EMERGENCY
PROVISIONS UNDER
INDIAN
UNIT 4 CONSTITUTION
(PART XVIII)
ART. 352-360
• Article 352 to 360 of the Indian constitution
deals with the provisions/rules related to the
emergency, that enable the central government
to meet any abnormal situation effectively.
• When the Constitution of India was being drafted,
India was passing through a period of stress and
strain.
• Partition of the country, communal riots and the
problem concerning the merger of princely states
including Kashmir.
INTRODUCTION • Thus, the Constitution-makers thought to equip the
Central Government with the necessary authority, so
that, in the hour of emergency, when the security and
stability of the country is threatened by internal and
external threats.
• Therefore, some emergency provisions were made in
Constitution to safeguard and protect the security,
integrity and stability of the country and effective
functioning of State Governments.
INTRODUCTION
THE EMERGENCY PROVISIONS OF THE
INDIAN CONSTITUTION HAVE BEEN
BORROWED FROM GERMANY.
• A state of emergency in India refers to a period
of governance under an altered constitutional
setup that can be proclaimed by the President
of India, when they perceives grave threats to
the nation from internal and external sources or
from financial situations of crisis.
WHAT IS
• Under the advice of the cabinet of ministers and
EMERGENC using the Constitution of India, the President
Y? can overrule many provisions of the
constitution, which guarantee fundamental
rights to the citizens of India and acts governing
devolution of powers to the states which form
the federation.
• The term emergency maybe defined as a
difficult situation arising suddenly and
demanding immediate action by public
• The rationality behind the
incorporation of these
provisions in the Constitution is
to safeguard the:
1. sovereignty,
WHAT IS
EMERGENC 2. unity,
Y? 3. integrity and
4. security of the country,
5. the democratic political
system, and
6. the Constitution
THE CONSTITUTION OF INDIA STIPULATES
THREE TYPES OF EMERGENCY
01 02 03
1. National 2. State 3. Financial
Emergency Emergency Emergency
( Article 352) ( Article 356) (Article 360)
• The Constitution of India has provided for
imposition of emergency caused by war,
external aggression or internal rebellion.
• This is described as the National
Emergency.
• This type of emergency can be declared by
PROCLAMATION the President of India if he is satisfied that
the situation is very grave and the security
OF NATIONAL of India or any part thereof is threatened or
EMERGENCY is likely to be threatened either
(ART. 352) (i) by war or external aggression or
(ii) by armed rebellion within the country.
• According to the 44 th
Amendment of the
Constitution, the President can declare such
an emergency only if the Cabinet
recommends in writing to do so.
PARLIAMENTARY APPROVAL AND DURATION
OF OPERATION
• Such a proclamation of emergency has to be approved by both the
Houses of Parliament by absolute majority of the total membership of
the Houses as well as 2/3 majority of members present and voting within
one month, otherwise the proclamation ceases to operate.
• In case the Lok Sabha stands dissolved at the time of proclamation of
emergency or is not in session, it has to be approved by the Rajya Sabha
within one month and later on by the Lok Sabha also within one month of
the start of its next session.
PARLIAMENTARY APPROVAL AND DURATION
OF OPERATION
• Once approved by the Parliament, the emergency remains in force
for a period of six months from the date of proclamation.
• In case it is to be extended beyond six months, another prior
resolution has to be passed by the Parliament.
• In this way, such emergency continues indefinitely.
REVOCATION
• If the situation improves the emergency can be revoked by
another proclamation by the President of India.
• The 44th Amendment of the Constitution provides that ten per
cent or more members of the Lok Sabha can requisition a
meeting of the Lok Sabha and in that meeting, it can
disapprove or revoke the emergency by a simple majority.
• In such a case emergency will immediately become inoperative.
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. (till 1977)
• Third National Emergency (called internal emergency) was imposed on
25 June 1975. This emergency was declared on the ground of ‘internal
disturbances’. (till 1977)
EFFECTS OF NATIONAL EMERGENCY
• Effects on the centre-state relations: While a proclamation of Emergency is
in force, the normal fabric of centre-state relations undergoes a basic
change. this can be studied under three heads:
• Executive: During a national emergency, the centre's executive authority
extends to advising any state on how to exercise its executive authority.
• Legislative: The parliament has the authority to enact laws on any item
included in the state list during a national emergency.
• Financial: The president has the authority to scale back or stop the
distribution of funds from the central government to the states while a
declaration of a national emergency is being considered.
IMPACT ON THE LIFE OF THE LOK SABHA
AND STATE ASSEMBLY:
• When the national emergency is proclaimed, it will also alter the
working of the legislative bodies both at the central and state
level.
• Prolonging Lok Sabha: During a National emergency, Lok
Sabha’s term may be prolonged beyond its regular term for up
to one year at a time, which can be valid for up to six months
after the emergency had ended.
• Prolonging state Assembly: Similar to this, during a national
emergency, the Parliament may repeatedly extend the normal
term of a state Legislative Assembly by one year, up to a
maximum of six months after the situation has ended.
EFFECT ON FUNDAMENTAL RIGHTS:
• The impact of a National emergency on Fundamental rights is described in
articles 358 and 359 of the constitution.
• Suspension of fundamental rights under Article 19: The six
fundamental rights under Article 19 are immediately suspended when
a proclamation of national emergency is made, under Article 358. Their
suspension does not require a separate court order.
• Suspension of other Fundamental rights: According to Article 359,
during a national emergency, the president is authorized to suspend the
right to petition any court for the enforcement of fundamental rights. In
other words, only their enforcement is delayed rather than the
fundamental rights themselves.
GHULAM SARWAR V. UNION OF INDIA
AIR 1967 SC 1335
• In this case we can see that, two major provisions contravene each other,
namely Article 359 (1) and Article 14.
• This case mainly highlights the point that, an order passed by the President
under Article 359 (1) which suspends the right to move this Court for the
enforcement of any right conferred by Part III necessarily abridges the right
conferred by Article 32 of the Constitution.
• If we consider that the Presidents order under Article 359 (1) is a law within
the meaning of Article 13 (2), we can then also consider that the President
can not make a valid order under Article 359 (1).
GHULAM SARWAR V. UNION OF INDIA
AIR 1967 SC 1335
• Giving an opportunity to an individual to be heard is an important
principle mentioned in the Rule of Law and the Natural Justice. Which
can not be suspended during any situation.
• As when an individual requires help, turns for help to the court of law
with the opinion to be provided with justice. Therefore, dismissing his
petition on the mere contention that his petition has been
adjudicated by a competent court or that during the proclamation of
Emergency, can not be considered valid itself is invalid.
ARTICLE 356
STATE
EMERGENCY
ARTICLE 356
• Article 356 of the constitution – dealing with provisions in
case of failure of constitutional machinery in a state
– begins under sub-clause (1) as follows:
• “If the President, on receipt of report from the Governor of
the 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, assume to
himself…”
REASON BEHIND THE PROVISION
• The framers of the Constitution realized that the nation would eventually face
emergency situations.
• In India the society is divided into so many sections based on religion, caste,
language, culture and many more it is only natural to presume that there
might be conflicts in the future.
• Although a lot of criticism came on this point and many believed that Article
356 would reincarnate the imperial spirit in the Constitution and could be used
as an abuse of power.
• It was defended by Dr B R Ambedkar on the point that all the provisions laid in
the Constitution can be abused but that could not be a ground for not
incorporating the provision.
PROCEDURAL ASPECT OF ARTICLE 356
• The emergency could be proclaimed by the President by receiving a
report from the Governor of a state reporting inability of state
government machinery to handle the situation. Clause 2 of Article
356 says that such proclamation can be revoked by a subsequent
proclamation.
• As for the validity and enforcement of proclamation of emergency,
such proclamation under Clause 3 of the Article has to be produced
before both the houses of the Parliament.
• The proclamation will cease to exist after two months of
proclamation unless it is approved and passed by both the houses of
PROCEDURAL ASPECT OF ARTICLE 356
• It is possible that the Lok Sabha or the House of People is not in order
or is dissolved at the time of proclamation or the dissolution takes
place during the two months.
• For that situation clause 3 lays down the procedure if the approval
from the House of People is not received.
• It states that if the Council of States approved the proclamation, but
the same is not approved by the Lok Sabha before the expiration of 2
months period, the Proclamation shall cease to exist after 30 days
from the date the house of People is reconstituted.
• But only if it is not approved by the Council of People within those 30
days.
PROCEDURAL ASPECT OF ARTICLE 356
• Clause 4 of Article 356 states that even if the proclamation is
approved by both the houses of parliament it shall automatically
cease to operate on the expiration of a period of six months from
the date of proclamation of such emergency.
• Its further states if the proclamation is to be continued after 6
months, approval from both the houses has to be gained approving
the continuance of proclamation.
ARTICLE 356
• Article 356 has been proclaimed more than 115 times till date.
• The highest number of times it has been imposed in Manipur is
10 followed by Uttar Pradesh which 9, third is Punjab where it
was imposed 8 times. Overall Article 356 of the Indian
Constitution is roughly imposed in all the states and territories
roughly.
REVOCATION OF PRESIDENT’S RULE
• The President of India can revoke the
President’s Rule with a proclamation
and such a proclamation does not
require any parliamentary approval.
EFFECT OF PRESIDENT’S RULE
• If President declared, the parliament exercise the power of the
state legislature.
• President dismisses the state council of ministers.
• President is responsible for the suspension or dissolution of the
state legislative assembly.
• Highlight- any law made by President or parliament during this
period continues to be operative even after the president’s rule.
• It has no effect on fundamental rights.
FINANCIAL
EMERGENCY
ART. 360
FINANCIAL EMERGENCY (ARTICLE 360)
• If any situation has arisen that can threaten the
financial stability or credit of India or any part of its
territory, the President is empowered to Proclaim the
Financial Emergency.
• It is important to note that the satisfaction of the
President to impose the Financial Emergency comes
under the ambit of judicial review.
FINANCIAL EMERGENCY- APPROVAL AND DURATION
• The proclamation regarding financial emergency must
be approved by either house of the parliament within
two months of time only with a simple majority. Once
came into force, the financial emergency must
continue indefinitely till it is revoked i.e., in this there
is no need for repeated parliamentary approval for
continuation.
REVOCATION OF FINANCIAL EMERGENCY
• Revocation of a Financial Emergency is also done by
President with a subsequent proclamation that does
not require any parliamentary approval.
EMERGENCY PROVISIONS AND CRITICISM
Certain reasons due to which a few members of the assembly criticize
the Emergency Provisions are:
• The federal system is discarded, and the Central gains all the powers
• President’s rule makes the President the supreme power, which is
equivalent to him being a dictator
• Fundamental Rights’ existence ceases, and they become meaningless
• State powers become null and void
