Overview: Emergency Provisions

A state of emergency in India denotes a special constitutional situation in which the President of India, acting on the advice of the Union Council of Ministers, may proclaim extraordinary measures to meet grave threats to the nation or to the constitutional machinery of a State. The proclamation enables the Union government to make decisions and take actions which temporarily alter normal constitutional arrangements, including aspects of Fundamental Rights.

• The emergency provisions are located in Part XVIII of the Constitution of India and cover Article 352 to Article 360.
• The stated purpose of these provisions is to protect the sovereignty, unity and integrity of India, to preserve the democratic political system and to deal effectively with situations that threaten the Constitution and public order.

Types of Emergency

The Constitution provides for three distinct kinds of emergency, each with its own grounds, procedure and consequences:

• National Emergency (commonly called an emergency under Article 352)
• President's Rule or State Emergency (under Article 356) often referred to as Constitutional Emergency
• Financial Emergency (under Article 360)

National Emergency

A National Emergency may be proclaimed when the security of India or any part thereof is threatened by war, external aggression or armed rebellion. The Constitution uses the term "proclamation of emergency" for this category and prescribes the procedure and legal effects.

Grounds for Proclamation

• Article 352 empowers the President to proclaim a National Emergency if satisfied that the security of India or a part of it is threatened by war, external aggression or armed rebellion.
• The President may make a proclamation even before the full occurrence of war, external aggression or armed rebellion, provided the constitutional conditions are satisfied.
• When the ground is war or external aggression, the emergency is commonly called an external emergency. When the ground is armed rebellion, it is an internal emergency.
• The expression "armed rebellion" was substituted for the earlier phrase "internal disturbance" by the 44^th Amendment (1978) to narrow the scope of this ground.

Examples

• Open, declared hostilities between two States would be classed as war.
• Use of force by an external power without a formal declaration would amount to external aggression.
• Violent armed uprising within the country directed at overthrowing law and order could qualify as armed rebellion, making an internal emergency possible.

Legal and historical notes

• The 38^th Amendment Act (1975) had attempted to make the Presidential proclamation under Article 352 immune from judicial review; this was reversed by the 44^th Amendment Act (1978), restoring the power of courts to examine emergency proclamations.
• In Minerva Mills Ltd. v. Union of India (1980) the Supreme Court confirmed that a proclamation of emergency is open to judicial challenge on grounds such as mala fides or reliance on wholly irrelevant or extraneous facts.

Parliamentary Approval and Duration

• A proclamation of National Emergency must be laid before both Houses of Parliament and be approved within one month of its issue.
• If the Lok Sabha is dissolved at the time or is dissolved within that one-month period without approving the proclamation, the proclamation remains effective until 30 days after the first sitting of the reconstituted Lok Sabha, provided the Rajya Sabha has approved it in the meantime.
• Once approved, a National Emergency remains valid for six months and may be extended indefinitely by subsequent parliamentary approvals, each not exceeding six months.
• Every resolution approving the proclamation or its continuation must be passed by each House of Parliament by a special majority (majority of the total membership of the House and two-thirds of members present and voting).

Revocation

• The President may revoke a proclamation of National Emergency at any time by a subsequent proclamation; such revocation does not require parliamentary approval.
• If the Lok Sabha passes a simple majority resolution disapproving the continuation of the Emergency, the proclamation must be revoked.

Effects of a National Emergency

A National Emergency produces far-reaching effects. These can be grouped under centre-state relations, legislative and executive powers, the life of legislatures and the status of Fundamental Rights.

Centre-State relations

• Executive: The Union Government acquires a broad power to give executive directions to State governments on any matter.
• Legislative: Parliament is empowered to legislate on matters in the State List; the President may promulgate ordinances on State subjects if Parliament is not in session. Laws on State subjects made by Parliament during the Emergency cease to be operative six months after the Emergency ends unless continued.
• Financial: The President may alter the financial distribution between the Union and the States and direct that resources be provided to meet national exigencies.

Effect on the Life of Legislatures

• The life of the Lok Sabha may be extended by Parliament by up to one year at a time during a National Emergency; however, such extensions cannot continue beyond six months after the Emergency ceases to operate.
• Similarly, the tenure of a State Legislative Assembly may be extended by Parliament by one year at a time during a National Emergency, subject to the same six-month post-emergency limitation.

Effect on Fundamental Rights

Articles 358 and 359 govern the impact of a National Emergency on Fundamental Rights:

• Article 358: When a proclamation of National Emergency is in force, the six freedoms guaranteed by Article 19 are automatically suspended but are revived once the Emergency ends. The 44^th Amendment clarified that Article 19 may be suspended only when the Emergency is declared on the grounds of war or external aggression and not on account of armed rebellion.
• Article 359: The President may, by order, suspend the right to move any court for enforcement of certain Fundamental Rights for the duration of the Emergency (that is, suspend the remedies or enforcement and not the rights themselves). The order must specify which rights are affected and must be laid before each House of Parliament.
• The 44^th Amendment also provides that the President cannot suspend the right to move a court for enforcement of the guarantees under Articles 20 and 21.

Historical proclamations

• India has experienced a National Emergency on three occasions: 1962 (Chinese aggression), 1971 (war with Pakistan), and 1975 (internal disturbances declared as emergency).
• The first proclamation in October 1962 was on account of Chinese aggression in NEFA (now part of Arunachal Pradesh) and lasted until January 1968.
• The second proclamation was in December 1971 following the outbreak of war with Pakistan; the third and controversial proclamation was in June 1975; the latter two were revoked in March 1977.

President's Rule (Article 356)

President's Rule is imposed when the President is satisfied that a situation has arisen in which the government of a State cannot be carried on in accordance with the provisions of the Constitution. Article 355 requires the Union to ensure that the government of every State is carried on in accordance with the Constitution; Article 356 provides the mechanism to act when the constitutional machinery breaks down.

Grounds for imposition

• Article 356 allows the President to issue a proclamation if satisfied that the Government of a State cannot function in accordance with constitutional provisions.
• Article 365 complements Article 356 by permitting the President to act where a State fails to comply with or give effect to a lawful direction from the Union, indicating a breakdown of constitutional machinery.

Parliamentary approval and duration

• A proclamation imposing President's Rule must be approved by both Houses of Parliament within two months of its issue.
• Where the Lok Sabha is dissolved at the time or is dissolved within that two-month period without approving the proclamation, the proclamation remains effective until 30 days from the first sitting of the reconstituted Lok Sabha, provided that the Rajya Sabha has approved it in the meantime.
• Initially approved proclamations can be extended, subject to constitutional limits and parliamentary scrutiny; historically, judicial intervention has placed limits on arbitrary or prolonged use.

Consequences of President's Rule

• The President may assume to himself the functions of the State Government and all or any of the powers vested in the Governor or any other executive authority in the State.
• The powers of the State Legislature may be exercised by or under the authority of Parliament.
• The President may take all steps necessary for the administration of the State, including the suspension of certain constitutional provisions relating to bodies and authorities in the State.

Judicial review and constitutional safeguards

• The 38^th Amendment (1975) had attempted to render the President's satisfaction under Article 356 final and non-justiciable; the 44^th Amendment removed that immunity and restored the scope of judicial review.
• The Supreme Court in State of Rajasthan v. Union of India and, more decisively, in S.R. Bommai v. Union of India (1994) laid down important principles limiting the misuse of Article 356. The Court held that the proclamation is subject to judicial review and that the validity of the satisfaction must be examined on objective evidence; it affirmed that the majority in a State Assembly must be demonstrated on the floor of the House (floor test).

Financial Emergency (Article 360)

Article 360 authorises the President to proclaim a Financial Emergency if satisfied that the financial stability or credit of India or any part thereof is threatened.

Parliamentary approval and duration

• A proclamation of Financial Emergency must be approved by both Houses of Parliament within two months of its issue.
• If the Lok Sabha is dissolved at the relevant time or is dissolved in the two-month period without approving the proclamation, the proclamation remains effective until 30 days after the first sitting of the reconstituted Lok Sabha, provided the Rajya Sabha approved it in the meantime.
• Once approved by Parliament, a Financial Emergency continues until revoked by the President; there is no specified maximum statutory duration, but parliamentary oversight and eventual revocation are required.

Effects of Financial Emergency

• Extension of the executive authority of the Union over financial matters of the States.
• The President may direct reduction of salaries and allowances of all or any class of persons serving in the State; the power may also extend to Union servants and even judges if so directed.
• All money bills or other financial bills passed by the State Legislature may be reserved for the consideration of the President.
• The President may issue directions for reduction or regulation of public expenditure to safeguard national financial stability and credit.

Criticism and Safeguards

During the Constituent Assembly debates and later commentary, several criticisms were levelled against emergency provisions. These criticisms and the constitutional safeguards added later are important for understanding their functioning:

• Critics argued that the emergency provisions could weaken the federal character of the Constitution by concentrating power in the Union and reducing the autonomy of States.
• There was concern that excessive centralisation could convert the executive into an all-powerful instrument and reduce democratic checks and balances.
• Some feared that the President or the central executive could become a de facto dictator if emergency powers were misused.
• Concerns were raised that financial autonomy of States would be undermined and that Fundamental Rights could be rendered meaningless if remedies were suspended for extended periods.

While defending the inclusion of emergency provisions, Dr B.R. Ambedkar acknowledged the potential for misuse: "I do not altogether deny that there is a possibility of the Articles being abused or employed for political purposes." Subsequent amendments (notably the 44^th Amendment) and judicial pronouncements (for example, S.R. Bommai) have sought to limit misuse by restoring judicial review, narrowing the grounds for proclamation and strengthening parliamentary oversight.