Emergency Powers of the President of India (Articles 352, 356 & 360) | Polity Notes

The Constitution of India provides emergency provisions in Part XVIII. These provisions are meant to deal with abnormal situations. Under Articles 352, 356 and 360, the President can declare National Emergency, President’s Rule and Financial Emergency when the security, governance or financial stability of the country is threatened.

Emergency Powers

Three Types of Emergency Powers

Article 352

National Emergency

Article 356

President's Rule

Article 360

Financial Emergency

National Emergency (Article 352)

If the President is satisfied that there is external aggression and armed rebellion, then he may declare a national emergency on the recommendation of the Cabinet.

So far, three times national emergency has been declared:-

1. 1962-1965 → On the ground of India-China & Indo-Pak war, proclaimed by Dr. S. Radhakrishnan
2. 1971 → On the ground of Indo-Pak war, proclaimed by V.V. Giri
3. 1975 → On the ground of internal disturbance, proclaimed by President Fakhruddin Ali Ahmed

When the first national emergency was declared then before it could lapse there was an Indo-Pak war in 1965, and therefore this emergency proclamation was continued.

The 2nd time in 1971 when again there was an Indo-Pak war, then the 2nd national emergency was declared by President V.V. Giri and the 3rd proclamation of National Emergency was declared in 1975 on the ground of internal disturbance, and this proclamation was made by President Fakhruddin Ali Ahmed.

When the 3rd proclamation of national emergency was made in 1975, then the 2nd proclamation of national emergency was already in existence, and both these emergencies were lifted together in 1977 simultaneously.

It is testimony to this fact that different proclamations of national emergency can be made on different grounds simultaneously.

44th Constitutional Amendment (1978) & National Emergency

This amendment changed many provisions of National Emergency such as:-

1. The term "internal disturbance" was substituted with "armed rebellion".
2. Now emergency can be declared only if there is a written recommendation of entire Cabinet to the President of India. Only on the insistence of the Prime Minister alone, emergency cannot be declared. As was done by P.M Indira Gandhi in 1975.
3. The term 'Cabinet' was added in the Constitution for the first and only time so far through this amendment.

   Note: Before Cabinet → Council of Minister

4. If the national emergency is declared, then after the commencement of session of the Parliament, within one month it must be passed by Parliament. Earlier this period was 2 months.
5. Even if the national emergency is declared, then Fundamental Rights under Articles 20 & 21 cannot be suspended as was done during the 3rd National Emergency.

Note:

→ A.D.M. Jabalpur v. Shivkant Shukla case

→ Maintenance of Internal Security Act (MISA):- It was a controversial law enacted by the Indian Parliament in 1971, granting the government wide-ranging powers to detain individuals without trial in the interest of national security and public order.

On the declaration of national emergency all the executive powers of states are also vested in the Union and Union Government gets many types of powers and legal authority. And in case of national emergency, the tenure of Lok Sabha can be extended for a maximum of upto 1 year, as was done during the 4th Lok Sabha tenure in 1974.

The 1st National Emergency of 1962 was first declared in the area of NEFA (North-East Frontier Area) which is today known as the area of Arunachal Pradesh.

Reasons for the Third National Emergency (1975)

• Internal factionalism and contradictions within the Indian National Congress
• Emergence of Sanjay Gandhi as a parallel centre of power
• Serious allegations of corruption against Union and State governments
• The Navnirman Movement in Gujarat and excessive use of police and administrative force, which created a favourable ground for the declaration of Emergency

Meanwhile, Jayaprakash Narayan gave the slogan of “Sampoorna Kranti” (Total Revolution). During the ten-year Prime Ministership of Mrs. Indira Gandhi, as many as ten no-confidence motions were moved against her government.

At the same time, the situation in neighbouring Bangladesh was deteriorating, and the refugee crisis posed serious challenges. In this background, on 12 June 1975, Justice Jagmohan Lal Sinha of the Allahabad High Court, while deciding an election petition filed by Raj Narain in 1971, set aside the election of Mrs. Indira Gandhi from the Rae Bareli constituency.

On 24 June 1975, the Supreme Court granted a conditional stay on the Allahabad High Court judgment. Subsequently, on 25 June 1975, the Government of Mrs. Indira Gandhi proclaimed a National Emergency on the ground of internal disturbance. The Emergency was lifted on 23 March 1977 after about 19 months. Fresh general elections were held, resulting in the formation of the Janata Party government, which repealed MISA and amended emergency provisions through the 44th Constitutional Amendment Act, 1978. Since then, National Emergency has not been proclaimed again.

Article 356 – President’s Rule

S.R. Bommai v. Union of India (1994)

In the landmark case of S.R. Bommai v. Union of India (1994), the Supreme Court examined the scope and limitations of the President’s power under Article 356 of the Constitution. The Court held that the President may proclaim President’s Rule if satisfied that the constitutional machinery of a State has failed. However, such satisfaction is not beyond judicial scrutiny.

The Court observed that the President’s satisfaction may be based on the Governor’s report. When the proclamation is based on the Governor’s report, the report should be in writing, duly authenticated, and should clearly indicate the reasons and grounds for recommending President’s Rule.

The Supreme Court and High Courts have this right that they summon the report of Governor and may review the proclamation under Article 356 was issued in accordance with constitutional principles. If found unconstitutional, the proclamation may be struck down.

As a consequence of the S.R. Bommai judgment, the use of emergency provisions, particularly President’s Rule has been subjected to judicial review.

As the President's Rule is declared the Government of State, CM and his Council of Ministers are dismissed. The Governor takes over the administration and governance of that state who conducts the administration of the state with the help of advisors appointed by the Union Government. Budget and other laws of that state are passed by the Parliament.

• Within two months of the beginning of session of Parliament, President's Rule must be approved and passed by Parliament
• If Parliament feels it appropriate then it can be extended for a maximum of up to 6 months
• For the first time thereafter, every six months Parliament has to examine the condition of the State and if needed then every time it can be extended for a maximum period of 2 years at every 6 months. Thereafter, President's Rule can be extended 1 more year also.

If in the meanwhile there is a declaration of National Emergency in the country, or the Election Commission has expressed its inability to conduct free and fair elections in that state because in this period the state assembly is either dissolved or suspended. Hence, the President's Rule cannot be imposed beyond three years and even after three years under crucial (extremely important) circumstances if it becomes essential to extend the President's Rule, then a separate Constitutional Amendment will have to be made.

Examples of Extended President's Rule:

• Punjab: 1987 to 2002
• Jammu and Kashmir: 1990 to 1996 – Due to serious terrorist problems, President's Rule had to be continued

For the first time President's Rule was imposed in independent India in PEPSU (Patiala and East Punjab State Union) in 1954, and since then more than 100 times it has been proclaimed in almost all parts of India.

Financial Emergency (Article 360)

If the President is satisfied that there is grave financial and economic crisis in the country then he may declare financial emergency on the recommendation of Union Cabinet.

It has not been proclaimed in India even once and after the change in Article 370, now financial emergency can be declared in Jammu & Kashmir also, which could not be imposed before 5 August 2019.

After the beginning of session within two months Financial Emergency must be approved by the Parliament, and only Parliament may extend it till indefinite period of time after 6 months.

After the declaration of Financial Emergency for the restoration of financial and economic normalcy, the Government may take any necessary step.

Note:

President, Supreme Court and High Court judges' salary can not be reduced. But on the order of special clause by the President, the salary of Supreme Court and High Court judges can be reduced.

Emergency & Fundamental Rights

During President's Rule and Financial Emergency all the Fundamental Rights remain intact. Only during National Emergency Fundamental Rights under Article 19 are automatically suspended and if needed then other Fundamental Rights can also be suspended. But for this purpose, the President may issue a separate and special order. After 44th CAA 1978, now during National Emergency, Fundamental Rights under Articles 20 & 21 cannot be suspended.

Difference between Martial Law and Emergency

Martial Law	Emergency
It is given under Article 34	Articles 352, 356 & 360
It has not been defined and not classified into any category.	It is defined and categorized into three: National Emergency, President's Rule and Financial Emergency
It is proclaimed on the basis of AFSPA (Armed Forces Special Powers Act) and DA Act (Disturbed Area).	It is proclaimed on the basis of Constitutional provision and therefore there is no separate act for it.
It does not require approval of Parliament for promulgation.	Once proclaimed, it requires approval from Parliament for promulgation.
There is no time limit and can be extended for indefinite time period. Only on the basis of Cabinet decision	There is a fixed time limit and can be extended only with the parliamentary approval.
All Fundamental Rights including Articles 20 & 21 are suspended.	Only Article 19 is suspended in National Emergency and if needed then other Fundamental Rights can also be suspended but Articles 20 & 21 can not be suspended.
Civil administration is replaced with administration of Armed Forces.	Civil administration remains intact and as usual.
Officials of Armed Forces get legal and judicial immunity and therefore they can not be betrayed in any court of law.	There is no legal and judicial immunity given to civil administration officials, and therefore they can be betrayed in any court of law.
Usually it is not judicial review.	Judicial review can be done.

This article is written purely for academic and constitutional study purposes. All references to historical events and constitutional provisions are descriptive in nature and intended only for educational use. While every effort has been made to ensure accuracy, some facts, dates, or interpretations may vary. Readers are advised to verify information from original and authoritative sources such as the Constitution of India, Supreme Court judgments, NCERT textbooks, and official government publications.