Emergency provisions: Articles 352, 356 and 360

Part XVIII of the Constitution (Articles 352 to 360) allows the Union to take extraordinary powers in a crisis. During an emergency, the federal balance tilts sharply towards the Centre, and some Fundamental Rights can be suspended. The framers saw these provisions as essential for a new, fragile nation. The experience of the 1975–77 Emergency showed how they could be misused, and led to some of the most important safeguards in the Constitution.

The three types

National emergency (Article 352)

The grounds

Originally the grounds were war, external aggression or "internal disturbance". The 44th Amendment (1978) replaced "internal disturbance" with "armed rebellion" — a much narrower ground — precisely because the 1975 Emergency had been declared on the vague ground of internal disturbance.

The procedure, with 44th Amendment safeguards

• The President can proclaim it only on the written advice of the Union Cabinet, not merely the Prime Minister.
• The proclamation must be approved by both Houses within one month.
• Approval must be by a special majority: a majority of the total membership and two-thirds of those present and voting in each House.
• Once approved, it lasts six months, and can be extended indefinitely by further approvals every six months.
• The Lok Sabha can end it by a simple majority resolution disapproving it. One-tenth of the Lok Sabha's members can require a special sitting to consider such a resolution.

Effects

• Centre–state relations — the Union can give executive directions to any state on any matter, and Parliament can legislate on State List subjects (Articles 250 and 353). The distribution of revenues can be modified.
• Lok Sabha term — can be extended by one year at a time, but not beyond six months after the emergency ends.
• Fundamental Rights:
  • Article 358 — when the emergency is on grounds of war or external aggression, Article 19 is suspended automatically. (Not for armed rebellion.)
  • Article 359 — the President can suspend the right to move courts for the enforcement of other Fundamental Rights, except Articles 20 and 21, which since the 44th Amendment can never be suspended.

When it has been used

1. 1962 — the war with China.
2. 1971 — the war with Pakistan.
3. 1975 — on the ground of "internal disturbance", while the 1971 emergency was still in force. This is the Emergency of 1975–77.

President's Rule (Article 356)

When it applies

If the President, on the Governor's report or otherwise, is satisfied that the government of a state cannot be carried on in accordance with the Constitution, he can assume the state's executive functions. The state legislature's powers are exercised by Parliament. Article 365 adds that a state's failure to comply with Union directions can also be treated as such a failure.

Duration and approval

• Must be approved by both Houses within two months by a simple majority.
• Lasts six months at a time; can be extended up to three years in total.
• Continuing it beyond one year requires two conditions: a national emergency in force, and a certificate from the Election Commission that elections cannot be held. (This rule was introduced by the 44th Amendment.)

The history of misuse

Article 356 has been used well over a hundred times since 1950. Many of those uses — especially to dismiss opposition state governments — were criticised as political. B.R. Ambedkar had hoped it would remain "a dead letter".

S.R. Bommai v. Union of India (1994)

This nine-judge judgment changed the use of Article 356:

• The proclamation is subject to judicial review; the Court can examine whether there was relevant material for the President's satisfaction.
• The test of a government's majority is the floor of the House, not the Governor's opinion.
• The Assembly should normally be kept in suspended animation, not dissolved, until Parliament approves the proclamation; if Parliament does not approve, the dismissed government can be restored.
• Secularism and federalism are part of the basic structure; a state government acting against secularism can be a ground for Article 356.

After Bommai, the use of Article 356 fell sharply.

Financial emergency (Article 360)

• The President can proclaim it if satisfied that India's financial stability or credit is threatened.
• It must be approved by both Houses within two months by a simple majority. Once approved, it continues indefinitely until revoked — there is no six-monthly renewal.
• Effects: the Union can direct states on financial matters; salaries of government employees, including judges of the Supreme Court and High Courts, can be reduced; Money Bills of states can be reserved for the President.

It has never been declared.

The three compared

Practice questions

1. Prelims-type: Which Fundamental Rights cannot be suspended during a national emergency? Which ground for national emergency was replaced by the 44th Amendment?
2. Mains-type (150 words): How did the 44th Amendment strengthen safeguards against the misuse of emergency provisions?
3. Mains-type (250 words): "S.R. Bommai transformed Article 356 from a political weapon into a constitutional safeguard." Discuss.