Revision Notes: The Emergency Provisions

Table of Contents
1. Arts. 352 to 360 (Part XVIII): Emergency Provisions - Overview
2. National Emergency - Article 352
3. Failure of Constitutional Machinery in a State - Article 356 (President's Rule)
4. Differences Between Articles 352 and 356
5. Financial Emergency - Article 360
6. Languages, Translations and Related Provisions
7. Amendment of the Constitution - Article 368
8. Important Constitutional Amendments - Selected List
9. Parliament's Amending Power and Judicial Review - Key Cases
10. Basic Features (as Identified in Judicial Pronouncements)
11. Concluding Notes and Pedagogical Summary
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Arts. 352 to 360 (Part XVIII): Emergency Provisions - Overview

The Constitution of India contains a set of provisions (Arts. 352-360) to meet exceptional and abnormal situations affecting the Union or a State. These provisions permit temporary centralisation of powers and the suspension or modification of certain constitutional rights and arrangements so that the Government can respond to grave crises. The Constitution therefore combines rules for normal federal functioning with special arrangements to deal with emergencies that threaten the security, governance or financial stability of the country.

National Emergency - Article 352

Meaning and Grounds

Article 352 empowers the President to proclaim a national emergency when he is satisfied that the security of India, or any part of its territory, is threatened by war, external aggression or armed rebellion. The expression "Proclamation of Emergency" commonly refers to a proclamation under Article 352.

Procedure for Proclamation

• The President may proclaim emergency in respect of the whole of India or any part of its territory when satisfied that the required conditions exist; a proclamation can be issued even before the actual occurrence of the events specified in Article 352.
• The proclamation shall not be issued by the President unless the decision of the Union Cabinet that such a proclamation may be issued has been communicated to him in writing.
• Every proclamation must be laid before both Houses of Parliament. It shall cease to operate unless approved by resolutions of both Houses of Parliament within thirty days.

Duration, Approval and Extension

• Initial approval: A proclamation of emergency must be approved by resolutions of both Houses of Parliament within thirty days of its issue; otherwise it lapses.
• Extension: Once approved, it remains in force for six months and may be extended each time by Parliamentary resolution for further periods of six months.
• Voting requirement: A resolution approving continuance must be supported by a majority of the total membership of the House and by a majority of not less than two-thirds of the members of the House present and voting.
• Revocation: The President may revoke a proclamation by a subsequent proclamation; the Lok Sabha may also move to disapprove the proclamation and require its revocation.

Revocation Procedure by Lok Sabha

• If not less than one-tenth of the total members of the Lok Sabha give notice of their intention to move a resolution disapproving the continuance of the proclamation, a special sitting of the House must be summoned within fourteen days to consider the resolution.
• If the resolution is passed by a majority of not less than two-thirds of the members of the House present and voting, the President is bound to revoke the proclamation.

Judicial Review

• Earlier statutory changes attempted to exclude judicial review of emergency proclamations. The Constitution has since been interpreted to permit judicial review of the material and reasons on which an emergency is proclaimed; a proclamation can be challenged on grounds including mala fides.

Key Amendments Affecting Article 352

• Certain amendments (notably during the 1970s and thereafter) altered Article 352 to narrow grounds and introduce safeguards. Important recorded changes include:
  • replacement of the phrase "internal disturbance" by the narrower expression "armed rebellion";
  • a requirement that the President act only after the Cabinet decision is communicated to him in writing;
  • reduction of the time-limit for Parliamentary approval of a proclamation to one month (from an earlier longer period in earlier enactments);
  • provisions to ensure that certain fundamental rights (notably Articles 20 and 21) remain enforceable even during emergency and that special rules govern the suspension of other rights.
• Proclamations under Article 352 have at times been the subject of amendment and judicial scrutiny designed to limit potential abuse of power.

Effects of a National Emergency

• Extension of Union executive power (Article 353): The executive power of the Union extends to giving directions to any State as to the manner in which its executive power is to be exercised.
• Parliament empowered to legislate on State subjects (Article 353(b)): Parliament may make laws on matters in the State List while the emergency persists.
• Financial arrangements (Article 354): The President may, by order, alter the financial distribution between the Union and the States; such orders must be laid before Parliament and expire at the end of the financial year in which the emergency ceases.
• Extension of Lok Sabha term (Article 83(2)): The life of the Lok Sabha may be extended by law for periods up to one year at a time during an emergency; such extensions cannot continue beyond six months after the emergency ceases.
• Suspension of Article 19 freedoms (Article 358): During an emergency proclaimed on grounds of war or external aggression, Article 19 freedoms may be suspended.
• Suspension of enforcement of other fundamental rights (Article 359): The President may suspend the right to move courts for enforcement of specified fundamental rights (subject to the exceptions and safeguards provided by constitutional amendments and judicial interpretation).

Historical Use of National Emergency

• First national emergency: October 1962 during the Sino-Indian war (NEFA/Chinese aggression); it was revoked in January 1968.
• Second national emergency: December 1971 during the Indo-Pak war; it continued until March 1977.
• Third national emergency (Internal Emergency): Declared on 25 June 1975 on grounds described at the time as internal disturbance; it continued until March 1977. Subsequent constitutional amendments narrowed the grounds for declaring an emergency so as to exclude a broad concept of "internal disturbance" and replaced it with the narrower term "armed rebellion".

Failure of Constitutional Machinery in a State - Article 356 (President's Rule)

Constitutional Duty and Power

• Article 355 places on the Union the duty to protect every State against external aggression and internal disturbances and to ensure that State governments are carried on according to the Constitution.
• Article 356 empowers the President to issue a proclamation if he is satisfied that the government of a State cannot be carried on in accordance with the provisions of the Constitution. A proclamation may follow a report from the State Governor or may be issued otherwise.

Consequences of a Proclamation under Article 356

• The President may assume to himself all or any of the functions of the State government and the Governor.
• The powers of the State Legislature may be exercisable by or under the authority of Parliament; Parliament may delegate authority to the President or another specified authority to make laws for the State.
• The President cannot assume the powers vested in the High Court.
• When Lok Sabha is not in session, the President may authorise expenditure from the Consolidated Fund of the State pending Parliamentary approval and may promulgate ordinances for administration of the State (Article 357).

Parliamentary Approval and Duration

• Every proclamation under Article 356 must be laid before both Houses of Parliament, except where it merely revokes a prior proclamation within two months.
• If both Houses approve, the proclamation remains in force; an initial approval typically lasts six months and may be extended by Parliamentary resolution every six months, subject to statutory and constitutional limits (extensions up to three years have been enabled by specific conditions and safeguards in certain periods and amending provisions).

Use, Abuse, and Judicial Control

• Though envisaged as an extraordinary measure to be used rarely, Article 356 has been invoked many times in independent India. The Sarkaria Commission recommended its rare use and urged safeguards against misuse.
• The Supreme Court in S. R. Bommai v. Union of India held that proclamations under Article 356 are subject to judicial review and set out important limits: the Court may examine whether relevant material existed to justify the proclamation and whether it was issued mala fide. The Court also ruled that an Assembly cannot be dissolved before the proclamation is approved by Parliament and that if a proclamation is held invalid the Court may restore the status quo ante.

Differences Between Articles 352 and 356

• Grounds: Article 352 is for national emergency arising from war, external aggression or armed rebellion; Article 356 is for breakdown of constitutional machinery in a particular State.
• Effect on State institutions: A national emergency does not by itself suspend State Legislatures or State Executives; under Article 356 the State Legislature may be suspended and the President may assume State executive functions.
• Legislative competence: In a national emergency Parliament legislates directly on State subjects; under Article 356 Parliament may delegate law-making power for the State to the President or another authority.
• Territorial scope: Article 352 can be applied to the whole of India or a part of it; Article 356 affects only the State in respect of which the proclamation is made.
• Maximum duration and extension mechanisms: Both provisions permit periodic Parliamentary endorsement; Article 356 proclamations are subject to special limits and safeguards, including judicial review and legislative oversight.

Financial Emergency - Article 360

Definition and Procedure

• Article 360(1) provides that if the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part thereof is threatened, he may by proclamation declare a financial emergency.
• A proclamation of financial emergency, like a national emergency, must be laid before both Houses of Parliament and ordinarily cease to operate unless approved by resolutions of both Houses within the time prescribed.

Effects of a Financial Emergency

• The executive authority of the Union extends to issuing directions to any State as to the observance of financial propriety.
• The President may give directions necessitating reduction of salaries and allowances of persons serving the State governments and may require that money bills or financial bills of the State be reserved for the consideration of the President.
• The President may issue directions for reduction of salaries and allowances of Union servants, including judges of higher judiciary, in exceptional circumstances.
• To date, a financial emergency has not been proclaimed in India.

Languages, Translations and Related Provisions

Authorised Translations (Central Laws) Act, 1973

Parliament enacted the Authorised Translations (Central Laws) Act, 1973 to provide that when a Central law is translated into a regional language (other than Hindi) and published in the Official Gazette under the authority of the President, such translation shall be deemed to be the authorised translation of that law in that language.

Article 394A and Hindi Translation

Article 394A was inserted into the Constitution by the 58th Amendment Act, 1987 to give effective authority to translations of the Constitution into Hindi and to permit official use of authorised Hindi text where appropriate.

Languages Recognised in the Eighth Schedule

The Eighth Schedule of the Constitution recognises certain languages of India. The schedule as referenced here lists the following 18 languages: Assamese, Bengali, Hindi, Urdu, Marathi, Gujarati, Punjabi, Sanskrit, Kashmiri, Telugu, Tamil, Malayalam, Kannada, Oriya, Sindhi, Konkani, Nepali and Manipuri. The inclusion of some languages occurred by later amendments: Sindhi was added by the Twenty-first Amendment Act, 1967, and Konkani, Manipuri and Nepali were included by the Seventy-first Amendment Act, 1992.

The Constitution also directs the Union to promote and develop Hindi so that it may serve as a medium of expression for the diverse cultures of India and to enrich Hindi with forms, styles and expressions from other Indian regional languages and by giving importance to Sanskrit (Article 351). The Constitution contains directives to protect the interests of linguistic minorities.

Amendment of the Constitution - Article 368

Philosophy and Need for Amendability

India's first Prime Minister Jawaharlal Nehru stated that while a Constitution should be solid and durable, it should also possess flexibility to adapt to changing conditions. Article 368 provides the Constitutional procedure for amendment and recognises that some parts require an ordinary law-making majority while others require more stringent procedures.

Three Modes of Amendment under Article 368

• By Simple Majority: Certain matters can be altered by a simple majority of members present and voting. Examples include:
  • Admission or establishment of new States, formation of new States and alteration of areas, boundaries or names of existing States (Article 4);
  • Creation or abolition of Legislative Councils in States (Article 169);
  • Administration of tribal areas of Assam, Meghalaya, Tripura and Mizoram under paragraph XXI of the Sixth Schedule.
• By Special Majority: Many provisions, including Fundamental Rights (Part III) and Directive Principles (Part IV), require a special majority: a majority of the total membership of the House and a two-thirds majority of members present and voting.
• By Special Majority plus Ratification by States: Certain constitutional provisions require, in addition to the special majority in Parliament, ratification by the legislatures of not less than one-half of the States. Subjects in this category include:
  • Election of the President and the manner of election;
  • Extent of executive power of the Union (Article 73) and of the States (Article 162);
  • Union judiciary (Chapter IV of Part V) and High Courts for Union Territories (Chapter V of Part V);
  • The Seventh Schedule (the three lists);
  • Provisions of Article 368 itself.

Procedure for Amendment

• An amendment may be initiated only by the introduction of a Bill in either House of Parliament.
• The Bill must be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting (where a special majority is required).
• Where state ratification is required, the Bill must be ratified by the legislatures of not less than one-half of the States before presentation to the President for assent.
• When the President gives assent, the Constitution stands amended in accordance with the terms of the Bill.
• Article 108 provides for a joint sitting of Parliament in case of disagreement between the two Houses on other types of Bills.

Important Constitutional Amendments - Selected List

• First Amendment (1951): Introduced new restrictions on the freedom of speech and expression (Article 19) in the interests of public order, friendly relations with foreign states, incitement to an offence; also added entries to the Ninth Schedule.
• Fourth Amendment (1955): Amended Article 31(2) to strengthen the State's power of compulsory acquisition of property; extended Article 31A scope to cover certain welfare legislation.
• Seventh Amendment (1956): Amended Article 334 to extend the reservation of seats for Scheduled Castes, Scheduled Tribes and representation of the Anglo-Indian community.
• Tenth, Twelfth, Thirteenth, Fourteenth Amendments (1961-1962): Included territories such as Dadra and Nagar Haveli, Goa, Daman and Diu, Pondicherry in the First Schedule and made special provisions for certain States (for example, Article 371A for Nagaland).
• Sixteenth Amendment (1963): Added the words "the sovereignty and integrity of India" in clauses of Article 19.
• Nineteenth Amendment (1966): Abolished election tribunals and transferred election petition jurisdiction to High Courts.
• Twenty-first Amendment (1967): Added Sindhi to the Eighth Schedule.
• Twenty-sixth Amendment (1971): Abolished privy purses and privileges of former princely rulers.
• Thirty-first Amendment (1973): Increased strength of the Lok Sabha.
• Thirty-eighth, Thirty-ninth, Fortieth Amendments (1975-1976): Enacted during the Emergency period; made several changes including limiting justiciability of certain actions and giving precedence to Directive Principles over some Fundamental Rights in specific contexts; also provided for certain executive powers and jurisdictional changes.
• Forty-fourth Amendment (1978): Restored safeguards to Fundamental Rights, removed the right to property as a fundamental right and made other changes to prevent misuse of emergency provisions.
• Fifty-second Amendment (1985): Introduced the anti-defection law to curb political defections and to preserve stability in legislatures.
• Seventy-first Amendment (1992): Added Konkani, Manipuri and Nepali to the Eighth Schedule.
• Seventy-third and Seventy-fourth Amendments (1992-1993): Provided constitutional status to Panchayati Raj institutions (Part IX) and urban local bodies (Part IXA), and specified their powers and functions (Eleventh and Twelfth Schedules respectively).
• Other amendments: Several amendments conferred statehood on union territories (e.g., Sikkim, Goa), reorganised territories and modified constitutional institutions and procedures.

Parliament's Amending Power and Judicial Review - Key Cases

• Shankari Prasad v. Union of India (1951): The Supreme Court held that Parliament had power to amend any part of the Constitution, including Fundamental Rights, under Article 368.
• Golak Nath v. State of Punjab (1967): The Supreme Court held, by a narrow majority, that Parliament could not abridge or take away Fundamental Rights by an amendment; this decision constrained Parliament's amending power.
• 24th Amendment (1971): Restored Parliament's authority to amend any part of the Constitution by modifying Article 368.
• Kesavananda Bharati v. State of Kerala (1973): The Supreme Court held that Parliament can amend any part of the Constitution but cannot alter the basic structure or framework of the Constitution. This "basic structure doctrine" placed a substantive limitation on the amending power.
• Minerva Mills Ltd. v. Union of India (1980): The Court reaffirmed the basic structure doctrine and struck down certain attempts to put Directive Principles above Fundamental Rights in a manner that would destroy the Constitution's essential balance.
• S. R. Bommai v. Union of India (1994): The Supreme Court clarified the limits on the use of Article 356 and established that proclamations under Article 356 are subject to judicial review; it set guidelines to prevent arbitrary dismissal of state governments and misuse of Article 356.

Basic Features (as Identified in Judicial Pronouncements)

While the Supreme Court has not provided a closed exhaustive list of the basic features of the Constitution, recurrent elements distilled from major judgments include:

• Supremacy of the Constitution;
• Rule of law;
• Separation of powers;
• Objectives specified in the Preamble;
• Judicial review (including rights under Article 32);
• Federal structure of government;
• Secular character of the State;
• Sovereign, democratic and republican polity;
• Freedom and dignity of the individual;
• Unity and integrity of the Nation;
• Essential content of Fundamental Rights;
• Social and economic justice and the concept of a welfare State;
• Balance between Fundamental Rights and Directive Principles of State Policy;
• Parliamentary form of government;
• Free and fair elections;
• Independence of the judiciary and effective access to justice;
• Enforceable powers of the Supreme Court under Articles 32, 136, 141 and 142.

Concluding Notes and Pedagogical Summary

The emergency provisions (Arts. 352-360) are extraordinary constitutional mechanisms designed to deal with severe threats to national security, state governance and financial stability. Their use shifts the balance between central and state powers and affects civil liberties. Historical experience and judicial decisions have created legal and procedural safeguards to prevent misuse: these include requirements of Cabinet advice in writing, prompt Parliamentary approval with specified majorities, time limits on continuance and a role for judicial review. The debate over the appropriate scope of emergency powers intersects with the larger constitutional question of how far Parliament's amending power reaches - a debate resolved in principle by the basic structure doctrine, which keeps certain essential elements of the Constitution beyond alteration even by constitutional amendment.