Emergency Provisions in Indian Constitution

Emergency provisions in Indian Constitution is mentioned in the Part XVIII from Articles 352 to 360 of the Indian Constitution. The source of emergency provisions in Indian constitution are Government of India Act, 1935 and the Weimar constitution. In this article, you will learn articles, national emergency provisions, emergency provisions of Indian constitution and Description, providing key insights for GS Paper-II Polity and Governance section of UPSC IAS Exam.

Table of Contents 

• Emergency provisions in Indian Constitution
• Types of Emergency Provisions of the constitution of India
• Describe the provision of National emergency
• Proclamation of a national emergency 
• Revocation of a proclaimed national emergency
• Effects of National Emergency 
• Difference Between Articles 358 and 359 
• National emergency declared till now 
• State emergency provision of India
• Parliamentary Approval and Duration of State emergency  
• Effects of State Emergency 
• National Emergency vs President’s Rule 
• Financial Emergency provision in constitution of India
• Effects of Financial Emergency 
• Criticisms of all emergency provisions 
• Conclusion of emergency provisions in Indian Constitution

Emergency provisions in Indian Constitution: 

• The Emergency provisions in Indian Constitution is mentioned in the Part XVIII from Articles 352 to 360. 
• The Emergency provisions in India allows the President to effectively address any unforeseen circumstance.  
• The Emergency provisions in constitution were included in order to protect the country’s sovereignty, unity, integrity, and security, as well as India’s democratic political system and Constitution. 
• The Emergency provisions under Indian constitution allows the Union Government to completely control the states’ machinery. 
• The federal structure of the government is transformed into a unitary one without any formal amendment to the constitution. 
• This unique feature of the Indian constitution allows the Central Government to take swift and decisive action in times of crisis. 
• The Emergency provisions are borrowed from:
  • The Weimar constitution (Germany)- suspension of fundamental rights provision from
  • The Government of India Act, 1935– federal scheme, governor and other emergency provisions.

Types of Emergency Provisions of the constitution of India:

• National emergency- Article 352: can be declared when the security of India or any part of its territory is threatened by war, external aggression, or armed rebellion. 
• State emergency- Article 356: can be declared when the President is satisfied that the government of a state is unable to carry out its constitutional functions and there is breakdown of law and order.
  • It is also known as ‘President’s Rule’, ‘State Emergency’ or ‘constitutional Emergency’. 
• Financial emergency- Article 360: can be declared when the President is satisfied that the financial stability or credit of India or any part of its territory is threatened. 

Describe the provision of National emergency: 

• The President can declare a national emergency even before the actual occurrence of war, external aggression, or armed rebellion, if he is satisfied that there is an imminent danger. 
• The President of India can issue multiple proclamations even if a proclamation has already been issued by him is still in effect.
  • This provision was added by the 38th Amendment Act of 1975. 
• A national emergency can be declared on two grounds: war or external aggression, and armed rebellion.  
  • External emergency: if the emergency is declared on the ground of war or external aggression.  
  • Internal emergency: if the emergency is declared on the ground of armed rebellion. 
• The 42nd Amendment Act of 1976 had enabled the president to limit the operation of a National Emergency to a specified part of India. 
• The original text of the Indian Constitution mentioned “internal disturbance” as the third ground for the proclamation of a national emergency. 
• Being vague, it was replaced with the more specific term “armed rebellion” in the 44thAmendmentAct of 1978.
  • This change was made to ensure that the declaration of a national emergency would only be used in situations that posed a serious threat to the security of India. 
• The President of India can only proclaim a national emergency after receiving a written recommendation from the Union Cabinet. 
  • This means that the Prime Minister cannot unilaterally declare a national emergency. 
    • In 1975, Prime Minister Indira Gandhi had declared a national emergency without consulting her cabinet.  
  • The 44th Amendment Act of 1978 was passed to address this issue. 
• The 38thAmendmentAct of 1975 made the declaration of a national emergency immune from judicial review.
  • The 44th Amendment Act of 1978 repealed the 38th Amendment Act and restored the power of the courts to review national emergency declarations. 
• In the Minerva Mills case, the Supreme Court had declared that the judicial review of a national emergency can be done when such an emergency has mala fide intention or not of sound reason. 
• The right to protection in respect of conviction for offences (Article 20) and the right to life and personal liberty (Article 21) remain enforceable even during the emergency period. 

Proclamation of a national emergency: 

• The proclamation of a national emergency must be approved by both the Houses of Parliament within one month of its issue.
  • This ensures that the emergency is not used as a tool to undermine the democratic process or to violate the fundamental rights of citizens. 
• The original period allowed for approval by Parliament was two months, but this was reduced to one month by the 44th Amendment Act of 1978. 
• If the proclamation of a national emergency is issued at a time when the Lok Sabha has been dissolved or is dissolved during the one–month period, the proclamation will remain in effect until 30 days of the first sitting of the Lok Sabha after its reconstitution, provided that the Rajya Sabha has approved it meanwhile. 
• If an emergency declaration is ratified by both Houses of Parliament, it will remain in effect for six months. 
• It can then be extended for an indefinite period, with the approval of Parliament every six months.
  • This provision for periodic parliamentary approval was added by the 44thAmendmentAct of 1978.
    • Before that, an emergency declaration could remain in effect as long as the cabinet desired. 
• A resolution approving the proclamation of an emergency or its continuance must be passed by either House of Parliament by a special majority as similar to amendment performed under the Article 368.  

Revocation of a proclaimed national emergency: 

• The President of India can revoke a national emergency at any time by issuing a subsequent proclamation.
  • This does not require the approval of Parliament. 
• However, the President must revoke emergency if the Lok Sabha passes a resolution disapproving its continuation.
  • This safeguard was introduced by the 44thAmendmentAct of 1978.
    • Before the amendment, the President could revoke a national emergency on his own, and the Lok Sabha had no control over this. 
• If 10% of the total number of members of the Lok Sabha submit a written notice to the Speaker (or to the President when the House is not in session), a special sitting of the House must be held within 14days to consider a resolution for disapproval to the continuance of the emergency proclamation.
  • This safeguard was introduced by the 44th Amendment Act of 1978. 
• Difference in resolution disapproving the continuation of an emergency proclamation and a resolution approving the continuation of an emergency proclamation: 
  • A resolution disapproving the continuation of an emergency proclamation only needs to be passed by the Lok Sabha, while a resolution approving the continuation of an emergency proclamation needs to be passed by both Houses of Parliament. 
  • A resolution disapproving the continuation of an emergency proclamation can be adopted by a simple majority, while a resolution approving the continuation of an emergency proclamation needs to be adopted by a special majority. 

Effects of National Emergency 

On center–state relations: 

• Executive:
  • During a national emergency, the central government’s executive power extends to directing any state on how to exercise its executive power.  
    • Without emergency, the central government can only give executive directions to a state on certain specified matters.  
    • It implies that the state governments are brought under the complete control of the central government, although they are not suspended. 
• Legislative:
  • During a national emergency, the central legislature has the power to make laws on any subject that is listed in the state list.  
  • Though the legislative power of a state legislature is not suspended, the Parliament can now overrule any law that is passed by a state legislature. 
  • The laws made by Parliament on the state subjects during a National Emergency cease to be in operation after the six months of revocation of the emergency. 
  • The President can issue ordinances on the state subjects when the Parliament is not in session. 
  • During a national emergency, the Indian Parliament can confer powers and impose duties on the Central government officers and authorities in respect of matters outside the Union List. 
    • This enables the Central government to carry out the laws that it has made under its extended jurisdiction as a result of the proclamation of a national emergency. 
    • The 42nd Amendment Act of 1976 extended the reach of these powers and duties to any state including where the emergency is not in operation. 
• Financial:
  • During a national emergency, the President can reduce or cancel the financial assistance that it gives to the states or alter any such distribution of grants or revenues. 
  • This modification of the distribution of revenues continues until the end of the financial year in which the national emergency ceases to operate.  
  • Every such order of the President must be laid before both the Houses of Parliament. 

On the tenure of the Lok Sabha and state assemblies: 

• When National Emergency is in operation, the Indian Parliament has the power to extend the tenure of the Lok Sabha beyond its normal term of five years.  
• This extension can be done for a period of one year at a time but up to a maximum of six months after the emergency has ceased to operate.
  • Example: the term of the Fifth Lok Sabha (1971-1977) was extended twice by one year at a time. 
• The Parliament can also extend the normal tenure of a state legislative assembly (five years) by one year at a time during a national emergency, subject to a maximum of 6 months after the emergency has ceased to operate. 

On the Fundamental Rights: 

• Article 358:
  • When a national emergency is declared, the six Fundamental Rights under Article 19 are automatically suspended. 
  • The government can make any law or take any executive action to abridge or remove Fundamental Rights guaranteed under Article 19. 
    • Any such law or action cannot be challenged in court. 
  • When national emergency cease to operate, Article 19 automatically revives and comes into force. 
    • Any law made during Emergency that are inconsistent with Article 19, ceases to have effect. 
  • The 44thAmendmentAct of 1978restricted the scope of Article358 by: 
    • The Fundamental Rights under Article 19 can now only be suspended when the national emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion.  
    • Only laws that are directly related to the emergency are protected from being challenged and not other laws. 
• Article359:
  • It empowers the President to suspend the right to approach any court for the enforcement of Fundamental Rights during a national emergency. 
  • The Fundamental Rights are not actually suspended, but only their enforcement are suspended i.e., the right to seek remedy is suspended. 
  • The suspension of fundamental rights only applies to those rights that are specifically mentioned in the presidential order.  
  • The suspension order can be made for the entire duration of the emergency, or for a shorter period as specified in the order. 
  • The suspension order can apply to the entire country, or to any part of it.  
    • The order must be laid before both houses of Parliament for approval. 
  • When a Presidential Order is in force, the State can make any law or can take any executive action that abridges or takes away the specified Fundamental Rights. 
    • Any such law or action cannot be challenged in court. 
  • When national emergency cease to operate, any law made during Emergency that are inconsistent with Article 19, ceases to have effect. 
  • The 44th Amendment Act of 1978 restricted the scope of Article 359 by:   
    • The President cannot suspend the right to seek remedy or move the Court for the enforcement of fundamental rights guaranteed under Articles 20 to 21. 
  • Only laws that are directly related to the emergency are protected from being challenged and not other laws. 

Difference Between Articles 358 and 359 

Articles 358	Articles 359
It is strictly confined to Fundamental Rights under Article 19.	It extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order.
It automatically suspends the fundamental rights under Article 19 once the emergency is declared.	It does not automatically suspend any Fundamental Right.   It only empowers the president to suspend the enforcement of the specified Fundamental Rights.
It operates only in case of External Emergency  (during war or external aggression) and not in the case of Internal Emergency (during armed rebellion).	It operates in case of both External Emergency as well as Internal Emergency.
It suspends Fundamental Rights under Article 19  for the entire duration of Emergency.	It suspends the enforcement of Fundamental Rights for a period specified by the president which may be the entire duration of Emergency or not.
It extends to the entire country.	It may extend to the entire country or a part of it.
It suspends Article 19 completely.	It does not empower the suspension of the enforcement of Articles 20 and 21.
It enables the State to make any law or take any  executive action that are inconsistent with Fundamental Rights under Article 19.	It enables the State to make any law or take any executive action that are inconsistent with those  Fundamental Rights whose enforcement is suspended by the Presidential Order.

National emergency declared till now: 

• 3 times so in 1962, 1971 and 1975. 
• 1962 proclamation of National Emergency was invoked during Chinese aggression in the NEFA 
• (North-East Frontier Agency) erstwhile Arunachal Pradesh. 
• 1971 proclamation of National Emergency was invoked during Pakistan aggression. 
• 1975 proclamation of National Emergency was invoked during ‘internal disturbance’. 

State emergency provision of India:

• Article 355 of the Indian Constitution requires the central government to ensure that the government of each state is carried out in accordance with the provisions of the Constitution.  
• The central government can take over the government of a state under Article 356 if it believes that the constitutional machinery in the state has failed.  
• It is also known as President’s Rule, State Emergency, Constitutional Emergency. 
• It can be proclaimed under Article356 on 2 grounds, one mentioned in Article356 and another in Article365: 
  • Article 356 empowers the President to issue a proclamation, if he feels that 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 without the governor’s report. 
  • Article 365 of the Indian Constitution gives the President the power to impose President’s Rule in a state if the state fails to comply with or give effect to any direction given by the Union Government.  
• Dr. B.R. Ambedkar stated that the power conferred by Article 356 would remain a ‘dead letter’ and would be used only as a measure of last resort. 
• In Bommai case, the Supreme Court held that the presidential proclamation imposing President’s Rule is subject to judicial review.
  • A state government pursuing anti-secular politics is liable to action under Article 356. 

Parliamentary Approval and Duration of State emergency 

• A proclamation imposing President’s Rule must be approved by both Houses of Parliament within two months of its issue.  
• If the proclamation is issued when the Lok Sabha has been dissolved or during the two-month without approving the proclamation, then the proclamation will remain in effect until 30 days after the first sitting of the reconstituted Lok Sabha, provided that the Rajya Sabha approves the proclamation in the meantime. 
• When both Houses of Parliament approve a proclamation imposing President’s Rule, it remains in effect for six months.
  • It can be extended for a maximum of 3 years with the approval of Parliament every 6 months.  
• Such resolution that approves the proclamation of President’s Rule or its continuation can be passed by either House of Parliament only by a simple majority. 
• The 44th Amendment Act of 1978 restrained the power of Parliament to extend a proclamation of President’s Rule beyond one year. 
• Beyondoneyear, the President’s Rule can be extended by 6 months at a time only when: 
  • A proclamation of National Emergency is in operation in the whole of India, or in any state; 
  • The Election Commission must certify that the general elections to such a legislative assembly of the concerned state cannot be held due to difficulties. 
• A proclamation of President’s Rule may be revoked by the President at any time by a subsequent proclamation.
  • Such a proclamation does not require the parliamentary approval. 

Effects of State Emergency 

• The President’s power:
  • He can take up the functions of the state government and those powers are then vested in the governor or any other executive authority in the state. 
    • On behalf of the President, the state governor carries on the state administration with the help of the chief secretary of the state or the advisors appointed by the President. 
  • He can take away the powers of the state legislature to be exercised by the Parliament. 
  • He can take all necessary steps including the suspension of the constitutional provisions related to any authority in the state. 
  • He can dismiss the state council of ministers headed by the chief minister. 
  • He can authorize, when the Lok Sabha is not in session, expenditure from the state consolidated fund whose sanction is pending by the Parliament. 
  • He can promulgate, when the Parliament is not in session, ordinances for the governance of the state. 
• The Parliament’s power:
  • It is responsible to pass the state legislative bills and the state budget. 
  • It can delegate the power to legislate for the state to the President or to any other authority specified by the President in this regard.
    • Such an authority can then pass laws and impose duties on the Centre or its officers and authorities. 
• Such laws made by the Parliament or president, or any specifiedauthority remains operative even after the President’sRule.
  • But it can be repealed or altered or re-enacted by the state legislature. 
• The Constitutional functions and powers of the concerned state high court remain same even during the State Emergency is in operation. 

National Emergency vs President’s Rule  

National Emergency	President’s Rule
Invoked under Article 352	Invoked under Article 356
It can be proclaimed only when the security and territorial integrity of India is threatened by war, external aggression or armed rebellion.	It can be proclaimed when the government of a state cannot be carried on in accordance with the provisions of the Constitution. Such reasons may not be connected to with war, external aggression or armed rebellion.
During its operation, the state executive and  legislature continue to function in accordance with the Constitution.    The Centre gets concurrent powers of administration and legislation in the state.	During its operation, the state executive is dismissed and state legislature is either suspended or dissolved.  The president administers the state through the governor while the Parliament make laws for the state.
The Parliament cannot delegate the power to make laws for the state any other body or authority.	The Parliament can delegate the power to make laws for the state any other body or authority.
There is no maximum period prescribed for its  operation.   It can be continued indefinitely with the approval of Parliament for every six months.	There is a maximum period prescribed for its operation- 3 years.  Thereafter, it must end and the normal constitutional machinery must be restored in the state.
The relationship of the Centre with all the  states undergo a modification.	The relationship of only the state under emergency with the Centre undergoes a modification.
Every resolution of Parliament approving its proclamation or its continuance must be passed by a special majority.	Every resolution of Parliament approving its  proclamation or its continuance can be passed  only by a simple majority.
It affects fundamental rights of the citizens.	It has no effect on Fundamental Rights of the  citizens.
Lok Sabha can pass a resolution for its revocation.	It can be revoked by the President only on his own.

Financial Emergency provision in constitution of India:

• The 38th Amendment Act of 1975 made the satisfaction of the president to invoke the FinancialEmergencyfinal and conclusive and notquestionable in any court on any ground.
  • It was then amended by the 44th Amendment Act of 1978 and remarked that the president’s declaration is not beyond judicial review. 
• The President may issue directions for the reduction of salaries and allowances of all or any class of persons serving the Union government, including the Judges of the Supreme Court and the High Courts.  
• The President may also direct for the reduction of expenditure by the Union and the States Government.  
• The President may declare a financial emergency on the advice of the Union Council of Ministers.  
• The proclamation of a financial emergency must be laid before both Houses of Parliament within 2 months of its issuance.  
• Once approved by both the Houses of Parliament through a simplemajority, the FinancialEmergency continues indefinitely until it is revoked.
  • There is no maximum period for its operation, and it does not require repeated parliamentary approval for its continuation. 
• The proclamation will cease to have effect after 2 months unless it is approved by resolutions of both Houses of Parliament through a simple majority within that period. 
• If the proclamation is issued when the Lok Sabha has been dissolved or during the 2-month without approving the proclamation, then the proclamation will remain in effect until 30 days after the first sitting of the reconstituted Lok Sabha, provided that the Rajya Sabha approves the proclamation in the meantime. 
• No Financial Emergency has been declared till date, even when there was a financial crisis in 1991. 

Effects of Financial Emergency 

• The executive authority of the Central government can reserve all money bills or other financial bills for the consideration of the President after they are passed by the legislature of the state. 
• During the operation of a financial emergency, the Central government acquires full control over the state governments in any financial matters. 

Criticism of emergency provisions: 

• The federal character of the Constitution gets destroyed as provisions of emergency provides maximum power to the Union government. 
• The President or the Union government can assume the power of a dictator, thus risking the democratic institution of India. 
• Fundamental rights will become meaningless leading to the destruction of the basic structure of the constitution. 

Conclusion of emergency provisions in Indian Constitution: 

Even though the Emergency Provisions of Indian constitution has been misused by the subsequent governments to enhance their agendas, yet it has proved itself more to be boon in many cases especially during the time of war and external aggressions or when the democratic tradition of the nation was itself in danger. As Sir Alladi Krishnaswami Ayyar, one of the constitution maker, has acclaimed the Emergency provisions to be the very life–breath of the Constitution. The emergency provisions in Indian constitution borrowed from Germany has been Indianized to suit the Indian conditions.

Ref: Source-1

Other Articles in Polity & Governance
Basic Structure of Indian Constitution	Federal and Unitary Features of Indian Constitution
Powers of President of India	Fundamental Duties in India
Armed Forces (Special Powers) Act (AFSPA)	Constituent Assembly of India

FAQs (Frequently Asked Questions)