Emergency provisions

1. National emergency: Article 352

The President may proclaim an emergency if satisfied that the security of India or any part of it is threatened by war, external aggression or armed rebellion. A proclamation may be made before the actual occurrence, if there is imminent danger. Since the Forty-second Amendment it may cover the whole of India or only a part.

The Forty-fourth Amendment made five changes worth listing:

• “Armed rebellion” replaced “internal disturbance”, the vague ground on which the 1975 Emergency was declared.
• Cabinet decision in writing. The President cannot proclaim an emergency unless the decision of the Union Cabinet (the Prime Minister and Cabinet Ministers) is communicated to him in writing (clause (3)). In 1975 the proclamation preceded any Cabinet meeting.
• Approval by special majority. The proclamation lapses unless approved by both Houses within one month, each by a majority of its total membership and two-thirds of those present and voting.
• Six-month limit. Once approved, it lasts six months and may be continued only by fresh approval every six months.
• Revocation by the Lok Sabha. The Lok Sabha can disapprove the proclamation by a simple majority, and one-tenth of its members can require a special sitting for that purpose on fourteen days' notice.

The Thirty-eighth Amendment (1975) had made the President's satisfaction final and beyond challenge; the Forty-fourth removed that clause. Bhagwati J.'s opinion in Minerva Mills Ltd. v. Union of India, 1980 INSC 142, (1980) 3 SCC 625, and the reasoning of the nine-judge Bench in S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1, supports judicial review of a proclamation on grounds such as mala fides or the absence of any relevant material.

National emergencies have been proclaimed three times: in 1962 (China), in 1971 (Pakistan) and in June 1975 on the ground of internal disturbance, while the 1971 proclamation was still in force. The 1962 proclamation was revoked in 1968; the 1971 and 1975 proclamations were both revoked in 1977.

2. Effects of a national emergency

• Article 353. The executive power of the Union extends to giving directions to any State on the manner of exercising its executive power, and Parliament may legislate on State List matters. Article 250 says the same for legislation. Such laws cease six months after the emergency ends.
• Article 354. The President may by order modify the distribution of revenues between the Union and the States under Articles 268 to 279, subject to approval by Parliament.
• Articles 83(2) and 172. The life of the Lok Sabha or a State Assembly may be extended by law one year at a time, but not beyond six months after the proclamation ends.
• Article 358. The freedoms in Article 19 are automatically suspended, so that the State may make laws and take executive action that would otherwise violate them. After the Forty-fourth Amendment this happens only when the emergency is declared on the ground of war or external aggression, not armed rebellion, and only for laws that recite that they are made in relation to the emergency.
• Article 359. The President may by order suspend the right to move any court for enforcement of named fundamental rights. Since 1978, the enforcement of Articles 20 and 21 can never be suspended, and the order protects only laws that recite their connection with the emergency.

3. ADM Jabalpur and its burial

In ADM Jabalpur v. Shivkant Shukla, 1976 INSC 129, (1976) 2 SCC 521, the Supreme Court held by four to one that while a Presidential order under Article 359 suspending enforcement of Article 21 was in force, no detenu could move a High Court for habeas corpus, even on the ground that the detention was illegal or mala fide. Khanna J., dissenting, held that the right to life does not owe its existence to Article 21 and that the rule of law cannot be suspended.

The Forty-fourth Amendment answered the decision by putting Articles 20 and 21 beyond suspension. The judgment itself was expressly overruled by the nine-judge Bench in K.S. Puttaswamy v. Union of India, 2017 INSC 801, (2017) 10 SCC 1, which described the majority opinions as seriously flawed and endorsed Khanna J.'s dissent.

4. State emergency: Article 356

If the President, on the report of the Governor or otherwise, is satisfied that the government of a State cannot be carried on in accordance with the Constitution, he may assume the functions of the State government, declare that the powers of the legislature shall be exercised by Parliament, and make incidental provisions, except that he cannot take over the powers of the High Court. Article 365 adds that failure to comply with Union directions allows the President to treat the case as one of breakdown.

The proclamation must be approved by both Houses within two months by simple majority. It then lasts six months, renewable, up to a maximum of three years. Continuance beyond one year requires (after the Forty-fourth Amendment) that a national emergency be in operation and that the Election Commission certify that elections cannot be held.

The leading cases

• S.R. Bommai (1994). A nine-judge Bench held the proclamation justiciable on the existence of relevant material, mala fides and irrationality. The majority's strength must be tested on the floor of the House, not in the Governor's chamber. The Assembly may only be kept in suspended animation until Parliament approves the proclamation; if Parliament does not, or the Court strikes it down, the dismissed government and Assembly can be restored. A State government that acts against secularism, itself a basic feature, may be dismissed.
• Rameshwar Prasad v. Union of India, 2006 INSC 42, (2006) 2 SCC 1. The Bihar Assembly was dissolved in 2005 before it ever met, on the Governor's report that a majority was being cobbled together by inducements. The Court held the dissolution unconstitutional: a Governor cannot shut out a claim to form a government on the mere apprehension of horse-trading. Since fresh elections were already under way, it declined to restore the Assembly.
• Nabam Rebia v. Deputy Speaker, 2016 INSC 526, (2016) 8 SCC 1. A Constitution Bench set aside the Arunachal Pradesh Governor's decision to advance the Assembly session and fix its agenda without the advice of the Council of Ministers, and restored the status quo ante as of December 2015, reinstating the Nabam Tuki government that had been displaced after a spell of President's Rule.

Article 356 was used more than a hundred times before Bommai, often to remove opposition governments. The Sarkaria Commission (1988) called it a last resort, and its use has fallen sharply since 1994.

5. Financial emergency: Article 360

If the President is satisfied that the financial stability or credit of India or any part of it is threatened, he may proclaim a financial emergency. Approval by both Houses within two months is required, and once approved it continues until revoked, with no maximum period. The Union may direct States to observe canons of financial propriety, require Money Bills of States to be reserved for the President, and reduce the salaries of public servants, including judges of the Supreme Court and High Courts. Article 360 has never been invoked.

How this is examined

Recent papers ask, in alternate years, for “national emergency and its effects” and for “State emergency with decided cases”. For the first, spend most of the answer on the 44th Amendment safeguards and on Articles 358 and 359, and end with ADM Jabalpur and Puttaswamy. For the second, the spine is Bommai, followed by Rameshwar Prasad and Nabam Rebia, with a closing line on Sarkaria. A short note on financial emergency is answered in one paragraph, with the point that it has never been used.