Emergency Provisions

Part XVIII (Arts 352 to 360) allows the Union to take extraordinary powers. The model is the Weimar Constitution of Germany. The Fundamental Rights suspension borrows from it too.

Three kinds of emergency

National Emergency (Art 352)

• Proclaimed by the President only on the written advice of the Union Cabinet (44th Amendment). It can apply to the whole of India or a part.
• Must be approved by both Houses by a special majority (a majority of total membership and two-thirds of those present and voting) within one month (earlier: two months). Without such approval it ends.
• Valid for six months at a time. It can be extended without a time limit by a resolution passed every six months.
• Ends by revocation by the President. The Lok Sabha must revoke it by a simple majority if one-tenth of its members request a special sitting.
• Effects:
  • The Union can make laws on State List subjects and give directions to States.
  • Art 358: Art 19 is automatically suspended for a war or external aggression emergency only.
  • Art 359: the President may suspend the enforcement of Fundamental Rights (except Art 20 and Art 21, per the 44th Amendment).
  • The life of Lok Sabha can be extended by one year at a time.
• Declared three times: 1962 (China war), 1971 (Pakistan war) and 1975 to 1977 (internal disturbance, the only one on this ground, by Indira Gandhi). Only the 1975 Emergency was criticised as a misuse.

President's Rule (Art 356)

• Applied if the President is satisfied, on a Governor's report or otherwise, that the State cannot be run according to the Constitution. Art 365 also allows it when a State ignores Union directions.
• Must be approved by both Houses within two months by a simple majority.
• Period: six months, extendable up to three years at six-month intervals. After one year, further extension needs (i) a national emergency in force and (ii) the Election Commission's certificate that elections cannot be held (44th Amendment).
• Effect: the President assumes the State's executive functions. The Legislature is suspended or dissolved. Parliament makes laws for the State, and the High Court is unaffected.
• S.R. Bommai v Union of India (1994): judicially reviewable. Majority must be tested on the floor. The courts can restore a dismissed government.
• Article 355 is the duty of the Union to protect States from external aggression and internal disturbance.

Financial Emergency (Art 360)

• Approved by both Houses within two months by a simple majority. It continues until revoked, with no outer time limit.
• The Union can direct States to reduce salaries of all persons, including High Court and Supreme Court judges.
• Never declared so far.