EMERGENCY PROVISIONS UNDER THE CONSTITUTION OF INDIA, 1950

Introduction

India is a federal country of “its own kind”. It acquires unitary features during an Emergency.
Due to this reason, Dr B.R Ambedkar called the Indian Federal system as unique because it
becomes entirely unitary during an Emergency. During an Emergency, as Constitutional
machinery fails, the system converts itself into a unitary feature. The Emergency is a period of
depression where all Fundamental Rights of a person is taken away except article 20 and 21.

According to the Black Law’s Dictionary, “Emergency is a situation which requires quick action
and immediate notice as such a situation causes a threat to the life and property in the nation. It
is a failure of the social system to deliver reasonable conditions of life”.

Types of Emergency

Part- XVIII of Indian Constitution deals with the Emergency provisions i.e. Articles 352 to 360.
There are three types of Emergencies mentioned in the Constitution. The concept of Emergency
was borrowed from the Weimar Constitution of Germany. The three types are as follows –

1. Article 352 – National Emergency

2. Article 356 – President’s Rule

3. Article 360 – Financial Emergency

Grounds for declaration of Emergency in India

National Emergency

Article 352 deals with “Proclamation of Emergency” or “ National Emergency”. The President
of India has the power to declare an Emergency in India or any part of India by making a
Proclamation. Under this Article, if the President is satisfied that a grave emergency exists in
India due to which there is a threat to the security of the nation, he may declare Emergency on
the grounds of-

1. War
 2. External Aggression

3. Armed Rebellion

The word “Armed Rebellion” was substituted for “Internal Disturbance” by the Forty-fourth
Constitution Amendment Act, 1978.

National Emergency has been imposed three times in India so far. The time period in which this
happened was from 1962-1977. Brief description of the emergencies are as follows –

An emergency was imposed at the time of Indo-China war by the then President of India Dr
Sarvepalli Radhakrishnan on the ground of external aggression from October 26, 1962, to
January 10, 1968.

External Aggression means when a country attacks another country without any formal
declaration of war. It is a unilateral attack by any country towards another country. For
example – If a country attacks India without any formal declaration of war, in such a scenario,
the President of India may impose a National Emergency.

Again, an Emergency was imposed from December 3, 1971, to March 21, 1977, by the then
President of India Mr V.V. Giri during the Indo-Pakistan war. The reason was the same as above
i.e. external aggression.

The third Emergency was imposed due to a clash between Legislature and Judiciary. Mrs Indira
Nehru Gandhi, the then Prime Minister of India with the permission of the then President
Fakhruddin Ali Ahmed declared an emergency. It was imposed for a period of 19 months from
June 25, 1975to March 21, 1977.

State Emergency

Article 356 deals with State Emergency or President’s Rule in the State (“Provisions in case of
Failure of Constitutional Machinery in States”). The President of India has the power to
proclaim State Emergency when he receives a report from the Governor of that particular State
explaining that the situation in the State Government is such that they cannot carry out the
Constitutional provisions.
President’s Rule has been imposed on the State of Jammu and Kashmir for six years and 264
days from January 19, 1990, to October 9, 1996. The State has always been a target for many
external elements. The Indian Government imposed President’s Rule to control the situation of
Jammu & Kashmir which was facing a military threat from Pakistan.

Punjab was under the President’s Rule for 4 years and 259 days from June 11, 1987, to February
25, 1992. The reason for imposing President’s rule in Punjab was the control of Khalistan
Commando Forces which was a Sikh organisation which was involved in the genocidal attack on
Hindus.

Till January 2016, the President’s Rule has been imposed 124 times in India. During Indira
Gandhi’s regime, the President’s Rule was invoked for maximum time. The President’s Rule
under her cabinet was imposed 35 times in various states.

The case S.R Bommai v. Union of India is a landmark case in respect of imposing President’s
Rule in any State. The case laid down the power of the Union Government in relation to the State
Emergency under Article 356 of the Indian Constitution. Judicial Review of the President’s Rule
was made possible by this case. While giving the judgement, the court depended on Sarkaria’s
Commission Report, 1987.

President’s Rule can be judicially reviewed and the President becomes answerable only when the
Emergency is imposed in certain cases, which are:

1. When there is Constitutional non-conformity by the State with the direction of Union

2. When there is a political crisis in the State.

3. When there is an internal subversion in the State

Financial Emergency

Article 360 deals with “Provisions as to Financial Emergency”. Financial Emergency is imposed
by the President when there arises any situation which causes a financial threat to India or any
part of India.
Financial Emergency has never been imposed in India. However, in 1990, the possibility of
financial emergency emerged but the situation was controlled by the Indian Government as in
July 1991 the Reserve Bank of India pledged 46.91 tonnes of Gold with Bank of England and
Union Bank of Switzerland to raise $400 million.

44th Constitutional (Amendment) Act, 1978

The imposition of Emergency stressed the legislature to think again about the Constitutional
provisions that provide power to the executive to supersede the judiciary hampering the basic
structure of the Indian Constitution.

Under Article 352, the amendment had substituted the ground of “Internal Disturbance” with
“Armed Rebellion”. The President is allowed to impose emergency only when the Union
Cabinet communicates to him in writing about their decision.

The Proclamation is required to be approved by both the houses of Parliament by resolution

within a month instead of two months by a total majority of the membership of each house of
Parliament and by the ratification of not less than 2/3rd members present and voting in each
house instead of a simple majority.

Under Article 356, the period for extension of a Proclamation from one month has been amended
to six-months. Proclamation in the first instance can only be exceeded for six months.

Case Study

Indira Nehru Gandhi vs. Shri Raj Narain & Anr

Raj Narain was a contender from Rae Bareilly Constituency in the 5th Lok Sabha Election 1971
against Indira Nehru Gandhi. Congress won the election with a majority in 1971 and Mrs Gandhi
took the oath as a new Prime Minister of India. After the result of elections, Raj Narain
approached the Allahabad High Court and filed a petition against Indira Nehru Gandhi
contending that she had performed her election using corrupt practices.

Allahabad High Court observed in the case Raj Narain v. State of Uttar Pradesh that Indira
Gandhi was guilty, as she misuses Government machinery under section 123(7) of
Representation of Peoples Act, 1951. Indira Gandhi was barred to contest elections for six years
and she was forbidden to continue as a Prime Minister of India.

Further, the court observed that “Rules of evidence that prevent disclosure of certain government
documents in court proceedings may be overridden if the public interest in disclosure outweighs
the public interest in keeping documents secret”.

The judgement led in a declaration of National Emergency under Article 352 by the then
President of India Fakhrudeen A. Ahmad. The reason given for imposing an emergency was
“Internal Disturbance”.

Effects of National Emergency

Under Article 358, National Emergency suspends the rights guaranteed under Article 19 of the
Indian Constitution. Also, other Fundamental Rights get suspended under Article 359 except
Article 20 and 21.

Article 20 of the Indian Constitution deals with the “Protection in respect of conviction from
offences”. This Article is pillars of all the Fundamental Rights which are guaranteed by the
Indian Constitution. It protects the right of an individual in case of conviction.

Article 21 of the Indian Constitution deals with “Protection of life and personal liberty” because
no person shall be deprived of his life and personal liberty except procedure established by law.

Under this kind of Emergency, the State Government comes under the direct control of the
Central Government. The State Government has to work as per the direction is given by the
Union.

The distribution of financial resources between the Union and the State may be suspended by the
President.

The Parliament acquires power over the subjects of the State List which ceases on the expiry of
six months.
Article 356

Part XVIII, Article 356 talks about “Provision in case of failure of constitutional machinery in
states” or “President’s Rule”.

The State Emergency or President’s Rule is imposed by the President of India when the
Constitutional machinery of State collapse and is unable to carry in accordance with the Indian
Constitution. The President will impose an emergency when he will get a report of such a
situation from the Governor of that particular state.

The Governor will report about the situation in the State that the government is unable to carry
out in accordance to the provisions of the Constitution and the Emergency imposed upon such a
report shall have an effect up to six months, after the expiry of which Emergency will end to
have an effect on the State.

The maximum period for the State Emergency is three years after which it can be extended after
a Constitutional amendment. It requires constant approval from the Parliament every six months.

Imposing of the State Emergency continuously became arbitrary in India. In the landmark
judgment of State of Rajasthan & Ors v. Union of India, the Supreme Court observed that
Courts have no power to review the Proclamation passed under Article 352. Imposing the State
emergency continuously becomes arbitrary in India due to this reason and, hence, the Supreme
Court finds it necessary to overturn the decision.

In the case, S. R. Bommai V. Union of India, the Supreme Court observed that, under Article
356, President of India has restricted power and they are subjected to judicial review. The
Supreme Court has the power to declare the emergency void even if both the houses of
Parliament passed the Proclamation.

Effects of State Emergency

During the State Emergency or President’s Rule, the entire State administrative machinery is
transferred to the Union. President becomes executive head of the State and Governor works
under his name.
Legislative Assembly of the state may be dissolved or it may be suspended. Parliament took over
the charge of making laws in the 66 subjects of the List-II i.e. State List. All the ministers of
State Legislative assembly were barred from performing any action as every money bill is
required to be first referred to the Parliament for approval.

State’s High Court functions independently in such a situation. There is no effect of an

emergency in the State Judiciary. High Court may even entertain the petition filed against the
President’s Rule. In 2016, the Congress Government approached the Nainital High Court against
the President’s Rule imposed under Narendra Modi’s regime.

It was imposed by the then President of India Pranab Mukherjee. The High Court of Uttarakhand
gave its verdict in favour of Harish Rawat’s government and declared to restore the Congress
Government in the State of Uttarakhand. Later, the judgement was upheld by the Supreme Court
of India and the Congress Government continued its period of governance.

How many times State Emergency declared in India

There are different circumstances under which the President’s Rule is imposed, these are:-

1. When the coalition government in the State collapses.

2. Law and orders are not followed in the State.

3. Failure to elect Chief Minister by the State Legislature.

4. Postponement of the State Elections due to any reasons.

In India, till 2018, the President’s Rule was imposed 126 times by the President of India.
Maximum times the President’s Rule was invoked during Indira Gandhi regime i.e. 35 times.

Difference between the National Emergency and President’s Rule

National Emergency (Article 352) President’s Rule (Article 356)

National Emergency is proclaimed under Article State Emergency is proclaimed under Article 356
352 on the ground of war, external aggression and when the State Government cannot be carried out
armed rebellion. according to the Constitutional provisions.

State Executive and legislature perform their State Executive powers get vested in the Central.
power as mentioned in List II of Schedule VII. Governor works in the state on the advice of the
Concurrent List power vests in the Central President. State Legislative Assembly is dissolved
Government. or suspended.

The maximum period up to which State Emergency

The Proclamation may be continued for an
may continue is three years after which it will cease
indefinite time as no maximum period is prescribed
but it may be further continued after the
but it is subject to renew every six months.
Constitutional Amendment.

Fundamental Rights are suspended during National There was no effect on the Fundamental Rights of
Emergency except Article 20 & 21. the people of the State.

Resolution for the continuation of the proclamation

Resolution can be passed with a simple majority in
of emergency must be passed with a special
the Parliament.
majority.

The resolution for the revocation of the Resolution for revocation of the proclamation can
proclamation can be passed by Lok Sabha. be passed by President in his discretion.

During this emergency, the Centre’s relation Centre’s relation undergoes a modification only
undergoes a modification with all the States. with the state under the President’s Rule.

President may make laws for the state after

There is no delegation of lawmaking power of
consulting with the Members of Parliament from
Parliament under the State list.
that state.
Effects of Financial Emergency

During the Financial Emergency, Parliament has the power to reduce the salaries and allowances
of the people working under the Union or the State Government. Financial and Money Bills
passed by the State Legislature of the State will be sent to the President of India for his
consideration.

Parliamentary approval and duration of the National Emergency

Proclamation of National Emergency operates for the maximum period of six months subject to
approval in every six months. There is no period prescribed up to which period may be
extended.

Under Article 352, when the President imposes an Emergency, it must be approved by both the
Houses of Parliament by a resolution within a month from the date of its issue. Before the 44th
Amendment Act, 1978, the period for approval was two months.

Meanwhile, Lok Sabha gets dissolved when the Proclamation was issued or Lok Sabha dissolved
without approving the proclamation of Emergency, one month will be counted from the first day
of sitting of the Lower House i.e. Lok Sabha after its reconstitution. It is required that in the
meantime Rajya Sabha has approved the proclamation.

When both the houses of Parliament approve the proclamation, it will remain in force for six
months and there is no maximum time limit for Proclamation. It is subjected to renew by both
the Houses of Parliament through resolution in every six months.

If Lok Sabha gets dissolved within six months from the date of issue of the resolution without
further approving the Proclamation of Emergency. In this situation, the Proclamation will survive
until a month from the first day of Lok Sabha after its reconstitution. It is required that in the
meantime Rajya Sabha has approved the Proclamation.

Every resolution for imposing Emergency or continuance of Emergency must be passed by either
of the House of Parliament by a special majority, i.e. a majority of the total membership of that
house and a majority of not less than 2/3rd members of the house present and voting.

Parliamentary approval and duration of the State Emergency

Proclamation of the State Emergency operates for the maximum period of six months or three
years (subject to extension of the period).

Under Article 356, when the President imposes Emergency it must be approved by both the
Houses of the Parliament by resolution within two months from the date of its issue after which
it ceases to affect.

If Lok Sabha gets dissolved when a proclamation was issued, then it must be passed within 30
days from the first day of sitting of Lok Sabha after its reconstitution. In such situations, Rajya
Sabha must approve the Proclamation.

The duration of six months can be extended, subject to the approval in six months. But every
Proclamation passed under this Article cannot be extended for more than three years.

Parliamentary approval and duration of the Financial Emergency

Under Article 360, before the President imposes emergency it shall be approved by both Houses
of Parliament. Otherwise, after the expiry of two months, from the date of issuance of the
proclamation, it ceases to operate.

In case, Lok Sabha dissolves within two months, Lower House is required to approve the
proclamation within thirty days from the first day of sitting after its reconstitution. Rajya Sabha
must approve it in the meantime.

Why was Emergency declared in 1975

Background

National Emergency has been imposed three times in India. But, the Emergency of 1975
emerged as the Constitutional revolution in Indian history. The emergency of 1975 emerges as
the dark phase for the Indian Constitution. The situation which leads to the Proclamation of
Emergency was the fifth Lok Sabha election in 1971 in which Indira Gandhi won the election
with a majority. Her opponent contender from Rai Bareilly was Raj Narain who approached the
Allahabad High Court by filing a petition against Indira Gandhi’s election.

Consequences
 1. Freedom of the Press was suspended and Indian Raj Censorship was imposed under
which newspapers get prior approval for publication.

2. Fundamental Rights of the citizens were suspended.

3. Opposition leaders were arrested and strikes were banned.

4. Under 42nd Constitutional (Amendment) Act, 1976, Elections of the Prime Minister, the
President, and the Vice-President was kept out of the purview of justification from the
court.

5. Provision of Habeas Corpus was neglected nullifying the rights of citizens under Article
21.

Effects

1. It led to the political crisis and Constitutional crises on the Indian polity.

2. Many new political parties emerged after 1977.

3. Emergency showed its impact on 1977 Lok Sabha election as Janta Party won the
election.

4. Fundamental Rights of the citizens were strengthened.

5. The 44th Constitutional (Amendment) Act, 1978, was passed to clear the ambiguity of
provisions of emergency.

To sum up, everything that has been stated, the 1975 Emergency emerges as the dark side of the
Indian Judiciary. The emergency of 1975 was not less than a dark age of the Indian democracy
because during this period India emerged as a weak democratic country. It affected the federal
structure of democracy. It left the legislature to think about the provisions of the Constitution.

The Indian Constitution was continuously amending to favour one’s situation. Later, it becomes
necessary to amend the Constitution again, but this time to maintain its supremacy.

In Kesavananda Bharati v. State of Kerala, the Supreme Court observed that “Parliament does
not possess any power under Article 368 to amend the basic structure of the Constitution.
Parliament has the power to amend the entire Constitution whenever it becomes necessary
according to the requirement subject to, they cannot touch the Fundamental Rights which are the
basic structure of the Constitution”.

Impact of Emergency in India

Most of the time Emergency have an adverse impact on the country. Whenever an Emergency
was imposed, whether it was the National Emergency or State emergency, it has questioned the
democracy of India. More time it was imposed, more democracy shows its unitary structure.
Impact of Emergency in India is:-

1. It deprives the citizens of their Fundamental Right.

2. The Freedom of Media was suspended.

3. Emergency overturned the Constitution.

4. Censorship orders barred newspapers to print anything without any prior consent from
the government.

National Emergency of 1975 resulted in the arrest of many opposition leaders such as Morarji
Desai, Jay Prakash Narayan, Atal Bihari Vajpayee and Lal Krishna Advani under Maintenance
of Internal Security Act, 1971. The arrest of these leaders led to the filing of petitions in various
High Courts challenging the detention. Indira Gandhi Government approached the Supreme
Court because at the time of Emergency Fundamental Right under Article 21 remained
suspended so this does not allow the writ of Habeas Corpus and the case came out to be known
as the Habeas Corpus case.

A.D.M Jabalpur Case

Background

After defeat in the Lok Sabha election of 1971, Raj Narain challenged the election in the
Allahabad High Court on the ground that she was guilty of corruption from her constituency. In
the case of Raj Narain v. State of Uttar Pradesh, Allahabad High Court found Indira Gandhi’s
involvement in corrupt practices and declared her election invalid. Indira Gandhi approached the
Supreme Court where Justice Krishna Iyer put a conditional stay on Allahabad judgement. On a
day before hearing of the case in the Supreme Court, President Fakhruddin Ali Ahmed declared
Emergency on the ground of “Internal Disturbance”.

During the Emergency, Fundamental Rights remained suspended under Article 14 and 21, as
well as any proceedings related to the enforcement of these Articles also remained suspended
during the period of Emergency. Anyone who was causing a threat to the politics was arrested
under Preventive Detention Law. Many famous political leaders were arrested under
the Maintenance of Internal Security Act, 1971 (MISA) because their activities were causing a
political threat to Indira Gandhi.

These leaders approached the High Court against the arrest and the High Court made a decision
in their favour. Indira Gandhi’s Government filed a petition in the Supreme Court as a
Fundamental Right under Article 21 is suspended writ cannot be issued.

Issues

1. Whether writ of Habeas Corpus is maintainable by the High Court questioning illegal
detention when an emergency was imposed by the President?

2. Whether suspension of Rights and Liberty of any person under Article 21 is valid under
Rule of Law?

3. Whether detenue have locus standi during the proclamation of emergency?

Judgement

Supreme Court observed that under Article 359 clause (1) no person has locus standi to approach
the High Court under Article 226 to enforce his fundamental right of personal liberty in case of
detention by filing a writ of habeas corpus. Fundamental Rights remain suspended during the
Emergency. A person cannot invoke habeas corpus by filing an application under Section 491 of
the Code of Criminal Procedure, 1973. Supreme Court declared Section 16A (9) of Maintenance
of Internal Security as constitutionally valid.

Conclusion
Emergencies in India are imposed by the President after both the House of Parliament passed the
resolution of the Proclamation of Emergency. Where the State Emergency or President’s Rule is
quite frequently used by the President, National Emergency had become a part of history.

The national emergency of 1975 shows the weaker or dark phase of the Judiciary. Cases
like Indira Gandhi v. Raj Narain and A.D.M Jabalpur v. Shiv Kant Shukla show loophole in
the judicial system. Both cases do not recognize the Fundamental Rights of citizens during
emergencies. There was a need to change the mechanism and it was done
in Kesavananda Bharati’s case.

References

1. Black Law’s Dictionary, https://thelawdictionary.org/emergency

2. S.R Bommai v. Union of India, AIR 1994 SC 1918

3. Indira Nehru Gandhi vs. Shri Raj Narain & Anr., AIR 1975 SC 2299

4. Raj Narain v. State of Uttar Pradesh, AIR 1975 SC 865

5. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

6. State of Rajasthan & Ors v. Union of India, AIR 1977 SC 1361

7. A.D.M Jabalpur v. Shiv Kant Shukla, AIR 1976 SC1207