EMERGENCY : AN

INTRODUCTION
Ms. Kalyani Buche
MA(Pub. Ad.)
LLM (Constitutional and Administrative Law)
PGD Human Rights
SET
 MEANING : EMERGENCY
• Emergency can be defined as a situation where the Government of a country
either alters or suspends the normal functioning of a nation by holding in a
state of abeyance the Constitution and other organs of the Government.

• Different conditions can be referred to as the reasons in light of which the

Government of a nation may pronounce a state of emergency, for example,
civil unrest, calamity or disaster, armed rebellion or conflict, war, etc. When the
emergency is proclaimed in a nation, the typical texture of its Constitution is
upset, the political, financial, and social climate of that nation is changed and
the privileges of the citizens are either curtailed or suspended.

• The power of emergency thus can be described as both a curse and a gift as it
can be used to tackle sudden, unsuspecting threats, while on the other hand, it
can become a tool in the hands of a Government to carry out its agendas and
suppress its dissidents.
“ “An Unforeseen Combination Of
Circumstances Of The Resulting
State That Calls For Immediate
Action.”
”
• Whatever may the reasons be, when an emergency is declared in a country,
the normal fabric of its Constitution is disturbed, the political, economic, and
social environment of that country is altered and the rights of the citizens are
affected.

• The power of emergency thus can be described as both a curse and a gift
as it can be used to tackle sudden, unsuspecting threats, while on the other
hand, it can become a tool in the hands of a Government to carry out its
agendas and suppress its dissidents.
 A COMPARATIVE ANALYSIS
• Different countries have different procedures for declaring a state of
emergency and the consequent effects of such declaration vary from
country to country.
• India, Germay and USA
• As far as India is concerned, the President has the power to declare
emergencies of three kinds:
i. ·National Emergency
ii. ·State Emergency
iii. · Financial Emergency
• The President can do so with the advice of the cabinet ministers and
because of the power vested in him by Part XVIII of the Constitution of India
which contains laws relating to Emergency provisions in India.
• When it comes to the U.S.A., the situation is somewhat similar to India as the
President of the U.S.A., being the Chief Executive of the nation, has the power
to declare an emergency in the country. Similarly, a Governor or a Mayor
has the power to declare a state of emergency within his jurisdiction.
Emergency at the federal level in the U.S.A. is regulated by the National
Emergency Act.
• When we talk about National emergency in India, it is important to also look at
the German model of emergency as India has borrowed its emergency
provisions from Germany.

• In Germany, Article 48 of the Constitution of the Weimar Republic permitted

declaration of emergencies mainly to suppress rebellions and opposition.
• In modern Germany however, the Emergency Acts also known as
“Notstandsgezetse” basically deal with emergency provisions.
• The German Emergency Acts state that when it comes to a state of defense, a
state of tension, internal states of emergency or disaster, certain constitutional
rights may be limited.

• Whenever an emergency is declared by the Government, the normal

procedures of a nation are drastically altered and the rights of the people are
affected, adversely in most cases. Hence, most nations refrain from taking such
a drastic step and only do so under exceptional circumstances.
• India, U.S.A., and Germany are three different examples of federal states with
different laws and procedures.

• They can also be described as model examples of democratic states in their

respective continents, Asia, North America, and Europe.

• Since many consider emergency provisions as being the antithesis of

democracy, it is worthwhile to analyze how such laws find a place within
democratic principles.
 HISTORICAL BACKGROUND
• The inclusion of the emergency provisions in the Constitution of
India was greatly influenced by the circumstances and the
conditions prevalent at the time of framing the Constitution.
• The communal tension between the Muslims and the Hindus at
that time was thought of as a great threat to the newly
established democratic set up of India. Moreover, casteism,
regionalism communal disharmony was at a peak at that time.
• Again, some states were hesitant to join the Union especially
Junagarh and Hyderabad. All of this led to the inclusion of
Article 352 in the Constitution.
• Communist activities taking place at that time also played a
major role in the inclusion of the emergency provisions
especially Article 356.
• The weak financial situation of the country at the time of
independence due to the partition and plummet of the foreign
exchange reserves led to the inclusion of Article 360
 INDIA : NATIONAL EMERGENCIES
INVOKED IN THE PAST
• In India, a national emergency has been invoked three times so far.

• The first time, on October 26, 1962, in the wake of a clash with China. It remained in force during the
Indo-Pak conflict in 1965 and was revoked only in January 1968.

• The second time, in December 1971, as a result of the India and Pakistan dispute on the ground of
external aggression.

• While 1971 was still effective, another proclamation was issued on June 26, 1975. - This time the
proclamation was issued on the ground of “internal disturbance” threatening the security of India.
• Both these proclamations were revoked in March 1977
 EMERGENCY IN INDIA
• Indira Gandhi ‘advised’ the then President of the country Fakhruddin Ali
Ahmed to declare a state of internal emergency in India using Article
352.
• The Emergency was declared without warning on the midnight of 25th
June and the country woke up to the death of democracy.
• A national emergency was being declared in India for the third time,
the first two times were during the wars with China and Pakistan in 1962
and 1971 respectively.
• In 1971, Indira Gandhi’s won the general elections with a huge majority.
She had won popular support with pro-poor and leftist policies like the
nationalisation of banks and the abolition of the Privy Purse.
• Gandhi wielded almost autocratic control over the cabinet. She had
absolute control over the government. The 1971 war had reduced the
GDP of the country. The country also faced many droughts and an oil
crisis. Unemployment rates had also spiked up.
• A railway workers’ strike led by George Fernandes in 1974 was severely
suppressed by the government.
• There were also attempts by the government to interfere in judicial
matters.
• The Allahabad High Court declared that
Gandhi’s election to the Lok Sabha was void
due to electoral malpractice.
• Janata Party leader Jayaprakash Narayan (JP)
called for the ouster of the government.
• He championed a program called Sampoorna
Kranti (total revolution). He asked members of
the police and the military to disobey
unconstitutional orders.
• When things were heating up for the
government, Gandhi declared EMERGENCY and
immediately arrested all major opposition
leaders including JP, Morarji Desai, Charan
Singh, Acharya Kripalani, etc.
• Even Congress leaders who were opposed to
the emergency were arrested.
• During the emergency, civil liberties were severely restrained. The freedom of the press was strictly
curtailed and anything published had to pass the Information and Broadcasting ministry.
• Indira Gandhi’s son Sanjay Gandhi wielded extra-constitutional powers. He conducted forceful mass
sterilisation of people in a bid to control the population of the country.
• Non-Congress state governments were sacked. Many slums in Delhi were destroyed.
• There were many instances of human rights violations in India. Curfews were imposed and the police
detained people without trial.
• The government amended the constitution many times (after the emergency was lifted, the new
government undid these amendments).
• The emergency is often dubbed the ‘darkest hour’ of free India.
• In January 1977, Gandhi called for fresh elections not reading the mood of the people of the country. All
political prisoners were released.
• Officially, the emergency was lifted on 21 March 1977.
• The people handed Gandhi and her party a very heavy defeat. Both Indira Gandhi and her son were
defeated in the election.
• The Janata Party won the election and the new government was headed by Morarji Desai as the Prime
Minister.
• Desai was the first non-Congress PM of India.
 EMERGENCY : INDIAN
CONSTITUTION
• The emergency provisions in India are contained in Part XVIII of the
Constitution of India.
• It contains nine Articles in total, Article 352-360.
• Under Part XVIII of the Constitution, three kinds of emergencies are
envisaged, namely; national emergency, state emergency, and financial
emergency.
• Article 352 of the Constitution provides for national emergency,
• Article 356 of the Constitution lays down “provisions in case of failure of
constitutional machinery in states” and
• Article 360 deals with financial emergency.
 NATIONAL EMERGENCY: ARTICLE
352
• The President may make a Proclamation of Emergency in
respect of whole or any part of India, if he is satisfied that a grave
emergency exists which threatens the security of India or any
part of India by War or External Aggression or Armed Rebellion
• Such Proclamation of Emergency can be made even before the
event mentioned in Article 352 has actually occurred
• Emergency cannot be declared merely on the advice of the
Prime Minister. The President must be communicated in writing
regarding the Emergency by the Union Cabinet including the
Prime Minister and the Ministers of Cabinet Rank appointed
under Article 75.
 DURATION
• Before the 44th Amendment, a Proclamation of Emergency could remain in force for 2
months. However, with the approval of the Parliament an emergency could remain in
force indefinitely.
• After the 44th Amendment the power of the Executive to continue the emergency
indefinitely has been curtailed.
• According to this amendment, a proclamation of emergency may remain in force for 1
month in the first instance. With the approval of the Parliament it shall remain in force for 6
months, provided it is not revoked earlier.
• Such resolution must be passed by either House of the Parliament by Special Majority.
• In order to continue the emergency beyond 6 months, approval is required after every 6
months.
• Suppose during the issuance of proclamation of emergency, the Lok Sabha has been
dissolved or its dissolution takes place within the above said 1 month period - The Lok
Sabha has not approved the proclamation but the Rajya Sabha has approved it. Such a
proclamation shall not operate after 30 days from the date on which the Lok Sabha sits
after fresh election.
 REVOCATION OF PROCLAMATION
OF EMERGENCY
• If the Lok Sabha passes a resolution for disapproval or disapproval of
continuance of a Proclamation, the President shall revoke it.

• A written notice has to be signed by not less than 1/10 of the total members
of Lok Sabha with an intention to disapprove the continuance of
Proclamation of Emergency and be given to the Speaker if the House is in
session or to the President if the House is not in session.

• From the date on which the notice is received, a Special sitting of the Lok
Sabha shall be held within 14days and such resolution shall be considered.
 TERRITORIAL EXTENT OF
PROCLAMATION

• The President may make a

Proclamation of Emergency in respect
of the whole India or any part of India
as required.
 EFFECTS OF DECLARING A
NATIONAL EMERGENCY
1. Extension of Executive Powers of the Centre – According to Article 353 the executive
power of the Union extends to give direction to the State regarding the manner in
which the State shall exercise its executive powers.
2. According to Article 353 (b) the Union Parliament can make laws regarding matters in
the State List.
3. According to Article 354 the Centre has the power to alter the distribution of revenue
between the Union and the State
4. According to Article 83(2) the President may extend the normal life of the Lok Sabha by
a year each time up to a period not more than 6 months after the Proclamation ceases
to operate.
5. According to Article 358 the fundamental rights under Article 19 shall be suspended.
However, the fundamental rights under Article 20 and Article 21 cannot be suspended.
6. The Union becomes duty bound to protect the states – the union will see to it that the
states are functioning as per the constitutional mandate
 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:
 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".
 CHANGES AFTER 44TH CAA
• 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.
 EFFECT ON FUNDAMENTAL RIGHTS
ARTICLE 358
• The moment national
emergency is proclaimed –
Art 19 will be suspended
• BUT, 44th AMENDMENT ACT –
Only when there is WAR or
EXTERNAL AGGRESSION – in
these only 19 will be
suspended
ARTICLE 359
• President through a
proclaimation can suspend
all the Fundamental Rights
during national emergency
• BUT 44th AMENDMENT ACT –
Art 20 & 21 cannot be
suspended at all
THANK YOU…