ANJUMAN-I-ISLAM’S

BARRISTER A. R. ANTULAY
COLLEGE OF LAW

Name: Dange Ali Amin

Roll No: 07

Subject: CONSTITUTIONAL LAW

Topic: Proclamation of Emergency and status of

fundamental rights during emergency.

Professor: Adv. Sana Sheikh

Prof Sign:
Contents
INTRODUCTION...............................................................................................................................3
1) National Emergency........................................................................................................................3
a) Procedure of proclaiming emergency........................................................................................4
b) Procedure for revoking emergency............................................................................................4
c) Duration of Emergency...............................................................................................................4
d) Effects of Proclamation of Emergency......................................................................................5
2) State Emergency..............................................................................................................................6
a) Procedure of Proclaiming State Emergency..............................................................................6
b) Procedure of Revoking State Emergency..................................................................................6
c) Effect of State Emergency...........................................................................................................7
3) Financial Emergency.......................................................................................................................7
Effects of financial emergency........................................................................................................7
4) Effects of Proclamation of Emergency on the Fundamental Rights............................................7
5) Suspension of Rights under Article 359.........................................................................................8
6) The 44th Amendment......................................................................................................................8
 EMERGENCY PROVISIONS

INTRODUCTION
An 'Emergency' means the existence of a condition whereby the security of India or any
part thereof is threatened by war or external aggression or tinned rebellion. A state of
emergency exists under the Constitution when the President makes a Proclamation of
Emergency. The actual occurrence of war or any armed rebellion, is not necessary to
justify a Proclamation of Emergency of the President.

Black law’s dictionary defines emergency “as a failure of the social system to deliver
reasonable conditions of life”. An emergency may be defined as “circumstances arising
suddenly that calls for immediate action by the public authorities under the powers
granted to them.”

In India, the emergency provisions are such that the constitution enables the federal
government to acquire the strength of unitary government whenever the situation
demands. All the pacific methods should be exhausted during such situation and
emergency should also be the last weapon to use as it affects India’s federal feature of
government.

Emergency is describe in part XVIII of Constitution of India

There are three types of emergencies under the Indian Constitution namely-

1. National Emergency
2. State Emergency
3. Financial Emergency

1) National Emergency.
Article 352 of the Constitution provides for the provision of National Emergency which can
be applied if any extraordinary situation arises that may threaten the security, peace,
stability and governance of the country.

Whenever any of the following grounds occur, an emergency can be imposed:

1) War,
2) External aggression; or
3) Internal rebellion.
Article 352 provides that if the President is ‘satisfied’ on the grounds that the security of
India is threatened due to outside aggression or armed rebellion, he can issue a
proclamation to that effect regarding the whole of India or a part thereof.

However, sub-clause (3) states that when a piece of written advice is given by the Union
Cabinet then only the President can make such a proclamation. Such a proclamation must
be placed before each house of the parliament and must be approved within one month
of the declaration of the proclamation otherwise it will expire.
Furthermore, it is not necessary that for the proclamation of National emergency,
external aggression or armed rebellion should actually happen. Even if there is a
possibility that such a situation can arise, a national emergency can be proclaimed.

In Minerva Mills vs Union of India, it has been held that there can be no bar to judicial review
of determining the validity of the proclamation of emergency issued by the President under
Article 352(1). The court’s powers are limited only to examining whether the limitations
conferred by the Constitution have been observed or not. It can check if the satisfaction of
President is on valid grounds or not. If the President is satisfied that grounds for national
emergency exist but the same is based on absurd, mala fide or irrelevant grounds then it
won’t be considered that the President is ‘satisfied’.

a) Procedure of proclaiming emergency

A proclamation can be made by the president of the country, but there are some provision
for that too. The President can declare such an emergency only if the Cabinet recommends
in writing to do so. Such a proclamation of emergency has to be approved by both the
Houses of Parliament by absolute majority of the total membership of the Houses, as
well as 2/3rd majority of members present and voting within one month, otherwise the
proclamation ceases to operate.
In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not
in session, it has to be approved by the Rajya Sabha within one month and later on by the
Lok Sabha, within one month of the start of its next session. Once approved by the
Parliament, the emergency remains in force for a period of six months from the date of
proclamation. In the case it is to be extended beyond six months, another prior resolution
has to be passed by the Parliament. In this way, such emergency continues indefinitely.

b) Procedure for revoking emergency

If the situation improves then the President can revoke the emergency through another
proclamation. The 44th Amendment of the Constitution provides that a requisition for the
meeting can be made by ten per cent or more members of the Lok Sabha and in that
meeting; it can disapprove or revoke the emergency by a simple majority. The
emergency will immediately become inoperative in such a case.

c) Duration of Emergency.
If approved by both houses of Parliament then National Emergency can continue for 6
months and it can be renewed by approval of Parliament after every 6 months.

But if the dissolution of Lok Sabha takes place in that 6 months and resolution for
renewal of National Emergency is under consideration then emergency exists till 30 days
from the first sitting of newly elected Lok Sabha provided that it is approved by Rajya
Sabha.

Any of the above resolution related to proclamation or renewal of National Emergency

must be passed by both houses of Parliament by a special majority (i.e. the majority of
the total membership of that house or not less than 2/3rd of members present and
voting). This provision is added by 44th amendment 1978 and before that such resolution can
be passed by simple majority i.e. more than total members present and voting.
d) Effects of Proclamation of Emergency
There are serious consequences, once emergency is proclaimed. It results in adverse effects
on the enforcement of fundamental rights of people. Consequences of proclamation of
emergency are explained below:

1) Executive
While a Proclamation of Emergency is in operation, Union can use its executive power to
the extent of giving directions to the State relating to the manner in which the executive
powers shall be exercised by the State. The Constitution (42nd Amendment) Act 1976
made a consequential change in Article 353.

It states that the executive power of the Union to give directions and to make laws shall
extend to other States too apart from the state where an emergency has been proclaimed and
is in operation. The above-mentioned power shall be exercised if the security of India or any
part of its territory is threatened by the activities in the part of the territory of India in which
emergency has been proclaimed and is in operation.

In normal times, the power of the executive does not extend to giving such directions
subject to certain exceptions.

2) Legislative
When an emergency has been proclaimed, the Parliament shall have the power to legislate
as regards to State List (List II) as well. The emergency suspends the distribution of
legislative powers between the Union and State and not the state legislature.

3) Financial
The centre is empowered to alter the distribution of revenue between the Union and the
State.
While a Proclamation of Emergency is in operation, the President may, by order define the
financial arrangement between the State and the Union as provided by Articles 268 to
279. Such order shall be laid before each House of Parliament and when the Proclamation of
Emergency ceases to operate, such order shall too come to an end.

4) Extension Life of Lok Sabha

The normal life of Lok Sabha can be extended while a proclamation of emergency is in
operation. Such an extension can be done by the Parliament for a period not exceeding one
year at a time and not beyond a period of six months in any case after the Proclamation
has ceased to operate.

5) Suspension of Fundamental Rights guaranteed by Article 19.

Article 358 of the Indian Constitution provides for Suspension of fundamental freedoms
guaranteed to the citizens by Article 19 of the Indian Constitution.
It provides that when an emergency has been proclaimed and is in operation, the provisions
contained in article 19 shall not restrict the power of the State relating to the making of
any law or taking any executive action which abridges or takes away the rights guaranteed by
Article 19.
It means that the freedom guaranteed by Article 19 automatically stands suspended once
the Proclamation of Emergency is made. Once the proclamation of emergency ceases to
operate, Article 19 which stood suspended during the emergency automatically comes to life.
2) State Emergency
It is the duty of the Union Government to ensure that governance of a State is carried on
in accordance with the provisions of the Constitution. Under Article 356, the President
may issue a proclamation to impose emergency in a state if he is satisfied on receipt of a
report from the Governor of the State, or otherwise, that a situation has arisen under which
the Government of the State cannot be carried on smoothly. In such a situation,
proclamation of emergency by the President is called ‘proclamation on account of the
failure (or breakdown) of constitutional machinery.’ In popular language it is called the
President’s Rule.

a) Procedure of Proclaiming State Emergency.

Like National Emergency, such a proclamation must also be placed before both the Houses
of Parliament for its approval. In this case approval must be given within two month;
otherwise the proclamation ceases to operate. If during these two months, the Lok Sabha is
dissolved and the Rajya Sabha has approved it, then, the proclamation shall cease to operate
on expiration of thirty days from the date on which the Lok Sabha first sits after its
reconstitution, unless it is approved by the Lok Sabha before the expiration of this period.

A proclamation so approved shall, unless revoked, cease to operate on the expiration of a

period of six months from the date of issue of the proclamation. Unless revoked, its life
can be extended by six months each, several times, but in no case beyond three years.
Thereafter, the President’s Rule must come to an end, and the normal constitutional
machinery must be restored in the State.

The 44th Amendment introduced a new provision to put restraint on the power of
Parliament to extent a proclamation issued under Article 356 beyond one year.

b) Procedure of Revoking State Emergency.

Any such Proclamation may be revoked or varied by a subsequent Proclamation.
A proclamation issued under Article 356(1) expires in any of the following modes:
a) After two months of its making if it is not presented for approval before both Houses of
the Parliament [Article 356(3)].
b) Even before two months, if the proclamation on presentation to the Houses of
Parliament fails to get approval from any House [Article 356(3)].
c) After 6 months from the date of the proclamation, in case no further resolution is
passed by the House of Parliament after the passage of the initial resolution approving
the said proclamation [Article 356(4)].
d) After the expiry of 6 months from the passage of the last resolutions of approval
passed by the House of Parliament subject to an over-all maximum limit of 3 years from
the date of the proclamation. Continuance of the proclamation beyond one year is subject
to the fulfilment of the conditions laid down in Article 356(5):
i. National Emergency is already in operation; or if

ii. The Election Commission certifies that the election to the State Assembly
cannot be held.
e) The date on which the President issues a proclamation of revocation [Article 356(2)].
c) Effect of State Emergency
The declaration of emergency due to the breakdown of Constitutional machinery in a State
has the following effects:
1. The President can assume to himself all or any of the functions of the State
Government or he may vest all or any of those functions with the Governor or any other
executive authority.
2. The President may dissolve the State Legislative Assembly or put it under suspension.
He may authorise the Parliament to make laws on behalf of the State Legislature.
3. The President can make any other incidental or consequential provision necessary to
give effect to the object of proclamation.

3) Financial Emergency
The third type of Emergency is Financial Emergency provided under Article 360. It
provides that if the President is satisfied that the financial stability or credit of India or any
of its part is in danger, he may declare a state of Financial Emergency. Under such
situation, the executive and legislative powers will go to the centre. Like the other two
types of emergencies, it has also to be approved by the Parliament. It must be approved by
both Houses of Parliament within two months. Article 360 has never been used.

Effects of financial emergency

A financial emergency declaration could have the following implications:
1) The government of the Union may provide guidance in economic affairs to all the
other States.
2) The President can recommend that the States minimize the wages and benefits of any
or all levels of the government officials.
3) After the State Legislature has approved them, the President can order States to
allocate all the money bills for Parliamentarians attention.
4) The President may provide instruction to the national government personnel, including
Supreme Court judges and the high courts, to reduce their pay and compensation.

4) Effects of Proclamation of Emergency on the Fundamental Rights

Federal laws will overrule state legislation, and the Union is empowered to govern areas
(eg. Policing) that are normally devolved to the states.
The Union is also empowered to take over and completely control the taxation and
budgetary revenue processes. Under financial emergency, the Union is empowered to
have the final say in the promulgation of financial acts approved by the state legislature.
The Union may decide to suspend some or all of the fundamental rights guaranteed by
Part III (Articles 12 through 35) of the constitution - which include:

 Freedom of equality before law

 Freedom of speech and expression
 Freedom to assemble peacefully
 Freedom for movement across Indian territory
 Freedom to practice any profession, occupation, trade or business.
  Freedom to practice or propagate religion.

Further, the right to challenge the suspension of the above mentioned rights (the right to
constitutional remedies) may also be suspended. However, this provision will not cover the
suspension of Articles 20 and 21 which govern rights to personal liberty, Right to silence,
freedom from double jeopardy and freedom from unlawful arrest and detention. Any
individual who deems that his rights under these categories have been suspended
unlawfully, can challenge the suspensions under a court of law.
The Union may decide to dismiss the legislative functions of a state legislature and impose
federal law for a period of six months. This state of suspension may be renewed at the
end of this period under the vote of Parliament (indefinite number of times) until such a
time when the Election Commission of India can certify the feasibility of holding free and
fair elections in the state to reconstitute the legislature.
Any order to the above effects however, should be passed by the House of Parliament "as
soon may be after it is made".

Emergency conditions put the democratically stated Government in the dilemma of

protecting its primary obligation of national security and equally important obligation of
protecting the human rights of its citizens. This dilemma and choice of prioritizing one
obligation over another have been taken as the main reason for the inclusion of Article 359
and Article 358. Article 359 suspends all the fundamental rights available to a citizen post
issuing a presidential order. After the forty-fourth amendment, it was made clear that
Article 20 and Article 21 will not be suspended under the purview of the presidential
order.

5) Suspension of Rights under Article 359

Article 359 provides for the President to suspend fundamental rights under Part III of the
Constitution. It states that if the emergency is enforced then the President may by order
declare the suspension of one’s power to move to court for enforcement of such rights.
Article 20 and Article 21 are exclusive of suspension of those rights. All the proceedings
pending in the court for enforcement of such rights shall also be suspended until the
emergency is lifted. This particular Article can be enforced in whole or any part of India
that is in case of State Emergencies unlike Article 258. Also, any order made under Clause
1 of Article 359 shall be presented before both the houses as soon as possible.

6) 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.