DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, ANDHRA PRADESH

SUBJECT

CONSTITUTIONAL LAW

PROJECT TITLE

EMERGENCY PROVISIONS

NAME OF THE FACULTY

Mr. A. NAGESWARAO

NAME OF THE CANDIDATE

[Link] SAI KIRAN

ROLL NUMBER

18LLB031

SEMESTER – IV

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 ACKNOWLEDGMENT

I want to express my gratitude to respected Mr. A Nageswara Rao Sir, who gave me this very
good opportunity to research on emergency provisions under the Indian Constitution which are
proclaimed during the emergencies and with the help of relevant articles with decided case laws
and all the three types of emergencies are discussed in detail.

Secondly, I would like to thank the team DSNLU, who provided me assistance through various
online resources to accomplish this project.

[Link] SAI KIRAN

2018031

IV Semester.

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 CERTIFICATE

I present a ‘vote of thanks’ to Prof. A Nageswara Rao Sir, (Faculty of Constitutional Law,
Damodaram Sanjivayya National Law University) for providing me with his valuable guidance
and directions essential. I express my gratitude for the precious time spared to clear my doubts as
and when they came up. Without his support and encouragement the project would have been
incomplete

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 TABLE OF CONTENTS

 ABSTRACT……………………………………………………………………. 5

 INTRODUCTION…………………………………………………………........ 6

 NATIONAL EMERGENCY (Article 352)……………………………………. 8

(i) Position Prior to 44th Amendment.

(ii) Position after 44th Amendment.

(iii) Consequences and Effects for Proclamation of emergency

(iv)Writ of Habeas Corpus during Emergency
 STATE EMERGENCY (Article 356)…………………………………………. 19
(i) Imposition of Article 356 during breakdown of Constitutional Machinery
(ii) Duration
(iii) Effects
(iv)Grounds for Judicial Review
(v) Abuse of Power and Deterrence of abuse of power
 FINACIAL EMERGENCY (Article 360)……………………………………… 25
 CONCLUSION………………………………………………………………… 26

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 EMERGENCY PROVISIONS UNDER CONSTITUTION OF INDIA:
“The Indian system of government is of quasi-judicial nature where resembling a federal
government, powers are distributed between the center and the state and similar to unitary form
because of retention of powers to the Union during emergency.”
Part XVIII of the Constitution has made provision for three kinds of emergencies:
 “National Emergency”
 “Emergency due to failure of constitutional machinery in states”
 “Financial Emergencies”

These Are Explained Below:

ARTICLE 352: “The constitution makers have equipped the Union under Article 352 with
absolute control during time of emergency to preserve the integrity, security and stability of the
country. Proclamation of Emergency under this Article excludes the other two kinds of
Emergencies. President can impose National Emergency if he is satisfied that a grave situation
exists or is likely to arise due to war, external aggression or armed rebellion (earlier it was
internal disturbance). However his powers are subject to the recommendation of the Cabinet. The
proclamation must also be laid before the House of Parliament which may approve it by passing
a resolution, take no action or disapprove it within one month. Such a proclamation is notified by
publication in official gazette but this is not obligatory. So far National Emergency has been
declared three times in the country, first being in 1962-1968 when China attacked Indian borders,
second in 1971-1977 during Second World War and the third was imposed in 1975 on grounds
of internal disturbances.”

ARITCLE 356: “Under this article the President is vested with wide discretionary powers
when he is satisfied that the government of the state cannot be carried on in accordance with the
provision of the Constitution of India. Imposition of Emergency during failure of constitutional
machinery in state is called Presidents Rule and non-compliance by any state with direction of
Union given in the exercise of its executive power is an express ground to impose such a rule.
Such a proclamation to be operative must be placed before the House of Parliament and with its
approval it is valid for six months. In S.R. Bommai v. Union Of India, a full bench of the
Karnataka high court produced different opinion about the imposition of the President’s Rule in
Karnataka, while in other states the court held that it was in violation of the constitution and
would have restored the original position.”

ARTICLE 360: “This article explains Financial Emergency imposed by the President in a
situation of financial crises where the credit of India, or any part is threatened or in danger. The
purpose of this article is to alter the governmental machinery at the backdrop of the financial

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stability of the country. Unless approved by the House of Parliament this proclamation shall
cease to operate in two months. In so far, this proclamation is not imposed in India.”

INTRODUCTION

“The Constitution of India is dealing with one of the major issues that are emergency situations,
The Constitution of India contains Emergency Provisions under Article 352-360 under Part
XVIII of the Constitution and are embodied in 9 articles (352-360).”

“The emergencies which these articles seek to cover are of three kinds”:

(a) “An emergency due to external or internal aggression;”

(b) “Failure of constitutional machinery in a State; and”

(c) “Financial emergency”

“The first is provided for in Art. 352, the second in Art. 356, and the third in Art. 360. The
remaining articles deal with such matters and consequences which arise as a result of the
proclamation of emergency under any of the above mentioned articles.”

“The two kinds of proclamations - of emergency and of failure of Constitutional machinery -

differ from each other in two respects:”

(1) “The reasons or the grounds necessitating the proclamation are different in each case”;

(2) “The effects produced as a consequence of a Proclamation in each case are different.”

“For example, a proclamation issued consequent on the failure of the Constitutional machinery
(Art. 356) does not affect the individual's right to move the courts for the enforcement of
fundamental rights. But when a proclamation is issued under Art. 352 (emergency) the right to
move the courts for the enforcement of any or all fundamental rights may be suspended (Art.
359). When the Constituent Assembly was debating the emergency provisions in the draft
constitution, Dr. Ambedkar explained to the Assembly that the emergency power intended to be
vested in the President of India was of thesame type as was vested in the President of the United
States.”

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NEED FOR NATIONAL EMERGENCY IN INDIA-

“National Emergency has been declared in our country three times so far.”

“For the first time, emergency was declared on 26 October 1962 after China attacked our borders
in the North East. This National Emergency lasted till 10 January 1968, long after the hostilities
ceased.”

“For the second time, it was declared on 3 December 1971 in the wake of the second India-
Pakistan War and was lifted on 21 March 1977. While the second emergency, on the basis of
external aggression, was in operation,”

“Third National Emergency (called internal emergency) was imposed on 25 June 1975. This
emergency was declared on the ground of ‘internal disturbances’. Internal disturbances justified
impositin of the emergency despite the fact that the government was already armed with the
powers provided during the second National Emergency of 1971 which was still in operation.”

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 ARTICLE 352

“The Indian Constitution of India provides three types of emergency provisions:”

1) “National Emergency”
2) “State Emergency”
3) “Financial Emergency”

National Emergency (Article 352):

“This Article says that if The President is under a satisfactory impression that a grave emergency
exists whereby the security of India or any other part of India is threatened either by”

a) War
b) External aggression
c) Armed rebellion

“Under either of these grounds the president may make a proclamation of emergency in respect
of whole of India or part of India and may specify in his proclamation.”

No need of actual occurrence of event:

“A proclamation of emergency can be made even before the actual occurrence of event
contemplated under Article 352, it can take place if president is satisfied that there is imminent
danger of war or external aggression or armed rebellion. Therefore actual occurrence of events
mentioned under this article are not necessary. An imminent danger of war or external
aggression or armed rebellion is enough for proclaiming an emergency.”

Recommendations from cabinet:

“Cabinets recommend in form of writing which is essential for proclamation of emergency.

Cabinet is a competent authority which can make recommendations.”

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“Proclamation unless decision of Cabinet consisting of Prime Minister and other minister of
cabinet rank who are appointed, any recommendation by them has to be in writing and has to be
communicated to the president.”

“This means, that emergency can be declared only on occurrence of the cabinet and not on
merely advice of Prime Minister.”

“In order to ensure that a Proclamation is issued onlyafter due consideration, it is sought to be
provided that an Emergency can be proclaimed only on the basis of written advice tendered to
the President by the Cabinet.”

Proclamation to be laid down before both the houses:

Position Prior to 44th Amendment:

“The proclamation has to be laid down before both the houses and it shall cease to operate for a
period of two months, after the two months it has to be approved by both the houses.”

Position after 44th Amendment:

“The proclamation has to be made before the expiry of one month it has to be approved by
resolutions of both the houses. In case during the proclamation of emergency if the Lok Sabha is
dissolved during that period mentioned, without approving the proclamation but the
proclamation has been approved by Rajya Sabha, the proclamation shall cease to operate the
expiration of 30 days from the date on which the Lok Sabha sits for election.”

Time Period of Proclamation of Emergency:

“A proclamation of emergency once approved by parliament shall remain in force for a period of
six months from the date of passing of second resolution, unless revoked.”

“For Continuation of emergency further six month then approval of president is needed every six
[Link] 352 has been amended in several respects by the 44 thAmendment so as to
minimise the chances of abuse of power to declare [Link] a Proclamation of
Emergency is laid before a House of Parliament, it may adopt any one of the three alternatives,
namely:”

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 (i) “approve the proclamation by passing a resolution; or”
(ii) “take no action; or”
(iii) “reject or disapprove it”

Features of Article 352:

“Firstly, the expression ‘internal disturbance’ has been replaced by ‘armed rebellion’ in order to
‘delimit’ ‘internal disturbance’ which has wide connotation.”

“Secondly, a Proclamation of Emergency will not be issued by the President unless a

recommendation of the Council of Ministers to that effect is communicated to him in writing.
This is done to eliminate any possibility of the Prime Minister alone taking a decision for the
imposition of Emergency.”

“Thirdly, the Proclamation of Emergency must be approved within one month instead of two
months as provided earlier, by resolutions of both Houses of Parliament and such a resolution
has to be passed by a majority of the total membership of the House and a majority of not less
than two-thirds of the members present and voting. Before the Amendment such resolution can
be passed by simple majority.”

“Fourthly, a Proclamation of Emergency ceases to operate automatically at the expiry of six

months and can be continued beyond that period only on approval by a resolution of both Houses
of Parliament every six months.”

“Fifthly, the President shall revoke a Proclamation of Emergency on a resolution of the House of
the People to that effect and for that purpose a special sitting of the House can be called at a 14
days’ notice by one-tenth of the total members of that House. Before the Amendment once a
Proclamation was made and approved by Parliament it could be continued indefinitely unless the
President revoked it on his own.”

“Sixthly, the enforcement of fundamental rights in Articles 20 and 21 cannot be suspended at all
and special conditions have been introduced even in respect to those fundamental rights whose
enforcement can be suspended.”

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“Seventhly, Article 19 which used to get suspended automatically on a Proclamation of
Emergency will now remain unaffected if the ground of Proclamation is only armed rebellion
and not war or external aggression. Moreover special conditions have been added to the
suspension of Article 19 even when the proclamation is on the ground of war or external
aggression.”

Conditions for Proclamation of Emergency:

“If the President is satisfied that a grave emergency exists whereby the security of India is
threatened whether by war or external aggression or armed rebellion he may by proclamation
make a declaration to that effect. The three specific events mentioned in the article which would
empower the President to act are war, external aggression and armed rebellion. A war would
exist in India if a violent struggle against a foreign power takes place through the use of armed
forces. The words “external aggression” did not occur in the original draft of the article. These
words were added in the amended draft of the article to cover acts which did not mean actual war
or were less than war.”

“The President can issue a Proclamation of Emergency not only when the actual occurrence of
the events specified in Article 352 has already taken place but also when there is an imminent
danger of it. Whenever the President is satisfied that there is an imminent danger of any of the
specified events taking place. The 44th Amendment has, however, introduced several safeguards,
as noted above, against the repetition of similar misuse.”

Notification of Proclamation of Emergency:

“A Proclamation of Emergency is generally notified by publication in the Official Gazette. But

such publication is not obligatory either for coming into effect of the Proclamation or for its
operation and continuance.”

Baburao v Union of India1

1
AIR 1988 SC 440

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“The resolution of either houses of parliament approving,the publication of proclamation of
emergency shall not necessarily be in the official gazette, it can be publishes in any recognized
mode of publicity”

Difference between 39th Amendment and 44th Amendment:

“The Thirty-eighth Amendment seeks to clarify that the President may, if satisfied, issue
different Proclamations on different grounds as specified in clause (1) even if a proclamation has
already been issued and is in operation. This amendment also made the satisfaction of the
President final and conclusive and beyond judicial review though that provision was
subsequently deleted by the Forty-fourth Amendment implying that the satisfaction of the
President is not altogether beyond judicial review and may be brought within it, perhaps on
grounds of mala fides or that the satisfaction is based on wholly extraneous and irrelevant
grounds or is absurd or perverse, But mala fides is not easy to prove on the part of the President
who acts on the recommendation of the Council of Ministers which in turn enjoys the confidence
of Parliament. The remedy under these circumstances lies with the elected representatives in
Parliament to censure the Government if there is an abuse or misuse of power.”

Makhan Singh v. State of Punjab2

“It was observed that these are matters which must inevitably be left to the executive because the
executive knows the requirements of the situation and the effect of compulsive factors which
operate during periods of grave crisis. The argument that during the period of Emergency and the
operation of the Presidential Order under Article 359, the executive may abuse its powers and the
citizens would have no remedy, it was explained, is essentially political and its impact on the
constitutional question is at best indirect. The effective safeguard against abuse of executive

2
AIR 1964 SC 381,403

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powers whether in peace or in emergency is ultimately to be found in the existence of public
opinion.”

Consequences for Proclamation of emergency:

 “Executive of Union tends to give directions to any state as to manner in which the
executive power is vested and in normal circumstances it does not give any directions.”
 “Legislative Power of Union is enlarged as the Union parliament can make laws for state
enumerated under the state list.”
 “Parliament may also make laws conferring powers and imposing duties on the Union.”
 “The president by order may alter the financial arrangements between State and Union.”
 “During the operation of proclamation of emergency enforcement through courts of all
and fundamental rights except those in Article 20 and Article 21 may be suspended by
the president.”

State of M.P v Thakur Bharat Singh3

“Article 358 does not operate to validate a legislative provision which was invalid before the
Proclamation of Emergency. All executive actions which operate to the prejudice of any person
must have the authority of law & the terms of Article 358 do not detract from that rule.”

Effects of Proclamation of emergency:

“The effects of Proclamation of Emergency are given under Article 353 of the Constitution. The
power under this is provisional and cannot be used without reasonable care. The most important
effect is that during the operation of a proclamation the federal nature of the government
becomes unitary and the union has power to give directions to the state in reference to the
executive power to be exercised by them. In this way the legislative power of the union
parliament is enlarged up to the extent that it can make laws for the state and also modify
provisions regarding revenue matters. Where the fundamental rights are concerned, during
emergency arising out of war or external aggression Article 19 is suspended. During the
continuance of proclamation, power is vested in the President to suspend the right of individual
to move to the courts in case of infringement of their fundamental rights except those under
Article 20 and Article 21 under the Constitution of India.”
3
AIR 1967 SC 1170

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Bennett Coleman&Co v Union of India4

“Facts:The petitioners challenged the restrictions on the import of newsprint under Import Order 1955;
the regulation of sale, acquisition, and use of newsprint under Newsprint Order 1962; and the direct
regulation of size and circulation of newspapers under the Newsprint Policy of 1972-73.”

“Contention: They contended that these orders directly affected the right to freedom of speech and
expression under Article 19(1)(a) of India’s Constitution. The Supreme Court of India accepted this
contention and struck down the impugned orders as unconstitutional.”

Judgement:

“The Supreme Court held that the Newsprint Policy of 1972-73 which was a continuation of the
old policy made before the Proclamation of Emergency was not protected during the
Proclamation of Emergency from attack under Article 19.1t was observed that executive action
which is unconstitutional at the time of its being taken is not immune from being challenged in a
court of law during the Proclamation of Emergency. A Proclamation of Emergency, would not
authorize the taking of detrimental executive action during that period affecting Article 19
without any legislative authority or in purported exercise of power conferred by any pre-
emergency law which was invalid when enacted.”

Writ of Habeas Corpus during Emergency:

“Parliament alone can take away this right either directly or authorise the executive to do so
whenever necessary.”

“During the two World Wars, Parliament delegated wide powers, including the power of
suspending the writ of habeas corpus, to the executive for conducting the war and regulating the
life of the civilians. But neither during the First nor in the Second World War was there any
direct suspension of the writ of habeas corpus. Access to the courts was not denied. The courts
could not, however, consider whether a particular regulation was necessary or expedient for
purposes of the Act. It was held that the power was wide enough to support a regulation
authorising imprisonment without [Link], though the habeas corpus proceedings were not
suspended, there was a greater infringement of liberty in giving the executive unrestricted power
to detain without trial than in suspending habeas corpus proceedings in respect of charges. One

4
AIR 1973 SC 106

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of the personal rights secured to an individual is the right to move the High Court to issue an
order in the nature of habeas corpus.”

“The issue relating to the suspension of the writ of habeas corpus during the period of
Emergency declared under Article 352 came up before the Supreme Court in”

ADM, Jabalpur v. Shivakant Shukla5

“Facts:In 1975, the President on the advice of the Prime Minister declared Emergency under
Article 352 on the ground that the security of India was threatened by internal disturbance and
also issued an order under Article 359 suspending the right of access to the courts for the
enforcement of rights enshrined in Articles 21, 22 and 14. After that Parliament amended the
Maintenance of Internal Security Act, 1971 and conferred extraordinary powers on the
government to detain a person without trial.”

“Issue:A question arose whether the writ of habeas corpus under Article 226 could be issued to
release a detenu on the ground that his detention was inconsistent with the provisions of the
MISA or was mala fide?”

Contentions:

“It was contended that the object of the Presidential Order under Article 359 was to remove
fetters on the legislature so that during emergency it was free to make laws in violation of the
fundamental rights mentioned in the order; suspension of the right to enforce fundamental rights
could not confer any right on the Government to flout the law, be it Emergency or peace time. It
was further contended that the obligation of the Government to act according to law stems from
the inherent compulsion of the rule of law, and the suspension of Article 21 did not automatically
entail the suspension of the rule of law.”

“The inquiry in a habeas corpus petition entails whether the detention is justified by law, and it is
not shut out by the suspension of the right to enforce fundamental rights, otherwise it would
necessarily mean that during the emergency no person has any right to life or personal liberty.”

Judgement:

5
AIR 1976 SC 1207

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“The Supreme Court, legitimized the suspension of the writ of habeas corpus during the period
of Emergency on the basis of higher claims of national security. In other words, the detenue had
no locus standi to file the writ petition and question the reasons or grounds of detention.”

Union of India v. Bhanudas Krishna Gawde6

“Following the Shivakant Shukla case, the Supreme Court in this case, went one step further and
held that the”

“Presidential Orders issued under Article 359 were not circumscribed by any limitation and their
applicability was not made dependent upon the fulfilment of any condition precedent. It was
further held that these orders imposed a blanket ban on any and every judicial inquiry or
investigation into the validity of an order depriving a person of his personal liberty no matter
whether it originated from the initial order directing the detention or from an order laying down
the condition of his detention.”

“The majority view in Shivakanth Shukla case7 has been completely negatived by the Forty-
fourth Amendment of the Constitution as well as judicial interpretation and therefore it is no
longer the law. Now the enforcement of Articles 20 and 21 cannot be suspended in any situation
and the Court has held that Article 21 binds not only the executive but also the legislature
thereby implying the correctness of Justice Khanna‘s minority view that suspension of
enforcement of Article 21 relieves the legislature of its constraints but not the executive which
can never deprive a person of his life or liberty without the authority of law.”

Minerva Mills v Union of India8

“In this case it was held that there is no bar on judicial review of the validity of Proclamation of
emergency issued by president under Article 352(1), the courts power is however limited only to
examining whether the limitations conferred by constitution are observed or not.”

“The Court cannot go into the question of correctness or adequacy of the facts and circumstances
on which satisfaction of government is based upon.”

6
AIR 1977 SC 1027
7
AIR 1976 SC 1207
8
AIR 1980 SC 1789

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M.M Pathak v Union of India9

“The Supreme Court had an occasion to consider the effect of the expression “ the things done o
omitted to be done” in Article 358 for proclamation of emergency.”

“Settlement was made between LIC of India and its employees in 1971 under which LIC agreed
to pay in cash bonus to its employees, in 1977 however by LIC(Modification of Settlement Act),
1976 was passed by parliament during emergency the settlement was done ineffective and
therefore the employees could not demand their bonus during the emergency which was in force
then.”

“Supreme Court held: The effect of Proclamation of Emergency on fundamental rights is that
rights guaranteed by Articles 14 and 19 are not suspended during emergency but only their
operation is suspended.”

“State of Maharashtra v. Prabhakar10 the Supreme Court held that if a person was mired of his
personal liberty not under the Defence of India Act, or any rule made Manda but the
contravention thereof, his right to move the said courts in that regard would not be suspended.”

Ram Manohar Lohia v. State of Bihar11

“Court held the order of detention under the Defence of India Rules illegal on the the order of
detention was inconsistent with the conditions laid down in the Defence of India Rules. In this
case Dr. Ram Manohar Lohia was detained by an order of District Magistrate to whom the power
was delegated by the Government under Section 40 (2) of the Defence of India Act, 1962. The
order stated that the District Magistrate was satisfied that with a view to prevent the petitioner
from acting in any manner prejudicial to the” “public safety and the maintenance of law and
order” it was necessary to detain him. The expression used “for this purpose” under the Defence
of India Rules was “public safety and maintenance of public order”.

“The Court held that the order of the President did not form a bar to all applications for release
from detention under the Act or the Rules. Where a person was detained in violation of the

9
AIR 1978 SC 803
10
AIR 1966 SC 424
11
AIR 1966 SC 740

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mandatory provisions of the Defence of India Act his right to move the court was not
suspended.”

“The Court held that the order of the President did not form a bar to all applications for release
from detention under the Act or the Rules. Where a person was detained in violation of the
mandatory provisions of the Defence of India Act his right to move the court was not suspended”

Mohd Yaqub v State of Jammu and Kashmir12

“The Supreme Court held that an order by the President under Article 359 (l) was not ‘law’
within the meaning of Article 13 (2) and therefore, its validity could not be challenged with
reference to the provisions of Part III, Thus if the order suspends the enforcement of Article 14,
it cannot be challenged on the ground that it is discriminatory under Article 14.”

“The validity of the order cannot be tested under the very fundamental rights which can be
Article 14, which it is suspended.”

The Supreme Court thus overruled its own decision in Ghulam Sarwar v Union of India13

“Where it has held that Presidential Order under Article 359(1) could be challenged as being
discriminatory.”

12
AIR 1968 SC 765
13
AIR 1968 SC 1335.

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 ARTICLE 356

“Article 356 of the Constitution empowers the President to issue a proclamation on receipt of a
report from the Governor of a State. Or otherwise too, if he is satisfied that the Government of
the State cannot be carried on in accordance with the provisions of the Constitution.”

“By that proclamation he can 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, and declare that the powers of legislature of that State shall vest in
Parliament. He cannot, however, assume to himself any of the powers vested in or exercisable by
a High Court or to suspend, either in whole or in part, the operation of any provision of the
Constitution relating to High Courts.”

“Article 357 provides the manner in which the legislative powers of a State, which under the
President’s proclamation are declared to vest in Parliament, are to be exercised. It states that the
Union Parliament may delegate the power to make laws for the State to the President or to any
other authority specified by him in this behalf.89 Power is given to the President, when the
House of the People is not in session, to authorise expenditure from the Consolidated Fund of the
State pending sanction of such expenditure by Parliament. The President can also issue
Ordinances for the State under Article 123.”

Imposition of Article 356 during breakdown of Constitutional Machinery:

“In the first place, Article 18890 was deleted with the result that now it is the President alone
who can, in case of a breakdown of the constitutional machinery in a State, assume the functions
of the Government of the State. Article 356 as originally proposed provided that the Governor of
a State should have the power to take over the administration of the State by proclamation for
two weeks and then communicate to the President of the Union that the constitutional machinery
had failed and that he had issued a proclamation taking over the administration. Only on the
report made by the Governor could the President act under Article 356.”

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Duration:

 The duration of a proclamation issued under Article 356 is two months.

 If after two months the proclamation is to be continued, it has to be ratified by
Parliament.
 Where Parliament has ratified a proclamation, it will be in Operation for six months, and
any further continuance should be sanctioned by Parliament.
 As amended by the 44TH Amendment , a proclamation under Article 356 will continue for
six months from the date of its issue, and may subsequently be extended for another six
months. However, for further extension beyond the expiration of one year, a resolution
may not be passed by either House of Parliament unless a proclamation of emergency is
in operation and
 It is certified by the Election Commission that it is necessary for such a proclamation to
continue in view of the difficulties in holding elections in the State.

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.

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

Grounds for Judicial Review:

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“Article 356(1) provides that the President may issue a proclamation if he 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 exercise of executive power of a State in derogation of the provisions of Articles 256 and
257 may provide for a situation in which such a proclamation may be issued. Such a situation
may also be created if a stable ministry is not found possible due to political uncertainties in the
Legislative Assembly or inability to find a leader acceptable to the members of the Legislative
Assembly.”

Restoration of President Rule:

“Ever since the present Constitution came into force, there have been over one hundred
occasions for resorting to the President’s Rule under Article 356(1).It has been resorted to for
diverse reasons some of which were genuine to Article 356 while others were not, such as ruling
party’s internal disputes, to dislodge opposition party governments in States, reorganization of
States, inability to install a government or to find out a new government in a State and law and
order problem in a State. Non-compliance by any State with the directions of the Union given in
the exercise of its executive power is an express ground under Article 365 to impose President’s
Rule in that State.”

S.R. Bommai v. Union of India14

“a Full Bench of the Karnataka High Court reiterated that the proclamation under Article 356 is
justiciable and that the courts, could look into the materials or reasons disclosed for issuing the
proclamation, to find out whether those materials or reasons were wholly extraneous to the
formation of the satisfaction and had no rational nexus at all to the satisfaction reached under
Article 356.”

“Judgement: It upheld the President’s proclamation based on the Governor’s report of horse
trading among the legislators. The Court rejected the argument that the Governor should have
ascertained the support to the Chief Minister on the floor of the House.”

Sunderlal Patwa v. Union of India15

14
AIR 1990 Kant 5(FB)
15
1993 Jab LJ 387(FB)

21 | P a g e
“Madhya Pradesh High Court by a majority of two to one invalidated the proclamation under
Article 356 issued on 15 December, 1992 removing the State Government and dissolving the
Legislative Assembly. The majority took the view that the President’s satisfaction was based on
two letters of the Governor which mentioned some incidents of riots, arson and killings in the
aftermath of the demolition of the disputed structure at Ayodhya on 6 December, 1992.”

“These incidents the majority did not find adequate to justify an action under Article 356.
Relying upon Article 355”

“Judgment: It held that the internal disturbance in a State to justify an action under Article 356
must be of such magnitude as to satisfy the President that it would be impossible for the
Government to carry on in accordance with the Constitution, therefore it found the President’s
action uncalled for. Accordingly it ordered restoration of the Government and the Assembly. The
operation of the High Court’s order was however, stayed by the Supreme Court pending the
disposal of the appeal.”

Justice Sarkaria Commission Report:

“Report was made for the purpose of determining the circumstances and the conditions subject to
which President could act under Article 356.”

“The Commission in its report has broadly classified the instances of failure of constitutional
machinery:”

a) Political Crisis
b) Internal Subversion where for example the government is deliberating acting against the
constitution and law is fomenting a violent revolt
c) Physical Breakdown where government willfully refuses to discharge its constitutional
obligations endangering the security of state.
d) Non-Compliance with constitutional directions of Union Government.

Consequences:

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“During the President's Rule in a State under Article 356(1) the Legislative Assembly may either
be dissolved or suspended. If the Legislative Assembly is dissolved, steps are taken to have fresh
elections for constituting a new Legislative Assembly in the State.”

“During this period. by virtue of clause (1) of Article 357, Parliament is empowered:”

(i) To confer powers on the President for making laws for the State and to authorise him
further to delegate such power to any other authority.
(ii) To authorise the President or any other authority on his behalf for making laws and
imposing duties upon the Union or its officers and authorities, and
(iii) To authorise expenditure from the Consolidated Fund of State when the House of the
People is not in session.

“So far the practice has been for the President to enact laws for a State during the President’s
Rule in consultation with the members of Parliament from that State. The administration is
delegated by the President to the Governor of the State, who discharges his responsibility with
the help of advisors. During this period the ministers do not stay in office, or else they may be
dismissed from their office.”

“Article 356 itself enables the President to make incidental or consequential provisions. These
provisions are such as may appear to the President to be necessary for giving effect to the objects
of the Proclamation. Under the terms of clause (c) of Article 356(1), their validity or legality is
not justiciable being a matter entirely for the subjective satisfaction of the President”

Abuse of Power:
“It is clear that the power extended to the Union Parliament in the Proclamation of Emergency
must be used in rarest of the rare cases. However it is not so, the power given to the President to
be used in extraordinary circumstances is widely used for political benefits of individuals rather
than public interest. This abuse of power can easily lead to sedition of the Indian democracy.”

“The 44th amendment ensured that internal disturbance would no longer be ground for
Proclamation of Emergency, where it lead to the worst abuse of Emergency power at National
level in 1975 and continued till 1977.”

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“The power under Article 356 has been used frequently in India since 1950, especially in states
like Uttar Pradesh, Kerala and Punjab. At one instance this President’s Rule was imposed purely
on political grounds to overthrow the ministry formed by a different party. By the 42 nd
amendment in 1976, it was exemplified as it affected almost sixty clauses of the constitution.
Therefore there is demand for either deletion or making provisions to restrict misuse of these
provisions.”

Deterrence of Abuse of Power:

“It is noteworthy that the Emergency Provisions are subject to abuse by the authorities and
relevant safeguards must be followed to deter the same. The constitution of India guarantees to
the citizens of India fundamental rights, which are suspended pursuant to Emergency Provisions.
It must be kept in mind that the human rights must be not violated during the proclamation, if so,
done with justifiable cause in favour of individual interest. Also the social, cultural, political, and
civil rights of people must be safeguarded.”

“The Provisions must not be such as to disregard the principle of legality. ‘Due procedure of
law’ or ‘procedure established by law’ as mentioned in”

“Maneka Gandhi v. Union of India16, must be followed to prevent corruption and misuse of
power. It is a conditional power and must be used as a last resort with due care. The Sarkaria
Commission sharing a similar view believes that this extraordinary power given by the
constitution must be used as a constitutional weapon to deal with extreme situation and not used
frequently as is being done in India.”

“With regard to the exercise of the powers under Article 356, the President's "satisfaction" is
based upon the receipt of a report from the Governor of the state in question. Thus, the Governor
has a critical role in altering the nature of federalism through the use of Emergency powers.”

“The 38th Amendment, passed in 1975 (during the Emergency declared by Prime Minister Indira
Gandhi), was specifically intended to deny judicial review of the "satisfaction" of the President
before a Proclamation of Emergency. This provision was repealed by the 44th Amendment

16
(1978) 1 SCC 248

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passed in 1978. However, even while the 38th Amendment was in effect, the Supreme Court of
India had occasion to deal with the issue in”

The State of Rajasthan v. The Union of India 17in 1977. Although the seven judges participating
in this decision gave different rulings, a consensus was reached in a 1982 case,”

“A.K. Roy v. The Union of India 18 to the effect that Article 356 is open to judicial review when
there is no "reasonable nexus" between the reasons disclosed for the Proclamation and the
satisfaction of the President.”

17
AIR 1977 SC 1361
18
AIR 1982 SC 710

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 Article 360

Article 360 talks about Financial Emergency

“If the President is satisfied that a situation has arisen whereby the financial stability or credit of
India, or of any part thereof is threatened, he may by a proclamation make a declaration to that
effect. During the period the proclamation is in operation, the executive authority of the Union
shall extend to the giving of directions to any State to observe such canons of financial propriety
as may be specified in the directions, and be deemed necessary for maintaining financial stability
and credit of the State. Under these directives, any State may be required by the Union to reduce
salaries and allowances of all or any class of persons employed by the State and reserve all
money or financial Bills for the consideration of the President after they are passed by the
legislature of the State.”

Changes through 44th Amendment:

“As amended by the Forty-fourth Amendment, a proclamation of financial emergency shall

cease to operate in two months from the date of issue unless it is approved by both Houses of
Parliament. If the House of the People is dissolved, It has to be approved within thirty days from
the reconstitution of the House. Once [ha proclamation has been approved by Parliament it will
continue to remain in fad unless revoked by the President.”

“Further, during such financial emergency, it shall be competent for the President to issue
directions for the reduction of salaries and allowances of all or any class of persons serving the
Union, including Judges of the Supreme Court and the High Courts.”

“As already stated. Article 360 has never been invoked so far.”

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“The Constitution of India is unique to the extent that it contains a complete scheme for speedy
readjustment of the peace-time governmentalmachinery in moment of national peril. These
provisions may appear to be harsh, particularly in a Constitution which professes to be built upon
an edifice of fundamental rights and democracy.”

“But the provisions must be studied in the light of India‘s past history. India had he: inglorious
days whenever the Central power grew weak. It is well that the Constitution guards against the
forces of disintegration.”

“Events may take place threatening the very existence of the State, and if there are he safeguards
against such eventualities, the State, together with all that is desired to remain basic and
immutable, will be swept away.”

A Proclamation issued under Art. 360—

(a) May be revoked or varied by a subsequent Proclamation
(b) Shall be laid before each House of Parliament
(c) Shall cease to operate at the expiration of two months, unless before the expiration
of that period it has been approved by resolutions of both Houses of Parliament.

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 CONCLUSION

“The Indian Constitution equips the central government with powers to function while operation
of Proclamation of Emergency whether National Emergency, Emergency due to failure of
constitutional machinery in states or Financial Emergency. The President is vested with wide
discretionary powers, subject to constitutional validity of the same. Similarly in the European
countries the Emergency measures must not exceed that what the situation demands and they
cannot be inconsistent with the states other obligations as per under the International law.”

“One of the duties while exercising the power under Article 352 is the protection of human
rights. However Article 19 is suspended during operation of the proclamation but as soon as the
Emergency ceases, these rights must be reinstated to the individuals. In Bangladesh it is
recommended that there should be immediate restoration of fundamental and democratic rights
of people after the Emergency ceases to operate.”

“Where the Constitution provides for execution of power which may lead to infringement of
fundamental rights of the individual during Emergency, judicially guaranteed by Constitution of
India, there must also be effective control mechanism to ensure limitation of this power within
the ambit of the Constitution. The validity of actions must be reviewed to deter political gains
and give way to public interest. Despite the abuse of power the Emergency provisions still have a
role to play under conditions prevailing in India, though it still remains a controversial issue in
the country.”

“The state government relinquishes their rights to the central government to retain security and
pursuit of public welfare. It was at the time when neighboring country, China attacked the
northern borders posing a threat to the security of India, when for the first time the Union

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assumed powers to handle such a situation. Since then the President was assigned with
extraordinary powers to act in situations of Emergency.”

BIBLOGRAPHY:

1. Durga Das Basu, Introduction to Indian Constitution(Kamal Law House, Calcutta,

5thedn., 1998).
2. M P Jain, Indian Constitutional Law (Wadhva & Co., 2003).
3. V N Shukla, Constitution of India, 11th edition,2008, Eastren Book Company.
4. J.N Pandey, Constitutional Law of India .55th Edition, 2018, Central Law Agency.

List of Cases:

 Baburao v Union of IndiaAIR 1988 SC 440

 Makhan Singh v. State of PunjabAIR 1964 SC 381,403.
 State of M.P v Thakur Bharat SinghAIR 1967 SC 1170
 Bennett Coleman &Co v Union of IndiaAIR 1973 SC 106
 ADM, Jabalpur v. Shivakant ShuklaAIR 1976 SC 1207
 Union of India v. Bhanudas Krishna GawdeAIR 1977 SC 1027
 Minerva Mills v Union of IndiaAIR 1980 SC 1789
 M.M Pathak v Union of IndiaAIR 1978 SC 803
 State of Maharashtra v. PrabhakarAIR 1966 SC 424
 Ram Manohar Lohia v. State of BiharAIR 1966 SC 740
 Mohd Yaqub v State of Jammu and KashmirAIR 1968 SC 765
 Ghulam Sarwar v Union of IndiaAIR 1968 SC 1335.
 S.R. Bommai v. Union of IndiaAIR 1990 Kant 5(FB)
 Sunderlal Patwa v. Union of India1993 Jab LJ 387(FB)
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 A.K. Roy v. The Union of IndiaAIR 1982 SC 710

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