VIRENDRA’S LAW ACADEMY- INDIAN CONSTITUTION BY SHUBHAM PUSHP

EMERGENCY PROVISIONS
ARTICLE 352 TO 360

During an Emergency, the Central Government becomes all powerful and the states go into the total control of the
centre. It converts the federal structure into a unitary one without a formal amendment of the constitution.

There are three types of Emergency in the Constitution

1. Article 352 – An emergency due to war, external aggression or armed rebellion. This is also known as National
Emergency
2. Article 356 – An emergency due to the failure of the constitution machinery in the states. This is known as
President’s Rule. It is also known by two other names – State Emergency or Constitutional Emergency
3. Article 360 – Financial Emergency due to a threat to the financial stability or credit of India

NATIONAL EMERGENCY ARTICLE 352

The President can declare a national emergency when the security of India or a part of it is threatened by war or
external aggression or armed rebellion. It may be noted that the president can declare a national emergency even
before the actual occurrence of war or external aggression or armed rebellion, if he is satisfied and there is an imminent
danger.

When a national emergency is declared on the ground of war or external aggression, it is known as External Emergency.

When it is declared on the ground of armed rebellion, it is known as internal emergency

It can be for entire country or a part of the country. (42 nd amend act 1976).

Originally, the constitution mentioned “internal disturbance” as the third ground for the proclamation of a national
emergency, but the expression was too vague. Hence 44 th amendment act 1978 substituted the words armed rebellion
for internal disturbance.

The President, can proclaim a national emergency only after receiving a written recommendation from the cabinet. This
means that the emergency can be declared only on the concurrence of the cabinet and not merely on the advice of the
prime minister.

In 1975 PM Indra Gandhi advised the president to proclaim emergency without consulting her cabinet.

44th amendment act 1978 – introduced the concurrence of cabinet should be mandatory and the recommendation
should be written

Minerva Mills Case 1980 – Proclamation of National Emergency can be challenged in a court on the ground of malafide.

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PARLIAMENTARY APPROVAL AND DURATION OF NATIONAL EMERGENCY

The proclamation of National Emergency must be approved by both the Houses of Parliament within one month from
the date of its issue. Originally it was two months but it was amended by 44 th amendment act 1978.

If the proclamation was issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha
takes place during the period of one month without approving the proclamation, then the proclamation survives until
30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime
approved it.

If approved by both the Houses of Parliament the emergency continue for six months, and can be extended to an
indefinite period with an approval of the Parliament for every six months.

Every resolution approving the proclamation of emergency or its continuance must be passed by either House of
Parliament by a special majority. (added by 44 th amend act 1978)

REVOCATION OF PROCLAMATION

A proclamation of emergency may be revoked by the President at any time by a subsequent proclamation. Such a
proclamation does not require the parliament approval

The President must revoke a proclamation if the Lok Sabha passes a resolution disapproving its continuation. (44 th
amend act 1978)

1/10th of the total number of members of the Lok Sabha give a written notice to the speaker a special sitting of the
House should be held within 14 days for the purpose of considering a resolution disapproving the continuation of the
procalamtion.

Effects of National Emergency

1. Effect on the centre state relations –

Executive – During a national emergency, the centre becomes entitled to give executive directions to a state on
any matter. The state are brought under the complete control of the centre, though they are not suspended
Legislative – state power to legislate is suspended
Laws made by parliament on the state subjects during a National Emergency become inoperative six months
after the emergency has ceased to operate
The President can issue ordinance on the state subjects also, if the Parliament is not in session
Financial – President can either reduce or cancel the transfer of finances from centre to the states
2. Effect on the life of the Lok Sabha – The life of the Lok Sabha may be extended beyond its normal term by a law
of Parliament for one year at a time for any length of time. This extension cannot continue beyond a period of
six months after the emergency has ceased to operate
Ex – term of fifth Lok Sabha- 1971 – 77

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EFFECTS ON THE FUNDAMENTAL RIGHTS

Article 358 and 359 deals with the suspension of fundamental rights

Art 358 – suspension of Art 19

Art 359 – suspension of other Fundamental Rights (Except Art 20 and 21)`

1. When a proclamation of national emergency is made the six fundamental rights under article 19 are
automatically suspended.
No remedy lies for anything done during the emergency even after the emergency expires

44th amend act 1978

Six Fundamental Rights under art 19 can be suspended only when the National Emergency is declared on the ground of
war or external aggression and not on the ground of armed rebellion

Article 359 authorises the President to suspend the right to move any court for the enforecement of Fundamental Rights
during a National Emergency. The suspension of enforcement related to only those FR that are specified in the
Presidential Order.

44th amendment act 1978

President cannot suspend the right to move the court for the enforcement of fundamental rights guaranteed by Article
20 and Art 21

Declaration made so far – 1962, 1971 and 1975

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PRESIDENTS’S RULE

Article 356

Grounds of Imposition

Centre should ensure that the government of every state is carried on in accordance with the procisions of the
Constitution. It is this duty in the performance of which the Centre takes over the government of a state under Article
356 is case of failure of constitutional machinery in state. This is known as President’s Rule. It is also known as State
emergency or constitutional emergency

President Rule can be proclaimed under Article 356 on two grounds

1. Article 356 empowers the President to issue a proclamation, if he satisfied that a situation has arisen in which
the government of a state cannot be carried on in accordance with the provisions of the Constitution. The
president can act either on a report of the governor of the state or even without the governor’s report
2. Article 365 says that whenever a state fails to comply with or to give effect to any direction for centre, it will be
lawful for the president to hold that a situation has arisen in which the government of the state cannot be
carried on in accordance with the provisions of the Constitution

PARLIAMENTARY APPROVAL AND DURATION

This must be approved by both the Houses of Parliament within two months from the date of its issue. If proclamation
of President’s Rule is issued at time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes
place during the period of two months without approving the proclamation, then the proclamation survives until 30
days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha approves it in the mean
time.

If approved by both the Houses of Parliament, the President’s Rule continues for six months. It can be extended for a
maximum period of three years with the approval of Parliament, every six months.

Every resolution must be passed with simple majority

44th amendment act 1978

Two condition for extending beyond 1 year

1. A proclamation of National Emergency is in operation

2. Election commission must certify that the general elections to the legislative assembly of the concerned state
cannot be held due to some reasons

Effect of President’s Rule

1. President can take up the functions of the state government and powers vested in the governor or any other
executive authority in the state
2. He can declare that the powers of the state legislature are to be exercised by the Parliament
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3. He can take all other necessary steps including the suspension of the constitutional provisions relating to any
authority in the state

The state governor, on behalf of the President, carries on the state administration with the help of the chief secretary of
the state or the advisors appointed by the President.

Satisfaction of the President is not beyond Judicial review

if the court holds the presidential proclamation to be unconstitutional and invalid, it has power to restore the dismissed
state government and revive the state legislative assembly.

#Sarkaria commission – centre – state relations

Imposition of President’s Rule in a state would be proper in the following situations

1. Where after general elections to the assembly, no party secures a majority, that is, Hung Assembly
2. Where the party having a majority in the assembly declines to form a ministry and the governor cannot find a
coalition ministry commanding a majority in the assembly
3. Where a ministry resigns after its defeat in the assembly and no other party is willing or able to form a ministry
commanding a majority in the assembly
4. Where a constitutional direction of the central government is disregarded by the state government
5. A government is deliberately acting against the constitution and the law

FINANCIAL EMERGENCY

Article 360

President proclaim a financial emergency if he is satisfied that a situation has arisen due to which the financial stability
or credit of India or any part of its territory is threatened

44th amendment act 1978 – Satisfaction of the president is not beyond Judicial Review

PARLIAMENTARY APPROVAL

It must be approved by both the Houses of Parliament within two months from the date of its issue. If the proclamation
of Financial Emergency is issued at a time when the Lok Sabha has been dissolved or dissolution of LOk Sabha takes
plaxe during the period of two months without approving the proclamation, then the proclamation survives until 30
days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in meantime approved
it

Once approved it continues indefinitely till it is revoked

Resolution must be passed by the parliament with simple majority

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