The Balance of Power: Emergency Provisions in India

Emergency provisions in India (Arts. 352, 356, 360) empower the Union to deal with extraordinary situations threatening security, governance, or financial stability. During emergencies, certain fundamental rights may be suspended, and the Centre assumes greater control over states. However, through judicial review in cases like S.R. Bommai and ADM Jabalpur, the Supreme Court has emphasized constitutional safeguards against misuse.

1. The Balance of Power: Emergency Provisions in India TRIVENI HAZRA ASSISTANT PROFESSOR OF LAW

2. Table of Contents Introduction Types of Emergencies Conclusion

3. Imagine a moment when India’s very existence is threatened – by war, external attack, or internal rebellion. Our Constitution, a living document, anticipates such crises, providing extraordinary ‘Emergency Provisions’ to safeguard the nation’s sovereignty, unity, and integrity. Meaning Emergency provisions are special powers given to the Union to deal with extraordinary situations that threaten the security, stability, or constitutional governance of the country. During emergency, the federal structure tilts towards unitary form — the Centre becomes more powerful. Constitutional Basis Found in Part XVIII of the Indian Constitution (Articles 352–360). Inspired by the Weimar Constitution of Germany . Purpose To safeguard the unity, integrity, and security of the nation. To ensure smooth functioning of government machinery during crisis situations. A. INTRODUCTION

4. NATIONAL EMERGENCY(ARTICLE 352) STATE EMERGENCY ( ARTICLE 356) FINANCIAL EMERGENCY (ARTICLE 360) B. TYPES OF EMERGENCIES

5. By Whom: Declared by the President of India. Grounds for Proclamation : War: External armed conflict. External Aggression: Threat or act of aggression from outside the country. (Huge influx of illegal migrants from Bangladesh resulting periodic clashes between the citizens of India and these migrants resulting into loss of property and life has been held to be external aggression.) [Sarbananda Sonowal v. Union of India 2005] Armed Rebellion: Internal armed revolt against the government (originally internal disturbance, replaced by 44th Amendment Act, 1978, to prevent misuse). Note: Before the actual occurrence of the war the president can declare emergency. Union Cabinet's Role: President can only declare emergency upon the written recommendation of the Union Cabinet consisting of Prime Minister and other Ministers of cabinet rank(Art 75) and also not merely on the advice of the Prime Minister. Territorial Extent: Can be declared for the whole of India or only for a part of the territory of India. 1. NATIONAL EMERGENCY

6. Parliamentary Approval (Both Houses' Role): The proclamation must be laid before both Houses of Parliament (Lok Sabha & Rajya Sabha). Requires approval by a special majority (more than half of the total membership of each house AND not less than two-thirds of the members present and voting) within one month from its date of issue. Note: If Lok Sabha is dissolved, the Rajya Sabha approves, and then the new Lok Sabha must approve within 30 days of its first sitting. Duration & Continuation: If approved, it remains in force for six months and can be extended for six months at a time indefinitely, with repeated parliamentary approval (special majority). Revocation: President's Initiative: Can be revoked by the President at any time through a subsequent proclamation. Lok Sabha's Role: If the Lok Sabha passes a resolution by a simple majority disapproving the continuation of the emergency, the President must revoke it. Note: 1/10th of Lok Sabha members can give written notice to the Speaker (or President if House not in session) to call a special sitting to consider a resolution for revocation. CONTD…..

7. CONTD… Instances Only three times National Emergency declared in India. Chinese aggression (Indo-China War, October 1962). On grounds of External Aggression Indo-Pak war (December 1971) Twice on grounds of External Aggression Political unrest following Allahabad High Court judgment against PM Indira Gandhi , highly controversial, led to major constitutional changes (44th Amendment). Once on grounds of Internal Disturbance (1975)

8. Executive Power: [Article 353] Union gains power to direct any State on how to exercise its executive functions. Centre can assume greater control over State administration. Legislative Power [Article 353(b)] Parliament empowered to make laws on any subject of the State List (normally State power). State Legislature is not suspended, but its powers remain overridden by Parliament’s laws. Revenue Distribution [Article 354] President can modify financial arrangements between Union and States. During emergency, the distribution of revenues (under Art. 268–279) can be altered by Presidential order. Life of Lok Sabha [Article 83(2)] Lok Sabha: Life can be extended by 1 year at a time, beyond normal 5 years, but not more than 6 months after Emergency ends. EFFECT

9. Under Article 358 , when a National Emergency is proclaimed on the grounds of war or external aggression, the six freedoms guaranteed under Article 19 stand automatically suspended. This means that during the operation of such an emergency, the State is free to make laws or take executive actions which would otherwise violate Art 19, and such measures cannot be challenged in a court of law. However, this suspension is only temporary and the rights under Article 19 revive as soon as the emergency ends. Article 359 empowers the President, during a National Emergency, to suspend the right to move any court for the enforcement of specified Fundamental Rights. Unlike Article 358, which suspends the rights under Article 19 automatically, Article 359 does not suspend the rights themselves but only the remedy to enforce them in courts. This means that the Fundamental Rights continue to exist, but citizens cannot seek judicial enforcement while the Presidential order is in force. Such an order must be approved by Parliament and applies only to the rights mentioned in it. Importantly, after the 44th Constitutional Amendment (1978), the rights under Articles 20 and 21—protection in respect of conviction for offences and the right to life and personal liberty—cannot be suspended even under Article 359, ensuring that the core human rights remain intact even during emergencies. EFFECT ON FUNDAMENTAL RIGHTS

10. The case of ADM Jabalpur v. Shivkant Shukla (1976) , popularly known as the Habeas Corpus Case , arose during the Emergency of 1975–77 proclaimed by Indira Gandhi’s government. During this period, Fundamental Rights under Article 21 (right to life and personal liberty) were suspended by a Presidential Order under Article 359. Many opposition leaders were arrested without trial, and habeas corpus petitions were filed challenging their detention. The Supreme Court, by a 4:1 majority, held that during an Emergency, a person has no right to approach a court to enforce the right to personal liberty. The majority view (Justices Ray, Beg, Chandrachud, and Bhagwati) upheld the government’s stand, arguing that suspension of remedies meant courts could not intervene. Justice H.R. Khanna delivered the lone dissent, declaring that even during Emergency, the right to life and liberty is not at the mercy of the State. His dissent later became celebrated as a defense of constitutional morality. The judgment was widely criticized as the darkest chapter in Indian judicial history, as it legitimized authoritarian rule and mass detentions. After the Emergency ended, the 44th Amendment (1978) ensured that Articles 20 and 21 cannot be suspended even during an Emergency. The case thus stands as a reminder of the dangers of unrestrained emergency powers and the need for judicial independence. A.D.M JABALPUR V. S. SHUKLA

11. By Whom President of India → can proclaim State Emergency. Done on the written advice of Union Cabinet (Art. 74). Based on Governor’s report or even otherwise (President’s own satisfaction). Grounds Article 355: Duty of Union to protect State against external aggression/internal disturbance and ensure government is carried on in accordance with Constitution. Article 356: If President is satisfied that the Government of a State cannot be carried on in accordance with the provisions of the Constitution. Examples: Political instability, breakdown of law & order, hung assembly, unconstitutional acts of State govt. Territorial Extent Can be proclaimed for the whole State or part of the State. Timing / Duration Initial proclamation: 6 months. Can be extended every 6 months, but maximum 3 years. 2. STATE EMERGENCY

12. Parliamentary Approval (Both Houses’ Role) Must be laid before both Houses of Parliament. Needs approval within 2 months by simple majority. For extension → fresh approval every 6 months. Revocation Can be revoked anytime by President (without Parliament’s approval). Automatically ceases if Lok Sabha disapproves. Union Cabinet’s Role Mandatory advice of Union Cabinet (after 44th Amendment, 1978) before proclamation. This ensures decision is collective, not arbitrary. Instances Article 356 was first imposed in Kerala in 1959 after the dismissal of the Communist government. Since then, it has been used over 125 times, often during political instability or breakdown of governance. Major instances include Punjab (1987–1992) during militancy, Jammu & Kashmir (till 2018) before becoming a Union Territory, and in Uttarakhand and Arunachal Pradesh in 2016. CONTD….

13. When the President issues a Proclamation of State Emergency, he can: Take over the work of the State Government → He may assume the functions of the Chief Minister, Council of Ministers, and even powers of the Governor or other state authorities (but not the High Court). Take over the powers of the State Legislature → The State Assembly’s law-making powers are shifted to Parliament, which can make laws for that state. Make necessary changes → The President can issue rules or directions to ensure smooth administration, even suspending certain constitutional provisions related to the state. But: The President cannot take away or suspend the powers of the High Court. EFFECT

14. The S.R. Bommai v. Union of India (1994) case is the landmark judgment on misuse of Article 356. In this case, the Supreme Court held that the power of the President to impose State Emergency is not absolute and is subject to judicial review. The Court said that Article 356 can only be used when there is a genuine breakdown of constitutional machinery, not for political reasons. It ruled that the President’s proclamation under Article 356 must be laid before Parliament and approved by both Houses. The Court further stated that if Parliament disapproves, the proclamation lapses and the dismissed state government can be revived. Rameshwar Prasad v. Union of India (2006), the case arose after the 2005 Bihar Assembly elections, which gave a fractured verdict. The Governor recommended dissolution of the Assembly before it had even met, claiming no stable government could be formed and fearing unethical practices like horse-trading. Acting on this, the President dissolved the Assembly under Article 356. The matter went to the Supreme Court, where the Court held that the Governor’s report was based on mere apprehensions and not on actual material. It declared that the dissolution was unconstitutional and mala fide. CASE LAWS

15. By Whom President of India → proclaims financial emergency. On Union Cabinet’s written advice (mandatory after 44th Amendment, 1978). Grounds When President is satisfied that the financial stability or credit of India or any part thereof is threatened. Territorial Extent Can be proclaimed for the whole of India or any part of the territory of India. Timing Once proclaimed, it comes into immediate effect. Parliamentary Approval (Both Houses’ Role) Proclamation must be laid before both Houses of Parliament. Must be approved within 2 months (simple majority). If Lok Sabha is dissolved, Rajya Sabha approves first, then Lok Sabha must approve within 30 days of reconstitution. Instances: Never proclaimed in India till date. 3. FINANCIAL EMERGENCY

16. Duration Once approved, continues indefinitely (Unlike National or State Emergency, no maximum time limit). Remains in force till revoked by the President. Revocation Can be revoked anytime by President. No need for parliamentary approval for revocation. Union Cabinet’s Role Mandatory written advice of Cabinet required before proclamation (safeguard against arbitrary action). CONTD….

17. EFFECT Union control over State finances → The executive authority of the Union extends to directing any State on financial matters. Reduction of salaries and allowances → President can order reduction of salaries of all government servants, including those of the Union and State. Judiciary affected financially → Salaries of judges of the Supreme Court and High Courts may also be reduced. Money Bills under Union scrutiny → President can require that all Money Bills or other financial Bills of a State be reserved for his consideration after being passed by the State Legislature. Centre’s directions binding → States are bound to follow Union directions on matters of financial propriety.

18. C. CONCLUSION The emergency provisions of the Indian Constitution represent a carefully crafted mechanism to protect the unity, integrity, and security of the nation. They allow the Centre to assume overriding powers during crises, temporarily suspending the federal balance to ensure stability. However, their misuse—as seen during the 1975 Emergency and the infamous ADM Jabalpur v. Shivkant Shukla judgment, where the Supreme Court upheld suspension of the right to life—revealed the dangers of unchecked power. Later corrections in cases like S.R. Bommai and Rameshwar Prasad restored faith by asserting that emergency powers must be used sparingly and remain subject to judicial review. Together, these experiences shaped India’s “federal but strong Union” model, proving that while the Constitution permits central dominance in extraordinary times, democracy and fundamental rights form its unshakable foundation.

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