Chapter 18: EMERGENCY PROVISIONS
Articles 352 to 360 are emergency
powers of centre. These are given to deal with exceptional
war or rebellion. The powers were influenced by the German
turn Indias federal structure into a unitary one without
amendment to the
Types of Emergencies
Constitution handles three types
of emergencies national, constitutional and financial.
Emergency [Article 352]:
This can be
declared due to war / external aggression [external
emergency] or armed rebellion [internal emergency]. A
proclamation can be
issued by the president for different grounds. It can
be issued when an already
existing proclamation is in force too.
It can apply to entire country or
It can be declared even before an actual
occurrence if president is
satisfied of imminent threat.
The president can declare this only after
recommendation of the entire cabinet.
A proclamation can be subject to judicial
A proclamation must be approved
by both houses within one month by a special majority.
This extends the life of
emergency by six months at a time. This can be done
If Lok Sabha
is dissolved then the approval of proclamation or
extension of its life can be
done by Rajya Sabha.
survives till 30 days after first sitting of the newly
reconstituted Lok Sabha.
proclamation can be revoked by president
anytime [this doesn’t need parliament ratification].
Also Lok Sabha can force a
revocation by disapproving it with a simple majority.
Thus Rajya Sabha has no
role in revocation.
Effects of national emergency:
Centre can issue executive
directions to states on any matters. However state
suspended. Parliament can make laws on matters in the
isn’t in session president can pass ordinances on state
can also confer powers and duties on centre and its
authorities to carry out
tasks under its extended jurisdiction. Such legislative
inoperative within 6 months of the emergency ceasing to
operate. Such laws
apply even to states where the emergency isn’t imposed.
President can modify distribution
of revenues between centre and states till the end of
financial year when
emergency is over. Such orders have to be laid before
law can extend term of Lok Sabha and state legislative
assembly by 1 year at a
time [any number of times]. This becomes inoperable by
the end of 6 months of
Under article 358, all
fundamental rights under Article 19 i.e. Right to
Freedom, are automatically suspended when a
proclamation of national emergency on external grounds
[not armed rebellion] is
declared. This action applies to whole country
not a part.
Any law can be
passed that violates these rights but not any other, such
a law can’t be
invalidated till the emergency is operative. Any action as
per laws also
remains above judicial remedy even after emergency is
Under article 359 a presidential
order can be passed disallowing people from seeking
judicial remedy to enforce
other fundamental rights i.e. article 14-32 that are
specified in that order [
except article 20&21: right to life and liberty] for
a specific period
The rights remain in force
but right to seek remedy is suspended. The
state can make laws abridging the fundamental rights
mentioned in the order such
laws can’t be challenged in court. Any executive action
under such laws is also
protected. Presidential order has to be approved by both
houses. Article 359 is
available even during national emergency on armed
rebellion. The presidential
order can apply to whole country or a part.
2. Presidents rule:
When the constitutional machinery
breaks down in a state, the president rule is imposed by
centre. This can be
proclaimed if the president is satisfied that the
governance of a state can’t
be carried in accordance with the constitution.
In this case, president can act
with or without the governor’s report. Also when a state
doesn’t follow any
directive from the centre, president’s rule can be
Parliament has to approve the
proclamation within two months in both houses by simple
majority. The rule can
be extended by 6 months at a time for a maximum of 3 yrs.
If Lok Sabha is
dissolved Rajya Sabha can approve it but Lok Sabha has to
approve too within 30
days of first sitting after its been reconstituted. Beyond the
first year, president’s rule can be
extended 6 months at a time only if national emergency
is proclaimed in the
country or any part of the state.
Election commission certifies that elections
can’t be held in the state.
Presidents proclamation can be
revoked by president anytime [this doesn’t need
Parliament on its own can’t revoke president’s rule.
It also doesn’t affect
fundamental rights or powers of the high court. All
legislative and executive
power of the states assumed by the president and the state
dismissed and legislature dissolved or suspended.
Governor acts as the president’s
agent and works with the help of chief secretary or
advisors appointed by the centre.
Parliament can assume legislative powers with itself or
delegate to president
or other authority. It can make laws on state list matters
for the state only.
President can issue ordinances on state list matters or
make expenditure from
state budget if parliament not in session.
imposing president’s rule is subject to judicial review.
FEDERAL government, according to Bryce, means weak government
because it involves a division of power.
Every modern federation, however,
has sought to avoid this weakness by providing for the assumption of larger
powers by the federal government whenever unified action is necessary by
reason of emergent circumstances, internal or external.
But while In
countries like the United States this expansion of federal power takes place
through the wisdom of judicial interpretation, in India, the Constitution itself
provides for conferring extraordinary powers upon the Union in case of
different kinds of emergencies.
As has been stated earlier, the Emergency
provisions of our Constitution enable the federal government to acquire the
strength of a unitary system whenever the exigencies of the situation so
Though the Proclamation will not suspend the Stat«
Legislature. it Will suspend the distribution of legislative powers between the
Union and the State, so far as the Union is concerned,-so that the Union
Parliament may meet the emergency by legislation over any subject as may
be necessary as if the Constitution were unitary.
The first Proclamation of Emergency under Art. 352 was made by
the President on October 26, 1962 in view of the
gency Powers. Chinese aggression in the NEFA. It was also provided
by a Presidential Order, issued under Art. 359, that a
person arrested or Imprisoned under the Defence of India Act would not be
entitled to move any Court for the enforcement of any of his Fundamental Rights under Art. 14, 19 or 21. This Proclamation of Emergency was
revoked by an order made by the President onJanuary 10, 1968.
The second Proclamation of Emergency under Art. 352 was made by
the President on December 3, 1971 when Pakistan launched an undeclared
war against India.
A Presidential Order under Art. 359 was promulgated on December
25, 1974, in view of certain High Court decisions releasing some detenus
under the Maintenance of Internal Security Act, 1971 for smuggling
This Presidential Order suspended the right of any such detenu
to move any Court for the enforcement of his fundamental rights under Arts.
14, 21 and 22, for a period of six months or during the continuance of the
Proclamation of Emergency of 1971, whichever expired earlier.
Though there was a ceaseftre on the capitulation of Pakistan in
Bangladesh in December, 1971, followed by the Shimla Agreement between
India and Pakistan, the Proclamation of 1971 was continued owing to the
persistence of hostile attitude of Pakistan.
It was thus in operation when the
third Proclamation of June 25, 1975 was made.
While the two preceding Proclamations under Art. 352 were made
on the ground of external aggression, the third Proclamation of Emergency
under Art. 352 was made on June 25, 1975, on the ground of "internal
The "internal disturbance", which was cited in the Press Note relating
to the Proclamation. was that 'certain persons have been inciting the Police
and the Armed Forces against the discharge of their duties and their normal
functioning'. Both the second and third proclamations were revoked on 21st
The Proclamation in case of failure of the constitutional machinery
differs from a Proclamation of 'Emergency' on the following points:
(I) A Proclamation of Emergency may be made by the President only
when the security of India or any part thereof is threatened by war, external
aggression or armed rebellion.
A Proclamation in
Arts. 352 and 356 respect of failure of the constitutional machinery may
ccmpared be made by the President when the constitutional
government of State cannot be carried on for any reasons, not necessarily
connected with war or armed rebellion.
When a Proclamation of Emergency is made, the Centre shall get
no power to suspend the State Government or any part thereof.
Executive and Legislature would continue in operation and retain their
All that the Centre would get are concurrent powers of legislation
and administration of the State.
But under a Proclamation in case of failure of the constitutional
machinery, the State Legislature would be suspended and the executive
authority of the State would be assumed by the President In whole or in
part is why it is popularly referred to as the imposition of the
(ill) Under a Proclamation of Emergency, Parliament can legislate in
respect of State subjects only by itself; by under a Proclamation of the other
kind, it can delegate its powers to legislate for the State,-to the President or
any other authority specified by him.
(iv) In the case of a Proclamation of failure of constitutional machinery,
there is a maximum limitation to the power of Parliament to extend the
operation of the Proclamation, namely, three years
But in the case of a Proclamation of Emergency; it may be continued for a
period of six months by each resolution of the Houses of Parliament
approving its continuance, so that if Parliament so approves, the
Proclamation may be continued indefinitely as long as the Proclamation is
not revoked or the Parliament does not cease to make resolutions approving
It is clear that the power to declare a Proclamation of failure of
constitutional machinery in a State has nothing to do
with any external aggression or armed rebellion
an extraordinary power of the Union to meet a political breakdown in any of
the units of the federation [or the failure by such Unit to comply with the
federal directives (Art. 365)] which might affect the national strength.
one of the coercive powers at the hands of the Union to maintain the
democratic form of government, and to prevent factional strifes from
paralysing the governmental machinery, in the States.
The importance of this
power in the political system of India can hardly be overlooked in view of
the fact that it has been used not less than 108 times during the first 50 years
of the working of the Constitution (till March 2001).
From the foregoing history of the use of the
power conferred upon the Union under Art. 356, it is
evident that It Is a drastic coercive power which takes
neady the substance away from the normal federal
polity prescribed by the Constitution.
It Is, therefore,
to be always remembered that the provision for such drastic power was
defended by Dr. Ambedkar in the Constituent AssemblyS on the plea that
the use of this drastic power would be a matter of the last resort:
The judgment of the Supreme
Court in the Rajasthan case also did not lay down the Law correctly.
In view of S.R. Bommai's case (nine judge Bench) the
comments have been replaced by the law as declared' by the Supreme
Court, which affirm the Author's view.
In S.R. Bommai's case the Court has clearly subscribed to the view
Power under Art. 356 must be used an last resort to meet
The exigencies of special situations. The Court quoted
the Sarkaria Commission Report to give examples of
situations when such power should not be used.
It made it dear that Art 356
cannot be invoked for superseding a duly constituted ministry and dissolving
the Assembly on the ground that in the elections to the lok Sabha, the
ruling party in the State suffered a massive defeat
After Bommai's case it Is settled that the Courts possess the power to
review the Proclamation on the grounds mentioned above.
This will surely have a restraining effect on the
tendency to use the power on flimsy grounds.
In S.R. Bommai's case it has been pronounced that till the Proclamation is approved by both Houses of Parliament, it Is
not permissible for the President to take any irreversible action
Hence the Legislative Assembly of a State
cannot be dissolved before the Proclamation Is
approved by both Houses of Parliament
If the Court holds the Proclamation to be invalid then in spite of the
fact that it has been approved by the Parliament, the
Court may order that the dissolved
Ministry and Assembly will be revived
Some of the situations which do not amount to
failure of constitutional machinery are given below.
They are based on the report of the Sarkaria
Commission and have the approval of the Court in
S.R. Bommai's case.
(1) a situation of maladministration in a State, where a duly constituted
ministry enjoys support of the Assembly.
(2) where a Ministry resigns or is dismissed on losing majority support
and the Governor recommends imposition of President's Rule without
exploring the possibility of installing an alternative government.
(3) where a Ministry has not been defeated on the floor of the House;
the Governor on his subjective assessment recommends supersession and
imposition of President's Rule.
(4) where in general elections to the Lok Sabha the ruling party in the
State has suffered a massive defeat.
(5} where there is situation of internal disturbance but possible
measures to contain the situation of the Union in discharge of its duty
under Art. 355, have not been exhaused.
(6) where no prior warning or opportunity is given to the State
Government to correct itself In cases where directives were issued under
Arts. 256, 257 etc.
(7) where the power is used to sort out intra-party problems of the
(8) the power cannot be Legitimately exercised on the sole ground of
stringent financial exigencies of the State.
(9) the power cannot be invoked merely on the ground that there are
serious allegations of corruption against the Ministry.
(10) exercise of the power for a purpose extraneous or irrelevant to
those which are permitted by the Constitution would be vitiated by legal
A proper occasion for use of this power would, of course, be when a
Ministry resigns after defeat in the Legislature and no other Ministry
Proper occasions commanding majority in the Assembly can at once
Dissolution of -the Assembly may be a
radical solution, but, that being expensive, a resort to
Art 356 may be made to allow the state of flux in the Assembly to subside
so as to obviate the need for a dissolution, if possible.
A similar situation
would arise where the party having a majority declines to form a Ministry
and the Governor fails in his attempt to find a coalition Ministry.
The provision in Art. 365 relates to the failure of a State
Government to carry out the directives of the union Government which the
latter has the authority under the Constitution to issue (e.g., under Arts. 256, 257). The Union may also issue such a directive under the Implied power
conferred by the latter part of Art. 355, "to ensure that the government of
every State is carried on in accordance with the provisions of this
The only change that the 44th Amendment Act, 1978 has made in this Article is to limit the duration of a Proclamation
made under Art. 356 to a period of one year
unless a Proclamation of Emergency under Art. 352 is
in operation and the Election Commission certifies that it Is not possible to
hold elections to the Legislative Assembly of the State concerned
immediately, in which case, it may be extended up to three years, by
successive resolutions for continuance being passed by both Houses of
It Is to be noted that the foregoing amendment has not specified any
conditions or circumstances under which the power under Art. 356 can be
Hence, in the light of the Rajasthan decision, no legal challenge could
be offered when Mrs. Gandhi repeated the Janata experiment in February,
1980, in the same nine States, on the same ground, viz., that the janata Parry,
which was in power In those States, was routed In the Lok Sabha election.
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