EMERGENCY PROVISION UNDER INDIAN CONSTITUTION

Adarsh kumar

1 INTRODUCTION
The Emergency provisions are contained in Part XVIII of the Constitution India, under Article
352, Article 356 and article 360. The president of India has power to impose emergency rule in
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any or all of the Indian state if there is threat to security of any part or all of India These
provisions enable the Central government to meet any abnormal situation effectively. 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.

During an Emergency, the Central government becomes all powerful and the states go into the
total control of the Centre. It converts the federal structure into a unitary one without a formal
amendment of the Constitution. This kind of transformation of the political system from federal
during normal times to unitary during Emergency is a unique feature of the Indian Constitution.
In this context, Dr B. R. Ambedkar observed in the Constituent Assembly that:

“All federal systems including American 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”.

1
"Part XVIII of the Constitution of India" (PDF). Ministry of Law and Justice, Government of India. Retrieved 20
March 2013.

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 Type of emergency under Indian constitution
The Constitution stipulates three types of emergencies:
National emergency (Article 352)
 If the president is satisfied with a grave emergency exists whereby the security of India or
any part is threatened whether by war or external aggression or an armed rebellion, then he
may proclaim a state of national emergency for the whole of India or a part of India.
 Such a proclamation of emergency may be revoked by the president subsequently.
 The proclamation of emergency made under article 352 may be subjected to the judicial
review and its constitutionally can be questioned in a court of law on the grounds of
malafide.
 The proclamation made must be approved by both the houses of parliament within one
month after the proclamation.
 The effect of the proclamation of emergency is the emergence of the full-fledged Unitary
Government.
State emergency ( Article 356 )
 Article 356 provides that if the President, on receipt of a report from the Government of a
state or otherwise, is satisfied that a situation has arisen in which the Government of the
State cannot be carried on by the provisions of the Constitution, the President may issue a
proclamation.
 By that proclamation, the president may assume to himself all or any of the powers vested
in the Governor and may declare that the powers of the legislature of the State shall be
exercisable by the Parliament.
 The proclamation issued under Article 356 must be laid before each House of the
Parliament. If the proclamation is not approved by both Houses, it will expire in two
months.
 The Proclamation is so approved by Parliament (by simple majority) shall be in operation
for six months. However, it may be revoked in between or extended further by the
Parliament.

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Financial emergency ( Article 360 )
 Article 360 states that if the President is satisfied that a situation has arisen whereby the
financial stability or the credit of India or any part thereof is threatened, President may
declare a state of financial emergency.
 During the period such Proclamation is in operation, the executive authority of the Union
extends to the giving of directions to any State to observe such canons of financial
propriety as may be specified in the directions, any such directions may also include:
1. A provision required the reduction of salaries and allowances of all or any class of
person serving a State or the Union.
2. A provision requiring all Money Bills or other Financial Bills to be reserved for the
consideration of the President after they are passed by the legislature of the State.
 A Proclamation issued under Article 360 will remain in force for two months unless before
the expiry of the period it is approved by both the Houses of the Parliament.
 A proclamation issued under Article 360 will remain in force for two months unless before
the expiry of the period it is approved by both the Houses of the Parliament.
 Once approved it remains in force till revoked by the President.
 No emergency under Article 360 has been issued so far

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 2 HISTORY OF INDIAN EMERGENCY PROVISIONS

The conditions, which were at that time of framing the Constitution, played an important role for
that the provisions of emergency were included. The framers of the Constitution compelled to
think about such provisions after facing many incidents after and before of independence period.
The disruptive forces of casteism, regionalism, communalism, and languish created cacophony
and disturbed the peace and harmony of the country. The communal riots were happening
between Hindus and Muslims which were disintegrating dangers for the establishment and
maintenance of democracy in India. Kashmir problem came up with the lapse of the Crown at
the time of making of our Constitution. Danger from Pakistan was coming up. There was the
recalcitrant attitude of some of the Native States (Junagarh and Hyderabad) towards joining the
Indian Union. It was a biggest challenge for the government of India at that time because the
government could not permit such separatist conduct Military action in Junagarh and Hyderabad
was necessary as a matter of geographical compulsion. This all motivated to need of Art. 352.2
The early years of independence witnessed a spurt in the communist activities among the
workers and peasants in Telengana. The revolution of the communists was a probable danger to
the harmony and democratic order of the country. This led to the inclusion of stringent
emergency provisions in the Constitution. Government of a province. Thus, the Constitution-
makers were worried of the regular and successful functioning of the State governments. So they
included Art. 356 to take care of the breakdown of Constitutional machinery in a State.

There was also marked decline in the economic condition of the country due to the
circumstances created by fall in foreign exchange reserves and partition. Dr. Ambedkar wanted
to avoid all legal difficulties and thus came Art. 360 of the Indian Constitution.

2
https://blog.ipleaders.in/emergency-provisions-history-types-duration-india/

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 3 NATIONAL EMERGENCY

National emergency can be declare under article 352 of Indian constitution .

Proclamation of national emergency
“If the President is satisfied that a grave emergency exists whereby the security of India or of any
part of the territory thereof is threatened, whether by war or external aggression or armed
rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of
India or of such part of the territory thereof as may be specified in the Proclamation.”3
A proclamation of emergency under Article 352(1) may be made before the actual occurrence of
war, external aggression or armed rebellion.4
Moreover, the forty fourth amendment introduced another innovation : where a notice in writing,
signed by not less than 1/10th of the total members of the Lok Sabha has been given of their
intention to move a resolution disapproving the proclamation of emergency, to the speaker if the
house is in session or to the president, if the house is not in session, a special sitting of the house
is to be held within 14 days from the date on which such notice is received by the speaker or the
president, as the case may be, for the purpose of considering such resolution.[Article 352(8)]

CONSEQUENCES OF A PROCLAMATION OF EMERGENCY

(a) There is a transformation in the behaviour of the Indian federalism. The normal fabric of the
Centre-State relations undergoes a fundamental change. Parliament becomes empowered to
make a law with respect to any matter in the state list, and such a law operates till six months
after the proclamation ceases to operate [Art. 250]5

(b) Further, the Centre can give directions to the state as to the manner in which it is to exercise
its executive powers [353(a)]. Since parliament can make a law even in the exclusive state field,
it means that the centre can give directions even in the area normally allotted to the states.
Parliament may confer powers and impose duties upon the Centre or its officers or authorities
even though the law pertains to a matter not in the Union List [Art. 353(b)].
3
Article 352(1), the Constitution of India, 1950.
4
Naga people’s Movement of human rights V. Union of India, (1998) 2 SCC 109
5
Art. 250. (1), The Constitution of India, 1950, Notwithstanding anything in this Chapter, Parliament shall, while a
Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of
India with respect to any of the matters enumerated in the State List

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(c) When emergency is declared not in the whole of India but only in a part of India, the
executive power of the Centre to give directions, and the power of Parliament to make laws as
mentioned above, extend not only to the State in which the territory under emergency lies, but
also to any other state, “if and so far as the security of India or any part of the territory thereof is
threatened by activities in or in relation to the part of the territory of India in which the
Proclamation of Emergency is in operation ” [Proviso to Art. 353]

(d) While the proclamation of emergency is in operation, the President may by order direct that
any provision (Arts. 268 to 279) relating to the distribution of revenue between the Centre and
the States, shall take effect subject to such exceptions or modifications as he thinks fit [Art.
354(1)].This provision frees the Centre from its obligation to transfer revenue to the States so
that’s own financial capacity remains unimpaired to deal with the emergency.

(e) During an emergency, Parliament can also levy any tax which ordinarily falls in the Sate list
[Art. 250

(f) As has already been pointed out, during the operation of the proclamation of emergency, the
life of the Lok Sabah may be extended beyond its normal five year period by parliament by law
for a year each time, up to a period not extending beyond six months after the proclamation of
emergency ceases to operate

(g) Parliament may by law extend the life of the state legislators by one year each time during an
emergency, subject to a maximum period of six months after the emergency ceases to operate

INVOCATION OF NATIONAL EMERGENCY

In India, national emergency has been invoked three times so far.

First time, on October 26, 1962, in the wake of clash with china. It remained in force during the
Indo-Pak conflict in 1965, and was revoked only in January, 1968.

Second time, on December, 1971, as a result of the India and Pakistan dispute on the ground of
external aggression.

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While the 1971 was still effective, another proclamation was issued on June 26, 1975. This time
the proclamation was issued on the ground of “internal disturbance” threatening the security of
India. Bothe these proclamations were revoked in March 1977

One of the major result which come out after the proclamation of the emergency in 1975was the
amendment of Article 352 by 44th Constitutional amendment so as to introduce some more
safeguards therein against any unwarranted declaration of emergency in future. The main
purpose of this amendment was that what happened in 1975 should not repeat in future6

6
https://books.google.co.in/books?id=PEE8BAAAQBAJ&pg=SA3-PA26&lpg=SA3-
PA26&dq=imposed+emergency+in+india+so+far&source=bl&ots=5cLUzplV7j&sig=c4RZMgrhC_XQMVNr_rnh
BJsXz1o&hl=en&sa=X&ved=0ahUKEwiS9beQ9rHLA

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 4 STATE EMERGENCY

PROCLAMATION OF STATE EMERGENCY

Article 356 and 357 provide for meeting a situation arising from the failure of the Constitutional
machinery in a state.7

“If the President, 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 this Constitution, the President may by Proclamation

(a) Assume to himself all or any of the functions of the Government of the State and all or any of
the powers vested in or exercisable by the Governor or anybody or authority in the State other
than the Legislature of the State;

(b) Declare that the powers of the Legislature of the State shall be exercisable by or under the
authority of Parliament;

(c) make such incidental and consequential provisions as appear to the President to be necessary
or desirable for giving effect to the objects of the Proclamation, including provisions for
suspending in whole or in part the operation of any provisions of this Constitution relating to
anybody or authority in the State.

CONSEQUENCES OF INVOKING STATE EMERGENCY

Article 356(1) has been invoked a number of times since the advent of the Constitution. Reading
Art. 356 along with Art. 357 a pattern has thus come into existence, whenever the centre takes
over a state government. The centre has acted only when the governor has reported failure of the
Constitutional machinery in the state and in no case has the centre acted ‘otherwise’. The
governor makes the report to act in this matter on the advice of the council of ministers.

7
President’s power under Art. 356 of the Constitution- theory and practise, Constitutional Developments Since
Independence, 335 (1975).

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The proclamation issued by the President under Art. 356(1) is placed before parliament. If it is
expected to remain in force only for two months, then no further action is necessary. But if it is
proposed to keep it in force for a longer period, it is to be ratified by both houses.

Under Art. 356(1) (a), the President can assume to himself 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 powers 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 are set afoot.

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 5 FINANCIAL EMERGENCY

Article 360 makes a provision concerning financial emergency. “If the President is satisfied that
a situation has been 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.8

When such a proclamation is in operation, the centre can give directions to any state to observe
such canons of financial property as may be specified in the directions. It may give such other
directions as the President may deem necessary and adequate for the purpose [360(3)].Any such
directions may provide for the reduction of salaries and allowances of all. Or any class of
persons serving in the state. [Art. 360(4)(a)(i)]

The centre may require 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 [Art. 360(4) (a) (ii)].

The President may also issue directions for reducing the salaries and allowances of persons
serving the union including the Supreme Court and the high court judges [Article 360(4) (b).]

A proclamation issued under issued under Art. 360(1) may be revoked or varied by a subsequent
proclamation [Art. 360(2) (a)], and has to be laid before each House of Parliament [Art. 360(2)
(b). The proclamation ceases to have effect after two months unless in the meantime it is
approved by the Thirty-Eighth Amendment of the Constitution, the Presidential ‘satisfaction’ in
Art. 360(1) was declared to be ‘final and conclusive’ and not questionable in any court on any
ground. No court was to have jurisdiction to entertain any question, on any ground, regarding the
validity of —

1. A declaration made by proclamation by the President to the effect stated in Article

360(1); or
2. The continued operation of such Proclamation. This provision has now been deleted
by the Forty-Fourth Amendment of the Constitution.

8
Art. 360 (1), the Constitution of India, 1950.

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In India, there has not been financial emergency imposed till now.

DURATIAN OF EMERGENCY PROCLAMATION

The Constitution specifically provides that a Proclamation of Emergency made by the President
shall be valid for a period of two months only in the maximum within which it shall be laid
before each House of Parliament and approved by them. But if within that period, Lok Sabha is
dissolved, the proclamation shall be laid before Rajya Sabha only. On its approval, it shall
continue beyond two months till the new Lok Sabha are elected, and it ratifies the proclamation
within thirty days of its first session. Fixed time limit is always qualified by clauses like, “as
soon as”, “for the time being”, etc. The Constitution also does not provided for the contingency
of Parliament disapproving the proclamation. Parliament has three options before it – (a) it may
approve the proclamation by a resolution;

(b) it may take no action; or

(c) it may reject or disapprove the proclamation.

If the President feels the necessity of continuance of the proclamation beyond two months, and
Parliament is opposed to its continuance, there is a deadlock. Its tenure can be extended by
Parliament alone. Ordinarily, the wishes of the legislature will prevail. If the executive persists in
its view, it may issue another proclamation which shall remain valid for another two months. The
issue of another proclamation is not barred by the Constitution. It is difficult to agree that the
President will take advantage of this gap. In practice, there is no room for conflict between the
executive and the legislature especially, the lower house in a parliamentary democracy. If at all
such a conflict arises, it will result in the resignation of the ministry and/or dissolution of the
Lower house

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 6 CONCLUSION

Effect of Proclamation of Emergency

1 Effect of national emergency

1. The most significant effect is that the federal form of the Constitution changes into unitary.
The authority of the Centre increases and the Parliament assumes the power to make laws for the
entire country or any part thereof, even in respect of subjects mentioned in the State List.

2. The President of India can issue directions to the states as to the manner in which the
executive power of the states is to be exercised.

3. During the emergency period, the Lok Sabha can extend tenure by a period of 1 year at a time.
But the same cannot be extended beyond 6 months after the proclamation ceases to operate. The
tenure of State Assemblies can also be extended in the same manner.

4. During emergency, the President is empowered to modify the provisions regarding distribution
of revenues between the Union and the States.

5. The Fundamental Rights under Article 19 are automatically suspended and this suspension
continues till the end of the emergency.

But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended only in
case of proclamation on the ground of war or external aggression. From the above discussion, it
becomes quite clear that emergency not only suspends the autonomy of the States but also
converts the federal structure of India into a unitary one. Still it is considered necessary as it
equips the Union Government with vast powers to cope up with the abnormal situations.

2 Effect of state emergency

The declaration of emergency due to the breakdown of Constitutional machinery in a State has
the following effects:
1. The President can assume to himself all or any of the functions of the State Government or he
may vest all or any of those functions with the Governor or any other executive authority.
2. The President may dissolve the State Legislative Assembly or put it under suspension. He may
authorise the Parliament to make laws on behalf of the State Legislature.

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3. The President can make any other incidental or consequential provision necessary to give
effect to the object of proclamation.

3 Effect of Financial emergency

1. The Union Government may give direction to any of the States regarding financial matters.
2. The President may ask the States to reduce the salaries and allowances of all or any class of
persons in government service.
3. The President may ask the States to reserve all the money bills for the consideration of the
Parliament after they have been passed by the State Legislature.
4. The President may also give directions for the reduction of salaries and allowances of the
Central Government employees including the Judges of the Supreme Court and the High Courts.

Effects of Proclamation of Emergency on the Fundamental Rights

Federal laws will overrule state legislation, and the Union is empowered to govern areas (eg.
Policing) that are normally devolved to the states.

• The Union is also empowered to take over and completely control the taxation and budgetary
revenue processes. Under financial emergency, the Union is empowered to have the final say in
the promulgation of financial acts approved by the state legislature.
• The Union may decide to suspend some or all of the fundamental rights guaranteed by Part III
(Articles 12 through 35) of the constitution - which include:

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