EMERGENCY

PROVISIONS UNDER THE INDIAN CONSTITUTION

An emergency in India is when the normal constitutional

framework is altered due to a grave threat to the nation, whether
from internal or external sources or a financial crisis.

The president of India, acting on the advice of the cabinet of

ministers, can declare an emergency using powers granted by
the constitution.
During this time, certain constitutional provisions, such as those
guaranteeing fundamental rights and governing the devolution of
powers to states, may be overridden.
• Emergency provisions are outlined in Part XVIII of the
Constitution, from Articles 352 to 360.

• The rationale for these provisions is to protect the

sovereignty, unity, integrity, and security of the country, as
well as to preserve the democratic political system and the
Constitution itself.
• 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.
 • National Emergency
The
Constit
( Article 352)
ution • State Emergency ( Article
of
India 356)
stipula
tes • Financial Emergency
three
types (Article 360)
of
emerg
ency
• NATIONAL EMERGENCY (ARTICLE-352)

Emergency is defined as a situation, which is not normal, a situation,

which calls for urgent remedial action.

Constitutionally, the expression "Proclamation of Emergency" refers

only to a proclamation made under Clause (1) of Article 352. It should
not be construed to include situations provided for under Articles 356
and 360.
• In the history of independent India, a National emergency has been
declared three times.

• The first instance was from 26 October 1962 to 10 January 1968, during
the India-China war, when "the security of India" was declared to be
"threatened by external aggression.

• "The second instance occurred from 3 December 1971 to 21 March

1972, proclaimed during the Indo-Pakistan war.
• The third emergency was declared from 25 June 1975 to 21 March
1977 under controversial circumstances, marked by political
instability during Indira Gandhi's prime minister ship, based on the
grounds of "internal disturbance.

• "The term "internal disturbance" was later replaced with "armed

rebellion" by the 44th Amendment Act of 1978.
• Who can proclaim an emergency?

• After the 44th Amendment, the President has the authority

to proclaim an emergency, but only upon receiving a
written decision from the Union Cabinet to that effect.
• Grounds for Proclamation of Emergency

• An emergency can be proclaimed if the security of India is

threatened by:

• War

• External Aggression

• Armed Rebellion (formerly referred to as Internal Disturbance)

• Publication of Proclamation of Emergency

• Article 352 does not specify a particular way in which a Proclamation

of Emergency should be published.

• The Proclamation can be made public in any manner that the authority
issuing it considers appropriate to ensure the public is informed.
• Territorial Extent of Proclamation of Emergency [Article 352(1)

• Initially, Article 352 did not specify the territorial limits to which a
Proclamation of Emergency could apply.

• However, the 42nd Amendment Act of 1976 amended Clause (1)

of Article 352, allowing the President to declare an emergency for
the whole of India or any specified part of its territory, as
mentioned in the proclamation.
Duration of Proclamation of Emergency – Without Approval
Article 352(4)

• A Proclamation of Emergency made under Article 352(1) can remain

in effect for one month from the date of proclamation without
needing approval from both Houses of Parliament.

• Before the 44th Amendment Act, this period was two months.
• If a Proclamation is issued when the House of People is
dissolved, it expires 30 days after the House first meets
following elections.

• If only one of the Houses passes the resolution, the

Proclamation ends after one month.
• Duration of Proclamation of Emergency – With
Approval Article 352 (5)

• After being approved by both Houses of Parliament, an

Emergency can last for six months.

• Before the 44th Amendment (1978), the Emergency could

last indefinitely until the President revoked it.
• If the two Houses pass approval on different dates, the six-
month period starts from the later date.

• The Proclamation can be renewed every six months with

approval from both Houses.
• Procedure for Approval of Proclamation Article 352 (6)

• Before the 44th Amendment (1978), the Proclamation of

Emergency needed a simple majority of members present
and voting in both Houses.

• The 44th Amendment (1978) changed this, requiring a

"special majority" procedure.
• Now, the Proclamation needs to be approved by both
Houses of Parliament with a majority of the total
membership and at least two-thirds of members present
and voting.
• Revocation of Proclamation of Emergency Article 352
(2) and (7)

• Before the 44th Amendment (1978), only the President

could revoke a Proclamation of Emergency after it was
approved by both Houses of Parliament, giving the
Executive sole control over its revocation.
• The 44th Amendment (1978) introduced these key changes:

• The President can revoke the Proclamation by issuing a new

Proclamation.

• The Proclamation automatically ends when the approved period

expires.

• The President must revoke the Proclamation if the Lok Sabha passes
a resolution in a special sitting for this purpose.
Consequences of Proclamation of Emergency

The Proclamation of Emergency under the Indian

Constitution has several important consequences.

These can be categorized as follows:

1. The executive power of the Union extends to the States Art 353.

• Parliament’s power to make laws also extends to the States.

• If the emergency is limited to a part of India's territory, the

Union’s executive power and Parliament’s lawmaking power
extend to the affected areas.
• 2. Article 354 allows the President, during an emergency,
to issue orders that modify or suspend certain financial
provisions (Articles 268 to 279) for a specified period, not
exceeding the current financial year.

• Stamp duty&GST
3. Article 358 suspends certain provisions of Article 19 during
an emergency:

• If a Proclamation of Emergency is in effect due to war or

external aggression, Article 19 does not limit the state's
power to make laws or take executive actions that it would
normally be able to.

• Any law made under these circumstances ceases to have effect

once the emergency ends, except for actions already taken
before the law expired.
4. Article 359 provides for the suspension of enforcement of rights
during emergencies: (both internal and external)

• The President may issue an order suspending the right to move

courts for enforcement of certain rights (except Articles 20 and
21) during an emergency.

• Such an order can specify a duration, and it remains in effect for as

long as the emergency lasts, or for a shorter period.

• The order must be presented before both Houses of Parliament.

• Difference between 358 and 359 Articles

• Article 358 automatically suspends the fundamental rights

guaranteed under Article 19 (freedom of speech, assembly,
etc.), while Article 359 allows the President to suspend the
enforcement of other fundamental rights (except those under
Articles 20 and 21) by presidential order.
5.Concentration of Power:

• The central government gains significant powers during an

emergency, leading to a centralization of authority and a
weakening of state powers.

• This can affect the balance of power between the Union and
the states.
CASE LAWS

• In Makhan Singh v. State Of Punjab, the validity of the

suspension of the right to move any court for the
enforcement of Articles 14, 21 and 22 under the
proclamation of emergency declared during the Indo-China
war was challenged.
• The Supreme Court held that the rights were suspended only for
legally detained persons and not applicable to persons illegally
detained under preventive detention law.

• The Supreme Court pointed out that a citizen would not be deprived
of his right to move the appropriate court for a writ of habeas corpus
if his detention has been mala fide.
• Ghulam Sarwar v. Union of India (1966)

• The case of Ghulam Sarwar v. Union of India (1966) was a

landmark Supreme Court judgment. Ghulam Sarwar, a Pakistani
national, challenged his detention under the Foreigners Act, of
1946, arguing it violated his fundamental rights.

• The case took place against the backdrop of the Emergency

declared in India in 1962, which suspended some fundamental
rights.
The main issues in the case were:

1. Whether Presidential orders under Article 359(1) could be

challenged.

2. The application of res judicata (whether a case previously

dismissed by the High Court could be heard again).

3. Whether the Right to Equality (Article 14) was violated by the

detention.
Judgment:

 Issue I, Res Judicata: The Court ruled that the previous

dismissal of the habeas corpus petition by the High Court did
not prevent the Supreme Court from hearing the case.

 Fundamental rights can be repeatedly challenged, even after

prior dismissals.
• Issue II; Presidential Authority: The Court held that the
President could issue multiple orders under Article
359(1) during an emergency, affecting different groups of
people (e.g., foreigners), as long as they did not violate
constitutional provisions
 Issue III; No Violation of Article 14: The Court found that the
classification between foreigners and citizens was reasonable, as it
had a connection with national security, thus upholding the orders as
valid under Article 14 (Right to Equality).

 Detention Upheld: The Court confirmed the validity of the

petitioner’s detention, finding no mala fide (bad faith) or abuse of
power in the government’s actions.
• Emergency Powers: The Court acknowledged concerns
about the potential misuse of emergency powers but did
not find sufficient evidence to declare that the Emergency
was declared or continued in bad faith.
• ADM Jabalpur v. Shivakant Shukla (1976):
• This case is also known as the Habeas Corpus case.

Proclamation of Emergency (27th June 1975):

• During the proclamation of emergency, the President, under Article

359(1) of the Constitution of India, declared that the right of any
person (including foreigners) to move any Court for the enforcement
of the rights conferred by Article 14, Article 21, and Article 22
would remain suspended for the duration of the emergency.
Main Question Before the Court:

• The main question before the 5-judge bench of the Supreme

Court was..

• whether the order issued by the President suspends the right of

every person to approach the Court for the enforcement of the
right to personal liberty under Article 21.
Majority Opinion:

• The majority, consisting of Chief Justice Ray, Justice M.H. Beg,

Justice P.N. Bhagwati, and Justice Y.V. Chandrachud, held that
with the proclamation of emergency and the subsequent suspension
of Article 21, no writ could be filed in court against a person’s
detention.
• The majority opinion stated that no person had the locus
standi to file a writ petition under Article 226 before a
High Court, challenging the legality of a detention order,
due to the Presidential Order of 27th June 1975.
Minority Opinion of Justice H.R. Khanna:

• Justice H.R. Khanna presented a dissenting opinion, which has since

become a significant part of India’s judicial history.

• He argued that the right not to be deprived of one’s life or liberty

without the authority of law existed even before the Constitution came
into force.

• He stated that, even in the absence of Article 21, the state could not
deprive a person of their life or liberty without legal authority.
Constitutional Amendment (44th Amendment):

• Following this case, the Constitution was amended by the 44th

Amendment, which provided that during the proclamation of
emergency, the rights under Article 20 and Article 21 could not
be suspended.
 Minerva Mills v. Union of India (1980)

• The Minerva Mills case is a landmark decision by the Supreme

Court of India in 1980, primarily because it established the
Doctrine of Basic Structure, a fundamental principle that limits
Parliament's power to amend the Constitution.

• The case also addressed the constitutionality of certain

provisions of the 42nd Constitutional Amendment Act, 1976,
which was enacted during the period of Emergency.
• The 42nd Amendment was passed during the Emergency
imposed by Indira Gandhi's government in 1976 and made
sweeping changes to the Constitution.

• The two provisions of concern in this case were Clause 4 and

Clause 5 of the 42nd Amendment.
• Clause 4 curtailed the power of judicial review by stating that no
amendment to the Constitution could be challenged in the courts on the
grounds of violation of the "basic structure" of the Constitution.

• Clause 5 essentially sought to give Parliament the power to amend the

Constitution without any limitations, thereby altering the balance of
power between Parliament and the judiciary.
Legal Issue:

The primary issue before the Supreme Court was the constitutionality
of Clause 4 and Clause 5 of the 42nd Amendment.

The petitioners argued that these provisions were unconstitutional and

violated the basic structure of the Constitution by undermining the
power of judicial review and the independence of the judiciary.
Decision:
1.Doctrine of Basic Structure:

1.The Supreme Court in this case reaffirmed and further

developed the Doctrine of Basic Structure that was first

introduced in the Kesavananda Bharati case (1973).

• The Court held that Parliament has wide powers to amend the
Constitution, but those powers are not unlimited.

• Parliament cannot amend or alter the basic structure or

fundamental framework of the Constitution.

• This includes principles like separation of powers, democracy,

federalism, judicial review, and the rule of law.
• Therefore, any constitutional amendment that alters or
destroys the basic structure of the Constitution would be
invalid.
• Judicial Review of Proclamation of Emergency: One of the key parts of
the judgment was the Court’s stance on the Proclamation of
Emergency under Article 352 of the Constitution.

• The Supreme Court ruled that a Proclamation of Emergency could be

challenged in a court of law if it was based on malafide intentions or
extraneous or irrelevant grounds.
• The Court emphasized that even during an emergency, the fundamental
rights of citizens cannot be completely suspended, and the power to
declare an emergency cannot be used arbitrarily or unreasonably.

• This judgment made it clear that the proclamation of emergency was not
immune to judicial review and could be questioned if it was found to be
misused or based on irrelevant reasons.
• Impact on the 42nd Amendment: The Supreme Court struck down the
provisions of Clause 4 and Clause 5 of the 42nd Amendment, as they
sought to remove judicial oversight over constitutional amendments and
severely limited the role of the judiciary in reviewing Parliament's power.

• The Court found that these clauses violated the basic structure of the
Constitution, specifically undermining the judiciary’s role in ensuring that
Parliament does not overstep its boundaries.
• It was held that judicial review and the ability of the courts
to examine the validity of constitutional amendments were
part of the basic structure of the Constitution and could not
be altered.
• Conclusion:

• The Minerva Mills v. Union of India case was crucial in

shaping the constitutional landscape of India, especially in
relation to the basic structure doctrine and the role of
judicial review.
• It reaffirmed the Supreme Court’s role in upholding
constitutional principles, even during times of emergency,
and ensured that Parliament could not make amendments
that violated the Constitution’s core values.
• K.S. Puttaswamy v. Union of India (2017):
• Issue:

The core issue was whether the right to privacy constitutes a

fundamental right under the Constitution of India, and whether
the government's actions in collecting and storing personal data
violated this fundamental right.
• Decision

• The Supreme Court of India upheld the right to privacy as a

fundamental right, rooted in the principles of liberty and
dignity enshrined in the Constitution.
• Overruling ADM Jabalpur:

• In a significant move, the Court overruled the ADM Jabalpur

judgment, declaring that the majority opinion in that case was
"seriously flawed." The Court emphasized that life and personal
liberty are inalienable and fundamental rights that cannot be
suspended, even in times of emergency.
• Importance

• This ruling reinforced the primacy of individual rights and affirmed

the judiciary's crucial role in protecting these rights, even in
challenging circumstances. It also highlighted the evolving
importance of privacy in the digital era, underscoring the need for a
comprehensive data protection framework.
• Thank you
Basis of National Constitutional Financial
Classification Emergency 352 Emergency 356 Emergency 360

Grounds of War, external Failure of Financial instability

Declaration aggression. constitutional
Armed rebellion machinery.
Also known as
President’s Rule

Parliamentary Approval by both the Approval by both the Approval by both the
Approval houses by special houses by special houses by special
majority within 1 majority within 2 majority within 2
month of issue of months of issue of months of issue of
proclamation. proclamation. proclamation.
Revocation of By the President. By the President. By the President.
Proclamation By resolution of Lok
Sabha.

Implementation It has been invoked President’s Rule has Not Yet Invoked
three times in India been invoked more
during 1962, 1971 than 127 times in
and 1975. India.

Judicial review Allowed Allowed Allowed