EMERGENCY PROVISIONS UNDER CONSTITUTION OF INDIA:

The Indian system of government is of quasi-judicial nature where resembling a federal

government, powers are distributed between the centre and the state and similar to unitary
form because of retention of powers to the Union during emergency. Here the state
government relinquishes their rights to the central government to retain security and pursuit
of public welfare. It was at the time when neighbouring country, China attacked the northern
borders posing a threat to the security of India, when for the first time the Union assumed
powers to handle such a situation. Since then the President was assigned with extraordinary
powers to act in situations of Emergency.
Part XVIII of the Constitution has made provision for three kinds of emergencies:
➢ National Emergency
➢ Emergency due to failure of constitutional machinery in states
➢ Financial Emergencies

These Are Explained Below:

• ARTICLE 352: The constitution makers have equipped the Union under Article
352 with absolute control during time of emergency to preserve the integrity, security
and stability of the country. Proclamation of Emergency under this Article excludes
the other two kinds of Emergencies. President can impose National Emergency if he
is satisfied that a grave situation exists or is likely to arise due to war, external
aggression or armed rebellion (earlier it was internal disturbance). However his
powers are subject to the recommendation of the Cabinet. The proclamation must
also be laid before the House of Parliament which may approve it by passing a
resolution, take no action or disapprove it within one month. Such a proclamation is
notified by publication in official gazette but this is not obligatory. So far National
Emergency has been declared three times in the country, first being in 1962-1968
when China attacked Indian borders, second in 1971-1977 during Second World War
and the third was imposed in 1975 on grounds of internal disturbances.

• ARITCLE 356: Under this article the President is vested with wide discretionary
powers when he is satisfied that the government of the state cannot be carried on in
accordance with the provision of the Constitution of India. Imposition of Emergency
during failure of constitutional machinery in state is called Presidents Rule and non-
compliance by any state with direction of Union given in the exercise of its executive
power is an express ground to impose such a rule. Such a proclamation to be
operative must be placed before the House of Parliament and with its approval it is
valid for six months. In S.R. Bommai v. Union Of India, a full bench of the Karnataka
high court produced different opinion about the imposition of the President’s Rule in

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 Karnataka, while in other states the court held that it was in violation of the
constitution and would have restored the original position.

• ARTICLE 360: This article explains Financial Emergency imposed by the

President in a situation of financial crises where the credit of India, or any part is
threatened or in danger. The purpose of this article is to alter the governmental
machinery at the backdrop of the financial stability of the country. Unless approved
by the House of Parliament this proclamation shall cease to operate in two months. In
so far, this proclamation is not imposed in India.

Effects Of Proclamation Of Emergencies:

 The effects of Proclamation of Emergency are given under Article 353 of the
Constitution. The power under this is provisional and cannot be used without
reasonable care. The most important effect is that during the operation of a
proclamation the federal nature of the government becomes unitary and the union has
power to give directions to the state in reference to the executive power to be
exercised by them. In this way the legislative power of the union parliament is
enlarged up to the extent that it can make laws for the state and also modify
provisions regarding revenue matters. Where the fundamental rights are concerned,
during emergency arising out of war or external aggression Article 19 is suspended.
During the continuance of proclamation, power is vested in the President to suspend
the right of individual to move to the courts in case of infringement of their
fundamental rights except those under Article 20 and Article 21 under the
Constitution of India.
In Bennett Coleman & co. v. Union of India, the supreme court held that the
Newsprint Policy of 1972-73 in continuation of the old policy made before the
Proclamation of Emergency was not protected during the operation of the
proclamation from attack under Article 19.

 Under the President’s Rule the President is empowered with powers to suspend or
dissolve the State legislative Assembly. The provisions made by the president in view
of the Rule are incidental or consequential and must be necessary to give effect to
objects of the proclamation. Article 357 provides the manner in which the legislative
powers are exercised under the proclamation issued under Article 356.
In Nishi Kanta Mondal v. State of W.B, it was held that the Act enacted, in view of the
provisions of clause (2) of Article 357, shall continue to remain in force in spite of the
revocation of the Proclamation unless the Act is repealed or re-enacted with or
without modifications by an Act of appropriate legislature.
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  While the Proclamation of Financial Emergency is operative as per Article 360 of the
constitution, powers are vested in the President to give directions to states regarding
financial matters, to reduce salaries and allowance of government servants and also
reserve all money bills. The salaries of the higher official including judges of the
Supreme Court can also be altered to make the country financially stable at times of
crisis.

Abuse of Power:
It is clear that the power extended to the Union Parliament in the Proclamation of Emergency
must be used in rarest of the rare cases. However it is not so, the power given to the
President to be used in extraordinary circumstances is widely used for political benefits of
individuals rather than public interest. This abuse of power can easily lead to sedition of the
Indian democracy. In a number of cases the power was distorted with political
considerations, sometimes there is also self interest of the individual that lie behind the
decisions taken during manoeuvre of Emergency. The 44th amendment ensured that internal
disturbance would no longer be ground for Proclamation of Emergency, where it lead to the
worst abuse of Emergency power at National level in 1975 and continued till 1977.
The power under Article 356 has been used frequently in India since 1950, especially in
states like Uttar Pradesh, Kerela and Punjab. At one instance this President’s Rule was
imposed purely on political grounds to overthrow the ministry formed by a different party.
By the 42nd amendment in 1976, it was exemplified as it affected almost sixty clauses of the
constitution. Therefore there is demand for either deletion or making provisions to restrict
misuse of these provisions.

Deterrence of Abuse of Power:

It is noteworthy that the Emergency Provisions are subject to abuse by the authorities and
relevant safeguards must be followed to deter the same. The constitution of India guarantees
to the citizens of India fundamental rights, which are suspended pursuant to Emergency
Provisions. It must be kept in mind that the human rights must be not violated during the
proclamation, if so, done with justifiable cause in favour of individual interest. Also the
social, cultural, political, and civil rights of people must be safeguarded.
The Provisions must not be such as to disregard the principle of legality. ‘Due procedure of
law’ or ‘procedure established by law’ as mentioned in Maneka Gandhi v. Union of India,
must be followed to prevent corruption and misuse of power. It is a conditional power and
must be used as a last resort with due care. The Sarkaria Commission sharing a similar view
believes that this extraordinary power given by the constitution must be used as a
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constitutional weapon to deal with extreme situation and not used frequently as is being done
in India.
First time in S.R Bommai v. Union of India, it was held that the Proclamation under Artcle
356 can be subject to judicial review. The judges have the power to examine the validity of
grounds on which the Proclamation of Emergency is based. The power of judicial review
was first experienced in State of Rajasthan v. Union of India, held that there cannot be any
uniform rule of law for Proclamation of Emergency, it varies in different circumstances.

Also in Ram Manohar Lohia v. State of Bihar, the order of detention under the Defence of
India Rules was held to be illegal because the actual order of detention in the case was not
in terms of the rules. Proclamation of Emergency provisions are legitimate action but must
be applied only when the situation demands. It should be used cautiously to avoid
interruption in the constitutional mechanism. Therefore, limitations should be placed to bring
the actions under constitutional limit. Government is responsible for all the acts and thus
scrutiny of the basis of rules is a necessity to deter abuse of power for political or other
purpose other than social welfare. Where state government fails to follow the directions of
the central government, proclamation of Emergency cannot be imposed.
Emergency intervention in the country must be for short term and it should deal with
Emergency situations only. The decision making power must not be vested in few hands, this
may lead to biased ground of imposing Proclamation. Expertise from different areas of work
must be involved in decision making process. Thus it is crystal clear that to prevent abuse of
power during Proclamation of Emergency three things should be kept in mind i.e functioning
democracy, protection of human rights and Rule of Law.

A Relative Study:
The Indian Constitution equips the central government with powers to function while
operation of Proclamation of Emergency whether National Emergency, Emergency due to
failure of constitutional machinery in states or Financial Emergency. The President is vested
with wide discretionary powers, subject to constitutional validity of the same. Similarly in
the European countries the Emergency measures must not exceed that what the situation
demands and they cannot be inconsistent with the states other obligations as per under the
International law.
One of the duties while exercising the power under Article 352 is the protection of human
rights. However Article 19 is suspended during operation of the proclamation but as soon as
the Emergency ceases, these rights must be reinstated to the individuals. In Bangladesh it is

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recommended that there should be immediate restoration of fundamental and democratic
rights of people after the Emergency ceases to operate.
As stated in S.R. Bommai v. Union of India, that grounds of Proclamation of Emergency must
be reasonable and are subject to judicial review, the ancient Romans placed automatic limit
of six months on Emergency dictatorship. According to them existence of reasonable cause is
must and the same should be proved and justified.

The President can declare an Emergency mentioned in Article 352 of the Constitution of
India only on written advice of the Union Cabinet, with further approval of the House of
Parliament within one month in case of National Emergency and within two months in case
of the other two types of Emergencies, from the date of its imposition. Also, in Germany, the
President can declare Emergency on request of the Chancellor with approval of Federal
Council.

Conclusion:
Where the Constitution provides for execution of power which may lead to infringement of
fundamental rights of the individual during Emergency, judicially guaranteed by Constitution
of India, there must also be effective control mechanism to ensure limitation of this power
within the ambit of the Constitution. The validity of actions must be reviewed to deter
political gains and give way to public interest. Despite the abuse of power the Emergency
provisions still have a role to play under conditions prevailing in India, though it still remains
a controversial issue in the country.