Emergency Provisions

The makers of the Constitution knew that a country might face times when normal government is not enough. A war, a breakdown in a state, or a financial collapse can each create such a moment. Part XVIII (Articles 352–360) gives the Union special emergency powers for these situations. During an emergency, the federal system turns temporarily towards a unitary one. There are three kinds of emergency.

• Grounds (Article 352(1)): war, external aggression or armed rebellion. The original ground "internal disturbance" was narrowed to "armed rebellion" by the 44th Amendment, 1978, to prevent misuse. A proclamation may be made even before an actual war or rebellion begins, when external aggression is merely apprehended. Since the 44th Amendment, a proclamation can cover the whole of India or only a part of it.
• Procedure: the President proclaims it only on the written advice of the Cabinet. This was a 44th-Amendment safeguard; before that, the PM alone could advise. Both Houses must then approve it with a special majority within one month. Once approved, it runs for six months at a time and can be renewed indefinitely. Each renewal needs fresh resolutions of both Houses every six months (Article 352(5), inserted by the 44th Amendment). There is no outer time limit, unlike President's Rule.
• Executive effect: the Union can direct a state on the manner of exercising its executive power on any matter (Article 353(a)). This is far wider than the normal directions under Articles 256–257, which cover only law compliance and communications. The state government is not dismissed. It merely comes under Union control.
• Legislative effect: Parliament can legislate on the State List (Article 250) while the proclamation operates. Parliament can also extend the normal five-year life of the Lok Sabha by up to one year at a time (proviso to Article 83(2)). Mrs Gandhi used this power in 1976.
• Fundamental Rights effect (two distinct articles):
  • Article 358 automatically suspends the six freedoms of Article 19, but only when the emergency is on grounds of war or external aggression (not armed rebellion).
  • Article 359 lets the President by order suspend the right to move courts to enforce specified Fundamental Rights, on any of the three grounds. It does not suspend the rights themselves, only their enforcement.
  • Articles 20 and 21 can never be suspended under Article 359 (44th Amendment). This overturned the position taken in ADM Jabalpur v Shivkant Shukla (1976). That case had held that a detenu lost all locus standi to seek liberty during the 1975 emergency.
• It has been declared three times: 1962 (Chinese aggression in NEFA), 1971 (war with Pakistan), and the controversial 1975 emergency, proclaimed on the ground of "internal disturbance". The 1975 emergency led directly to the safeguards added by the 44th Amendment.

• Ground: the President, on the report of the Governor or otherwise, is satisfied that a state's government cannot be carried on in accordance with the Constitution (Article 356(1)). This flows from the Union's duty to ensure every state is governed constitutionally (Article 355). President's Rule can also be imposed where a state fails to comply with Union directions (Article 365).
• Procedure: approved by Parliament with a simple majority (not special) within two months. It runs six months at a time, up to a maximum of three years (Article 356(4)). Beyond one year, it can be extended only if a National Emergency is already in force, or the Election Commission certifies that elections cannot be held.
• Effects of President's Rule:
  • The state government is dismissed and the executive is taken over by the President.
  • The assembly is suspended or dissolved.
  • Parliament takes over the state's law-making. Unlike under a National Emergency, Parliament may delegate that power to the President or another authority.
• It is the most-used emergency power, invoked over 130 times in the first 74 years of the Constitution.
• This power has been misused to dismiss rival state governments. The landmark check came in S.R. Bommai v Union of India (1994). The Supreme Court fenced the power in on several fronts:
  • the proclamation is open to judicial review and is not beyond question at the President's word.
  • a government's majority must be tested on the floor of the House, not by the Governor's own opinion.
  • the President cannot dissolve the assembly until both Houses approve the proclamation.
  • if the court later strikes a proclamation down, it can revive the dismissed ministry and assembly.
  • drawing on the Sarkaria Commission, the Court listed grounds that do not justify President's Rule. These include maladministration, a ministry's defeat in Lok Sabha elections, and removing a ministry without a floor test.

• Ground: the President is satisfied that the financial stability or credit of India, or of any part of it, is threatened.
• Procedure: must be approved by both Houses within two months. Once approved, it continues indefinitely until revoked. There is no maximum period and no need for periodic re-approval.
• Effects of a Financial Emergency:
  • The Union may direct any state to observe canons of financial propriety.
  • The Union may require money/financial Bills passed by a state legislature to be reserved for the President's consideration.
  • The Union may order a reduction of the salaries and allowances of state and Union officials, expressly including judges of the Supreme Court and High Courts (Article 360(3)–(4)).
• It has never been proclaimed since the Constitution came into force.