Author: Jurivine
The emergency provisions in the Indian Constitution, enshrined in Part XVIII (Articles 352–360), empower the central government to respond decisively during crises that threaten the nation’s security, stability, or financial integrity. These provisions authorize the President to declare three types of emergencies—National Emergency, State Emergency (President’s Rule), and Financial Emergency—each with distinct triggers and constitutional consequences. Derived from the Weimar Constitution of Germany, these powers allow the temporary suspension of certain fundamental rights, enhance central authority over states, and enable swift legislative and executive action. While designed to safeguard sovereignty and unity, their historical application—most notably during 1975–77—has revealed the potential for political misuse, raising concerns about democratic erosion, concentration of power, and suppression of dissent. Judicial oversight, particularly after the 44th Constitutional Amendment, remains a key safeguard against abuse.
Introduction
Any country, no matter how strong it is on various fronts, is often subjected to various kinds of emergencies, such as war or external threats, financial breakdown, or internal threats occurring within the country and among its states. In such scenarios, it is often required to state to make themselves ready with the written legal provisions in their books of law. Since the Independence of India in 1947, we have also faced an era of emergencies from 1975-77.
The President of India may declare three different kinds of emergencies under Part XVIII of the Indian Constitution, which covers Articles 352 through 360. Article 352 permits the declaration of a national emergency, Article 365 permits a state emergency or president’s rule, and Article 360 permits a financial emergency.
The Indian Constitution’s emergency provisions, which are derived from Germany’s Weimar Constitution, are intended to protect the nation’s stability, sovereignty, and constitutional framework in the event of an emergency.
During the time of an emergency, any other civic liberties or fundamental rights remain suspended till the revocation of the emergency, except Article 20 and Article 21. Here, in criminal proceedings, certain rights are protected by Article 20 of the Indian Constitution. It offers defense against retroactive punishment, double jeopardy, and self-incrimination, and the right to life and personal liberty is emphasized in Article 21, which states that every person has the right to a decent, purposeful existence from the time of conception.
Constitutional Provision
The Indian Constitution’s emergency provisions are legislative tools that enable the government to take decisive action in times of national emergency. These clauses were put in place to safeguard the country’s sovereignty, unity, and stability amid dire circumstances where regular governance might not be sufficient.
Articles 352 through 360 of Part XVIII of the Indian Constitution address emergency provisions. The legal foundation for identifying and handling various situations in India is established by these articles. Every article addresses a distinct topic, ranging from declaring a financial emergency to imposing President’s Rule in states to declaring a national emergency.
National Emergency: Article 352
When war, external aggression, or armed revolt threatens the security of the entire country or any portion of it, the president of India declares a national emergency. The 44th Constitutional Amendment Act of 1978 substituted the term “armed rebellion” for the original term “internal disturbance.”
If the President is convinced that there is an immediate threat to the security of India or any portion of its territory, a Proclamation of Emergency may be issued in the real occurrence of armed insurrection, war, or external assault. Such an emergency could apply to either the whole of India or any specific part of the territory of a state.
The federal structure underwent considerable alterations as a result of the National Emergency. The Parliament can enact laws on any topic from the State List, the Center has more authority over the states, and Article 19’s fundamental rights are immediately suspended. Both Houses of Parliament must accept the emergency within a month, and it can be again approved for up to six months at a time.
One of the major effects of the proclamation of an emergency mentioned under Article 353 is that, regardless of anything in this Constitution, the Union’s executive power shall extend to giving orders to any State as to how its executive power is to be exercised and also parliament is given the authority in the state where emergency is in operation to make laws for that state.
To prevent the misuse of national emergency powers by the President, the 42nd Constitutional Amendment Act of 1976 allowed the President to restrict the scope of a National Emergency to a certain region of India.
During the tenure of Former Prime Minister Indira Gandhi, the 38th Constitutional Amendment Act of 1975 was enacted to prevent the proclamation of a National Emergency from judicial review, which was further deleted by the 44th Constitutional Amendment Act of 1978, thus it reversed the position and restored the judiciary’s ability to examine the decision to declare a national emergency.
State Emergency or President’s Rule: Article 356
The President’s Rule, also known as the State Emergency, is implemented when a state government fails to act in accordance with constitutional provisions. This could be due to political instability, a loss of majority, or the breakdown of law and order. The President has the authority to take over the state’s administration, based on the Governor’s report or not.
During this time, the state legislature is dissolved or suspended, and the Parliament assumes legislative authority over the state. This section is usually referred to as a “State Emergency,” yet the term “emergency” is not used in the Constitution. The President’s Rule must be accepted by both Houses of Parliament within two months and can be extended for six months at a time, up to three years, with valid justifications and approvals.
The President cannot suspend the High Court’s constitutional provisions or take over the High Court’s authority during the Proclamation of the President’s Rule. Therefore, even during the President’s Rule, the concerned State High Court’s constitutional position, status, powers, and functions do not change.
The 38th Constitutional Amendment Act of 1975 deemed the President’s satisfaction in applying Article 356 definitive and conclusive, and it could not be challenged in any court for any reason. Consequently, it rendered the President’s Rule declaration impervious to judicial review. However, with the deletion of such an amendment act by the 44th Constitutional Amendment Act of 1978, it was held that the President’s approval of the President’s Rule proclamation is subject to judicial scrutiny.
Financial Emergency: Article 360
When India’s or any region of its territory’s financial stability or credit is in peril, a financial emergency may be declared. The provision grants the Center powers once it comes into force, even though it has never been used in India’s history.
If the President of India is convinced that a situation has developed that jeopardizes the financial stability or credit of India or any portion of its territory, he or she may declare a financial emergency under Article 360 of the Indian Constitution.
In India, a resolution for a proclamation of financial emergency in either House of Parliament can only be passed with a Simple Majority, which is the majority of 50% of the members present and voting in the House.
Impact on Fundamental Rights and Civic Liberties
Article 366 of the Constitution of India clearly defines a “proclamation of emergency” as a statement issued in compliance with Article 352(1). Article 352 then addresses a national emergency in which India’s security is in jeopardy. According to clause (1), there are three circumstances in which such a threat could materialize: war, external assault, or armed rebellion.
Additionally, it is not the case that suspending a basic right’s enforceability has the same impact as suspending the right itself. The rights are theoretically preserved even if the ability to petition the court for enforcement is suspended. Thus, the only thing that gets taken away is the person’s ability to go to court. Therefore, the court retains the authority to enforce a right suo moto if it so chooses.
Article 358: Suspension of Fundamental Rights guaranteed under Article 19
According to Article 358, the six Fundamental Rights under Article 19 (Right to Freedom) are immediately suspended upon the declaration of a National Emergency. They don’t need a separate order to be suspended. Therefore, the state is exempt from Article 19’s limitations when a National Emergency is in effect. The six Fundamental Rights protected by Article 19 may be restricted or eliminated by the State through any legislation or executive action.
It is not possible to contest any such law or executive action because it violates the six Fundamental Rights protected by Article 19.
When the Emergency is over, Article 19 immediately reactivates and becomes effective.
Insofar as it violates Article 19, any legislation passed during an emergency is nullified.
Nevertheless, even when an emergency has passed, nothing done during it can be undone.
In other words, even when the Emergency ends, the executive and parliamentary measures enacted under it cannot be contested.
Article 359: Suspension of other Fundamental Rights
According to Article 359, the President of India may suspend the right to pursue enforcement of Fundamental Rights guaranteed by the Constitution of India in any court during the Emergency.
In this scenario, the enforcement of Fundamental Rights is postponed rather than the rights themselves.
The following points should be noticed regarding this provision:
Such an order from the President should be submitted before both Houses of Parliament for approval.
The suspension of enforcement applies exclusively to the Fundamental Rights stated in the Presidential Order.
The suspension could be for the duration of an emergency or for a shorter term specified in the order. The suspension order may cover the entire country or any section of it.
Criticism of Emergency Provision
Potential Misuse of Power: Critics believe that emergency measures give the government undue power, which might be abused for political reasons rather than genuine situations. This may lead to authoritarianism and erode democratic standards.
Weakening Democracy: Emergencies can undermine democratic values by consolidating power and eroding checks and balances among the various organs of government. They may also repress dissent and political opposition, thereby restricting political rights.
Long-term Impact and Limits Political Rights: Emergencies have the ability to undermine democratic values by consolidating power and eroding checks and balances among branches of government. They may also suppress dissent and political opposition, thus limiting political rights.
Conclusion
The emergency provisions remain a double-edged sword—essential for national resilience in extraordinary situations, yet potentially dangerous if exploited for political gain. The challenge for India lies in maintaining a delicate balance between empowering the state to act decisively in crises and safeguarding democratic freedoms from erosion. Moving forward, greater transparency in the decision-making process, mandatory periodic parliamentary reviews, and a robust role for judicial scrutiny can fortify safeguards against misuse. Public awareness and institutional vigilance are equally vital, ensuring that emergencies remain exceptional measures rather than political tools. By reinforcing constitutional checks while preserving the capacity for swift action, India can ensure that these provisions serve their intended purpose—protecting the nation without compromising the democratic fabric.
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