DR.

RAM MANOHAR LOHIA

NATIONAL LAW UNIVERISTY

SCOPE OF EMERGENCY POWERS DURING

Submitted To Submitted By

Dr. Atul Kumar Tiwari Param Chaudhary

Associate Professor Enrolment No. – 210101099

Constitutional Law - II B.A. L.L.B (Hons.)

Dr. Ram Manohar Lohia National Law University 4 th Semester, Section ‘B’
 DECLARATION

I hereby declare that my project work titled “Scope of Powers during State of Emergency”

submitted to the Law Department, Dr. Ram Manohar Lohia National Law University,

Lucknow is a record of an original work done by me under the guidance of Dr. Atul Kumar

Tiwari and this project work is submitted in the partial fulfillment of the requirements for the

award of the degree of B.A. LLB.(Hons). This project work has not been submitted to any

other University or Institute for the award of any degree or diploma.

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 ACKNOWLEDGEMENT

I would like to express profound gratitude to Dr. Atul Kumar Tiwari, Associate Prof. (Law),

who gave me the opportunity to work on this project and allowed me to develop the skills and

acquire the necessary knowledge to complete this project. I would also like to express humble

gratitude for the exemplary guidance, monitoring and constant encouragement throughout the

course of this project.

I would also like to thank the faculty of Dr. Madhu Limaye Library who extended their

assistance to me by helping me consult relevant legal research material which was essential to

the completion of this project.

Lastly, I would like to thank my family for their constant encouragement without which this

project would not have been possible to complete.

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 INDEX

S. No. HEADING PAGE No.

1 INTRODUCTION 5-7

2 NATIONAL EMERGENCY(OVERVIEW) 8-9

3 NATIONAL EMERGENCY 10-11

4 STATE EMERGENCY 11-12

5 EFFECTS OF NATIONAL EMERGENCY 13-14

6 EFFECTS ON FUNDAMENTAL RIGHTS 15-16

7 THE EMERGENCY(1975) 16-17

8 44TH AMENDMENT ACT 18

9 CONCLUSION 19-20

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 INTRODUCTION

Federalism according to Dicey is a weak form of government because it involves division of

power between the Centre and the units 1. Every modern federation, however, has sought to

avoid this weakness by providing for the assumption of larger powers by the federal

government whenever unified action is necessary by reason of internal or external emergent

circumstances. For different kinds of emergencies, The Indian Constitution confers

extraordinary powers upon the union. The emergency provisions provided under the

Constitution enables the federal government to acquire the strength of a unitary system

whenever the exigencies of the situation so demand.

There are times when a nation is unexpectedly and suddenly overtaken by events and forces,

which seriously endanger its security and the lives of its citizens. Such situations may require

that the individual liberties of the citizens be temporarily suspended in order to cope with the

dangers confronting the nation. Emergency situations place democratic governments in a real

dilemma by bringing about a conflict between its primary obligation to protect the integrity of

the State and its equally important obligation to protect the human rights of its citizens and

other persons within its jurisdiction. The State is forced into a choice between competing

values and the sacrifice of one to the other. That is the rationale of emergency provisions,

which finds place in many national constitutions permitting the suspension of guaranteed

fundamental rights.

Emergency provision is a unique feature of Indian Constitution that allows the Centre to

assume wide powers so as to handle special situations.

1
Franz L Neumann, ‘Federalism and Freedom: A Critique’ [2005] Theories of Federalism: A Reader 207.

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A state of emergency in India refers to a period of governance under an altered constitutional

setup that can be proclaimed by the President of India, when they perceives grave threats to

the nation from internal and external sources or from financial situations of crisis. Under the

advice of the cabinet of ministers and using the Constitution of India, the President can

overrule many provisions of the constitution, which guarantee fundamental rights to the

citizens of India and acts governing devolution of powers to the states which form the

federation.

In the event of a state of emergency, the Indian government has the power to take

extraordinary measures to address the situation. This may include imposing curfews,

declaring lockdowns, restricting movement of people, and suspending normal economic

activities. The government may also deploy armed forces or other emergency response teams

to provide relief and assistance to the affected people. This may involve setting up temporary

shelters, providing food and medical supplies, and carrying out rescue operations.

The Emergency provisions are contained in Part XVIII of the Constitution, from Articles 352

to 360. The rationality behind the incorporation of these provisions in the Constitution is to

safeguard the sovereignty, unity, integrity and security of the country, the democratic political

system, and the Constitution. Dr. Ambedkar claimed that the Indian federation was unique in

as much as in times of emergency it could convert itself into an entirely unitary state.

In the history of independent India, a state of emergency has been declared thrice. The first

instance was between 26th October, 1962 to 10th January, 1968 during the India-China war,

when "the security of India" was declared as being "threatened by external aggression". The

second instance was between 3rd December, 1971 to 21st March, 1972, which was originally

proclaimed during the Indo-Pakistan war. The third proclamation between 25th June, 1975 to

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21st March, 1977 under controversial circumstances of political instability under Indira

Gandhi's prime ministership, on the basis of "internal disturbance”.

The Indian Constitution provides for three different kinds of abnormal situations which call

for a departure from the normal governmental machinery setup by the Constitution:

1. An emergency due to war, an external aggression or armed rebellion [Article 352]. It is

also known as National Emergency.

2. Failure of constitutional machinery in states [Article 356]. Also known as Presidential

Rule.

3. Financial Emergency [Article 360].

Part XVIII of the Constitution permits the state to suspend various civil liberties and the

application of certain federal principles during presidential proclaimed states of emergency.

The Constitution of India stipulates three types of emergencies :-

1. National Emergency ( Article 352)

2. State Emergency ( Article 356)

3. Financial Emergency (Article 360)

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NATIONAL EMERGENCY (OVERVIEW)

The provision for National Emergency is provided for under the Article 352 of the

Constitution. The national emergency deals with constitutional provisions to be applied,

whenever there is an extraordinary situation that may threaten the peace, security, stability

and governance of the country or a part thereof.

Under Article 352 of the Constitution provides for the imposition of emergency when

following situations is/are present-

i) War,

ii) External aggression or

iii) Internal rebellion.

Article 352 says that if the President is 'satisfied' that a grave emergency exists whereby the

security of India or any part of it is threatened due to outside aggression or armed rebellion,

he may make a proclamation to that effect regarding whole of India or a part thereof.

However, sub clause (3) says that President can make such a proclamation only upon the

written advice of the Union Cabinet. Such a proclamation must be placed before each house

of the parliament and must be approved by each house within one month of the declaration of

the proclamation otherwise it will expire.

It should be noted herein, that in explanation to Article 352 it has is provided that for

proclamation of emergency, it is not necessary that external aggression or armed rebellion has

actually happened. It can be proclaimed even if there is a possibility of the happening of

external aggression or armed rebellion.

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In the case of Minerva Mills vs Union of India2 it has been held that there is no bar to judicial

review of the validity of the proclamation of emergency issued by the president under Article

352(1). However, court's power is limited only to examining whether the limitations

conferred by the Constitution have been observed or not. It can check if the satisfaction of the

president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant

grounds, it is no satisfaction at all.

Procedure of proclaiming emergency

A proclamation can be made by the president of the country, but there are some provision for

that too. The President can declare such an emergency only if the Cabinet recommends in

writing to do so. Such a proclamation of emergency has to be approved by both the Houses of

Parliament by absolute majority of the total membership of the Houses, as well as 2/3rd

majority of members present and voting within one month, otherwise the proclamation ceases

to operate.

In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in

session, it has to be approved by the Rajya Sabha within one month and later on by the Lok

Sabha, within one month of the start of its next session. Once approved by the Parliament, the

emergency remains in force for a period of six months from the date of proclamation. In the

case it is to be extended beyond six months, another prior resolution has to be passed by the

Parliament. In this way, such emergency continues indefinitely.

2
Minerva Mills Ltd. and Ors. v. Union Of India and Ors. AIR 1980 SC 1789

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NATIONAL EMERGENCY(Articles 352 to 354, 250, 83, 358, 359)

Originally at the beginning, a National emergency could be declared on the basis of "external

aggression or war" and "internal disturbance" in the whole of India or a part of its territory

under Article 3523. Such an emergency was declared in India in the 1962 war (China war),

1971 war (Pakistan war), and 1975 internal disturbance (declared by Fakhruddin Ali

Ahmed ). But after the 44th amendment act 1978, National Emergency can only be declared

on grounds of "External aggression or war", also called as External Emergency & on the

ground of "armed rebellion", also called as Internal Emergency. The President can declare

such an emergency only on the basis of a written request by the Cabinet headed by the Prime

Minister.

A Proclamation of Emergency made under Article 352 (1) may continue in force for a period

of one month from the date of proclamation without approval by Houses of Parliament. Prior

to the 44th Amendment, the period was of two months. If Proclamation is issued at the time

when the House of People has been dissolved, during the period of one month, the

Proclamation expires within 30 days from the date on which the House of People first sits

after its reconstitution after elections. If only one of either Houses passes the resolution, the

Proclamation ceases to operate at the expiration of this one month.

[Article 352(5)]

Once approved by Houses of Parliament, Emergency may continue in force for six months

from the date of such approval. Prior to the 44th Amendment, 1978, once approved by both

the Houses, the Proclamation could continue in force indefinitely, until the President revoked

it by making another Proclamation for this purpose. If the resolutions for approval are passed

by two Houses on different dates, the period of six months would run from the date of the

3
Article 352 in The Constitution of India 1949

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passing of the later of the resolutions. The Proclamation can be renewed after every six

months by passing from both the Houses.

Under Article 360, the President can declare a financial emergency if the financial stability or

creditworthiness of India or any part of it is threatened. Once a financial emergency is

declared, the executive can take certain measures to maintain financial stability and prevent

economic disruptions.

During a national emergency, many Fundamental Rights of Indian citizens can be suspended.

The six freedoms under Right to Freedom are automatically suspended. By contrast, the

Right to Life and Personal Liberty cannot be suspended according to the original

Constitution. In January 1977, during the emergency declared controversially by Indira

Gandhi, the government decided to suspend even the Right to Life and Personal Liberty by

dispensing with Habeas corpus4.

STATE EMERGENCY(Article 355 and 356)

It is the duty of the Centre to protect the States from External aggressions and Internal

disturbances and also to ensure that the Constitutional provisions are being followed by the

State government. Article 356 of the Constitution of India grants power to the President to

suspend the State legislature and assume to himself all or any of the functions of the

government of the State and all or any of the powers vested in or exercisable by the Governor

of the State. The President may also declare the powers of the State legislature to be

exercisable by the, or under authority of, the Parliament; The President may also make any

such provisions as he sees fit to give effect to above proclamations.

4
‘Emergency Provisions’ (Drishtiias.com2020) <https://www.drishtiias.com/to-the-points/Paper2/emergency-
provisions/print_manually> accessed 31 March 2023.

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During a state of emergency, the executive is granted several powers, including the power to

suspend fundamental rights, such as the right to freedom of speech and expression, the right

to assemble peacefully, and the right to move freely throughout the country. The executive

can also take measures to censor the press, regulate and prohibit certain activities, and make

laws without parliamentary approval.

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EFFECTS OF NATIONAL EMERGENCY

The declaration of National Emergency effects both on the rights of individuals and the

autonomy of the states in the following manner:

1. The most significant effect is that the federal form of the Constitution changes into

unitary. The authority of the Centre increases and the Parliament assumes the power

to make laws for the entire country or any part thereof, even in respect of subjects

mentioned in the State List.

2. The President of India can issue directions to the states as to the manner in which the

executive power of the states is to be exercised.

3. During the emergency period, the Lok Sabha can extend tenure by a period of 1 year

at a time. But the same cannot be extended beyond 6 months after the proclamation

ceases to operate. The tenure of State Assemblies can also be extended in the same

manner.

4. During emergency, the President is empowered to modify the provisions regarding

distribution of revenues between the Union and the States.

5. The Fundamental Rights under Article 19 are automatically suspended and this

suspension continues till the end of the emergency.

But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended

only in case of proclamation on the ground of war or external aggression. From the

above, it becomes quite clear that emergency not only suspends the autonomy of the

States but also converts the federal structure of India into a unitary one. Still it is

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 considered necessary as it equips the Union Government with vast powers to cope up

with the abnormal situations.5

Effect of State Emergency

The declaration of emergency due to the breakdown of Constitutional machinery in a State

has the following effects:

1. The President can assume to himself all or any of the functions of the State

Government or he may vest all or any of those functions with the Governor or any

other executive authority.

2. The President may dissolve the State Legislative Assembly or put it under suspension.

He may authorise the Parliament to make laws on behalf of the State Legislature.

3. The President can make any other incidental or consequential provision necessary to

give effect to the object of proclamation.

5
‘Emergency Powers of the President’ (Unacademy) <https://unacademy.com/content/railway-exam/study-
material/polity/emergency-powers-of-the-president/> accessed 31 March 2023.

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EFFECT OF PROCLAMATION OF EMERGENCY ON FUNDAMENTAL RIGHTS

Declaration of Emergency allows the Government of India to give orders to the State

Governments on any matter. Federal laws will overrule state legislation, and the Union is

empowered to govern areas (eg. Policing) that are normally devolved to the states. The Union

is also empowered to take over and completely control the taxation and budgetary revenue

processes. Under financial emergency, the Union is empowered to have the final say in the

promulgation of financial acts approved by the state legislature.

The Union may decide to suspend some or all of the fundamental rights guaranteed by Part

III (Articles 12 through 35) of the constitution - which include:

1. freedom of equality before law

2. freedom of speech and expression

3. freedom to assemble peacefully

4. freedom for movement across Indian territory

5. freedom to practice any profession, occupation, trade or business.

6. freedom to practice or propagate religion.

Further, the right to challenge the suspension of the above mentioned rights (the right to

constitutional remedies) may also be suspended. However, this provision will not cover the

suspension of Articles 20 and 21 which govern rights to personal liberty, Right to silence,

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freedom from double jeopardy and freedom from unlawful arrest and detention. Any

individual who deems that his rights under these categories have been suspended unlawfully,

can challenge the suspensions under a court of law.

The Union may decide to dismiss the legislative functions of a state legislature and impose

federal law for a period of six months. This state of suspension may be renewed at the end of

this period under the vote of Parliament (indefinite number of times) until such a time when

the Election Commission of India can certify the feasibility of holding free and fair elections

in the state to reconstitute the legislature.6

THE EMERGENCY(1975-1977)

On 25th June, 1975, the official proclamation of a State of Emergency was declared in India

by the Indira Gandhi government. Issued officially by Fakhruddin Ali Ahmed, the state of

emergency went on for 21 months, until its withdrawal on 21 st March, 1977. The order

bestowed upon the Prime Minister the authority to rule by decree, allowing elections to be

cancelled and civil liberties to be suspended. For much of the Emergency, most of Gandhi's

political opponents were imprisoned and the press was censored.

Several other human rights violations were reported from the time, including a mass

campaign for vasectomy spearheaded by her son Sanjay Gandhi. The Emergency is one of the

most controversial periods of Indian history since its independence. The final decision to

impose an emergency was proposed by Indira Gandhi, agreed upon by the President of India,

6
Pallavi Verma, ‘Emergency Provisions: Effects and Impact.’ (www.legalservicesindia.com)
<https://www.legalservicesindia.com/article/1769/Emergency-Provisions:-Effects-and-Impact..html> accessed
31 March 2023.

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and ratified by the Cabinet and the Parliament from July to August 1975. It was based on the

rationale that there were imminent internal and external threats to the Indian state7.

The period of emergency was highly controversial due to the various humans rights abuses

and violations of fundamental rights that were engaged in by the Union Government.

Detention of people by police without charge or notification of families, abuse and torture of

detainees and political prisoners, use of public and private media institutions for Government

propaganda. Forced sterilization was one of the worst human rights abuses that any officially

elected Government of India has ever undertaken. Men from poor and destitute backgrounds

were forcibly abducted and forced to undergo sterilization in order to control the national

population. The haphazard and forced manner of sterilization resulted in countless men

developing fatal infections and other complications as a result of the sterilization procedures.

Other than that, there was also the destruction of the slum and low-income housing in

the Turkmen Gate and Jama Masjid area of Old Delhi, along with some sporadic destruction

outside the territory of Delhi.

7
"Recalling the Emergency years". The Indian Express. 29 June 2015.

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THE CONSTITUTION(FOURTY-FOURTH AMENDMENT) ACT, 1978

The 44th amendment substantially altered the emergency provisions of the Constitution to

ensure that the potential of its abuse is reduced to a significant degree. Following are some of

the alterations that were effected by the 44th Amendment Act, 1978:

Under Acticle 352, Constitution of India, "Internal disturbance" was replaced by "armed

rebellion". It was also made such that the decision of proclamation of emergency must be

communicated by the Cabinet in writing.

In order to continue a State of Emergency, it would now have to be re-approved by both the

Houses every six month. Additionally, an Emergency could now be revoked by passing a

resolution to that effect by a simple majority of the houses, present and voting. 1/10 of the

members of a house could move such a resolution.

Article 358 provides that Article 19 will be suspended only upon war or external aggression

and not upon armed rebellion. Further, every such law that transgresses Article 19 must recite

that it is connected to Article 358. All other laws can still be challenged if they violate Article

19. Moreover, Article 359, provides, suspension of the right to move courts for violation of

Part III will not include Articles 20 and 21.

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 CONCLCUSION

Having dealt with all the Emergency provisions, it is easy to see what the purpose was behind

to make such provisions in available in the Constitution in the first place. But while we did

our study for the same we did realise that even if these provisions are provided for the

security of the nation and also the protection of the people, the provisions in themselves give

a lot of drastic discretionary powers in the hands of the Executive. It affects the federal

structure of the nation essentially turning it into a unitary one while it seeks to safeguard the

interests of the state and the people. Though the need for that is understood, we still think a

system of check and balance should be brought into place so that unlike in the 1975

emergency, there is no misuse of power by the ruling party and the executive.

Though suspension of Fundamental Rights has been time and again tried to be justified we

think that they are the most basic to the very existence of the citizens in a democracy. As the

experience has been so far we have observed in our study that inspite of the safety measures

that were added by the 44th Amendment to the Constitution in the emergency provisions

there is still chances for the unjust violation of the fundamental rights. Therefore as there is

provision in the other federal constitutions such as of the Australia and Canada the courts

should be given the power to agree to the extent the Centre can expand its powers, as it will

act as a built-in mechanism to check the arbitrary use of the discretionary powers available

under the emergency provisions to the parliament and the executive.

In conclusion, the state of emergency is a crucial provision in the Indian Constitution that

empowers the government to tackle extraordinary situations. The Indian Constitution

provides for three types of emergencies - national, state, and financial emergencies. The state

of emergency provides the government with the authority to take immediate and necessary

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measures to safeguard the country's sovereignty, integrity, and security. However, this

provision needs to be exercised with utmost caution and care to prevent its misuse. The

Indian Constitution guarantees fundamental rights to its citizens, and it is essential to balance

these rights with the state's power to impose an emergency. The judiciary and the media play

a crucial role in ensuring that the emergency provisions are not misused and that the

government is held accountable for its actions. In summary, the state of emergency is a

necessary provision in the Indian Constitution, but it must be used judiciously and

responsibly to ensure that the democratic fabric of the country is not undermined.

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