Emergency Provisions under Indian Constitution

  • August 8, 2017
  • 10:25 am
  • Pranshu Holkar

The emergency provisions are placed under the part XVIII of the Indian Constitution. The articles related to emergency are Article 352 to Article 360 of Indian Constitution. The term emergency defined as “an unforeseen combination of circumstances or the resulting state that calls for immediate action by the authorities under the powers especially granted to them”. Dr. B. R. Ambedkar claimed that the Indian federation was unique as during the times of emergency it could convert itself into an entirely unitary system. Emergency provisions enables the federal government acquire the strength of unitary government whenever the situation demands.

The reason why we enacted the emergency provisions and its basic idea was to protect the country against unintended emergence of autocracy as a result of internal disorder, external attack or battle. During the framing of Indian constitution there was disruptive forces of casteism, regionalism, communalism, and languish created cacophony and disturbed the peace and harmony of the country. The communal riots were happening between Hindus and Muslims. So, the framers of Indian Constitution compelled to think about such provisions and in order to establish the peace and harmony these provisions included in the constitution. One of the sources that influenced the emergency provisions in India was the Weimar Constitution of Germany.

National Emergency (Article 352)

National emergency is imposed whereby there is a grave threat to the security of India or any of its territory due to war, external aggression or armed rebellion. Such emergency shall be imposed by the president on the basis of written request by the council of ministers headed by the Prime Minister.

Moreover, the forty fourth amendment introduced another innovation where a notice in writing, signed by not less than 1/10th of the total members of the Lok Sabha has been given of their intention to move a resolution disapproving the proclamation of emergency, to the speaker if the house is in session or to the president, if the house is not in session, a special sitting of the house is to be held within 14 days from the date on which such notice is received by the speaker or the president, as the case may be, for the purpose of considering such resolution. If national emergency is approved by the both the house of parliament then the emergency will continue for 6 months. It must be approved by the parliament within every 6 months. The union government under Art.250 of the constitution gets the power to legislate in regards to subjects enumerated in the state list. Except Art 20 and 21 all the fundamental rights are suspended.

In India, national emergency has been invoked three times so far. National emergency has been imposed thrice in the country- in 1962 at time of Chinese aggression, in 1971 during the indo-pak war, in 1975 on the grounds of internal disturbances. One of the major result which come out after the proclamation of the emergency in 1975 was the amendment of Article 352 by 44th Constitutional amendment so as to introduce some more safeguards therein against any unwarranted declaration of emergency in future.

State Emergency (Article 356)

The failure of constitutional machinery is also known as president’s rule. Article 355 imposes the duty on the central government to ensure that the government of every state is carried on in accordance with the Constitution of India. It is the duty of the state to take over the government of state under article 356 in case of failure of constitutional machinery in the state. If the president on Governor’s report or otherwise is satisfied that the situation has arisen that the government can’t be carried in accordance with the constitutional provisions then, he may issue State emergency. After the 42th Amendment of the constitution the state emergency was made immune from judicial review. But later in the 44th Amendment the legality of President’s rule could be challenged.  During such proclamation, the state assembly is either dissolved or suspended.

Failure of the Constitutional machinery in a State may arise because of various factors; these factors are diverse an imponderable. Nevertheless, some situations of the breakdown of the Constitutional machinery may be as follows:

(1) No party in the Assembly has a majority in the State Legislative Assembly to be able to form the government.

(2) A government in office loses its majority due to defections and no alternative government can be formed.

(3) A government may have majority support in the House, but it may function in a mar ner subversive of the Constitution. As for example, it may promote fissiparous tendencies in the State.

(4) The State Government does not comply with the directions issued by the Centre Government under various Constitutional provisions.

The proclamation of President’s rule must be approved by both the House of Parliament within 2 months from the date of issue. If the Lok Sabha has been dissolved at the time or dissolution takes place during the period of 2 months then the Rajya Sabha must approve the same in mean time. The president’s rule continues for 6 months.

Financial Emergency (Article 360)

The president under Article 360 of the constitution has the power to declare financial emergency if he is satisfied that the financial stability or the credit of India or any part of its territory is threatened.

A proclamation issued under Art. 360(1) may be revoked or varied by a subsequent proclamation [Art. 360(2) (a)], and has to be laid before each House of Parliament [Art. 360(2) (b). The proclamation ceases to have effect after two months unless in the meantime it is approved by the Thirty-Eighth Amendment of the Constitution, the Presidential ‘satisfaction’ in Art. 360(1) was declared to be ‘final and conclusive’ and not questionable in any court on any ground. No court was to have jurisdiction to entertain any question, on any ground, regarding the validity of declaration made by proclamation by the President to the effect stated in Article 360(1) or the continued operation of such Proclamation. This provision has now been deleted by the Forty-Fourth Amendment of the Constitution. In India, there has not been financial emergency imposed till now.