The Constitution of India is a legal document that establishes a federal
system of government for the nation as well as lays out specific duties for the
federal and state governments.
The emergency provisions under Articles 352 to 360 are outlined in Part XVIII of
the Indian Constitution. Article 352 allows for the declaration of an emergency
with regard to the security of India or any State against war, external
aggression, or armed insurrection. Article 354 specifies the application of the
regulations relating to the distribution of revenues when a declaration of
Emergency is in place, and Article 353 specifies the effects of the declaration
of emergency under Article 352. Article 355 declares that the Union has a duty
to defend the States from external invasion and domestic unrest, and Article 356
outlines emergency measures in the event that the States' constitutional
According to Article 356 of the Indian Constitution, the President of India may,
under special circumstances, impose President's Rule or central rule on a state
with the assistance and counsel of the Council of Ministers. When the
constitutional machinery breaks down or the state government is unable to
operate in accordance with the Constitution's provisions, it gives the central
government the power to take over all or part of the state's administration. In
rare instances, this item is referred to in order to handle problems like
political unrest, internal strife, or a collapse in state government.
What is emergency?
An emergency is a circumstance in which a government uses extraordinary powers
to address a crisis or a threat to the security, integrity, or stability of the
country. Normal democratic processes are frequently suspended or limited during
emergencies, and extraordinary measures are usually taken to protect the nation.
In order to ensure that India would be prepared for such scenarios, the
constitution's authors in India anticipated that there would be some
circumstances in the future that would necessitate the use of such provisions.
While emergency measures are necessary, the government shouldn't use them to
solve every issue that arises in the country. Instead, all other available
options should be explored before turning to emergency measures, which should
only be used when other measures are ineffective at resolving the serious issue
Articles 352 to 360 of Part XVIII of the Indian Constitution deal with the
emergency provisions. Three different sorts of emergencies are covered by the
constitution. The President has the authority to declare any kind of emergency.
The German Weimar Constitution is where we get the idea of an emergency.
These are the three types:
Proclamation's Justifiability Under Article 356:
- National Emergency: Under Article 352 of the Indian Constitution,
this kind of emergency is declared. It is declared when armed insurrection,
war, or external attack endangers the security of India or a portion of it.
The central government has more power and can overrule some fundamental
rights when there is a national emergency.
Anytime one of the aforementioned reasons occurs, an emergency may be
According to Article 352, the President may declare that all of India or a
portion of it is under threat if he is "satisfied" that India's security is
It is not necessary for external attack or violent revolt to actually occur
in order for a national emergency to be declared. Even though such a
scenario is conceivable, it is still possible to declare a national
A significant decision was made in the Minerva Mills v. Union of India case.
In this case, it was decided that there could be no impediment to judicial
review of the President's emergency declaration issued in accordance with
Article 352 (1) of the Constitution. The courts' only authority is to
determine whether or not the restrictions mentioned in the Constitution have
been followed. It can determine whether or not the President's satisfaction
is justified. The President will not be regarded as "satisfied" if the
President determines that there are sufficient reasons for a national
emergency but the reasons themselves are unimportant.
Three times hath the National Emergency been in effect in India.
- President's Rule or State Emergency: As was already established, Article
356 of the Indian Constitution allows for the imposition of a state
emergency. It happens when a state's constitutional machinery malfunctions,
which can result in poor governance or unstable politics. The state's
administration can thereafter come under the direct jurisdiction of the
President of India.
In situations involving state emergencies, the judiciary has also been
crucial. It makes sure that a State doesn't declare an emergency at random.
The emergency declaration imposed in Bihar pursuant to Article 356 was
contested in Rameshwar Prasad v. Union of India. The Assembly was dissolved
after it had not even held a single meeting because there had been an
attempt to form the majority through illegal means, but there was no
evidence at all, much less information that would have been significant, to
support this claim. The proclamation was declared unlawful by the court
because it was determined that the justifications offered in it were
On the grounds that the state's constitutional machinery has not operated
correctly, a state emergency may be declared. When the state governor in
this emergency determines that the state is not operating in accordance with
constitutional provisions, he may write a report to the president of India.
Additionally, if the President is pleased with the report, he may enact his
rule. The President will then take over as the state's executive leader.
Up to 2018, the President of India enforced President's Rule 126 times in
India. The President's Rule was implemented a maximum of 39 times during the
rule of Indira Gandhi.
- Financial Emergency: According to Article 360 of the Indian
Constitution, this sort of emergency is proclaimed when India's financial
stability or credit, in whole or in part, is in jeopardy. By changing or
suspending financial commitments and state financial autonomy, it enables
the federal government to take extraordinary actions to control the economy.
As per Article 360, a Proclamation of Financial Emergency may be issued, if
the President believes that such a situation exists where the financial
stability of India or any part of the territory is threatened.
Financial Emergency can be proclaimed on the ground that when a situation
arises in the country which leads to a financial crisis, the President of
India may impose an emergency to tackle the situation. In such a situation,
the Central Authority may reduce the budget or cut the budget given to the
State, and salaries of the government officials may be deducted. Emergencies
are exceptional actions taken in urgent situations to ensure the nation's
security and efficient operation.
When the state does not operate in accordance with the constitution, a
proclamation is made pursuant to Article 356 of the constitution. At this point,
Article 356 proclaims that the parliament shall exercise all of the legislative
authority of the state and that it may also delegate this authority to the
president, who will then be able to enact laws on the state's behalf. A
proclamation issued by the president in accordance with Article 356 must be
presented to both chambers of the parliament and is valid for two months.
However, both houses of the parliament must ratify it if the situation calls for
it to remain in effect for a longer amount of time.
A number of attempts were made to have the issue of the invocation of Article
356 reviewed by the courts, but these efforts were unsuccessful.
The high court of Odisha issued a very informative ruling in the case of
Bijayananda v. President of India. According to the court, the governor must act
independently and without the assistance or counsel of the council of ministers
while submitting his report to the president pursuant to Article 356. It is
impossible to argue in a court of law that the governor's report is false or is
supported by unrelated facts. Given the protection and immunity granted by
Article 361 (1), the governor is not a party to the lawsuit.
The executive abuses its position as a result of this immunity and protection,
which ultimately causes issues for the general people. The council of ministers'
recommendations must be taken into consideration when the president enacts
Article 356. The president's "satisfaction" with the information has a very
broad amplitude. Whether he makes a decision based on the governor's report or
considers other information is up to him. This demonstrated unequivocally that
the pleasure of the president and the information source is not a matter of law.
The cases of S.R. Bommai v. Union of India
and State of Rajasthan v.
Union of India
are extremely important for understanding the proclamation's
justiciability under Article 356 of the constitution.� S. R. Bommai v. Union
In 1989, President's Rule was enacted. As a result, S.R. Bommai's
administration-which served as the Janata Dal government's chief minister in
Karnataka from 1988 to 1989-was overthrown on April 21, 1989. As it was the most
typical method of keeping opposition parties away, this was done in accordance
with Article 356 of the Constitution. Because of widespread defections that
numerous party leaders of the time organised, the Bommai government lost the
majority and was forced to resign. Despite giving Bommai a copy of the
resolution passed by the Janata Dal Legislature Party, the then-governor P.
Venkata Subbaiah refused to let him test his majority in the Assembly.
Bommai first filed a writ suit with the Karnataka High Court, where it was
denied, challenging the Governor's recommendation of President's Rule.
Afterward, he went to the Supreme Court.
Supreme Court Judgement:
- Does the president's power over the six states comply with the
- If the president is free to enact Article 356(1) of the Indian
The following questions' replies determine the answer to this query:
- If so, what does the judicial review's scope in this case entail?
- What does Article 356(1)'s usage of the phrase "a situation has arisen
in which the government of the state cannot be carried on under the
provisions of this constitution" mean?
The case took almost five years to get to a logical conclusion. On March 11,
1994, a Constitution Bench of nine-judges of the Supreme Court issued the
historic order. This put an end to the arbitrary dismissal of State governments
under Article 356 by providing for the restrictions.
During his 17 years in office, India's first prime minister, Jawaharlal Nehru,
referred to Article 356 eight times. Later (in September 1964), Lal Bahadur
Shastri established President's authority in Kerala.
Indira Gandhi has the record for invoking Article 356 the most times, 39 times
in 14 years.
The article is being utilised cautiously now because of the Supreme Court's
historic decision in the S.R. Bommai case in 1994. The court agreed the claim
that the president's rule was being abused by those in positions of authority
and issued severe limits regarding its imposition.
The Manmohan Singh-led United Progressive Alliance (UPA) administration referred
to the president's rule 12 times in various states. Similar to this, throughout
its 20-month tenure, the Narendra Modi-led National Democratic Alliance
government used the president's authority three times.
Along with Arunachal Pradesh, Maharashtra too came under president's
administration following the breakup of the Congress-Nationalist Congress Party
coalition prior to the assembly elections in October 2014. Following the most
recent assembly election, it was also implemented in Jammu and Kashmir.
We can see that every government use or misused article 356.
Misuse of Article 356
According to the Sarkaria Committee Report, Article 356 has been used more over
100 times since independence, according to a quick look at the statistics.
The rightful state governments have occasionally been overthrown in an effort to
get them to submit or to offer the Union government's own party a chance to take
over the state. In order to assert their power, Union governments have taken on
the exact position that Dr. Ambedkar feared they would, namely that of being
judges of the effectiveness of state governance.
The most aggressive use of Article 356 occurred throughout the 1970s and 1980s,
which will be remembered. It was applied 59 times between 1971 and 1984. It was
used the most frequently between 1977 and 1979, when the Morarji Desai cabinet
was in power. The post-emergency Central government exploited it as
justification for a vendetta against state governments governed by Congress.
After regaining power in 1980, Indira Gandhi later paid it back. Then, from 1980
to 1984, it was utilised 17 times.
Indira Gandhi is recognised for having used Article 356 mostly as a tool against
state governments, despite Jawaharlal Nehru also abusing it to overthrow
Kerala's majority Communist government. Following the Congress party's defeat in
several Indian states in 1967, its frequency rose substantially.
Indira Gandhi even blocked judicial scrutiny of the President's decision
invoking Article 356 using the 38th Constitutional Amendment Act during a time
of emergency. But as Dr. Ambedkar had prophesied, the original Article 356 was
reinstated in 1978 as a result of the 44th Constitutional Amendment Act, which
Morarji Desai had proposed.
Sarkaria Committee Report
Justice R.K. Sarkaria served as the chairman of the Sarkaria Commission. It was
established in 1983 and intended to enhance ties between centre and state. It is
abundantly obvious from the Sarkaria Commission Report that this power has been
exercised more than 100 times since independence. Despite the safeguards
outlined in clause 356, the centre had repeatedly invoked this clause, which led
to its egregious misuse. The 1970s and 1980s saw the most abuse of Article 356.
The Sarkaria Commission authorised this unusual application of Article 356. This
commission contends that Article 356 offers protections in the event that the
state's constitutional apparatus malfunctions. Furthermore, it implies that any
abuse of this authority would undermine the democratic aspects of the Indian
After carefully weighing all of the ideas, this research concluded that this
article should only be utilised in extremely rare circumstances where there are
no other options. The report also suggested warning the state in question whose
constitutional apparatus had collapsed.
The justification provided by the state should be adequately assessed and taken
into consideration before proclamation of Article 356. The study advises the
government to make every effort to have a majority-supported government in the
Assembly. In the event that this is not practicable, fresh elections must be
held right away, and the governor must ask the departing minister to serve as a
The commission advises against dissolving state legislative bodies prior to the
declaration of an emergency. It further suggests that Article 356 be properly
amended to include the relevant details and justifications for invoking
paragraph 1 of that article in the proclamation. This will stop the abuse of
authority in violation of Article 356.
In order to protect national security and address urgent problems, the
constitution now includes emergency clauses. Even the founding fathers of the
Constitution anticipated that special powers could be needed in the future for
the State to respond to and handle such events.
Since independence, many times have been made use of the emergency provisions.
These were employed by the State for a considerable amount of time in an
unethical manner and as a tool for political control. The prescribed protocol
for the President's emergency proclamation was broken and misapplied. In the
State of Punjab and Jammu and Kashmir the Constitution's limited time for how
long an emergency can last was violated.
These cases of misuse led to certain changes being made to these clauses in the
44th Amendment Act. In the meantime, the Indian judicial system largely shut its
doors to any kind of infringement of human rights. The ability of a person to
approach a court of law in the event that their Fundamental Rights are violated
was covered in various Supreme Court decisions. After the 44th Amendment Act,
the Court decided that no one could ever have their right to life and personal
freedom taken away. Even in an emergency, Articles 20 and 21 could not be