Emergency Provisions: Articles 352, 356 and 360

Purpose

Part XVIII (Articles 352–360) lets the Centre meet abnormal situations by temporarily converting the federal structure into a unitary one – without any formal amendment. The framers saw this as a safeguard for the sovereignty, unity and security of the country, the democratic political system and the Constitution. The provisions are borrowed in part from the Weimar Constitution of Germany (suspension of Fundamental Rights). There are three types: national emergency (Art 352), President's rule or state emergency (Art 356) and financial emergency (Art 360).

National emergency (Article 352)

Grounds: war, external aggression, or armed rebellion (the 44th Amendment, 1978 replaced "internal disturbance" with "armed rebellion"). An emergency declared on war or external aggression is an "external emergency"; on armed rebellion, an "internal emergency". It can be declared before the actual occurrence if there is imminent danger. It can cover the whole of India or a part (42nd Amendment).

Safeguards (44th Amendment):

• The President can proclaim it only on the written recommendation of the Cabinet – not just the PM's advice.
• The proclamation must be approved by both Houses within one month; approval needs a special majority in each House (majority of total membership and two-thirds of those present and voting).
• Once approved, it continues for six months, and can be extended indefinitely with approval every six months.
• The Lok Sabha can disapprove it by a simple majority; one-tenth of Lok Sabha members can give notice to the Speaker (or President, if not in session) for a special sitting within 14 days to consider a disapproval resolution. The President must revoke it if the Lok Sabha disapproves.
• If the Lok Sabha is dissolved when the proclamation is made, the Rajya Sabha must approve it, and the new Lok Sabha must approve within 30 days of its first sitting.
• The 38th Amendment (1975) made the President's satisfaction non-justiciable; the 44th Amendment deleted this, and Minerva Mills (1980) confirmed that the proclamation can be challenged on grounds of mala fides or extraneous considerations.

Effects:

• Centre–state relations: the Centre can give executive directions to any state on any matter; Parliament can make laws on State List subjects (Art 250) – such laws lapse six months after the emergency ends; the President can modify the distribution of revenues between Centre and states.
• Life of the Lok Sabha can be extended by one year at a time, but not beyond six months after the emergency ends (e.g. the 5th Lok Sabha was extended in 1976).
• Fundamental Rights: Article 358 – when emergency is declared on grounds of war or external aggression (not armed rebellion), Article 19 is automatically suspended. Article 359 – the President can by order suspend the right to move courts for enforcement of specified Fundamental Rights, except Articles 20 and 21 (44th Amendment). Under both Articles only laws related to the emergency are protected (44th Amendment).

Emergencies declared so far:

1. October 1962 – January 1968: Chinese aggression in NEFA.
2. December 1971 – March 1977: Pakistan war.
3. June 1975 – March 1977: "internal disturbance" – the controversial emergency during which Fundamental Rights were suspended, opposition leaders detained under MISA and the press censored. The Shah Commission (1977) inquired into excesses. Both the 1971 and 1975 emergencies were revoked in March 1977.

President's rule (Article 356)

Grounds:

• Article 356: the President, on the Governor's report or otherwise, is satisfied that a situation has arisen in which the government of a state cannot be carried on in accordance with the Constitution ("failure of constitutional machinery").
• Article 365: failure of a state to comply with Union directions.

Parliamentary approval: within two months, by simple majority of both Houses. Once approved, it continues for six months; it can be extended for a maximum of three years with approval every six months. Beyond one year, extension requires (44th Amendment): a national emergency in operation in the whole or part of the state, and certification by the Election Commission that elections to the assembly cannot be held. (Special amendments relaxed this for Punjab in the late 1980s–90s.)

Consequences: the President takes over the state's executive functions (exercised by the Governor); the state legislature is suspended or dissolved; Parliament makes laws for the state or delegates the power to the President; the President can authorise expenditure from the state's Consolidated Fund when Parliament is not in session. The High Court's powers are not affected. Fundamental Rights are not affected.

Use and misuse: Article 356 has been invoked well over 100 times. Ambedkar hoped it would remain a "dead letter". It was frequently used to dismiss opposition state governments – notably in 1977 (Janata government dismissed nine Congress state governments) and 1980 (Congress dismissed nine Janata-ruled states).

S.R. Bommai (1994) – a nine-judge bench laid down:

• The President's proclamation is subject to judicial review; the court can examine whether there was relevant material.
• The President should not dissolve the state assembly until Parliament approves the proclamation; until then the assembly can only be suspended. If the proclamation is struck down, the Court can restore the dismissed government.
• The floor of the assembly is the only place to test a government's majority, not the Governor's subjective opinion.
• Secularism is a basic feature; a state government pursuing anti-secular policies can be dismissed.
• Article 356 should be used sparingly, only in cases of breakdown of constitutional machinery, not for political or administrative reasons.

Rameshwar Prasad (2006) held the dissolution of the Bihar assembly in 2005 unconstitutional. The Sarkaria Commission (1988) and Punchhi Commission (2010) recommended that Article 356 be used as a last resort, after warning the state; Punchhi suggested "localised emergency" for a district or part of a state rather than full President's rule.

Proper use (as per Sarkaria and Bommai): hung assembly where no party can form a government; the ruling party refuses to form a government after an election; a government defeated on the floor; serious internal subversion; or deliberate defiance of the Constitution. Improper use: dismissing a government with majority support, on maladministration, corruption allegations, or financial difficulty alone, or for internal party disputes.

Financial emergency (Article 360)

Ground: a situation in which the financial stability or credit of India or any part of it is threatened. Approval by both Houses within two months by simple majority; once approved, it continues indefinitely until revoked – there is no maximum period and no repeated approval. Effects: the Centre can direct states to observe canons of financial propriety; the President can direct reduction of salaries and allowances of state and central employees, including Supreme Court and High Court judges; and states may be directed to reserve money bills for the President. It has never been declared.

Common traps

• "Armed rebellion" replaced "internal disturbance" in 1978.
• National emergency: approval within one month by special majority; President's rule and financial emergency: two months, simple majority.
• Article 358 applies only to war/external aggression, and suspends Article 19 automatically; Article 359 needs a presidential order and cannot touch Articles 20 and 21.
• Financial emergency has no maximum duration and has never been used.