Emergency Provisions: Everything You Need to Know

Article 352 to 360 of the Indian constitution deals with the provisions/rules related to the emergency, that enable the central government to meet any abnormal situation effectively.  

In a certain situation, to safeguard the sovereignty, unity, integrity, and security of the country and the democratic system of the constitution, the president of India can declare an emergency, based on certain situations. Under an emergency situation, the President can overrule certain provisions of the constitution including fundamental rights.

Emergency provisions alter the power structure, under this central government becomes all-powerful and converts the federal structure into the unitary one without any formal amendment to the constitution.

Emergency Provisions: Types of Emergency

1. National Emergency (Article 352)
2. President’s Rule (Article 356)
3. Financial Emergency (Article 360)

For the first time, the President’s Rule was imposed in Punjab in 1951 and the national emergency is declared three times so far- in 1962, 1971 and 1975.

1) National Emergency (Article 352)

When the ground of emergency is war, external aggression, and armed rebellion, it is known as National Emergency. (Note- Due to the vagueness of the term Internal disturbance, 44th Amendment Act 1978 substituted it with Armed Rebellion).

National Emergency is also categorized into two parts. One includes the declaration of emergency on the ground of war or external aggression, it is known as External Emergency. Other on the ground of Armed Rebellion, Known as Internal Emergency.

National Emergency can be applied to the entire country or to any part of the country (Limiting the operation to any part of the country is enabled by the 42nd Amendment Act 1976).

Declaration of National Emergency

National Emergency can be declared by President only, after receiving a written recommendation from the cabinet.

Approval of National Emergency

Both houses of parliament are required to pass the proclamation of emergency with a special majority within one month from its issue date. (Special Majority- a majority of the total membership of the house and a majority of not less than two-thirds of members of the house present and voting).

Note

• 38th Amendment Act 1975 made the declaration of National Emergency immune from judicial review.
• 44th Amendment Act 1978 deleted the above provision.
• Minerva Mills Case- Supreme Court made it clear that the national emergency can be challenged in a court.
• Can Be Challenged On What Grounds?- Malafide or not reasonable or declaration is based on irrelevant facts.

How long a National Emergency can be in force?

After its approval by both houses of parliament and declaration by the President, it continues for six months at a time and can be extended to an indefinite period with parliamentary approval every six months. (Note- Periodic parliamentary approval added by the 44th Amendment Act 1978)

Revocation of National Emergency

With a subsequent proclamation, the President can revoke the emergency if only Lok Sabha passes a resolution disapproving its continuation with a Simple Majority.

Effect of National Emergency

• The Centre become empowered to direct the state regarding the manner in which executive power is to be exercised.
• The Centre become entitled to give executive directions to the state on any matter, which means, though the state governments are not suspended, they come under the ambit or complete control of the central government.
• Though the legislative power of state government is not suspended, parliament gets overriding power and is empowered to make law on any subject mentioned in the state list.
• Highlight- The law made by parliament on state subjects during the national emergency will become inoperative six months after the revocation of the emergency.
• If parliament is not in session, the President is also empowered to issue ordinances over state subjects.
• President will be empowered to modify the revenue distribution between the centre and the states.
• The life of Lok Sabha can be extended beyond its normal life, one year at a time. But continuation cannot extend beyond six months after the cease of emergency.
• Parliament is also empowered to extend the normal tenure of the state legislative assembly by one year at a time.

Also read: Acharya Vinoba Bhave

National Emergency’s Impact on Fundamental Rights

Article 358- It deals with the suspension of fundamental rights guaranteed under article 19 of the constitution.

• As per Article 358, under the emergency provision, article 19 is automatically suspended when the proclamation of emergency is made i.e., it does not require any separate order of suspension.
• Condition- There is one condition, article 358 comes under the role only when External Emergency is operational. That clearly means that article 19 is suspended only when there is an external emergency and not an internal emergency.

Article 359- It deals with the suspension of other fundamental rights except for articles 20 and 21.

• It requires a separate order for suspension and only those fundamental rights are suspended that are mentioned under the presidential order.
• Such an order of suspension of fundamental rights requires the approval of parliament.
• The suspension could be for the duration of the emergency or could be for a shorter duration.
• 44th Amendment Act 1978 says- President cannot suspend the right to move to court for the enforcement of fundamental rights under article 20 (protection in respect of conviction of offence) and article 21 (right to life and personal liberty).

2) President’s Rule (Article 356)

President’s Rule is also known as State Emergency or Constitutional Emergency. If any state fails to comply with the direction of the centre or there is any failure of constitutional machinery, President rule can be imposed on the such state.

President’s decision to declare President’s rule on any state can be based on the report of the Governor of the state or he can act otherwise too.

President’s Rule- Approval and Duration

As per the emergency provisions made under the constitution, to impose the President’s Rule on a state, a proclamation must be approved by both houses of parliament within two months of time. After approval, it continues for six months at a time and can be extended for three years in total with the approval of parliament every six months.

It only requires approval by a simple majority in either house of parliament.

Restraint on President’s Rule

If the parliament wants to extend the proclamation of the President’s Rule beyond one year, it has to fulfil two conditions-

one is, that there must be an operational national emergency in the entire country or in whole or any part of the state, another is, that the Election Commission must have certified that the election to the legislative assembly cannot be held due to certain difficulties in that state.

Note

• Article 355- It is the duty of the centre to ensure that the government of every state complies with the provision of the constitution.
• Article 356-President is empowered to proclaim President’s rule if the government of any state is not carried on in accordance with the provision of the constitution.

Revocation of President’s Rule

The President of India can revoke the President’s Rule with a proclamation and such a proclamation does not require any parliamentary approval.

Effect of President’s Rule

• If President declared, the parliament exercise the power of the state legislature.
• President dismisses the state council of ministers.
• President is responsible for the suspension or dissolution of the state legislative assembly.
• Highlight- any law made by President or parliament during this period continues to be operative even after the president’s rule.
• It has no effect on fundamental rights.

3) Financial Emergency (Article 360)

If any situation has arisen that can threaten the financial stability or credit of India or any part of its territory, the President is empowered to Proclaim the Financial Emergency. It is important to note that the satisfaction of the President to impose the Financial Emergency comes under the ambit of judicial review.

Financial Emergency- Approval and Duration

The proclamation regarding financial emergency must be approved by either house of the parliament within two months of time only with a simple majority. Once came into force, the financial emergency must continue indefinitely till it is revoked i.e., in this there is no need for repeated parliamentary approval for continuation.

Revocation of Financial Emergency

Revocation of a Financial Emergency is also done by President with a subsequent proclamation that does not require any parliamentary approval.

Read: Emergency Provisions impact on Centre-State Relations

Article Written By: Priti Raj