CH-

pla
Prc
Prc

39 the
thi
Sa
THE EMERGENCY PROVISIONS ma

ma
(ARTICLES 352-360) the
ma
the
way in whick. the
Constitution is
of the Indian
One of the chief-characteristics situation. It is the merit e
to emergency
normal federal
Constitution can be adapted the for
when the strict application of the fad
Constitution that it visualises the circumstances federal it
on which our Constitution is built.
might destroy the basic assumptions be
principles me
The Constitution of India provides for three types ofemergency: WE
A. National Emergency.-Due to war, external aggression or armed rebellion R
(Art. 352). L
ap
B. State Emergency.-Due to the failure of constitutional machinery in States th-
(Art. 356).
C. Financial Emergency.-(Art. 360). S
it
A. National Emergency.-Art. 352 provides that if the President is satisfied that a n
grave emergency exists whereby the security of India or any part of India is threalened re
either by war orexternal aggression or armed rebellion,' he may make a Proclamation of S
Emergency in respect of the whole of India or any part of India as may be specified in the
Proclamation. The Proclamation of Emergency made under clause (1) may be varid or
revoked by the President by a subsequent Proclamation [CI. (2)].
th
A
Proclamation of Emergency can be made even before the actual occurrence o
event contemplated in Art. 352 have taken place if the President is satisfied that there
Se

is imminent of war
ocCurrence of
danger or external aggression or armed rebellion. Thus actual
war or
the
events
mentioned in Art. 352 is not essential. An imminent danger
external aggression or armed rebellion is enough for the proclamation or
ot
is
emergency.
al
The President shall issue a Proclamation under clause (1) or a
not
varying such Proclamation unless the decision of the Union Cabinet (í. e.Proclanai
(

consisting of the Prime Minister and other Ministers of Cabinet rank tnende under

Art. 75) that such a Proclamation appointto im in Se

may be issued has been communicated
writing. This means that the emergency can be declared the
only on the concurrene CO
Cabinet, and not merely on the advice of the Prime
Minister. dis
The Proclamation of nd
it shall cease to be in Emergency must be laid before each House of Parliam 44th the 44th

amendment two months)operation

at the
unless
expiration of one month (prio to ved t
resolutions of both Houses of before the expiry of one month it has been ssued ssued at a
at
thE
he
time when the Lok Sabha Parliament. If the Proclamation of
has been dissolved or emergen abha
S. take
the dissolution of the
L
. Inserted by the Constitution (44th Amendment) Act, 1977.

(786)
 CHAP. 5
HE EMERGENCY PROVISIONS
lace during the
period ot one month referred
Plamation but the 787
Deoclamation shall Proclamation has been
to
above, without
e Lok Sabha cease to operate at the approved approving the
by the Rajya
sits after fresh
hirty days a resolution,
expiration
election, of 30 Sabha. the
unless before the days from the date on which
approving the Proclamation has
Sabha (CI. (4)). A resolution expiry of the above period of
mMajority, that is by a majorityapproving the Proclamation been passed hy the Lok
must be
maiority of not less than 2/3 of theof the total members of each House passed by special
and also by
the 44th amendment, such resolution members present and a
voting in each House. Prior
could be passed to
majority. by Parliament by a
simple
he A
Proclamation of Emergency once
he for approved by Parliament shall remain in force
period of six months trom the date of the
a

al it under clause (4), unless revoked passing of the second resolution approving
earlier. For the further continuance of the emergency
beyond the period of six months' approval by Parliament would
months. If the dissolution of the Lok Sabha takes be required every six
without approving the further continuance of place during the period of six months
emergency, but it has been approved by the
n Rajya Sabha, the Proclamation shall cease to operate at the
Lok Sabha sits after fresh election unless before the expiry of 30 days after the
expiry isofrequired
approved by the Lok Sabha (Cl. 5). Here also the resolution
the above period. it 1s
to be passed by
S the simple majority referred to above.
The President shall revoke a Proclamation of Emergency or a Proclamation varying
such proclamation if the Lok Sabha passes a resolution disapproving it or disapproving
its continuance. Where a notice in writing signed by not less than 1/10th of the total
number of members of the Lok Sabha have been given their intention to move a
resolution for disapproving the continuance of a Proclamation of Emergency-(a) to the
Speaker, if the House is in session; or (b) to the President, if the House is not in session:
a special sitting of the Lok Sabha shall be held within 14 days from the date on which
such a notice is received by the Speaker or the President for the purpose of considering
the resolution (Cls. 7 and 8). In such a case the session must be convened for considering
of the Government to convene or not a
the resolution. Now, it is not left to the discretion is necessary
session of the Lok Sabha, for considering whether continuance of emergency
or not.
on the President by
this Article shall include the power to
The power conferred
extermal aggression or
different grounds, either war or
issue different Proclamations on a Proclamation
imminent danger thereof, whether or not there is
armed rebellion or
clause (1) and such
Proclamation is in operation
the President under
already issued by
CI. 9) satisfied that the
can proclaim emergency if he is
Grounds.-The President war o r external aggression
or
thereof is threatened either by
Security of India or any part
the 44th Amendment one of the ground which emergency
on

armed rebellion. Prior to

"internal disturbance". These words "internal
Cl. (1) was
could be declared under discretion to the Executive to
declare emergency
disturbance" were vague
and gave wide
even on flimsy grounds.
resulting periodic clashes between
from Bangladesh
illegal migrants
Huge influx of and resulting into loss of
life and property has been
these migrants
the citizens of India
heldto be external aggression.
2005 SC 2920.
Sarbananda Sonowal v. Union of India, AlR
 LAW OF
INDIA
CHA 39
cONSTITUTIONAL

CHAP
threa"ened or there is a.

788 of India
is
o r armed
rehalnminen.
Execum
security
The
"satisfaction"
that the
war or
internal aggressuon
be challenged in
a co urt ofon is he Execu
threatened by and cannot law an
danger of its
being President ted by mala Amenc
"subjective
satisfaction" of the
of the
Presidert had
been actuate

al question entrusted the

fides. The one
that the opinion a political
even on ground exists is
essentially
justiciable before the
by the p
qucstion
whether e m e r g e n c y
Executive and
therefore not
circumstances exist itustt.
The Procla
the Union whether
C o n s t i t u t i o n to
to decide major
Presidentis the sole Judge For th-
Phclamation of Emergency. J. has held that there S no is .
Parlia
Bhagwati,
Lid v. Union India,'
of Emergency issued by the
Preiar contin
In Minenvu Mills Proclamation of
int
of a now
to judicial review
of the validity has a political complexion no
because a question the the Ha
under Article 352 (). Merely its duty under Constitution ifif it
from performing
ground why the Court should shrink however,
Court's power, is lim nited
determination. The
raises an issue of
constitutional
conferred by the
Constitution have hebeen the Pr
whether the limitations or adequacy of the facte
only to examining of correctness
cannot go into question
observed or not. The Court Government is based. The satisfactio
the satisfaction of the Pro
and circumstances on which
if it can be shown that there is n a

President is a condition precedent and of din

of the would be constitutionallv
satisfaction of the President at all,
the exercise of the power to be
or mala fide or based by
satisfaction is absurd or perverse the a
invalid. Where at all, the all and it would be
extraneous and imelevant ground,
it would be no satisfaction at give
wholly
liable to be before a court of law.
challenged extem
'satisfaction' used in Art. 352 does not India
be, however, noted that the word
it is to the te
mean the personal satisfaction of the President,
but it is satisfaction of the Cabinet. The
power to declare emergency can
be exercised by the President only on the advice of the
the addition of the
Council of Ministers. The provisions has further been strengthened by to ce
new ciause (3) to Art. 352 by the Constitution (44th Amendment) Act,
1978. It makes it
cdear that the President shall declare emergency only on the written advice of the Cabinet
and not merely on the advice of Prime Minister. the F
make
Emergency provisions vest a very great power in the Executive. In the Constituent legis
Assembly certain members had expressed the view that this power might be misused y powe
the Executive. Dr. Ambedkar, however, said that the possibility that the emergency IS su
power might be abused furnishes no ground for denial of emergency powers to the
Executive. 1The power of Executive is not unbriddled. He pointed out that Constitution the.
itself provides certain safeguards against the abuse of
emergency powers by tne xae oper
First. it is to be exercised on the advice of the
Council of Ministers wh0
representatives of the people. Secondly, it must be laid before the Parliament and cana prove

remain in force beyond one month without its Parli

approval. Proc
Territorial Extent of Proclamation.-Article 352
proclamation of emergency either "in respect of the wholeenables the President to m
of India or of such par ot tne Emer
erritory thereof as may be specified". These words d
Amendment) Act, 1976, which now enables the were added by the Consttuuon 0
a yea

emergency to any part of the territory of India. President to confine the declaraa
to op

If the situation any

part of the country emergency could be becomes normal in
on becomes
continue to operate in other revoked from that part of the norna
parts of the country. country, Du prov
Cons
Duration of Emergency.-Prior to the 44th Amendment a Prociat Once
of Artic
Emergency could remain in force in
the first actio
approved by Parliament emergency could instance for "wo"
remain in months., he
force indefinitely i. e., as
as

I. AIR 1980 SC 1789. o

 CHAP. 39] THE EMERGENCY PROVISIONS
Executive anted
wante it to continue. The 789
44th
prolong
Executive to prolo
endment, a Procl
the
operation of
Amendment has curtailed the
roclamation of Emergency emergency unnecessarily. After power of the
Such Proclamation, if
"one" month. St a may remain in force in the 44th
the
unless approved by Parliament, shall remain instance for
of "six months" first
the
lamation of Emergency must be passed revoked earlier. The in force for
resolution
iorit, that is by majority of the total by either House of Parliamentapproving the
Eor the further continuance of by the special
membership of that House present and
Parliament would be emergencybeyond the period of six months' voting.
required
afte: every six approval
Thus after this Amendment by
continuance of emergency does not depend months. the
upon the
now be done only with the
the House.
approval of Parliament anddiscretion
that
of the Executive. It can
too by a special majority of
Effects of Proclamation of
the Proclamation of Emergency. Emergency.-The following are the consequences of

(1) Extension of Centre's Executive Power (Art.

Proclamation of 353).-During the
operation of
a
Emergency
the executive power of the Union extends to giving
of directions any State as to the manner in which the executive
to
to be exercised. The 42nd Amendment made a
power of the State is
consequential change in Art. 353 Union to
the amendment made in Article 352. It provides that the executive power of the following
give directions under clause (a) and the power to make laws under clause (b) shall also
extend to any State other than the State where emergency is in force, if the security of
India or any part of the territory is threatened by activities in or in relation to that part of
the territory of India in which the Proclamation of Emergency is in operation.

In normal time, the executive power does not extend to give such direction subject
to certain exceptions.

(2) Parliament empowered to legislate on State Subjects [Art. 353 (b)J.-While

the Proclemation of Emergency is in operation, the Union Parliament is empowered
to
make laws with respect to any of the matters in the State List. The distribution of
The law-making
is thus fundamentally changed during emergency.
legislative power
the emergency. The State can make law but it
power of the State is not suspended during
IS subject to the overriding power of
the Union Parliament.
between the Union and
alter distribution of revenue
(3) Centre empowered to while a Proclamation of Emergency is in
the State (Art. 354).-The President may, between the State and the Union as
order after the Financial arrangement
operation by the is to be laid before each House of
Articles 268 to 279. Every such order
provided in the end of the financial year
in which the
will come to an end by
Parliament and
ceases to operate.
Proclamation of Emergency
the Proclamation of
Lok Sabha [Art. 83 (2)/-While
(4) Extension of life ofPresident may extend the normal life of the Lok Sabha by
the after Proclamation ceases
Emergency is in operation, not exceeding beyond six months
a year each time upto a period
to operate.
19.-Article 358
fundamental rights guaranteed by Art.
(5) Suspension of six freedoms guaranteed
to the citizens by Article 19 of the
of the
provides for suspension while a Proclamation of Emergency is in operation nothing in
Constitution. It says that or to take any executive
the power of the State to make any law
Article 19 shall restrict guaranteed by Article
19 of the Constitutior
away the rights
action abridging or taking
 CONSTITUTIONAL
LAW OF INDIA CHAP. 39 CHAP.
790 is made the freedoms guaraanteed by embars
Proclamation of Emergency
that as soon as the would
means

Art. 19 are automatically suspanded. ahrid-

19 cannot be taken away or
Article
Normally. the rights guaranteed by
But Article 19
ceases to restrict
ive the legislat 359 em
Parliament or State Legislature. of emergency and by Para
uny law of the Centre or the
Jtates for the period any
or the
executive power of the Executive cannot be challenged.d on operati
or any action
táken by
law made by the Legislature guaranteed by Article 19. As soon: as enforce
inconsistent with the rights
the ground that they are Article 19 which remains suspended
Article
cease to operate
the Proclamation of Emergency
comes into life
and begins to operate and any law rights=
during emergency, automatically ceases to have effect to the extent of
such s
inconsistent with Article 19
made during emergency of func
done before the law s o
things done or omitted to be
the inconsistency except as respect order
done during the emergency even
ceases have effect. But no
action will lie for anything
Parlian
after the emergency is over.
1978, has made two important changes
The Constitution (44th Amendment) Act, 359 wt
be suspended only when a Proclamation of
in Article 358 First, Article 19 will III sha
of war or external aggresion and not when
Emergency is declared on the ground Any su
of armed rebellion. Secondly, it has inserted a new
emergency is declared on the ground order c
clause (2) in Article 358 which says that nothing in
clause (1) shall apply to--(a) any
SO ceas
such law is in relation to the
law which does not contain a recital to the effect that
Proclamation of Emergency, or (b) to any executive action
taken otherwise than under a
law containing such recital. This clause makes it clear that Article 358 will only protect provide
emergency laws from being challenged in a court
of law and not other laws which are not enforce
related to the emergency. Prior to this, the validity of even other laws, which were not Secon
related to emergency, could not be challenged under Article 358. apply i
relatio
The Constitution (59th Amendment) Act, amended Art. 358 and inserted the words
executi
"or by armed rebellion, or that the integrity of India is threatened by internal disturbance not rel
in the whole or any part of the territory of Punjab" after the words "or by external
aggression'". This was, the rights guaranteed by Art. 19 would be suspended also when emerg
Habeas
emergency was on the ground of "armed rebellion or internal disturbance".
This amendment which applied to State of Punjab ceased to be in operation after
move a
the expiry of two years from the commencement of this Act i.e., 30 March, 1988.
brought
The Proclamation of Emergency, however, does not invalidated a law which was Im
valid before the Proclamation of Emergency.
of India
In M. M. Pathak v. Union of India,2 the grave
Supreme Court had an occasion to
consider the effect of the expression "the things done or omitted to be done" in aggressi
358 after the Proclamation of Emergency ceases. In that case
Articie
a settlement was
arrived a On
between the LIC of India and its employees in 1971 under ran thus
which the LIC had agreea
pay in cash bonus to its employees. In 1977,
Settlement) Act. 1976 passed by Parliament
however, by the LIC (Modification o
during emergency the settlement was ao
ineffective and therefore the employees could not Con
was in force. The
demand their bonus while the emerge cou
employees of the LIC challenged the constitutional validity Con
above Act. The Supreme Court
held-The effect of Proclamation of O
fundamental rights is that the rights Emergencyd
guaranteed by Articles 14 and 19 are not
issu
during emergency but only their operation beer
is suspended. This means that suspdit orde
of an attack based on Articles 14
and 19 is only the vas
suspended during the emergency. But on this
. Bennett Coleman & Co. v. Union of India, AIR A
2. AIR 1978 SC 803. 1973 SC 106.
CHAP. 39 THE EMERGENCY PROVISIONS
haroois lifted Articles 14 and 19 791
wOuld strike down any legislation whichofwould
the Constitution, whose
have been invalid.
use was
suspended,
Suspension of right of enforcement
of
59 empowers the President to fundamental
rights (Art. 359).-Article
suspend the right to enforce fundamental
h Part I1I of the Constitution. It
says that while the Proclamation of right guaranteed
oneration,
ope
the President may by order declare that the Emergency is in
right to move
enforcement of such of the fundamental rights as may be mentioned in any court for the
Articles 20 and 21) and all proceedings pending in the order (except
any court for the enforcement of such
rights shall remain suspended for the period during the Proclamation is in force or for
such shorter period as may be specified in the order. An order
of fundamental rights may extend to the whole or suspending the enforcement
any part of the territory of India. An
order made under clause (1) shall, as soon as possible, be laid befcie each House of
Parliament.
The Constitution (38th Amendment) Act, 1975, added a new clause (1-A) in Art.
359 which provides that while an order under clause (1) is in operation, nothing in Part
III shal! restrict the power of the State to make any law or to take any executive
Any such law shall cease to have effect to the extent of incompetency, as soon as the
action.
order ceased to operate except as respects things done or omitted to be done before the law
so ceased to have effect.
The 44th Amendment has made two significant changes in Art. 359 : First, it
provides that under Article 359 the President does not have the power to suspendthe
of the fundamental rights guaranteed in Arts. 20 and 21 of the Constitution.
enforcemen
Secondly, it provides that suspension of any fundamental right under Article 359 will not
declaration that such a law is in
apply in relation to any law which does not contain a
relation to the Proclamation of Emergency in operation when it is made or to any
a law containing such a recital. Thus lawvs
executive action taken otherwise than under
even during the
can be challenged in a Court of law
not related to the emergency
of the Supreme Court in the
amendment was a sequel to the decision
emergency. This
Habeas Corpus case.
under Article 359 the suspension of right to
It is to be noted that unlike Art. 358
of fundamental rights is not automatic. It can only be
move any court for the enforcement
Presidential order.
brought about by a
China attacked India. On 26th October, 1962, the President
In September 1962,
of Emergency under Article 352 (1) declaring that a
of India issued a Proclamation
emergency exist
whereby the security of India is threatened by 'external
grave
aggression.
On 3rd November, 1962, the President issued an order under Article 359 (1)) which

ranthus
nexercise of the powers cenferred by clause (1) of Article 359 of the
Constitution, the President hereby declares that the right of any person to move any
cOurt for the enforcement of the rights conferred by Arts. 14, 21 and 22 of the
Constitution shall
eeed under Articleremain suspended for the period during which the emergencv
352 (1) on 26th October, 1962 was in
been deprived of any such rights under the Defence of Indiaforce, if such person has
Act, 1962
order made thereunder." or any rule or

1. Added by the Constitution (44th Amendment)

Act, 1978.
 cONSTITUTIONAL LAWOF INDIA

792 CHAP.39 CHA

other were detained.
v. State of Punjab,' Makhan
Singh and under Section 491der
cO
In Makhan Singh to the High
Court
(1) (b) just
1962. They applied
the Defence of India Act, had been improperly and i b )
n improperly and
illeg
Procedure Code and alleged that they Cou

of the Criminal rules made thereunder contravence

Defence of India Act and the 32
detained because the Their petitions were dismissed hu
under Articles 14, 21 and 22. can
Fundamental Rights under Article 359 creone
that the Presidential Order issued app
High Court on the ground from moving the High Court under Section 491 ( CoL
bar, which precluded them The twoimportan
Criminal Procedure Code. They
went in appeal to the Supreme ourt. citi-
the true scope and effee
Court were :(1) What is
questions for decision by the Supreme Article 359 (1)? (2) Does the bar created by the
of the Presidential Order issued under WO-
Presidential Order operatein respect of the applications made by tne detenues under Con
Code? In construing Article 359 the Cout
Section 491 () 6) of the Criminal Procedure the
considered it relevant and useful to compare
and contrast the provisions of Articles 358 me

and 359 of .

the Proclamation of Emergency is issued under del

(1) Under Article 358, as soon as
wh
Article 352 and so long as it lasts, Article 19 is suspended, and the power of the
wider. Although Article 19
Legislatures as well as the Executive to that extent is made
will revive and become operative as soon as the Proclamation ceased to operate, but
Article 358 expressly provides that "things done or omitted to be done during the
dep
the
emergency" cannot be challenged even after the emergency is over. Thus suspension of WO
Article 19 is completed during the period of emergency and Legislative and Executive
action which contravenes Article 19 cannot be questioned even after the emergencyis
Su
over. Article 359, on the other hand, does not suspend any Fundamental Right, but grc
De
merely authorise the President to issue an order declaring that the right to move any court Dis
for the enforcement of such Fundamental Rights as may be mentioned in the order, shall 40
remain suspended for the period during which the Proclamation is in force or for such
sat
shorter period as may be specified in the order. The rights are not suspended, but the to
citizens is deprived of his right to move any court for their enfor ement. The said rights hin
are theoretically alive. The right to seek remedy is suspended.
safe
(2) While the suspension of Article 19 under Article 358 applies to the whole
country and so covers all Legislatures and States, the order under Article 352 (1) may
for
extend to the whole of India or may be confined to any part of the territory of India.
vio
(3) While the suspension of Article 19 under Article 359 continues for the cOu

period of emergency, the suspension of the right to move any court will ensure for entire
tne Jus

period of the emergency, or for a shorter period, if so specified by the Presidential Order. was
of
(4) While Article 358 provides that things done or omitted to be thir
done during tn
emergency cannot be challenged even after the emergency is over, the Pre

Article 359 is different. As soon as the order issued position un

under Article 352 ceases to nec
operative, any information made by the Legislative or Executive action is whe
liable
challenge on the basis that those rights were in operation even during the pendency or co
Presidential Order, unless an appropriate Act of
Indemnity is passed by Parliament.
Regarding the scope and effect of Article 359, the
true was
orde
impossible accept
to the contention that only Court held that it 13 (
made under Article 359 (1) was the right that can be suspended by an he of F
right
Supreme Court for the enforcement of any guaranteed by Article 32 (1) to moven
of the Fundamenta: and a citiz
would be free to seek relief from a High Court Rights,
words "any court, which does not mean under Article 226. Article 359 the

Usl
only the Supreme Court but must includo
1 AIR 1964 SC 381
 CHAP. 39] THE EMERGENCY PROVISIONS
793
ourts
urts of
COu competent jurisdiction.
of compe The use of the
justifie by a reference to Article 32 (3) which enables expression "any Court" cannot be
courtto
exercise
to exerd all or any of the powers exercisable
Parliament to empower any other
by the
12
32 (2). Article :32 (3) clearly shows that the other courts Supreme Court under Article
(2). Article
eannot have the same status as the Supreme Court to which empowered by the Parliament
alone Article 32 (1) is
annlicable. Hence the words "any court" in Article 359 (1) would
Court as well as the High Courts before whom the specified rightinclude the Supreme
can be enforced by
citizens.

The Supreme Court, however, took the precaution of pointing out that a citizen
would not be deprived of his right to move the appropriate court for a writ of habeas
corpus if his detention had been ordered mala fide. The detention can also be challenged on
the grounds of infringement of those rights conferred by Part III which have not been
mentioned in the Presidential Order. Similarly, if the detenu contends that the provisions
of Defence of India Act and the Ordinance under which he is detained suffer from excessive
delegation his plea raised cannot be barred by the Presidential Order because it is plea
which does not relate to the fundamental rights mentioned in the order.
In State of Maharashtra v. Prabhakar, the Supreme Court held that if a person was
rule made
deprived of his personal liberty not under the Defence of India Act, or any
thereunder but the contravention thereof, his right to move the said courts in that regard
v. State of Bihar, the
would not be suspended. Similarly, in Ram Manohar Lohia
the
under the Defence of India Rules illegal on
Supreme Court held the order of detention inconsistent with the conditions laid down in the
ground that the order of detention was Manohar Lohia was detained by an order of
Defence of India Rules. In this case Dr. Ram
the Government under Section
District Magistrate to whom the power was delegated by
1962. The order stated that the District Magistrate
was
40 (2) of the Defence of India Act, prejudicial
the petitioner from acting in any
manner
satisfied that with a view to prevent
maintenance of law and order" it was necessary to detain
to the public safety
and the
Defence of India Rules was "public
"for this purpose" under the
him. The expression used
of order",
safety and maintenance public
not form a bar to all applications
the order of the President did
The Court held that was detained in
detention under the Act or the Rules. Where a person
from
for release Defence of India Act his right to move the
violation of the mandatory
provisions of the
that the order of detention was not
suspended. The petitioner contended
not
court was the provisions of the Act. The petitioner
under the Act or Rules and was, against
justified the petitioner would not be in terms
to be heard. The order detaining
was therefore entitled could be said that the expression "law and order" meant the same
Rule unless it
of the maintenance of public order was the
order". What was meant by
thing as "public a disorder which the authorities thoucht was
of disorder of a grave nature,
prevention
necessary to prevent in
view emergent
or the situation created by external aggression,
whereas the expression maintenance
of
law and order may mean prevention of disorder of
and of local significance only.
comparatively lesser gravity
In Mohd. Yaqub v. State of Jammu and Kashmir,' the Supreme Court held that an
order by the President under Article 359 (1) was not "law within the meaning of Article
S
13(2) and therefore, its validity could not be challenged with reference to the provisions
of Part III. Thus if the order suspends the enforcement of Article l14, it cannot be
1. AIR 1966 SC 424.
2. AIR 1966 SC 740.
3. AIR 1968 SC 765 (overruling Ghulam Sarwar
v. Union of India, AIR
1968 SC 1335).
 CONSTITUTIONAL
LAW OF INDIA CHAP 39 CHAR
794 of
under Article 14. The validity f the
is discriminatory
challenged on the ground
that it
fundamental rights,
i. e., Article 14, which it is s direc

under the very Saru

order cannot be tested own decision in Ghulam
not

thus overruled its

suspended. The Supreme
Court
Presidential Order issued under Article so factu

wherein it had held that the

Union of India,'
as being discriminatory.
() could be challenged the
10, 1968. Emergencv
proclaimed in 1962 continued upto January
The Emergency continued in operation held
in 1971 when Pakistan attacked India, and
was again proclaimed declared emergency on the ground pro
March 1977. On 26th June, 1975, the President bec
up to disturbance". This Proclamation of
due to "internal
that security of India was threatened declared in 1971 relating to external
the
in addition to the Emergency Pres
Emergency was
1977.
aggression which continued upto March det
order under Article 359 (1) as follows bla
On June 27, 1975 the President issued an
Jus
of Article 359 the President hereby
"In exercise of powers conferred by clause (1) phr
to move any court for
declares that the right of any person (including foreigner)
a
Orc
Articles 14, 21 and 22 and all
the enforcement of the rights conferred by det
enforcement of the above-mentioned
proceedings pending in any court for the det
which the Proclamation of
rights shall remain suspended for the period during and 25th
Emergency made under clause (1) of Article 352 on the 3rd December
June and both in force." Ca
ma
case the
Jabalpur v. S. Shukla,2 popularly known as the habeas corpus
In A. D. M. Ar
respondents challenged the validity of the Proclamation of Emergency by the President the
under Article 352 made on 25th June, 1975, and the order of detention made against them
thereunder. The respondents were detained under Section 3 of the MISA. They filed arg
lib
A
applications in different High Courts for the issue of writ of habeas corpus. su
preliminary objection was raised on behalf of the State that the President's Order was a
bar to invoke writ jurisdiction of the High Courts. The High Courts held that
notwithstanding the continuance of emergency and the Presidential Order suspending the
enforcement of rights conferred by Articles 19, 21, and 22 the High Court could examine Pr
whether an order of detention was in accordance with the provisions of the MISA or va
whether the order was mala fide or was made on the basis of relevant materials by which
the detaining authority could have satisfied that the order was necessary. The State
appealed to the Supreme Court. pr

The main questions for the consideration of the Supreme Court were two: First, CC
whether in view of the Presidental Order, dated 27th June, 1975 and 8th January, 1976
made under clause (1) of Article 359 any writ-petition under Article 226 would lie in a
High Court for habeas corpus to enforce the right to personal liberty of a person detained
under the Act on the ground that the order of detention was not in
compliance with tne Su
Act. Secondly. if such a petition was maintainable what the scope of judicial security B
Ucularly in view of the Presidential order mentioning Art. 22 and Section 16-A of the
MISA. Section 16-A of MISA prohibited the
grounds of detention to the detenu.
detaining authority to communicat W

The Supreme Court by a 4: 1 majority (A. N. Chardrachud and

Ray, C. J., Beg, the
Bhagwati, JJ.--Khanna, J., dissenting) held that in view of the Presidential Order dat CO
27th June, 1975 no person had any locus standi (legal right) to move any tion
Gc
under Article 226 before a
High Court for habeas wri-PE or
corpus or any other writ
or
ord the
. AIR 1968 SC 1335.
2 AIR 1976 SC 1207.
CHAP. 39 THE EMERGENCYPROVISIONS
795
ion
tion to
direc
challenge the legality of an order of detention on
not ur
or in compliance with the Act or was the ground that the order was
or legal or has based on extraneous
illegal, or was vitiated by mala fides
factu
considerations.
The respondents had argued that the
present appeal should be decided in the
theCourt's rulings the Makhan Singh's casel. In Makhan
in light of
ld that if a detenu challenged his detention on the Singh's case the Court had
icions or the detention ground
that it violated
statutory
prov vitiated was with malice the
challenge could not be barred
wcause of the
ecause of he Presidential Order under Article 359 (1). The Court, however, held that
e decision in Makhan Singh's case did not apply in the
persons whoThe
present had 1962
case.
Deecidential Order was a conditional order as it related to only those been
detained under Defence of India Act. The Presidential Order of June 27, 1975 was a
hlanket" order and was not confined to persons detained under a particular law. Mr.
lustice Khanna, in his dissenting judgment, however, held that the difference in
phraseology in Presidential Order dated June 27, 1975 and that of the 1962 Presidential
Order could not justify the conclusion that because of the new Presidential Order a
detention order need not comply with the requirement of the law providing for preventive
detention.
It was also argued that the object of Article 359 (1) was to bar moving the Supreme
Court under Art. 32 for the enforcement of fundamental rights without affecting in any
to personal liberty under
manner the enforcement of common law and statutory right
Article 2l was not
Article 226 before the High Court. In brief, the contention was that
this
the sole repository of the right to personal liberty. The Court, however, rejected
the sole repository of the right to life and personal
argument and held that Art. 21 was
Court for enforcement of the Article 21, was
liberty. The moment the right to move any
for any redress.
suspended, no one could move any Court
law laid down in habeas corpus case is
no
In view of the 44th Amendment the the
Arts. 21 and 22 cannot be suspended during
longer a good law. Henceforth, a person will be entitled
to challenge the
Proclamation of Emergency. Consequently,
of emergency.
of his detention even during the operation
validity
States.-Article 355 imposes a duty on
the Union to
the Union to protect
Duty of internal disturbance and ensure that the
State against external aggression and
protect every with the provisions of the
State is carried.on in accordance
Government of every two obligations on the Central
Article 355 thus imposes the following
Constitution.
Government:
disturbance and external aggression.
from internal
(1) The duty protect States
to i.e. America, Australia.
provisions are also found
in other federal constitutions,
ucn Centre acts only when the request
is made by States.
But in America and Australia the
under Article 35S. The Centre can thus interfere even
While there is no such pre-condition
Without the State's request.
Government ot every State IS carried on in accordance with
(2) The duty to see that
the provisions of the Constitution. The Constitutions of U.S.A. and Australia also
pertormance of which the Centre takes the
such provisions. It is this duty
in over
Contain
Govemment of State under Art. 356 in case of failure of the constitutional machinery in
ne State. In other federations however, the Centre cannot do so.

Makhan Singh v. State of Punjab, AIR 1964 SC 381.

 CONSTITUTIONAL LAW OF INDIA [CHAP. 39 CHAP. 3991
796
India,' the Supreme Court for the first tim t I tis
In Sarbananda Sonowal v. Union of used in Art. 355. In the inct
the word "aggression
got an opportunity to interpret
G o v e r n o r

the constitutional validity of Illegal Migrant report. TH

case, the petitioner challenged
1983, briefly known as IMDT Act, which w ensure tha
(Determination by Tribunals) Act, of Bangladesh
of Assam for detection and deportation the Const
applicable only to the State aa violative of Art. 14 of the Constitution
Nationals who had illegally entered into India, A
is not to be confined only with "war". Though
The Court held-The word "aggression" word "aggression' but it
within the ambit and scope of the
Parliame
war would be included
termed as war. According to the traditional that peric
comprises many other acts which cannot be more States through their armed
Any such
International Law, "war is a contest between two or
and imposing conditions of peace as such Pro
forces, for the purpose of overpowering each other takes pla-
the victor pleases". But with the passage of time, the nature of war has considerably
Sabha b
changed. Modern war involve not
may the armed forces of belligerent States but
merely
expiry
their entire population.
reconstr

B. State Emergency-Failure of constitutional machinery

in State.-Article Sabha. l
356 says that if the President, on receipt of a report from the Governor
of a State or six mor
otherwise is satisfied that a situation has arisen in which the Government
of the State time bu
cannot be carried on in accordance with the provisions of the Constitution, he may issue years. A
a Proclamation. By that Proclamation: the Pres
machine
() The President may assume to himself all or any of the powers vested in or

exercisable by the Governor to anybody or authority in the State. C

State shall Article
(2) The President may declare that the powers of the Legislature of the
be exercised by or under the authority of Parliament. one ye
42nd A
The President may make such incidental and consequential provisions as
(3) continu
or desirable for giving effect to the object of
may appear to him to be necessary emerge
Proclamation. Art. 35-
The President cannot, however, assume to himself, any of the powers vested in that a
Constitution relating to the passed
High Court or suspend the operation of any provisions of the operatie
High Court.
certifie
When the Proclamation of Emergency is made under Art. 356 (1), the powers of period
the State Legislature are to be exercised by Parliament. Parliament can confer on the
President the power to make laws for the States. Parliament may also authorise
genera
Amend
the President to delegate such powers to any other authority as specified by himself upto th
Art. 357 (1) (a)]. If the Lok Sabha is not in session the President may authorise
expenditure from the Consolidated Fund of State, pending sanction of such expenditure by
Parliament. inserte
Proclar
The Proclamation issued under Art. 356 (1) may be revoked or varied by the State o
President by a subsequent Proclamation. year
It is to be noted that the word "satisfaction" in Art. 356 (1) does not mean the Under
personal satisfaction of the Governor but it is the satisfaction of the Cabinet. The respec
alisfaction of the President can, however, be challenged on two grounds that (l) t has circu
exercised mala fide (2) based on wholly extraneous and irrelevant grounds, because in
special
been
that group.
case it would be no satisfaction of the President.
popula
State,
. AlR 2005 SC 2920 The ar
2. Siate of Rajasthan v. Union of India, AlR 1977 SC 1361.
Punjab
39 CHAP. 39] THE EMERGENCY PROVISIONS

me i s to be noted that under Article 356 797

the President acts on
ant Governor oreotherwis ise. This means that the a
report of the
President can act even without the
nts ort. This
is justified in view of the obligation of the Governor's
as reporat Centre imposed by Art. 1i5 to
ensure that the Government of the State is carried on in
accordance with the provi
esh the Constitution. of
on.
gh A proclamation issued under Article 356 shall
be
it diament and shall remain in operation for 'two months' laid before each House
unless before the expiry of
nal neriod it has been approved by both Houses of Parliament [Clause (3) of Art. 356].
ed Anv Such Proclamation may be revoked or varied by a subsequent Proclamation. If any
as ench Proclamation is iSsued at the time when Lok Sabha is dissolved or the dissolution
bly takes place during the period of two months and the Proclamation is passed by the Rajya
ut Sabha but not passed by the Lok Sabha, the Proclamation shall cease to operate at the
expiry of 30 days from the date on which the new Lok Sabha meets after the
reconstruction unless before the expiry of 30 days it has been also passed by the Lok
le Sabha. If the Proclamation is approved by the Parliament it will remain in operation of
or
"six months". Parliament may extend the duration of Proclamation for "six months" at a
ate time but no such Proclamation shall in any case remain in force for more than three
ue years. After the expiry of the maximum period of three years, neither the Parliament nor
the President shall have power to continue a Proclamation and the constitutional
or machinery must be restored to the State.
amended
Constitution (44th Amendment) Act, 1978.-This amendment had
"six months" for the words
all Article 356 and restricted its scope. It substitutes the word
the position as it stood before the
"one year" as it existed originally. Thus it restored
if approved by Parliament,
42nd Amendment. A Proclamation of Emergency will,
as continue for six months from the date of
the issue. For the further continuation of
of time. It has addeda new clause (5) to
emergency, it must be approved by Parliament each
which is now omitted. This clause (5) provides
Art. 356 in place of existing clause (5) shall not be
the emergency beyond one year
that a resolution for the continuance of
in Proclamation of Emergency is in
House of Parliament unless-(a) a
the passed by either
such resolution; and (b) the
Election Commission
operation at the time of the passing of the
continuance in force of the Proclamation under Art. 356 during
certifies that the of difficulties in holding
of period specified in such resolution
is necessary on account
this
Assembly of the State concerned. Prior to
the the Legislative
general elections to
condition and the
Government could extend the period
ise Amendment there was no such cause.
self without sufficient
plo the maximum of three years
ise Cl. (5), Article 356, and
Act, 1984.-Amended
Constitution (48th Amendment) "provided that in the case of the
by proviso in clause (5), namely,
serted a new
on the 6th day
of October, 1983 with respect to the
Toclamation issued under clause (1) the expiration of one
the clause to "any period beyond
Punjab, the reference in this the expiration of two years".
de of to "any period beyond
be construed as reference
Shall Proclamation of October 6, 1983, with
the clause (5) the Presidential
the er existing
in force for more than one year unless the *"special
The Spect to Puniab could not continuewere
has Cumstances" mentioned therein satistied. This was enacted to meet out the
the State of Punjab due to on going agitation by a
e in C1al circumstances prevailing in in suspended animation and a
up. Though the Legislative Assembly was kept to the prevailing situation in the
Sar Government could be installed, having regard
yet the continuance of the Proclamation beyond October 6, 1984, was necessary.
he amendment made Art. 356(5) inapplicable in the existing conditions in the State of
Punjab.
 LAW OF INDIA
798 CONSTITUTIONAL
CHAP.39 eCHAP.

1990.-Art. 356 was again amended:

The Constitution (64th Amendment) Act, by
V a c t on

in order to provide for extension ofs

the Constitution (64th Amendment) Act, 1990 can be

President Rule in the State of Punjab for another

6 months as the situation there Waas not and r
favorable for holding Assembly elections. The amendment added a new proviso afto
fter Gover

clause (4) in Art. 356 which substituted the words "three years and six months" for tha demo
words "three years" and also provided that the conditions laid down in Clause (5) would forma
not apply to the Proclamation issued under clause (1) on llth May, 1987 with respect to power

the State of Punjab. The Constitution (67th Amendment) Act. 1990, extended the period
of President Rule in the State of Punjab for a further period of 6 months. Accordingly, it
has substituted the words "four years" for the words "three years and six months"
groun
be no
Clause (4) of Art. 356 of the Constitution.
that a
Nine Assemblies Dissolution in 1977-In State of Rajasthan v. Union of exerc

India,' in 1977, Article 356 was invoked for the dissolution of 9 State Assemblies of calls
Rajasthan, Uttar Pradesh, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh, Orissa, regula
West Bengal and Haryana, and President Rule was imposed on the ground that the with
Assemblies in these States no longer represented the wishes of the electorate. The facts
which led to the dissolution of the nine Assemblies were as follows: The Lok Sabha in
the C
which the ruling party had an overwhelming majority was dissolved and fresh elections
invok
were held in which the ruling Party was completely routed and opposition secured a
Uttar
landslide victory and formed the Government at the Centre. The new Union Home and
Minister, addressed a letter to the Chief Ministers of the these States earnestly
grour
recommending for their consideration that they should advice the Governors of their
respective States "to dissolve the State Assembly in exercise of the power under Art. 174 Judic
(2) (b) and seek a fresh mandate from the electorate". It was contended that since their
party was virtually rejected in the present Lok Sabha elections a serious doubt had been
cast on their enjoying the peoples confidence. When a legislature no longer reflects the impo
wishes of the electorate he said, it should obtain a fresh mandate. Asse
since
The States filed suits challenging the validity of the directives issued by the Home
whic
Minister to the Chief Ministers to dissolve their Assemblies and seek a fresh mandate. had c
The latter disclosed the sole ground for the Proclamation under Art. 356 and that such a
Proclamation and the dissolution of their Legislative Assemblies upon the
gove
grounds given suspi
in the letter was outside the scope of Art. 356 of the Constitution. It was also contended not f
that the condition precedent to the dissolution of the Assemblies is a ratification by both less
the Houses of Parliament and so that no dissolution can take
place without ascertaining Gove
the wishes of both the House of Parliament. The petitioners
prayed for a permanent
injunction restraining the Union of India from giving effect to the Home Minister's
directive. On behalf of the Union or India, it was contended that the suit under Art. 131
impo
the
was not maintainable because the
dispute of a political character regarding the continuance recor
of a Council of Ministers. It was
argued that the questions which arose for gauging the Gove
existence of a "situation" calling for action under Article 356 was was
non-justifiable. Mere
intimation of some facts did not justify prohibition to act in future on other facts. It Worse
could not be predicted now what other facts call f
may arise in future.
A seven members Constitution Bench of the Cent
Supreme Court by an unanimous
judgment rejected the petitioner's petition and upheld the Centre's action break
three Assemblies under Art. 356 as
of dissolving deter
satisfaction' of President under Art. 356constitutionally affece
valid. The Court held--in
could not be questioned. The President does
no beyo
1. AlR 1977 SC 1361.
AP.39 CHAP. 39]
THE EMERGENCY PROVISIONS
799
ed by the report of the Governor but
of the
an on otherwise. This that
the satisfaction
means
actoased on material other than Governor's
report. The choice between a dissolution
as not re-election or a retention or the same membership of the legislature or the
after vernment for a certain period are matters of political expediency and strategy under a
r the dmOcratic system. Under the Indian system, the gist of political power
vould formation of several through
political parties is legal. Hence a mere attempt to get more political
ect to power for a party is not constitutionally prohibited or per se illegal.
eriod In the satisfaction is mala fide or is based on wholly extraneous and irrelevant
ly, it
s" in orounds the Court would have jurisdiction to examine it because in that case there would
be no satisfaction of the President (Bhagwati and Gupta, JJ). The Chief Justice suggested
n of that a healthy convention should be developed so that the power under Art. 356 is neither
es of exercised capriciously or arbitrarily nor it be exercised when a political situation really
calls for. It is not for the Courts to formulate and much less to enforce a convention to
issa, regulate the exercise of such an executive power. This is a matter which entirely rests
the with the Executive.
facts
a in Nine Assemblies dissolution in 1980.-In 1980, Article 356 was invoked by
the Congress () Government more or less in similar circumstances in which it was
1ons invoked in 1977 by the Janata Government at the Centre. The Assemblies of 9 States of
ed a
Uttar Pradesh, Bihar, Rajasthan, Madhya Pradesh, Punjab, Orissa, Gujarat, Maharashtra
ome and Tamil Nadu were dismissed and the President rule was imposed on them on thee
stly ground that they no longer represented the wishes and aspirations of the electorate.
heir
174 Judicial Guidelines for imposing President's Rule
heir
S. R. Bommai v. Union of Indial,-On Dec.15, 1992, President Rule was
een imposed in three States of Madhya Pradesh, Himachal Pradesh and Rajasthan and
the Assemblies were dissolved on the ground that these States were not implementing
sincerely the ban imposed by the Centre on religious organisation. The main grounds on
which the Governments had been dismissed were that the Chief Ministers of these States
me
had connections with an organisation which had been banned, and secondly, that these
ate. governments had encouraged the Kar Sevaks to go to Ayodhya. Thus, the basis was mere
h a
suspicion that they would refuse to enforce the ban. There were no proof that they were
ven
not following the directions of the Centre. The three Governors had submitted more or
ied less identical report in 24 hours. This was clear abuse of Art. 356, where duly elected
oth Governments were dismissed merely on the ground of suspicions.
ing The Madhya Pradesh High Court by 2: 1 majority held that the Presidential order
ent imposing President's Rule in the State was invalid and unconstitutional as being beyond
er's the scope of Art. 356 of the Constitution. The Court said that in their report
31
recommending the dismissal of the Ministry and dissolution of the Assembly, the
ce Governor failed to substantiate how the constitutional machinery had broken down. There
the was no evidence of the State Govenment having defied Central directives. Mere
ere worsening the law and order situation in a State due to sudden break of
It call for extreme step, of impOSition of President Rule. The violence did not
Centre had not provided Governor's report to the
any other material to justify the case
breakdown in a State. The Court said that for a constitutional
us Central intervention in a situation of
ng
deteriorating law and other could be justified
affected areas. But of President's Rulethrough the deployment
beyond the scope ofimposition
he of Army in the
ot Art. 356.
Apart from
straight way these
in circumstances was
stating that the law and order
. (1994) 3 SCC
situation was
1
S00
CONSTITUTIONAL LAW OF INDIAA
CHAP 39 CHA

worsening in Bhopal and some other towns in the State as a Ayodhya

result to incidente
The Governor's report to the Centre had not provided any other material to justify the case
for a constitutional breakdown in the State. As regards the contention that after it had
cannot sit in judgment on Presidential
been ratified by the Parliament, the Court
invalid for a period of twa
proclamation, the Court said that the proclamation had been
months before Parliament gave its approval. The 'invalid' proclamation had thus already
in force without parliamentary approval. The parliamentary approval merely gives further
extension to the proclamation. In approving the Presidential order, the Court held,
Parliament did not sit in judgment over satisfaction of the President reached on the advice
of the Union Cabinet for imposing President's Rule for two months, prior to the issue
coming up before Parliament.
The Union Govemment filed an appeal against the MP High Court judgment in the
Supreme Court. The Supreme Court stayed the operation of the judgment till the disposal
of the case. By the time the Supreme Court heard the appeal and gave its
judgment elections to the assemblies of these States were held and new govermments were
installed.
A Constitution Bench of nine Judges of the Supreme Court held-The dismissal of
the Governments in Madhya Pradesh, Rajasthan and Himachal Pradesh in the wake of the
Ayodhya incident of Dec. 6, 1992 was valid and imposition of the President's Rule in
these States was constitutional. 'Secularism' is a basic feature of the Constitution and
any State Government which acts against that ideal can be dismissed by the President. It
was
was held that in matters of religion the State has no place. No political party can
122
simultaneousiy be a religious party as well as political party.
But the Court held that the imposition of President's Rule in Nagaland in 1988,
Karnataka in 1989 and Meghalaya in 1991 was unconstitutional and, therefore, liable to Ag
be struck down. In these States, however, no action could be taken as elections had
Pas
diss
subsequently taken place and new Government had been installed and it was not possible
to revive old State Assemblies. The Judges were unanimously held that President's power gro
under Art. 356 to dismiss a State Government and imposition of President's Rule was diss
subject to judicial review. If the dismissal is found to be illegal then the Court can revive veri
the dissolved State Assembly. sen
a G-
The Court also held--No State Assembly can be dissolved simultaneously with the fa
imposition of President's Rule. President can only dissolve the State Assembly after the extr
approval of proclamation by both Houses of Parliament and not before. Until such Go
approval is given, the President can only suspend the Legislative Assembly. The Court of t
cases undertake judicial review of Presidential proclamation if allegations of mala fide repc
exercise of power are made in the petition. Simply because a political party has Gov-
overwhelming majority at the Centre, it can not advise the President under Art. 356 to grou
dissolve the Assemblies of opposition ruled States. In cases both Houses of Parliament engi
disapprove or do not approve the Presidential proclamation, the proclamation lapses at the whi
end of two months period, and the dismissed Government is revived. Gov
issuo
Regarding Art. 74 (2) of the Constitution which bars an enquiry into the question aGo
whether any or what advice was given by the Council of Ministers to the President,
the majority held-It does not bar the Court to call upon the Union Government to his r
disclose to the Court the material upon which the President had formed the requisite the al
satisfaction. The material on the basis of which advice was tendered does not form part of has te
the advice.
The Court laid down the following guidelines
 THE EMERGENCY PROVISIONSS
801
CHAP. 391
ssidential proclamation dissolving a State Legislative Assembly is subject
(1) P r e s i d e n t i a l
to judicial review.

T f a State Government works against secularism, President's Rule can be

imposed.
There can be no wholesale dismissal of opposition ruled States governments
when a new political party assumes power at the Centre.

(4) If President's Rule is imposed only on political considerations the Court can
even restore the assembly.
State Assembly be
5) Imposition of President's Rule and dissolution of
cannot

done together.
be dissolved only after Parliament approves Central
(6) State Assembly can

Rule.
Court can compel the Union Government to
High
(7) The Supreme Court or a
on a State.
disclose material on whose basis President's Rule is imposed
is a constitutional power, it is not
(8) The power of the President under Art. 356 to form the
an absolute power. The
existence of material is a pre-condition
satisfaction to impose the President's Rule.
2005 the President's Rule
of India, on March 7,
'
In Rameshwar Prasad v. Union
the required majority of
the ground that no party had
was imposed in the State of Bihar on
122 MLA's in a 243 member Assembly.
B.N.
Bench of the comprising of K. Sabharwal, C.J.,
Supreme Court
A five Judge 3-2 majority (Arijit
K.G. Balakrishnan and Arijit Pasayat, JJ., by
Agrawal, Ashok Bhan, Presidential proclamation
and K.G. Balakrishnan, JJ.
dissenting) held-The irrelevant
Pasayat and based on extraneous and
State Assembly was unconstitutional
dissolving Governor misled the Centre
in recommending the
Court said that the have
grounds. The the Union Council of Ministers should
and
dissolution of the State Assembly The Governor acted in "undue
haste' in
it as gospel truth.
verified before accepting from staking claim to form
and his full motive wa_ to prevent JD (U)
sending his report Assembly polls verdict. The Governor's report contained
a Government after a
fractured
The drastic and
which could be "destructive to democracy".
"fanciful assumptions" on mere personal opinion of the
extreme action under
Article 356 cannot be justified
the subversion
it cannot remain a silent spectator watching
Governor. The Court said that verified the facts stated in the
The Council of Minister should have
of the Constitution.
Governor before hurriedly
accepting it as a 'gospel truth' as to what the
of the
report the Governor that he recommended dissolution on the
Governor stated. It was claimed by
party was trying to gain majority by
ground that in view of media report politicalthreat to democracy. This was a matter
a

this was a serious

engineering defections and Tenth Schedule and not relevant at the time when the
which can be solved under the
Governor had to send report to the Centre. "That was tully an unconstitutional act". The
issue of defection has to be dealt in accordance with the law as no such power is given to
a Governor.
The Governor while recommending dissolution of an Assembly has to annex with
his report to the Union
Government relevant" material substantiating his decision. "In
the absence of the relevant
has to be treated as his
material much less due verification, the report of the Governor
personal ispe
dixit (personal opinion).
1. (2006) 2 SCC 1
 cONSTITUTIONAL LAwOF INDIA
802 CHAP. 39
for the revival of dissolved Ac
Regarding the claim of the petitioner
the election process was set in motion and was
the Court held that in view of
it would not be proper to order revival of s an
advanced stage, in the larger interest, State
Assembly.
Difference between Articles 352 and
356.-Under Article 352 the SState
Constitution cannot be suspended. The State Legislature and the State Executive continne
to function. The only effect is that Centre gets concurrent powers of legislation and
administration in State matters. Under Article 356, on the other hand, the State
Legislature is suspended and dissolved. The Executive and Legislátive power of the State
is exercised by the Centre. Under Article 352, the relationship of all the States with the
Centre undergoes a change, while under Article 356 the relationship of only the State
with the Centre is affected. amend

. Financial Emergency.-Article 360 provides that if the President is satisfied may e

that situation has arisen whereby the financial stability or credit of India or part of the of wise

territory thereof is threatened, he may by a proclamation make a declaration to that effect. of go

amend
The 44th Amendment makes Art. 360 self-contained. It provides that the metho-
proclamation of financial emergency shal cease to be in operation at the expiry of two
months unless it has been approved by both Houses of Parliament. Such a proclamation
may be revoked or varied by the President by a subsequent proclamation. But if the Lok politic
Sabha is dissolved during the period of two months and resolution is approved by the genera

Rajya Sabha, but not by the Lok Sabha the proclamation shall cease to operate at the procec
expiry of 30 days from the date on which the new Lok Sabha sits unless before the expiry with A
of 30 days a resolution approving proclamation is passed by the Lok Sabha. that is
times.
During the period when such a proclamation is in operation, the executive authority
of the Union shall extend to the giving direction to any State to observe such canons of
financial propriety as may be specified in the directions and be deemed necessary by the werea
President for maintaining financial stability and the credit of the State. Any such direction the ch
may include a provision for the reduction of salaries and allowances of all or any class of proces
persons serving in a State, including the Judges of the Supreme Court and High Courts. the fo
lt may also require that all Money or Financial Bills are to be reserved for the Const
consideration of the President after they are passed by the Legislature of the State. Const
perma
The duration of a proclamation of financial emergency will be in operation for two
any e
months and unless approved by President it shall cease to operate at the expiry of two
months' period.
chang
may n

"The Constitution of India is unique in respect that it contains a complete scheme

for speedy re-adjustment of the peace-time governmental machinery in movements of
national peril. These provisions may appear to be particularly in a Constitution which Const
professes to be built upon an edifice of fundamental rights and democracy. But the
ruling
Hence
provisions must be studied in the light of India's past history. India had her in glorious amenc
days whenever the Central power grew weak. It is far well that the Constitution guards Consti
against the forces of disintegration. Events may take place threatening the very existenc provid
of the State and if there are no safeguards against such eventualities the State togetnei too ea:
with all that is desired remain basic and
to immutable, will be swept away."" would
provic

. V. N. Shukla-The Constitution of India, p. 585 (1969 ed.).