional requirements.
A constitutional failure arises when a Chief Minister cannot be elected, or if the Chief Minister resigns without a clear successor, or when a coalition collapses leading to governmental fall, when a no-confidence motion passes, or when elections are postponed despite being scheduled by the Election Commission.
Thus, the President can proclaim President’s Rule if satisfied that circumstances demand it, either on the Governor’s recommendation or independently. Furthermore, under Article 357, Parliament may empower the President to make laws for the concerned State, or authorize him to delegate such authority. If Lok Sabha is not in session, the President may authorize expenditure from the State’s Consolidated Fund until Parliament approves it.
Article 365 states that if a State fails to comply with or implement Union directions (especially on the matters of Union list and residuary list), the President can legitimately conclude that the government of the State cannot function in accordance with the Constitution, thus invoking Article 356.
The proclamation of President’s Rule must secure approval from both Houses of Parliament within two months, failing which it ceases to operate. Once approved, it remains valid for six months. Parliament may extend it in six-month intervals, up to a maximum of three years, as per Article 356(4). If the Lok Sabha dissolves during such a period, but Rajya Sabha has already approved, the new Lok Sabha must approve the proclamation within 30 days of its first sitting of its new session.
The 44th Constitutional Amendment Act (1978) further limited Parliament’s power to extend President’s Rule beyond one year. Such extension is permitted only under two conditions:
The President cannot assume the powers of a High Court or suspend constitutional provisions relating to it. Thus, the judiciary’s independence, powers, and functions remain unaffected during President’s Rule.
Though Article 356 does not explicitly mention dissolution of the Assembly, it allows the President to dissolve it once Parliament approves the proclamation.
President’s Rule may be revoked at any time through a new proclamation by the President, which does not require Parliamentary approval.
For Union Territories with legislatures such as Puducherry and Jammu & Kashmir, the Emergency Provisions of Article 352 apply under the Government of Union Territory Act, 1963.
In Delhi, Emergency Provisions may be enforced through Article 239AB based on a report from the Lieutenant Governor of NCT Delhi, the President can suspend the provisions in Article 239AA.
The Supreme Court in the S R Bommai case ruled that President’s Rule cannot be imposed arbitrarily. Justice B.P. Jeevan Reddy emphasized that the rights and powers of States must be protected. The Court allowed judicial review of such proclamations on three grounds:
Key principles included:
Sarkaria Commission on Centre-State relations stated that:
The Commission on Centre-State relations suggested that Emergency Provisions under Articles 352 and 356 could be limited to a part of a State rather than the entire State. However, such a proclamation should not exceed three months.
(1) Under the Emergency Provisions, if the President is convinced that the financial stability or credit of India, or of any part of its territory, is at risk, he may issue a proclamation declaring a financial emergency.
(2) Such a situation may arise when the nation’s economy destabilizes, either due to internal disruptions or external shocks, prompting the President to act under this clause.
The proclamation must receive approval from both Houses of Parliament within two months, by a simple majority. If it is issued while the Lok Sabha stands dissolved, or if dissolution occurs within this two-month period before approval, the proclamation remains valid for 30 days from the first sitting of the reconstituted Lok Sabha, provided the Rajya Sabha has already approved it. Once sanctioned by both Houses, the Financial Emergency continues indefinitely until revoked. This signifies two points: (a) no maximum time limit exists for its enforcement, and (b) no recurring approval from Parliament is required for its continuation.
During a financial emergency under the Emergency Provisions, the Union’s executive authority extends to directing states to adhere to principles of financial propriety. Such directions may include: (a) instructing states on financial matters, (b) directing reduction in salaries and allowances of specific or all classes of government servants, (c) compelling states to reserve money bills for Parliament’s consideration after passage in state legislatures, and (d) ordering a reduction in salaries and allowances of Central government employees, including Judges of the Supreme Court and High Courts.
Although India has never formally declared a financial emergency under the Emergency Provisions, the nation faced a severe economic crisis in 1990–91, which reflected conditions where such a measure could have been considered.
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