CONSTITUTIONAL LAW – II PROJECT
EMERGENCY
INTRODUCTION
Indian constitution talks about federal scheme of our government having union government
being in centre and state government being in state. Our constitution makers wanted both the
union government and state government to work in a synchronized manner and synergy.
Despite having this federal structure, our constitution makers envisaged some scenarios
where there can be a need to change this scheme temporarily under very special
circumstances. This strict application of federalism hence can be curtailed to an extent. This
can be done by the application of emergency provisions enshrined in our constitution. Part-18
of Indian Constitution ranging from Articles 352-3601 talks about these emergency
provisions. These emergency provisions have been adopted from the Government of India
Act, 1935.2 Mainly Article 453 and 934 of this act dealt with such proclamation on ground of
failure in constitutional machinery. These articles formed a base for our current emergency
provisions in our constitutions. Our constitution is thus said to be federal in structure but
unitary in spirit. One of the components in our Indian constitution that allows the federal
form of government to be changed to a unitary form of government depending on the
circumstances are these emergency provisions. This is a distinct characteristic of our
Constitution and the reason behind the addition of such a provision in the constitution is to
safeguard and secure its other pillars like unity, integrity, sovereignty and security of the
country. During these emergencies, individual rights are typically restricted and the union
government is granted most of the authority when an emergency is declared. This is mostly
done to grant the government unprecedented authority to take action to resolve the problem
and maintain the integrity and stability of the country. If we look into other federal
constitutions of the world, we can see that they are all bound by the concept of federalism,
except in India. These emergency provisions further reiterate the idea of envisaging a strong
centre by our constitution makers. What comes with these provisions is the critique of the
states that these provisions especially the provisions relating to the state emergency curtail the
idea of federalism and power division enshrined in our constitution. In this research paper we
will be looking into the idea of these emergency provisions. How our constitution makers
1
Constitution of India 1950
2
Government of India Act, 1935
3
Government of India Act 1935, Article - 45
4
Government of India Act 1935, Article - 93
saw them. How does these provisions affect the centre-state relations and arguments of states
against these provisions and these topics will be discussed with the idea of federalism being
in our mind.
HISTORY BEHIND EMERGENCY PROVISIONS: FROM CONSTITUENT
ASSEMBLY TO INDIRA GANDHI REGIME
Part XVIII of our Indian constitution containing Articles 352 to 360 deals with the emergency
provisions. But in our original draft constitution the corresponding articles were Article – 275
to 280A. These articles envisage three types of emergencies: -
1. Emergency due to war, external aggression, or armed rebellion (discussed in Article 352 5).
This is also popularly known as National Emergency.
2. Emergency due to the failure of the constitutional machinery of the state (discussed in
Article 3566). This is popularly known as “President’s Rule.” It is also known by two other
names: “State Emergency” or “Constitutional Emergency.”
3. Financial emergency which can be done due to a threat to the financial stability or credit of
India (discussed in Article 3607).
No other part of the Constitution of India has been more controversial than this part. Hence it
was subjected to more criticism and analysis by its critics during the constitutional assembly
debates. Our constitution makers had many debates regarding the implication of these
provisions providing us with varied opinions. The debates relating to these emergency
provisions are mentioned in Volume 9 (Ranging from 30 July 1949 to 18 September 1949) of
these debates. Constitution drafters such as H.V. Kamath were concerned that the writers of
the Constitution should take a cue from the Weimer Republic (Erstwhile Germany)
Constitution, which Adolf Hitler had abused to overthrow it and install a dictatorship. 8 As a
preventative step against potential disruptive forces damaging the newly formed Union, the
majority of members supported the addition of these clauses, albeit with some reluctance.
According to another line of reasoning, which included B.R. Ambedkar, Alladi Krishnan
Swami Ayyar, and T.T. Krishanamachari, emergency provisions were required to safeguard
5
Constitution of India 1950, Article - 352
6
Constitution of India 1950, Article - 356
7
Constitution of India 1950, Article - 360
8
Constituent Assembly Debates, Volume 9, August 3, 1949.
not just the nation's unity and integrity but also the freedom of individuals and the
Constitution itself.9
Article – 352 as of now (After the 44th Constitutional amendment) talks about the ground on
which national emergency can be declared, which are war, external aggression and armed
rebellion. There have been three instances where the national emergency had been declared in
India. During the Indo-China War, the first national emergency was declared, and it lasted for
six years, from October 1962 to January 1968. The declaration of emergency was made on
the pretext of external aggression. The conflict with China ended in 1962, but only after the
emergency did another conflict break out against Pakistan. When India and Pakistan went to
war (December 1975–March 1977), a second emergency was declared. The declaration of an
emergency was made in response to external assault. The emergency persisted even after the
war was over. Prior to the second emergency being revoked, the third emergency was
announced. Internal instability served as the justification for the declaration of the third
emergency. This emergency was thought to be the most contentious. 10 In 132 cases, the
president's rule (enshrined in Article - 356) was enforced due to state emergencies, from
independence to 202011 The greatest number of presidents' rules were enforced during Indira
Gandhi's administration. During Indira Gandhi's rule, there were 35 instances of presidents'
rule in different states.12 India has not yet had any instances of a financial emergency
(provided in Article - 360).
CRITICAL ANALYSIS OF EMERGENCY PROVISIONS WITH RESPECT TO
CENTRE-STATE RELATIONSHIP
A fundamental tenet of democratic administration is the principle of ‘separation of power’.
has significantly deteriorated as a result of the crises. The Indian Constitution's emergency
provisions were included with the goal of giving the government some extra authority in
times of need. These clauses are typically extremely essential and vital for preserving the
country's security and stability because they frequently bring up concerns about the possible
concentration of power. The most distinctive aspect of the Indian Constitution that gives the
9
ibid
10
Binitha Ajith, ‘Emergency Provisions and the Interplay of Centre-State Relations under the Indian
Constitution’ (2024) 12(2) International Journal of Creative Research Thoughts (IJCRT)
11
Anil Ghanghas, ‘Imposition of President’s Rule in Indian States from Independence to 2020: An Analysis’
(2020) 40(70) Studies in Indian Place Names 769
12
Binitha Ajith, ‘Emergency Provisions and the Interplay of Centre-State Relations under the Indian
Constitution’ (2024) 12(2) International Journal of Creative Research Thoughts (IJCRT)
Union broad authority to deal with particular specific circumstances is the clauses it contains.
The Indian constitution's emergency clause gives the central government the authority to
embrace the unitary system's strengths and characteristics when an emergency arises. In a
federal state, an emergency can frequently throw off the delicate equilibrium that takes place
between the state governments and the union. Therefore, because the central government will
be taking on more authority and control over numerous governmental areas that would
typically fall within the purview of states, the emergency scenario leads to centralization,
which will become more noticeable. In addition, the centralization of power is one of the
outcomes of the declaration of emergency.
State autonomy was significantly impacted by the Emergency measures. It enables the union
government to assume its authority and manage state functions. This is accomplished by
putting the Constitution's various clauses on hold. The balance between a federation's strong
union government and state autonomy is impacted by such a use of power. The president has
the authority to assume control of the state during a declared national emergency by
suspending state-related provisions. In this instance, the governor of the specific state will
serve as the
teacher to the president. When the state's constitutional machinery breaks down and cannot
function effectively, the president has the authority to dissolve the state legislature and
dissolve the government during a state emergency (President's Rule). Here, too, the governor
will serve as the president's teacher during the time of President's Rule. With regard to the
financial emergency, it says that the state's fiscal sovereignty may be impacted if one is
proclaimed. The president has the authority to order the state to investigate the state's
financial stability.
Only in the most extreme circumstances and only when the situation is too dire should the
emergency provisions be necessary. Our country has established the president's rule
numerous times. This was implemented for personal purposes or for any political reason. The
president's authority has been utilized. by him, not for the sake of public welfare or security,
but for their personal political gain. In light of this, one of the most contentious provisions in
the Indian Constitution is Article 356. The 42nd Amendment attempted to stop Article 356
from being abused. It aims to change the provisions pertaining to emergencies. This includes
that parliament has the authority to issue proclamations, but they must be authorized by two-
thirds of the membership and three-fourths of those present and voting. They must also be
examined and approved every six months; the reasons leading up to the declaration should be
reviewed by the judiciary; and finally, it should only be proclaimed in the event of armed
revolt, not only domestic unrest.
The Indian Constitution's emergency provisions are a two-edged sword. In times of crisis, the
federal government needs them to protect the integrity and sovereignty of the country, but if
they are not used prudently and in accordance with constitutional standards, they can also
strain relations between the center and the state. The careful implementation of these rules is
essential to preserving India's stable and cooperative federal structure. Although these
regulations are meant to handle exceptional situations, their possible misuse or capricious
implementation could lead to disputes and political challenges. State governments usually
perceive the central government's response to emergencies as a violation of their sovereignty.
Additionally, there is a significant risk of emergency provisions being misused, so mitigation
is necessary. For this reason, it is crucial to ensure that the justifications for announcing an
emergency are correctly stated and rigorously adhered to, and to expand the judiciary's role in
assessing the legitimacy of emergency declarations, to promote accountability and openness
in the decision-making process, and to foster a cooperative federalist culture where the states
and the federal government work together to address issues and problems.
COMPARATIVE ANALYSIS OF EMERGENCY PROVISIONS IN INDIA WITH
OTHER JURISDICTIONS
Emergency Provisions of the United Kingdom
In the United Kingdom, emergency situations are largely regulated by the Civil
Contingencies Act 2004, which replaced a series of earlier legislation that had dealt with
emergencies. This wide-ranging Act provides the government with significant powers to
effectively deal with a broad range of emergencies, such as natural disasters, terrorism, and
public health emergencies. The Act places a statutory duty on the government to prepare by
developing emergency plans, issuing information and advice to the public, and overseeing the
coordination and publication of non-statutory emergency projects.
The Civil Contingencies Act defines an emergency as an occurrence or event that threatens
seriously human welfare, environmental integrity, or the United Kingdom's or parts of it
security. The government is empowered by this Act to declare a state of emergency and to
order necessary and proportionate steps in the direction of prevention, management, or
mitigation of the said emergency. The steps can include restrictions or prohibitions on
movement, requisitioning or regulation of property, or deployment of the armed forces.
After a state of emergency has been proclaimed, the government can bring in emergency
regulations to manage the crisis effectively. These regulations can put movement, public
gathering, and commerce under control. But to keep exercise of these powers within the
democratic framework, the Act does have parliamentary safeguards. In particular, emergency
regulations have to be tabled before Parliament for examination every 30 days to determine
whether they remain necessary and proportionate. This practice is intended to balance the
need for the government to act quickly during states of emergency in respect of civil liberties
and democratic accountability.
Comparative examination of emergency powers in the United Kingdom, India, and the
United States indicates that the varying constitutional traditions and legal systems directly
influence the scope and use of emergency powers. The differences also influence the nature
of government action in times of crisis and its implications for the rights and liberties of
citizens.
Emergency Provisions in the United States
Different from the United Kingdom and Indian constitutional systems, no special provisions
under the United States Constitution exist in respect of emergency powers. But the President
as the head executive and commander-in-chief has implied and statutory authorities to handle
circumstances of emergency. The principal piece of legislation touching on this area is the
Act of 1976, The National Emergencies Act.
This legislation gives the President the authority to declare a national emergency, thereby
triggering a broad array of emergency powers found in over one hundred separate federal
statutes. These include such disparate powers as suspension of habeas corpus in dire
situations to control over communications. Importantly, where emergency powers are
invoked, the President must detail the particular statutory provisions invoked and report to
Congress biennially describing the need and extent of the emergency.
The National Emergencies Act also aims to uphold the separation of powers by congressional
oversight. The Act stipulates that Congress must meet every two years to discuss and possibly
vote on the termination of the state of emergency. This process has not been followed, with
the majority of emergency proclamations continuing to be in effect long after their initial
terms.
COMPARATIVE ANALYSIS OF EMERGENCY PROVISIONS IN INDIA, THE UK,
AND THE USA
A comparative analysis of India's, the United Kingdom's, and the United States' emergency
provisions reveals similarities and profound differences in the legal and constitutional
structures each state utilizes. While all three jurisdictions have put in place mechanisms to
deal with emergency situations, the extent, nature, and restrictions placed on such powers
differ significantly.
India's constitutional framework under Article 352 authorizes the President to announce a
state of emergency in case of war, external aggression, or armed rebellion. This provision
vests the center with sweeping powers, thus radically destabilizing federal balance and
curtailing basic rights. In contrast, the United Kingdom relies upon the Royal Prerogative
along with legislations such as the Civil Contingencies Act of 2004. In this system, the
monarch holds the authority to grant emergency powers, but such a system has come under
scrutiny due to the lack of explicit democratic legitimacy and accountability.
The United States has a decentralized system of emergency powers in its legislation. Power is
vested in different laws so that the President can issue proclamations of emergencies as
provided by the National Emergencies Act. Despite the decentralized system with oversight
and accountability mechanisms like through Congress, there have been concerns regarding
the vulnerability of the system to abusive executive powers.
These differing responses are a function of the individual country's distinct constitutional
experience and experience with previous emergencies. India's experience of the 1975–77
Emergency, when civil liberties were suspended and the opposition silenced, is a reminder of
abuse of power. This led to constitutional amendments to curb executive discretion and
strengthen judicial review.
The United Kingdom's emergency system, while statute- and common-law based, is
decentralized. The Civil Contingencies Act requires the active involvement of local
authorities in planning and responding to emergencies, which is indicative of the UK's focus
on local government even in times of national emergency.
The United States has a complex system of emergency rule grounded on its constitutional
principle of checks and balances. This type of system has, however, been criticized for
allowing the expansion of emergency powers with too little control by Congress, such as in
the prolonged emergencies proclaimed by successive governments, such as President Trump's
proclamation of a state of emergency concerning border security.
The controversial exercise of emergency powers.
The use of emergency powers has often been linked to controversy and disapproval,
particularly when emergency powers are seen to intrude into civil liberties or to circumvent
democratic procedures.
The Emergency in 1975 declared by Prime Minister Indira Gandhi is one of the most
controversial incidents in India's constitutional history. Article 352 of the Constitution was
invoked by Gandhi to justify the declaration of the Emergency on the grounds of internal
disturbance. During this time, severe restrictions on civil liberties, extensive censorship,
arrest of political opponents, and the concentration of power occurred. The misuse of
emergency powers was seen to erode democratic conventions, and it finally mobilized
popular protests against Gandhi, who was defeated in the elections, and democratic
conventions were restored to their vigor.
In the United States, the post-9/11 period witnessed a radical increase in emergency powers
under the Bush administration. The administration reacted to the attacks by invoking
sweeping surveillance programs, creating the Guantanamo Bay detention center for suspected
terrorists without trial, and sanctioning contentious interrogation techniques. Although these
measures were meant to ensure national security, they were met with widespread criticism on
their legality and morality, and the legacy has since been grappled with by subsequent
administrations.
In the United Kingdom, the COVID-19 pandemic had to be tackled through the rapid
introduction of emergency powers under the Coronavirus Act 2020. Although the majority of
the steps taken were viewed as unavoidable in responding to the public health crisis, they also
raised solemn issues of government overreach and potential infringement of civil liberties.
Particular focus was on movement and assembly bans, and the application of digital
surveillance tools. Critics argued that the steps were not adequately open to parliamentary
oversight and the risk of giving legitimacy to unmerited state intrusion into private lives.
These incidents indicate the risk of misusing emergency powers and the necessity of
upholding constitutional safeguards, ensuring transparency, and promoting accountability.
In conclusion, a review of India's, the United Kingdom's, and the United States' emergency
provisions illustrates a broad range of legal frameworks used in crisis management. India's
complex constitutional provisions vest comprehensive powers in the central government, but
with qualifications regarding the dangers of abuse. The United Kingdom's reliance on a mix
of royal prerogative and legislation offers flexibility but may lack the transparency that
embedded constitutional constraints would offer. The United States' emergency governance
model, based on statutory law and tempered by checks and balances, is a reflection of its
federal nature and prioritizes the need for checks and balances. Although they differ, all three
countries attempt to find a balance between the need for rapid and firm governmental
intervention and the protection of democratic ideals, civil freedoms, and the primacy of legal
systems. In the future, continued research and comparative analysis are necessary in order to
evaluate the effectiveness and consequences of emergency actions in the defense of both
national security and human rights. Emergency powers are essential instruments in crisis
management but must be invoked with careful reflection, responsibility, and regard for
fundamental rights. The comparative study of India, the United Kingdom, and the United
States provides the insight needed to appreciate the fine line that must be maintained between
expanding the power of the state and upholding the rights of citizens during periods of
catastrophic crisis.
CONCLUSION
Emergency plans are essential for responding to crises and preserving the stability and
security of a country. The state's authority will give way to the central government's during
emergencies. It has an effect on the country's federal structure. However, the degree to which
these laws consolidate authority is an significant issue pertaining to a democracy's health.
Finding a balance between preserving democratic principles and enabling the government to
respond to crises is crucial. The federal structure of the government should be safeguarded by
checks and balances that prevent the abuse of these emergency powers. In the event that the
exercise of power during an emergency leads to a breach of an individual's fundamental
rights, a suitable control system should be put in place to guarantee that any power is kept
within the bounds of the constitution. Hence, a balance between the relations of centre and
state needs to be maintained.
