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National and State Emergency under Indian Constitution

Krishna Murari Yadav
Assistant Professor,
LC-I, Faculty of Law,
University of Delhi, Delhi
Contact no. -7985255882
Krishnamurari576@gmail.com
Indian Constitution is federal Constitution but during emergency it becomes unitary form of
Constitution. There are three types of emergencies –
(1)National Emergency -Emergency arising from a threat to the security of India
(2)State Emergency – breakdown of constitutional machinery in a State
(3)Financial Emergency
Differences between National Emergency v. State Emergency

Imp. Points National Emergency State Emergency

Ground (1) War (2) External Aggression (3) Government of the State cannot be
Armed Rebellion carried on in accordance with the
provisions of Constitution of India
When Actual occurrence is not necessary Situation has arisen
Affected Whole of India or of such part of the Whole territories of particular State.
territory territory thereof as may be specified in the
Proclamation
Time for One month Two months
Parliamentary If it is not approved by Parliament within If it is not approved by Parliament
approval one month it will cease. within two months it will cease.
Passing of Special Majority Simple Majority
Resolution (1)A resolution must be passed by either
House of Parliament only by a majority of
the total membership of that House and
(2) by a majority of not less than two
thirds of the members of that House
present and voting
Life of Six Months Six Months
National A Proclamation so approved shall, unless A Proclamation so approved shall,
Emergency revoked, cease to operate on the expiration unless revoked, cease to operate on
of a period of six months from the date of the expiration of a period of six
the passing of the second of the months from the date of issue of
resolutions. proclamation. (UKPCS 2005).
It may again be extended for six months. It may again be extended for six
Maximum period – Maximum period has months.
not been provided. Maximum period - Three Years
Effect on law State Government performs its State Legislature ceases to function
making Constitutional duties. Center also as it is either dissolved or kept in
powers becomes authorize to make laws along suspended animation.
with State Legislative Assembly on items

Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi
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of State List.
Budget of Budget of State cannot be passed by Budget of State may be passed by
State Parliament. Parliament.(UPPCS 1993)
FRs It affects the Fundamental Rights. It does not affect the FRs.
Arts.353 and Article 353 -The executive power of the Failure of direction issued under
365 Union shall extend to the giving of Article 353 will be sufficient ground
directions to any State as to the manner in to impose Article 356.
which the executive power thereof is to be
exercised.

Comparison between Before 44th and After 44th Constitutional Amendment

National Emergency

Before - 44th Constitutional Emergency After - 44th Constitutional Emergency

Ground (1) War (2) External Aggression (1) War (2) External Aggression
(3) Internal Disturbance (3) Armed Rebellion
Time for Two Months One month
Parliamentary If it is not approved by Parliament within If it is not approved by Parliament
approval two months it will cease. within one month it will cease.
Passing of Simple Majority Special Majority
Resolution (1)A resolution must be passed by
either House of Parliament only by a
majority of the total membership of
that House and
(2) by a majority of not less than two
thirds of the members of that House
present and voting
Life of No limitation Six Months
National Once approved by Parliament, the A Proclamation so approved shall,
Emergency proclamation could remain in force as unless revoked, cease to operate on the
long as the executive desired. (I)1st time- expiration of a period of six months
26 Oct.1962- 10 Jan,1968 (II) 2nd Time - from the date of the passing of the
03Dec.1971-21 March 1977, second of the resolutions.
(III) 3rd Time- 11.20P.M. 25 June,1975- It may again be extended for six
21 March 1977 months.
Actual Explanation was absent. Explanation was added in Article
occurrence is 352(1). Actual occurrence of war,
not necessary external aggression or Armed
Rebellion is not necessary.
PM v. Cabinet Proclamation of emergency by President Proclamation of emergency by
on advice of Prime Minister was President on the decision of the
sufficient Union Cabinet (The Council
consisting of the Prime Minister and
other Ministers of Cabinet rank under
Article 75).
Oral v. Written Oral Advice was sufficient. Now decision of Cabinet must be
Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi
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communicated in writing.
Fundamental Automatically suspension of Art. 19 In Automatically suspension of Art. 19
Rights (FRs) all circumstances in case of Only when national emergency
Art. 358 proclamation of emergency proclaimed on the ground of (1) War
or (2) External Aggression.
FR Any FRs can be suspended by President Now Articles 20 and 21 cannot be
Art. 359 suspended in any circumstances.
State Emergency
Life of One Year Six months
Proclamation

JUDICIAL REVIEW OF EMERGENCY POWER

Article 74(2) -“The question whether any, and if so, what advice was tendered by the Ministers
to the President, shall not be inquired into in any Court”

1974 Bhut Nath V.State No power of Judicial review. Supreme Court refusing to hold the
of West Bengal continuance of the emergency under Article 352 void stated that
the questions is „political‟ not justiciable issue and appeal should
be to the polls and not to the court.
1977 State of Rajasthan Satisfaction of the President in Article 352,356 &360 does not
vs. UOI mean personal satisfaction of President, but it is satisfaction of the
Cabinet. Satisfaction of the President can be challenged on two
grounds-(1) If it has been exercised by mala fides (2) When
satisfaction is based wholly extraneous & irrelevant grounds. In
these two cases, it would be no satisfaction of President.
1980 Minerva Mills vs. Justice Bhagawati, “ Whether the President in Proclaiming the
UOI emergency U/A 352 had applied his mind or whether he acted
outside his powers or acted mala fide in proclaiming the
emergency could not be excluded from the scope of judicial
review.”
1994 S.R.Bommai vs. Satisfaction of the President is not beyond of Judicial Review.
UOI
NATIONAL EMERGENCY( THREE TIMES)
During 25 (1)External Aggression – 26 Oct.1962- 10 Jan,1968,
June,1975-21 Reason- Indo-China War(20 Oct.1962 China attacked over India.)
March 1977, two
emergency (2)External Aggression - 03Dec.1971-21 March 1977, Reason-
proclamations Indo-Pak War, (3)Internal disturbance 11.20P.M. 25 June,1975-
were in force 21 March 1977.(J.P. Movement)
simultaneously
Indo-Pak war When the emergency was proclaimed on 26 Oct., 1962 under
Article 352(1) in the wake of conflict between China and India ,
the President issued an Order under Article 359, on November,
1962 , suspending the right to move any Court to enforce
Arts.14, 21& 22, if a person was deprived of any such right under
the Defence Of India Act, 1962, or any rule or order made

Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi
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thereunder.
J.P. Narayan On June 25, 1975, emergency was declared in India on the ground
Movement of internal disturbance threating security of India . Under Art.359
A Presidential Order was issued on June 27,1975suspending
enforcement of FRs.
Effect of National (1)Extension of Centre‟s Executive Powers –Art.353 (2)
Emergency Parliament empowered to legislate on State Subjects-Arts.353(2)
and 250. (3) Extension of life of Lok Sabha-Art. 83(2). (4)
Suspension of provisions of Art.19 during emergency. (5)
Suspension of the enforcement of provisions of Part III during
emergency except Articles 20 and 21.
1964 Makhan Singh v. (1) The detenus cannot exercise their right to enforce their
State of Punjab. fundamental rights under Arts. 21, 22 and 14 of the Constitution,
Malkhan Singh during the period for which the said right was suspended by the
and others were President‟s order under Article 359. (2) The President's order does
detained under the not preclude, even under Art. 32(1) and Art. 226 of the
Defence of India Constitution, the petitioners from proving that the orders of
Act,1962. detention were not made under the Defence of India Ordinance or
Articles 32 and the Act, 1962 either because they were made, (i) outside the
226 exist even provisions of the Ordinance or the Act or (ii) in excess of the
during emergency. power conferred under them, or (iii) the detention were made
mala fide or due to a fraudulent exercise of power.
1968 Ghulam Sarwar v. Order passed by the President under Article 359(1) is law and it
UOI could be challenged as being discriminatory.
1968 Mohd. Yaqub v. Order passed by the President under Article 359(1) is not law
State of J&K within Article 13(3) so validity could not be challenged with
reference to Part III. Supreme Court overruled its earlier decision
of Ghulam Sarwar v. UOI.
28 A.D.M.Jabalpur ORDER By majority- Maintenanc of Internal Security Act, 1971-
April vs. S.S.Shukla In view of the Presidential order dated 27 June 1975 no person
1976 (Habeas Corpus has any locus standi to move any writ petition under Article
Case) 226 before a High Court for habeas corpus or any other writ or
order or direction to challenge the legality of an, order of
detention on the ground that the order is not under or in
compliance with the Act or is illegal or is vitiated by mala fides
factual or legal or is based on extraneous consideration. Section
16A (9) of the Maintenance of Internal Security Act is
constitutionally valid.

Supreme Court denied following the ratio of Malkhan Singh Case

(1964). Reason-The 1962 Presidential Order was conditional
order as it related to only those persons who had been detained
under Defence of India Act, 1962. Presidential Order dated 27
June, 1975 was a blanket order and was not confined to persons
detained under particular law.
44th (1)In Consequence of ADM Jabalpur Case by 44th Constitutional

Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi
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Amendment,1978 Amendment it was provided that Articles 20 and 21 cannot be

suspended under Article 359. (2) Internal disturbance was
substituted by armed rebellion. (3) Article 19 cannot be suspended
under Article 358 when the emergency is declared on the ground
of armed rebellion.
2005 Sarbananda What is the meaning of „aggression „used in Article 355? The
Sonowal vs. UOI Court said that aggression is not to be confined only with the war
.Though the „war‟ be included within the ambit and scope of the
word „aggression‟ but it comprises many other acts which cannot
be termed as war. The unabated influx of illegal migrants of
Bangladesh into Assam leading to perceptible change in the
demographic pattern of the State having dangerous pattern of the
State and contributing factor behind insurgency in the States
having dangerous dimensions of greatly undermining national
security is an act of aggression..
FAILURE OF CONSTITUTIONAL MACHINERY
1977 State of Raj. v. Nine Assemblies Dissolution Case,1977-
Union of India
(1) These dissolution were justified.

(2) Satisfaction of the President can be challenged on two

grounds-(i) If it has been exercised by mala fides (ii) When
satisfaction is based wholly extraneous & irrelevant grounds. In
these two cases, it would be no satisfaction of President. It means
Judicial Reviews was allowed on two grounds.

(3) No need of prior approval of Parliament for dissolution of

assemblies. (This point was overruled in S.R.Bommai Case).
1983- Sarkaia In view of the growing pressure for the greater autonomy, in June
1987 Commission 1983 the Union Government appointed a commission under the
Centre - State Chairmanship of Justice R.S. Sarkaria to review the question of
relations. Centre- State relations. The commission submitted its report to the
then Prime Minister Mr. Rajiv Gandhi on October 27, 1987.
1994 S.R.Bommai and (1)Floor test is mandatory. (2) ) Without prior approval of
11 Anr. v. UOI proclamation of failure of Constitutional Machinery in State
Marc Revival of U/A356 by Parliament, Legislative Assemblies cannot be
h Dissolved dissolved. Clause (3) of Article 356 is conceived as a check on the
Assembly power of the President and also as a safeguard against abuse. (3)
(UP J Mains 2013) In case both Houses of Parliament disapprove or do not approve
the Proclamation, the Proclamation lapses at the end of the two-
months period. In such a case, Government which was dismissed
revives. (4) The Proclamation under Article 356(1) is not
immune from judicial review. The Supreme Court or the High
Court can strike down the Proclamation if it is found to be mala
fide or based on wholly irrelevant or extraneous grounds. (5)
Revival of Dissolved Assembly is possible- The Proclamation

Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi
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dated April 21, 1989 in respect of Karnataka and the Proclamation

dated October 11, 1991 in respect of Meghalaya are
unconstitutional. But for the fact that fresh elections have since
taken place in both the States and new Legislative Assemblies and
Governments have come into existence we would have formally
struck down the Proclamations and directed the revival and
restoration of the respective Governments and Legislative
Assemblies. (6) The Proclamations in respect of Madhya Pradesh,
Rajasthan and Himachal Pradesh concerned are not
unconstitutional. Secularism is basic structure of our
Constitution.
2006 Rameshwar In this case , Supreme Court declared that proclamation under
Prasad v.UOI Article 356 is unconstitutional and theoretically Court had power
to revive dissolved Assembly. But due to election process was
going on. So it denied to revive Bihar dissolved Assembly.
2016 Nabam Rebia, and This is the first case when Supreme revived dissolved Assembly
13 Bamang Felix of Arunachal Pradesh practically. In S.R. Bommai and Rameshwar
July v. Pradesh cases S.C. declared that the Court had power but due to
Deputy Speaker change of circumstances did not revived. Here proclamation
and others under Article 356 was declared unconstitutional.

EMERGENCY AND AFTER THIS- Unfortunately, Mrs. Indira Gandhi took one wrong
decision regarding imposition of National Emergency on the ground of internal disturbance.
National Emergency under Article 352 was declared by President (Fakhruddin Ali Ahmed) on
the ground of “External Aggression” on 25 June 1975. It was continue up to 21 March, 1977.
During this period, there were two emergency continue. Forced sterilization was criticized all
over world. It was result of capricious mind of Sanjay Gandhi. It was wrong decision of Mrs.
Indira Gandhi and her Party lost election in 1977. During this period 42nd Constitutional
Amendment was passed and several changes were done.
(15) JAIL TO INDIRA GANDHI- After emergency Janata Party form the Government and
Morarji Desai became Prime Minister and Chaudhary Charan Singh and Mr. Shanti Bhushan
became Law Minister respectively. Shah Commission was constituted for giving report regarding
offence committed during emergency.
CBI was misused and she was arrested for one night and she was released. It created sympathy
in favour of Indira Gandhi. Parliamentary Privileged Committee found her guilty. Parliament
passed a resolution and she was sent to jail for one week. During this period 44th Constitutional
Amendment was done.

Krishna Murari Yadav, Assistant Professor, LC-I, Faculty of Law, University of Delhi, Delhi