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NEW LAW COLLEGE

SUBJECT:
Constitutional Law

TOPIC:
EMERGENCY PROVISION

NAME: VIKRANT VINAYAK BELWALKAR

ROLL NO: 158

DIVISION: B

Date: - 30/08/2022

I have taken the above mentioned topic for my F.Y.L.L.B

Semester 2 Assignment.
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Index

Sr Topics Page No.

No.
1 Introduction 3

2 What are emergency provisions? 3

3 Types of Emergencies 4

4 Article 19 and Freedom of Press. 5

5 Scope of Freedom of Press under Article 5

19(1)(a).
6 Reasonable Limitations of Press’ 7
Freedom.

7 Security of the state. 7

8 Public Order. 7

9 Decency or morality. 8

10 Contempt of Court. 8

11 Defamation. 8

12 Friendly relations with Foreign states. 9

13 Incitement to an offence. 9

14 What is the current state of the press? 9

15 What is the current state of the press? 9

16 Cases Related To Freedom Of Press. 10

17 Conclusion. 12

18 Bibliography 13
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 Introduction.
The term emergency maybe defined as a difficult situation arising suddenly and
demanding immediate action by public authorities under powers specially granted
to them by the Constitution. The Emergency provisions are contained in Part XVIII
of the Constitution, from Articles 352 to 360. The rationality behind the
incorporation of these provisions in the Constitution is to safeguard the sovereignty,
unity, integrity and security of the country, the democratic political system, and the
Constitution. Dr. Ambedkar claimed that the Indian federation was unique in
as much as in times of emergency it could convert itself into an entirely unitary state.
The Constitution of India stipulates three types of emergency
1. National Emergency (Article 352)
2. State Emergency (Article 356)
3. Financial Emergency (Article 360)
A state of emergency in India refers to a period of governance that can be proclaimed
by the President of India during certain crisis situations. Under the advice of the
cabinet of ministers, the President can overrule many provisions of the Constitution,
which guarantees Fundamental Rights to the citizens of India.

 What are Emergency Provision?

Definition of Emergency:
An emergency is a situation which arises due to the failure of the government
machinery which causes or demands immediate action from the authority. 
According to the Black Law’s Dictionary, “Emergency is a situation which requires
quick action and immediate notice as such a situation causes a threat to the life and
property in the nation. It is a failure of the social system to deliver reasonable
conditions of life”

Emergency Provision:
The emergency provisions are contained in Part XVIII of the Constitution of India,
from Article 352 to 360. These provisions enable the Central government to meet any
abnormal situation effectively. The rationality behind the incorporation is to safeguard
the sovereignty, unity, integrity and security of the country, the democratic political
system and the Constitution.

 Types of Emergencies
There are three types of emergencies under Constitution of India:
- National emergency: Due to war, external aggressions, or armed rebellion (Art
352).
- State emergency: Due to the failure of constitutional machinery in states, this is
popularly known as Presidential Rule (Art 356).
- Financial emergency: Due to a threat to the financial constancy or credibility of
India (Art 360).
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A. National Emergency (Art 352):

This emergency provides that if the president is satisfied that a grave emergency
exists whereby the safety of India or any part of India is threatened, either by war or
external aggression or armed rebellion, he may make a Proclamation of Emergency in
respect of the whole of India or any part of it as may be specified in the proclamation.

A proclamation of emergency can be made even before the actual occurrence if the
president is satisfied that there is imminent danger of war, or external aggression, or
armed rebellion. Thus, actual occurrence of events mentioned in Art. 352 is not
essential. An imminent danger of war, or external aggression, or armed rebellion is
adequate for the proclamation of emergency.

The president shall not issue a proclamation without consulting the union cabinet (i.e.,
the council of ministers and the prime minister) such a proclamation may be issued
has been communicated to him in writing. This means that the emergency will be
declared only on the conformity of the cabinet, and not merely on the advice of the
prime minister.

In Minerva Mills Ltd V. Union of India

the Court held that there is no bar or limitation to judicial review of the validity of a
proclamation of emergency issued by the president under Art. 352 (1). This
proclamation of emergency can be challenged in a court on the basis of mala fide or
for the declaration that was wholly extraneous and irrelevant facts or is absurd or
perverse.

However, the word satisfaction used in Art. 352 does not mean the personal
satisfaction of the president, but it is the satisfaction of the cabinet. The power to
declare emergency can be exercised by the president only on the recommendation of
the council of ministers.

Parliamentary Approval and Duration:

Prior to the 44th Amendment Act of 1978, a proclamation of emergency could remain
in force for 2 months in the first instance, but once approved by parliament the
emergency could remain in force for indefinite period of time as long as the executive
wanted it to continue. The 44th Amendment has curtailed the power of the executive
to extend the operation of emergency unnecessarily.

After the 44th Amendment a proclamation of emergency could remain in force in the
first instance for 1 month, such a proclamation if approved shall remain in force for
the period of six months unless revoked earlier. The resolution approving the
proclamation must be passed by both the houses of parliament by special majority,
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that is by majority of the total members of each house and also by a majority of not
less than 2/3 of the members present and voting in each house.

For the further continuance of emergency beyond the period of six months approval
by parliament would be required every six months. If the proclamation is issued at the
time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes
places during the period of six months without approving the proclamation, then the
proclamation remains until 30 days from the first sitting of the Lok Sabha after its
reconstruction.[4]

Revocation of National Emergency:

A proclamation of emergency may be revoked by the president any time by a
subsequent proclamation, that proclamation does not require any parliamentary
approval. The president shall revoke a 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. The
notice should be given:

to the speaker, if the lower house is in session, or

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 notice is received by the speaker
or by the president for the purpose of considering the resolution.

A resolution of disapproval is different from a resolution approving the continuation

of a proclamation in the following two ways:

The first one is required to be passed by the Lok Sabha only, while the second one
needs to be passed by both the houses of parliament.

The first one is to be done by a simple majority only, while the second one needs to
be done by a special majority.

Effects of National Emergency:

A proclamation of emergency has drastic and wide-ranging effects on the political
system of the government.

The consequences can be grouped into three categories:

Effect on the Centre - State relations,
Effect on the life of Lok Sabha and State Assembly, and
Effect on the Fundamental Rights.
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Effect on the centre state relations: While a proclamation of emergency is in force, the
centre state relations undergo basic changes.
This is headed under:
Executive:
During a national emergency, the executive power of the centre extends to directing
any state regarding the way in which its executive power is to exercised. In normal
times, the union can give executive directions to a state only on certain specified
matters. Thus, the state government are brought under the complete control of the
centre, though they are not suspended.
 
Legislative:
During a national emergency, the parliament is empowered to make laws on any
subject-matter mentioned in the state list. Though the legislative power of a state
legislature is not suspended, it becomes subject to the overriding power of the
parliament. The laws made by the parliament on the state matters will not be
functioning after the emergency ceases to operate.
 
Financial:
While a proclamation of national emergency is in process, the president can either
reduce or cancel the transfer of finances from centre to the state. Every such order of
the president has to be laid before the both houses of parliament.
 
Effects on the life of the Lok Sabha and State Assembly:
While a proclamation of National emergency is in process, the life of Lok Sabha is
also extended beyond its normal term (5 years) by a law of parliament for one year at
a time. However, this extension cannot continue beyond a period of 6 months after the
emergency has ceased to operate. Similarly, the parliament may extend the normal
tenure of a state legislative assembly (5 years) by one year each time. During a
national emergency subject to a minimum period of six months after the emergency
has ceased to operate.

Effect on the fundamental rights:

Articles 358 and 359 sets out the effect of a National emergency on the fundamental
rights. Article 358 deals with suspension of the elemental rights guaranteed by Article
19. While Article 359 deals with the suspension of other fundamental rights except
guaranteed by Article 20 and 21.

1. Suspension of fundamental rights:

According to Article 358, when a proclamation of national emergency is formed the

six fundamental rights under Article 19 are automatically suspended. No separate
order for their suspension is required.
The 44th Amendment Act of 1978 restricted the scope of Art. 358 providing that the
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six fundamental rights under Art. 19 will be suspended only if the National
emergency is asserted on the ground of war or external aggression and not on the
ground of armed rebellion.
 
2. Suspension of other fundamental rights:

As per Article 359, the president is authorised to suspend the right to move any court
for the enforcement of fundamental rights during the National emergency. In other
words, the fundamental rights are not suspended as such, but only their enforcement.
The suspension of enforcement relates to only those fundamental rights that are as per
the presidential order.

B. State Emergency (Art 356):

It says that the president can act on report of the Governor or otherwise is satisfied
that a situation has arisen in which the state government is unable to perform its duty
in accordance with the provisions of the constitution, he may issue a proclamation.
This concludes that the president can also act even without the Governors report.

Art 355 justifies it by saying that the centre is obliged to ensure that the government
of the state is carried on in accordance with the provisions of the Indian constitution.
In that circumstance, proclamation by president is called proclamation due to the
failure of constitutional machinery in state.

By that proclamation:
The president may assume to himself all or any of the powers vested in the Governor
or exercised by him to anybody or authority in the state.
The president may declare that the powers of the legislature of the state shall be
exercised by or under the authority of parliament.
The president may make such consequential provisions as may appear to him to be
necessary or desirable for giving effect to the object of proclamation.
The president cannot assume to himself any of the powers vested in high court or
suspend the operation of any provisions of the constitution relating to the high court.

Parliamentary Approval and Duration:

A proclamation shall laid before each house of parliament for approval and shall
remain operational for two months, after the expiry of this period the proclamation
ceases to operate.
If the proclamation is issued at the time when the Lok Sabha has been dissolved or the
dissolution of the Lok Sabha takes places during this period of 2 months without
approving the proclamation, then the proclamation survives until 30 days from the
first sitting of the Lok Sabha after its reconstruction.
If the proclamation is approved by the parliament it will remain in operation for six
months. Parliament may extend the duration of proclamation for 6 months at a time.
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No proclamation shall remain in force more than 3 years, after the expiry of the
maximum period of 3 years neither the parliament nor the president shall have power
to continue a proclamation and the constitutional machinery must be restored to the
state.

Judicial Guidelines for imposing Presidents Rule:

In S.R. Bommai V. Union of India,
Facts:
On Dec 15, 1992 president rule was imposed in three BJP ruled-states Madhya
Pradesh, Himachal Pradesh, and Rajasthan and assemblies were dissolved on the
ground that these states were not implementing sincerely the ban imposed by the
centre on religious organization.
 
The main grounds on which the government had been dismissed were that the chief
ministers of these states had connections with an organization which had been
banned, and secondly, that these governments had encouraged the Kar Sevaks to go to
Ayodhya. Thus, the premise was mere suspicion that they might refuse to enforce the
ban. There were no proof that they were not following the directions of the centre.

Held:

1. The dismissal of the governments in Madhya Pradesh, Himachal Pradesh and

Rajasthan in the wake of the Ayodhya incident of Dec 6, 1992 was valid and
imposition of the presidents rule in these states was constitutional.
2. Secularism is a basic feature of the constitution and any state government
which acts against that ideal can be dismissed by the president.
3. It was held that in matters of religion the state has no place. No party can
simultaneously be a non-secular party as well as political party.

Financial Emergency (Art 360)

It empowers the president to proclaim a financial emergency if he is satisfied that a
situation has arisen, where the financial stability or constancy or credit of India or any
part of its territory is threatened. In other words, it means whenever the president is
contended that the economy of India is in danger, he may proclaim this emergency.

Parliamentary Approval and Duration:

A proclamation declaring financial emergency must be approved by both the houses
of parliament within two months from the date of its issue, it survives until 30 days
from the first sitting of Lok Sabha after its reconstruction if at the time of
proclamation, the Lok Sabha was dissolved or the dissolution of Lok Sabha was
taking place. Once the proclamation is approved by both the houses of parliament the
financial emergency continues indefinitely, its time is unspecified till it is revoked.
The repeated parliamentary approval is not required for its continuation like other two
emergencies.
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A resolution approving the proclamation of financial emergency can be passed by

either house of parliament only by a simple majority, i.e., a majority of the members
present and voting of the house. It can be revoked by the president anytime by a
subsequent proclamation. Those proclamation does not require the parliamentary
approval.

Effects of Financial Emergency:

The implications of the financial emergency are:
The president may reserve all the money bills or financial bills after they are passed
by the state legislature for maintaining financial constancy and the credit of the
nation.
The president may issue directions for the reduction of salaries and allowances of:
all or any class of persons serving in the state;
all or any class of persons serving the union and;
The judges of the Supreme Court and the high court.

Thus, during the proclamation of the financial emergency, the union acquires full
control over the states in financial matters.

Criticism of Financial Emergency:

The federal character of the constitution will be destroyed and therefore the union will
become all powerful.
The powers of the state will entirely be given to the union executive.
The president will become a dictator.
The financial autonomy of the state will become invalidate.
Fundamental rights will become meaningless and due to which the democratic
foundations of the constitution will be destroyed.

Background
The proclamation of emergency is a very serious matter as it disturbs the normal
fabric of the Constitution and adversely affects the rights of the people. Such a
proclamation should, therefore, be issued only in exceptional circumstances and not
merely to keep an unpopular government from office. This happened in June 1975
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when an emergency was declared on the ground of internal disturbance without there
being adequate justification for the same. The proclamation of 1975 was made on the
ground of internal disturbance which proved to be the most controversial because
there was violation of fundamental rights of the people on a large scale; drastic press
censorship was imposed. A large number of persons were put in preventive detention
without justification. In the light of these amendments have thus been made by the
44th amendment act to the emergency provisions of the constitutions to make
repetition of the 1975 situation extremely difficult, if not impossible.

Changes Made By 44th Amendment

The 44th Amendment

The 44th amendment substantially altered the emergency provisions of the
Constitution to ensure that it is not abused by the executive as done by Ms. Indira
Gandhi in 1975. It also restored certain changes that were done by 42nd amendment.
The following are important points of this amendment-

1. "Internal disturbance" was replaced by "armed rebellion" under art 352.

2. The decision of proclamation of emergency must be communicated by the Cabinet

in writing.

3. Proclamation of emergency must be by the houses within one month.

4. To continue emergency, it must be re-approved by the houses every six month.

5. Emergency can be revoked by passing resolution to that effect by a simple majority

of the houses present and voting. 1/10 of the members of a house can move such a
resolution.

6. Article 358 provides that Article 19 will be suspended only upon war or external
aggression and not upon armed rebellion. Further, every such law that transgresses
Article 19 must recite that it is connected to Article 358. All other laws can still be
challenged if they violate Article 19.

7. Article 359, provides, suspension of the right to move courts for violation of Part
III will not include Articles 20 and 21.

8. Reversed back the term of Lok Sabha from 6 to 5 years.

A. Proclamation under Article 352

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Article 352(1) provides that the president can make a proclamation of emergency if he
is ‘satisfied’ as to the existence of a threat to the security of India, or any part thereof.
Herein therefore the question has arisen from time to time that whether this
satisfaction of the President is justiciable or not.

The position on this matter is that in the case of Bhut Nath v. State of West Bengal,
the Supreme Court held that it is a political question and not a justiciable issue. Also
to make the position more clear on this matter the 38th Amendment to the constitution
added clause 5 to the Article 352 saying that the ‘satisfaction’ of the president as used
in Article 352(1) and (3) is to mean “final and conclusive” and “could not be
challenged in any court of law”.

But later on after Indian democracy saw the abuse of these powers during the
emergency of the 1975, by the 44th Amendment later on the provision of Article
352(5) inserted by the 38th Amendment to the constitution was revoked. Therefore
the present position on this matter is that, it is upto the Supreme Court to decide
whether it will treat the ‘satisfaction’ of the president to issue a proclamation of
emergency, or to vary it or to continue it, as ‘final’ and ‘non-justiciable’, or as being
subject to judicial review on some grounds.

Also it is worth noting herein that Justice Bhagwati has observed in the case of
Minerva Mills that “whether the precedent n proclaiming the emergency under Article
352 had applied his mind or whether he acted outside his powers or acted mala fide in
proclaiming the emergency could not be excluded form the scope of judicial review.”

B. Proclamation under Article 356

The susceptibility of a Proclamation under Article 356 to judicial review is beyond
dispute, because the power under Article 356(1) is a conditional power. In the
exercise of the power of judicial review, the court is entitled to examine whether the
condition has been satisfied or not. So the controversy actually revolves around the
scope and reach of judicial review. From the decisions in the case of State of
Rajasthan v. Union of India and the Bommai case, it is clear that there cannot be a
uniform rule applicable to all cases it is bound to vary depending upon the subject
matter, nature of the right, and other factors. However, where it is possible the
existence of satisfaction can always be challenged on the ground that it is ‘mala fides’
or ‘based on wholly extraneous and irrelevant grounds’. The relevance of judicial
review in matters involving Article 356 is also emphasized in the Supreme Court
judgment in re State of Madhya Pradesh v. Bharat Singh, where the Supreme
Court held that it was not precluded from striking down a law passed prior to a
Proclamation of Emergency, as ultra vires to the Constitution, just because the
Proclamation was in force at that time.

Judicial review of the Proclamation under Article 356(1) was first tested in State of
Rajasthan v. Union of India, in which a seven member’s constitution bench of the
Supreme Court by a unanimous judgment rejected the petitioner petition and upheld
the centre’s action of dissolving three assemblies under Article 356 as constitutionally
valid.
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The Supreme Court, in the case of Minerva Mills and Others v. Union of India and
Others, dwelt extensively on its power to examine the validity of a Proclamation of
Emergency issued by the President. The Supreme Court in this matter observed, inter
alia, that it should not hesitate to perform its constitutional duty merely because it
involves considering political issues. At the same time, it should restrict itself to
examining whether the constitutional requirements of Article 352 have been observed
in the declaration of the Proclamation and it should not go into the sufficiency of the
facts and circumstances of the presidential satisfaction in the existence of a situation
of emergency.

Thus we can safely conclude that, though limited, the Presidential Proclamation under
Article 356 is subject to judicial review. The most recent case which decided the
extent of judicial review of the Proclamation by the President imposing ‘President’s
Rule’ in the states and consolidated the legal position on the subjective satisfaction of
the President is S R Bommai v Union of India was a landmark in the history of the
Indian Constitution. It was in this case that the Supreme Court boldly marked out the
paradigm and limitations within which Article 356 was to function. In the words of
Soli Sorabjee, eminent jurist and former Solicitor-General of India, “After the
Supreme Court’s judgment in the S. R. Bommai case, it is well settled that Article 356
is an extreme power and is to be used as a last resort in cases where it is manifest that
there is an impasse and the constitutional machinery in a State has collapsed”.

Criticism of President’s Rule

The way President’s Rule was imposed on various occasions has raised many
questions. At times the situation really demanded it. But at other times, President’s
Rule was imposed purely on political grounds to topple the ministry formed by a
party different from the one at the Centre, even if that particular party enjoyed
majority in the Legislative Assembly. Suspending or dissolving assemblies and not
giving a chance to the other political parties to form governments in states has been
due to partisan consideration of the Union Government, for which Article 356 has
been clearly misused.

In view of the above facts, Article 356 has become very controversial. In spite of the
safeguards provided by the 44th Amendment Act, this provision has been alleged to
be misused by the Union Government. That is why; there is a demand either for its
deletion or making provision in the Constitution to restrict the misuse of this Article.
The Sarkaria Commission which was appointed to review the Centre–State relations
also recommended that Article 356 should be used only as a last resort. The
Commission also suggested that the State Legislative Assembly should not be
dissolved unless the proclamation is approved by the Parliament. It further suggested
that all possibilities of forming an alternative government should be fully explored
before the Centre imposes emergency in a State on grounds of breakdown of
Constitutional machinery. The Supreme Court held in the Bommai case that the
Assembly may not be dissolved till the Proclamation is approved by the Parliament.
On a few occasions such as when Gujarat Government recommended use of Article
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356 in Uttar Pradesh, the President returned the recommendation for reconsideration.
The Union Government took the hint and dropped the proposal.

CASE STUDY

Indira Nehru Gandhi vs. Shri Raj Narain & Anr

Case No:- Appeal (civil) 887 of 1975

Bench:- A.N. Ray J., H.R Khanna J., K.K Mathew J., M.H Beg J. and Y.V
Chandrachud J.

Facts
Raj Narain was a contender from Rae Bareilly Constituency in the 5th Lok Sabha
Election 1971 against Indira Nehru Gandhi. Congress won the election with a
majority in 1971 and Mrs Gandhi took the oath as a new Prime Minister of India.
After the result of elections, Raj Narain approached the Allahabad High Court and
filed a petition against Indira Nehru Gandhi contending that she had performed her
election using corrupt practices.
Allahabad High Court observed in the case Raj Narain v. State of Uttar Pradesh that
Indira Gandhi was guilty, as she misuses Government machinery under section 123(7)
of Representation of Peoples Act, 1951. Indira Gandhi was barred to contest elections
for six years and she was forbidden to continue as a Prime Minister of India. 
Further, the court observed that “Rules of evidence that prevent disclosure of certain
government documents in court proceedings may be overridden if the public interest
in disclosure outweighs the public interest in keeping documents secret”[5].
The judgement led in a declaration of National Emergency under Article 352 by the
then President of India Fakhrudeen A. Ahmad. The reason given for imposing an
emergency was “Internal Disturbance”.
Raj Narain’s case was on conditional stay up to their appearance in the Supreme
Court on August 11, 1975. However, on August 10, 1975, Thirty-Ninth Constitutional
(Amendment) Act, 1971 was done and it inserted Article 329A which bar the
Supreme Court to entertain the matter. Further on one can question the election of
Prime Minister, President, Vice- President and the Speaker of Lok Sabha.  

Issues 

Whether the 39th Constitutional (Amendment) Act, 1971 was constitutionally valid?

Judgment

Referring to the landmark judgment of Kesavananda Bharati v. State of Kerala[5] for

the first time the Supreme Court observed that Clause 4 of Article 329A is violate and
unconstitutional. It violates the principle of separation of power as it provides
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functions of the judiciary to the legislature. The amendment violated the “Rule of
Law”.
The Apex Court finds the 39th Constitutional Amendment Act, 1971 as violative of
the basic structure of the India Constitution and unconstitutional and therefore
declares it as void.

CONCLUSION

Having dealt with all the Emergency provisions, it is easy to see what the purpose
was behind to make such provisions in available in the Constitution in the first place.
But while we did our study for the same we did realise that even if these provisions
are provided for the security of the nation and also the protection of the people, the
provisions in themselves give a lot of drastic discretionary powers in the hands of the
Executive. It affects the federal structure of the nation essentially turning it into a
unitary one while it seeks to safeguard the interests of the state and the people.
Though the need for that is understood, we still think a system of check and balance
should be brought into place so that unlike in the 1975 emergency, there is no misuse
of power by the ruling party and the executive.

Though suspension of Fundamental Rights has been time and again tried to be
justified we think that they are the most basic to the very existence of the citizens in a
democracy. As the experience has been so far we have observed in our study that
inspite of the safety measures that were added by the 44th Amendment to the
Constitution in the emergency provisions there is still chances for the unjust violation
of the fundamental rights. Therefore as there is provision in the other federal
constitutions such as of the Australia and Canada the courts should be given the
power to agree to the extent the Centre can expand its powers, as it will act as a built-
in mechanism to check the arbitrary use of the discretionary powers available under
the emergency provisions to the parliament and the executive.
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 BIBLIOGRAPHY.

1) https://blog.ipleaders.in/
2) www.drishtiias.com
3) https://www.legalserviceindia.com/
4) Wikipedia.