EMERGENCY

It comes under part 18 of Indian constitution deals with emergency which

comers under article 352 to 360 where it deals with 3 types of emergencies.
Three types of emergencies
1 National Emergency – Deals with article 352 to 355
2. State Emergency – Deals with article 356 to 359
3. Financial Emergency - Deals with article 360
NATIONAL EMERGENCY
▪ National emergency can be declared on the basis of war, external
aggression or armed rebellion. The Constitution employs the expression
‘proclamation of emergency’ to denote an emergency of this type.
▪ Grounds of declaration:
o Under Article 352, the president can declare a national emergency
when the security of India or a part of it is threatened by war or
external aggression or armed rebellion.
o The President can declare a national emergency even before the
actual occurrence of war or armed rebellion or external aggression
o When a national emergency is declared on the grounds of ‘war’ or
‘external aggression’, it is known as ‘External Emergency’. On
the other hand, when it is declared on the grounds of ‘armed
rebellion’, it is known as ‘Internal Emergency’.
• This term ‘armed rebellion’ is inserted from
the 44th amendment. Before this term it was known as
internal disturbance.
▪ Example:
o If India and Pakistan openly accept that they will use armed forces
against each other is simply war.
o If there is no formal declaration that there will be armed forces
used against a country is External aggression.
o And if because of these two grounds an emergency is proclaimed
as an external emergency.
Facts
▪ The 38th Amendment Act of 1975 made the declaration of National
Emergency immune to judicial review. But, this provision was
subsequently deleted by the 44th Amendment Act of 1978.
▪ In Minerva Mills case (1980), the Supreme Court held that National
Emergency can be challenged in the court on the ground of malafide or
that the declaration was based on wholly extraneous and irrelevant facts.
▪ Parliamentary approval and duration
o The proclamation of emergency must be approved by both the
houses of parliament within one month from the date of its issue.
o However, if the proclamation of emergency is issued at a time
when the Lok Sabha has been dissolved or the dissolution takes
place during the period of one month without approving the
proclamation, then the proclamation survives until 30 days from
the first sitting of Lok Sabha after its reconstitution, provided the
Rajya Sabha has in the meantime approved it.
o If approved by both the houses, the Emergency continues for 6
months and can be extended to an indefinite period with an
approval of the Parliament for every six months.
o Every resolution approving the proclamation of emergency or its
continuance must be passed by either House of Parliament by a
special majority.
▪ Revocation of proclamation
o A proclamation of Emergency may be revoked by the President at
any time by a subsequent proclamation. Such proclamation does
not require parliamentary approval.
o The emergency must be revoked if the Lok Sabha passes a
resolution by a simple majority disapproving its continuation.
o ADM Jabalpur v. Shivakant Shukla - ADM Jabalpur v. Shivakant
Shukla Case is commonly referred to as the Habeas Corpus case.
Prior to the implementation of the 44th Amendment Act, the
Supreme Court had established that individuals did not possess a
legal entitlement to approach the Court for the purpose of
enforcing fundamental rights in the event of a state of emergency
being declared.
 o Following the implementation of the 44th Amendment Act, it has
been established that individuals possess the right to approach the
Supreme Court in order to seek the protection and enforcement of
fundamental rights as guaranteed by Articles 20 and 21, even in
situations where a state of emergency has been proclaimed.

▪ Effects of national emergency

o A proclamation of Emergency has drastic and wide-ranging effects
on the political system. These consequences can be grouped into 3
categories:
• Effects on the centre-state relations: While a proclamation
of Emergency is in force, the normal fabric of the Centre-
State relations undergoes a basic change. this can be studied
under three heads:
• Executive: Centre becomes entitled to give executive
directions to a state on ‘any’ matter
• Legislative: The parliament becomes empowered to
make laws on any subject mentioned in the state list,
the president can issue ordinances on State subjects
also, if the parliament is not in session. The laws made
on state subjects by the parliament become inoperative
six months after the emergency has ceased to be in
operation.
• Financial: the president can modify the constitutional
distribution of revenues between the centre and the
states.
• Effect on the life of the Lok Sabha and State Assembly:
• While a proclamation of National Emergency is in
operation, the life of the Lok Sabha may be extended
beyond the normal term for one year at a time.
However, this extension cannot continue beyond a
period of six months after the emergency has ceased to
operate.
• Similarly, the Parliament may extend the normal
tenure of a state Legislative Assembly by one year
 each time during a national emergency, subject to a
maximum period of six months after the emergency
has ceased to operate.
• Effect on fundamental rights: Articles 358 and 359
describes the effect of a National Emergency on the
Fundamental Rights. These two provisions are explained
below:
• Suspension of Fundamental rights under Article
19: According to Article 358, when a proclamation of
National Emergency is made, the six fundamental
rights under article 19 are automatically suspended.
Article 19 is automatically revived after the expiry of
the emergency.
• The 44th Amendment Act laid out that Article
19 can only be suspended when the National
Emergency is laid on the grounds of war or
external aggression and not in the case of armed
rebellion.
• Suspension of other Fundamental Rights: Under
Article 359, the President is authorised to suspend, by
order, the right to move any court for the enforcement
of Fundamental Rights during a National Emergency.
Thus, remedial measures are suspended and not the
Fundamental Rights.
• The suspension of enforcement relates to only
those Fundamental Rights that are specified in
the Presidential Order.
• The suspension could be for the period during
the operation of emergency or for a shorter
period.
• The Order should be laid before each House of
Parliament for approval.
• The 44 Amendment Act mandates that the
President cannot suspend the right to move the
court for the enforcement of Fundamental
Rights guaranteed by Article 20 and 21.
 ▪ Declarations made so far: This type of emergency has been proclaimed
three times so far- in 1962, 1971 and 1975
o The first proclamation of National Emergency was issued in
October 1962 on account of Chinese aggression in the NEFA and
was in force till January 1968.
o The second proclamation of National Emergency was made in
December 1971 in the wake of the attack by Pakistan.
o Even when the emergency was in operation, the third proclamation
of National Emergency was made in June 1975. Both the second
and the third proclamations were revoked in March 1977
President’s Rule (State emergency )
▪ Article 355 imposes a duty on the centre to ensure that the government of
every state is carried on in accordance with the provisions of the
constitution.
▪ It is this duty in the performance of which the centre takes over the
government of a state under Article 356 in case of failure of constitutional
machinery in a state.
▪ This is popularly known as ‘President’s Rule’.
▪ Grounds of imposition: the president’s ruler can be proclaimed under
Article 356 on two grounds:
1. Article 356 empowers the President to issue a proclamation if he is
satisfied that a situation has arisen in which the government of a
state cannot be carried on in accordance with the provisions of the
constitution.
2. Article 365 says that whenever a state fails to comply with or to
give effect to any direction from the centre, it will be lawful for the
President to hold that a situation has arisen in which the
government of the state cannot be carried on in accordance with the
provisions of the constitution.
▪ Parliamentary approval and duration: A proclamation imposing
president’s rule must be approved by both the houses of parliament within
two months from the date of its issue.
o However, if the proclamation of President’s rule is issued at a time
when the Lok Sabha has been dissolved or the dissolution of the
 Lok Sabha takes place during the period of two months without
approving the proclamation, then the proclamation survives until
30 days from the first sitting of the Lok Sabha after its
reconstitution, provided that the Rajya Sabha approves it in the
meantime
▪ Consequences of the President’s rule: The President acquires the
following extraordinary powers when the President’s rule is imposed in a
state:
o He can take up the functions of the state government and powers
vested in the governor or any other executive authority in the state.
o He can declare that the powers of the state legislature are to be
exercised by the parliament.
o He can take all other necessary steps including the suspension of
the constitutional provisions relating to any body or authority in the
state.
▪ Scope of judicial review: The 38th Amendment act of 1975 made the
satisfaction of the President in invoking Article 356 final and conclusive
which would not be challenged in any court on any ground.
o But, this provision was subsequently deleted by the
44th Amendment Act of 1978 implying that the satisfaction of the
President is not beyond judicial review.
Financial Emergency
▪ Grounds of declaration: Article 360 empowers the president to
proclaim a Financial Emergency if he is satisfied that a situation has
arisen due to which the financial stability or credit of India or any part of
its territory is threatened.
▪ Parliamentary approval and duration: A proclamation declaring
financial emergency must be approved by both the Houses of Parliament
within two months from the date of its issue.
o However, if the proclamation of Financial Emergency is issued at a
time when the Lok Sabha has been dissolved or the dissolution of
the Lok Sabha takes place during the period of two months without
approving the proclamation, then the proclamation survives until
30 days from the first sitting of the Lok Sabha after its
 reconstitution, provided the Rajya Sabha has in the meantime
approved it.
• Once approved by both the houses of Parliament, the
Financial Emergency continues indefinitely till it is revoked.
Effects of Financial Emergency
▪ Extension of the executive authority of the Union over the financial
matters of the States.
▪ Reduction of salaries and allowances of all or any class of persons
serving in the State.
▪ Reservation of all money bills or other financial bills for the
consideration of the President after they are passed by the legislature of
the State.
▪ Direction from the President for the reduction of salaries and allowances
of all or any class of persons serving the Union; and the judges of the
Supreme Court and the High Courts.
ARTICLE RELATED TO EMERGENCY

Revocation of proclamation of Emergency

The revocation of Proclamation Article 352 (7) and (8) entails the President’s action of
rescinding the proclamation in the event that the House of People passes a resolution
expressing disapproval of it.
In accordance with Clause 8 of Article 352, if a minimum of one-tenth of the entire House of
People submits a notice for revocation:
1. In the event that the House is in session, a notice should be directed to the Speaker.
2. Conversely, if the House is not in session, the notice should be directed to the
President. In either scenario, the Speaker or President must convene the special sitting
of the House within 14 days of receiving the notice.
Significant Implications of the Proclamation of Emergency
• According to Article 353(a) of the constitution, the executive authority of the union is
empowered to provide instructions to any state regarding the manner in which its
executive authority is to be exercised.
• According to Article 353(b) of the Constitution, Parliament possesses the authority to
enact legislation pertaining to subjects that are not specifically listed in the union list.
 • The authority to modify the allocation of revenue between the Union and States lies
with the Centre, as stated in Article 354.
• According to Article 83(2) proviso, it is stipulated that during the existence of a state
of emergency, the Parliament has the authority to pass legislation to prolong the
tenure of the lower house for a maximum duration of one year at a time. However,
this extension cannot exceed a period of six months after the state of emergency has
been lifted.
• According to Article 358, the fundamental right granted under Article 19 will be
suspended without the need for any additional action when a state of emergency is in
effect due to war or external aggression.
• Article 359 provides that the enforcement of all other fundamental rights except the
suspension of Articles 20 and 21 can be enacted through the issuance of a presidential
proclamation.
It is important to acknowledge that, in contrast to Article 358, the suspension of the right to
approach any Court for the enforcement of fundamental rights under Article 359 is not a
spontaneous or automatic process. The acquisition of this can only be facilitated through the
issuance of a presidential directive.