PART 18: Constitution Of India

PART XVIII: EMERGENCY PROVISIONS

This part deals with the three types of emergencies the government can declare, giving the central government extraordinary powers.

Article 352: Proclamation of Emergency.

This is the “National Emergency.”

• Clause (1) & Explanation:
  • Plain English: The President can declare a “Proclamation of Emergency” if they are “satisfied” that a grave emergency exists, threatening the security of India (or any part of it).
  • The Grounds: The threat must be from:
    1. War
    2. External aggression
    3. Armed rebellion (This was changed from “internal disturbance” by the 44th Amendment in 1978 to make it much harder to use).
  • The “Explanation” clarifies that the President can declare an emergency even before the actual war or rebellion has begun, if they are satisfied there is an “imminent danger” of it.
• Clause (2):
  • Plain English: A proclamation can be changed (“varied”) or cancelled (“revoked”) by a later proclamation.
• Clause (3):
  • Plain English: This is a crucial safeguard (added by the 44th Amendment). The President cannot declare an emergency on their own. They can only do it after the “Union Cabinet” (the Prime Minister and all other Cabinet-rank ministers) gives them this advice in writing.
  • Real-World Example: This was added because Prime Minister Indira Gandhi in 1975 advised the President to declare an emergency without consulting her full Cabinet. This clause makes that illegal.
• Clause (4) & Proviso:
  • Plain English: The proclamation must be laid before both Houses of Parliament. It will automatically expire after one month unless Parliament approves it.
  • Proviso: This explains what happens if the Lok Sabha is dissolved. The Rajya Sabha must still approve it within the month, and then the new Lok Sabha must approve it within 30 days of its first meeting.
• Clause (5) & Provisos:
  • Plain English: Once approved by Parliament, the emergency proclamation lasts for six months. It can be extended for another six months, and so on, indefinitely, but each 6-month extension requires a new approval vote from Parliament.
• Clause (6):
  • Plain English: This is the most important safeguard. To “approve” or “extend” an emergency, the resolution must be passed by a special majority in both Houses:
    1. A majority of the total membership of the House; AND
    2. A majority of not less than two-thirds (2/3) of the members present and voting.
  • Real-World Example: This very high bar (much higher than a simple majority) ensures that a National Emergency cannot be declared or continued by a government with a slim majority, acting alone.
• Clause (7):
  • Plain English: This gives the Lok Sabha a special power to end an emergency. The President shall (must) revoke the emergency if the Lok Sabha (the House of the People) passes a resolution disapproving it.
  • Key Detail: This disapproval resolution only needs a simple majority (50%+1). So, it’s hard to start an emergency (2/3 majority) but easy to stop it (simple majority in Lok Sabha).
• Clause (8):
  • Plain English: This ensures the Lok Sabha can vote, even if the government doesn’t want it to. If at least one-tenth (1/10) of the total members of the Lok Sabha give a written notice, the Speaker (or President) must call a special sitting of the House within 14 days to vote on the disapproval.
• Clause (9):
  • Plain English: The President can issue different proclamations for different reasons or for different parts of the country.

Article 353: Effect of Proclamation of Emergency.

• Plain English: While a National Emergency is in effect, the federal structure of India changes.
• (a) Executive Power: The Union government’s executive power expands. It can give any “directions” (orders) to any State government on how to run its administration.
• (b) Legislative Power: Parliament gets the power to make laws on any subject on the State List (like “Police,” “Public Order,” etc.), which it normally cannot touch.
• Proviso: If the emergency is only in one part of India (e.g., the Northeast), the Union’s power to give directions and make laws extends to other states as well, if their security is threatened by the events in the emergency zone.
• Real-World Example: If a war breaks out, the Union government can (under this article) give direct orders to the Punjab state police (a State List subject) and Parliament can pass a law on how to manage “public health” (another State List subject) in border states.

Article 354: Application of provisions relating to distribution of revenues…

• Clause (1):
  • Plain English: While an emergency is on, the President can issue an order to temporarily modify or stop the constitutional “distribution of revenues” (the tax-sharing with states, as defined in Articles 268 to 279).
  • Key Detail: This order lasts, at most, until the end of the financial year in which the emergency is over.
• Clause (2):
  • Plain English: Every such order must be laid before Parliament.
• Real-World Example: During a war, the central government needs all available money. The President can issue an order to “temporarily stop” the 41% tax share that normally goes to states (under Art. 270), directing all money to the central war effort instead.

Article 355: Duty of the Union to protect States…

• Plain English: This article places a duty on the Union government to do three things for every state:
  1. Protect it from “external aggression” (e.g., a military invasion).
  2. Protect it from “internal disturbance” (e.g., massive, violent riots or a rebellion that the state police cannot handle).
  3. Ensure that the state’s government is being run “in accordance with the provisions of this Constitution.”
• Real-World Example: This article is the justification for the next one. If the Union government believes a state is failing to govern according to the Constitution (e.g., a total breakdown of law and order), this article gives the Union the duty to intervene.

Article 356: Provisions in case of failure of constitutional machinery in States.

This is the highly controversial “President’s Rule.”

• Clause (1):
  • Plain English: If the President, based on a “report from the Governor” or “otherwise” (i.e., on their own information), is satisfied that a situation has arisen where the state government cannot be run according to the Constitution…
  • …the President can issue a Proclamation to:
    1. (a) Take over (“assume”) all executive powers of the state government and the Governor.
    2. (b) Declare that the powers of the State Legislature will now be exercised by Parliament.
    3. (c) Make any other changes needed to enforce the proclamation.
  • Proviso: The President cannot take over the powers of the High Court. The state judiciary remains independent.
• Clause (2):
  • Plain English: It can be revoked at any time.
• Clause (3):
  • Plain English: It must be laid before Parliament and must be approved within two months by a simple majority. If not, it expires.
• Clause (4):
  • Plain English: Once approved, President’s Rule lasts for six months. It can be extended for another six months, but…
  • The 3-Year Limit: It cannot continue for more than three years in total, under any circumstances (except for the old Punjab proviso).
• Clause (5):
  • Plain English: This is a major restriction (added by the 44th Amendment). To extend President’s Rule beyond one year, two conditions must be met:
    1. A National Emergency (Art. 352) must be in operation in India or that part of the state. AND
    2. The Election Commission of India must certify in writing that it is not possible to hold elections to restore the state assembly.
  • Real-World Example: A state government collapses. President’s Rule is imposed (Clause 1). Parliament approves it (Clause 3). It is extended for another 6 months (now 1 year total). To get a third extension (beyond 1 year), the Union government must prove to Parliament that a National Emergency is on and that the ECI says elections are impossible.

Article 357: Exercise of legislative powers under Proclamation…

• Plain English: This explains what happens to “law-making” during President’s Rule.
• Clause (1):
  • Plain English: Since the State Assembly is suspended, Parliament (which now has its power) can:
    • (a) Delegate this law-making power to the President. This is what is usually done.
    • (b) Pass laws itself or authorize the President to pass laws.
    • (c) If the Lok Sabha is not in session, the President can authorize spending money from the state’s fund, pending Parliament’s approval.
  • Real-World Example: A state is under President’s Rule. Parliament is busy, so it passes a law delegating its power to the President. The President (on the Union Cabinet’s advice) then makes laws for the state, which are called “President’s Acts.”
• Clause (2):
  • Plain English: What happens to these “President’s Acts” after President’s Rule ends? They do not die automatically. They remain in force as valid laws until the newly-elected State Legislature passes its own law to “alter, repeal, or amend” them.
  • Real-World Example: During President’s Rule in a state, the President passes an Act changing the state’s university rules. After 6 months, President’s Rule ends and a new state government is elected. That “President’s Act” on universities remains the law until the new State Assembly votes to cancel it.

Article 358: Suspension of provisions of Article 19 during emergencies.

• Plain English: This is the AUTOMATIC suspension of rights.
• Clause (1): When a National Emergency is declared on the grounds of WAR or EXTERNAL AGGRESSION (but not “Armed Rebellion”), Article 19 (Freedom of Speech, Assembly, Movement, etc.) is automatically suspended. The government is free to make laws that violate Article 19.
• Clause (2): This protection for the government only applies if the law itself states that it is related to the Emergency.
• Real-World Example: India goes to war, and the President declares an emergency. The government immediately gets the power (under this article) to pass a law imposing total media censorship (a violation of Art. 19(1)(a)), and this law cannot be challenged in court.

Article 359: Suspension of the enforcement of the rights…

• Plain English: This is the SELECTIVE suspension of rights.
• Clause (1): During any National Emergency (including “Armed Rebellion”), the President can issue a separate Order listing any of the Fundamental Rights (e.g., Article 14 – Equality, or Article 15 – Non-discrimination).
• The Effect: This Order suspends the “right to move any court” to enforce those specific rights. You still have the right, but you cannot go to court to get it enforced.
• CRUCIAL EXCEPTION (44th Amendment): The President CANNOT issue an order to suspend the enforcement of Article 20 (protection from double jeopardy, etc.) or Article 21 (the Right to Life and Personal Liberty).
• Real-World Example: An emergency for “Armed Rebellion” is declared. The President issues an Order saying, “The right to enforce Article 14 (Equality) and Article 19 (Speech) is suspended.” The police then arrest a group of protestors (violating Art. 19). The protestors cannot file a Habeas Corpus petition in the Supreme Court, as their “right to move any court” for Art. 19 has been suspended. However, if the police try to shoot them, they can still go to court, because the Right to Life (Art. 21) can never be suspended.

Article 360: Provisions as to financial emergency.

• Clause (1):
  • Plain English: The President can proclaim a “Financial Emergency” if they are satisfied that the “financial stability or credit” of India (or any part of it) is threatened.
• Clause (2):
  • Plain English: This proclamation must be approved by Parliament (by a simple majority) within two months, or it expires.
• Clause (3):
  • Plain English: During this emergency, the Union government can give any financial directions to any state.
• Clause (4):
  • Plain English: These directions can include:
    • (a)(i) An order to reduce the salaries and allowances of all or any class of state government employees.
    • (a)(ii) An order requiring all State Money Bills (including the state budget) to be reserved for the President’s consideration after being passed by the state legislature.
    • (b) The President can also issue directions to reduce the salaries of all Union government employees, including (and this is the most drastic) the Judges of the Supreme Court and the High Courts.
• Status: A Financial Emergency has never been declared in India’s history.