EMERGENCY PROVISIONS UNDER THE INDIAN CONSTITUTION: AN ANALYSIS OF POSSIBLE

ABUSE OF POWERS BY THE

GOVERNOR AND PRESIDENT.

(Project towards the partial fulfilment of assessment in the subject of Constitutional

Governance-II)

Submitted by:

Submitted to:

Ananya Bajpai

Ms. Aakanksha Kumar

Roll No. 1301

Assistant Professor

Semester II

Faculty of Law

B.A. LLB (Hons)

National Law University Jodhpur

WINTER SEMESTER
(JANUARY-MAY 2016)

Total Word Count: 5154 words

TABLE OF CONTENTS
Table of Contents.......................................................................................................................2
Acknowledgment.......................................................................................................................3
Research Methodology...............................................................................................................4
Scope..........................................................................................................................................5
Introduction................................................................................................................................6
Emergency Powers under the Indian Constitution.....................................................................7
I.

National Emergency: Article 352....................................................................................7

A.

Constituent Assembly Debates................................................................................7

B.

Before and After the 44th Amendment, 1978...........................................................9

C.

The Satisfaction of the President: The Justiciability of his Discretion................10

i.

Bhut Nath v. State of West Bengal.........................................................................10

ii. Minerva Mills v. Union of India............................................................................10

D.

Consequences of a Proclamation under Article 352..............................................11

E.

Invocation of Article 352: Instances......................................................................12

II.

Failure of Constitutional Machinery in a State: Article 356........................................13

A.

Consequences of Imposition of Article 356...........................................................15

B.

Invocation of Article 356: Instances......................................................................15

i.

Kerala, 1959...........................................................................................................15

ii. Uttar Pradesh and Others, 1992.............................................................................16

iii. Arunachal Pradesh, 2016.......................................................................................16
III.

Financial Emergency: Article 360.............................................................................16

The Possible Misuse of Emergency Powers by the President and Governor...........................18

Conclusion................................................................................................................................20
Bibliography.............................................................................................................................21

2|Page

ACKNOWLEDGMENT
Upon the successful completion of this project, there are a few people to thank without whom
the making and completion of this project would be impossible. First and foremost, my
sincerest gratitude to my Constitutional Governance-II teacher, Ms. Aakanksha Kumar,
whose clarity on the subject has always been a motivation and without whose constant
guidance and support, I would not have gained insight into the topic. Further, I would like to
thank the Library and IT Staff who were always supportive with regards to my queries. My
friends and batchmates were an important source of support. Lastly, my heartfelt gratitude
goes to my parents who have supported me in all endeavours.

Ananya Bajpai

3|Page

RESEARCH METHODOLOGY

Subject: Constitutional Governance II

Topic: Emergency Provisions under the Indian Constitution: An analysis of possible abuse of
powers by the Governor and President.
The method of research adopted by me in this project was research from both primary and
secondary sources. The majority of research work undertaken has been done through articles,
papers and case law available on online databases. Other sources like various treatises and
books by learned authors have also been referred.

4|Page

SCOPE

The aim of the project is to analyse carefully the various Emergency provisions as enshrined
in the Indian Constitution. It seeks to examine the structure of the myriad of provisions
covering National [Article 352], State [Article 356] and Financial Emergency [Article 360].
Further, it will go into a few instances of imposition of these emergencies in the country, for
example, the infamous 1975 Emergency under Indira Gandhi, the first instance of State
Emergency in Kerala in 1959, Uttar Pradesh post Babri Majsid demolition, etc, and how
emergency provisions were restructured post these instances, and finally, case law that
answers pertinent questions about these provisions.
The project seeks to answer the following basic questions:

How does the nature of federalism in India change in times of Emergency?

What are the various provisions for imposition of Emergency?
What impact does the imposition of an Emergency have on the governance of the

country/state?
How can these provisions be misused and what are the various instances of the same?

5|Page

INTRODUCTION

The Emergency provisions in the Indian Constitution are of utmost importance. They govern
how the normal, peace time federal fabric of the nation has to be amended and adapted to fit
the needs of an emergency. The Constitution envisages three types of emergencies:
1. Emergency arising from a threat to the security of India;
2. Breakdown of constitutional machinery in a State;
3. Financial emergency.1
The national emergency declared in June 1975 by the then President Fakhruddin Ali Ahmed
is probably the most widely known instance of application of Article 352 and arguably, the
most important as well, since it was after this period of Emergency that the 44 th Amendment,
1978 was introduced to amend the provisions of Article 352 to introduce several safeguards
within the provision to curb the misuse of the powers contained therein. However, despite the
infamy attributed to Article 352, it is not the only instance of misuse of emergency powers
under the Constitution. The history of Independent India is riddled with examples of
Presidents Rule being imposed in the State for reasons not entirely justifiable, for example,
those in Kerala2 and Uttar Pradesh, where State Emergency was imposed more than once.
Further, the project also seeks to analyse the recent imposition of emergency in Arunachal
Pradesh3 and the surrounding debate.

1 M.P. Jain, Indian Constitutional Law, 7th Edn. 2014

2

Kerala

Crisis

(1957-1959):

First

Litmus

Test

of

Indian Democracy,

http://revisitingindia.com/2012/11/22/kerala-crisis-1957-1959-first-litmus-test-of-indian-democracy/

3 Union Cabinet recommends Presidents Rule in Arunachal Pradesh - See more at:
http://indianexpress.com/article/india/politics/union-cabinet-recommends-presidents-rule-inarunachal-pradesh/#sthash.NsYaVKRB.dpuf
6|Page

7|Page

EMERGENCY POWERS UNDER THE INDIAN CONSTITUTION

The Indian Constitution has vested extensive powers to the Union Government or the
President to handle the situation in times of emergency. The Constitution of India in Part
XVIII provides three different types of emergency (National, State and Financial). The
President is empowered under the Constitution to declare any such Emergency as enumerated
under Articles 352, 356 or 360, if he is satisfied that a situation exists that necessitates such
a declaration. Below is the detailed analysis of these Articles and the resulting impact of their
application.
I.

NATIONAL EMERGENCY: ARTICLE 352

If the President is satisfied that a grave emergency exists whereby the security of India or of
any part of the territory thereof is threatened, whether by war or external aggression or
armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the
whole of India or of such part of the territory thereof as may be specified in the
Proclamation.4
A Proclamation of Emergency declaring that the security of India or any part of the territory
thereof is threatened by war or external aggression or armed rebellion may be made before
the actual occurrence of war or any such aggression or rebellion, if the President is satisfied
that there is imminent danger thereof. 5 Further, Clause 3 to the Article necessitates a written
communication by the Council of Ministers (Prime Minister and other Ministers of Cabinet
rank appointed under Article 75) that such a Proclamation may be issued. It is also
constitutionally mandated under Clause 4 to the Article that such a Proclamation be laid
before the House of Parliament and cease to operate after a month, unless before the period
expires, it has been approved by resolutions of both Houses. The life of a Proclamation of
Emergency is six months, after which its continuance requires resolution from the Houses of
Parliament.

4 Article 352(1), Constitution of India, 1950.

5 Explanation to Article 352(1), Constitution of India, 1950.
8|Page

A. Constituent Assembly Debates

"Proclamation of Emergency: (1) If the president is satisfied that a grave emergency exists
whereby the security of India or of any Part of the territory is threatened, whether by war or
external aggression or internal disturbance, he may, by proclamation, make a declaration to
that effect.

(2) A Proclamation issued under clause (1) of this article (in this Constitution referred to as
'a Proclamation of Emergency')(a) May be revoked by a subsequent Proclamation;
(b) Shall be laid before each House of Parliament;
(c) Shall cease to operate at the expiration of two months unless before the expiration of that
period it has been approved by resolutions of both Houses, of Parliament;"
(Moved by Dr. B.R. Ambedkar as an amendment to Article 275 of the Draft Constitution)6
In the ensuing debate on the amendment, Mr. H.V. Kamath made the observation that in his
extensive study of all the democratic constitutions of the world, he had not noticed a parallel
of our emergency provisions anywhere, and the closest was that of the Weimar Republic
which was destroyed by Hitler taking advantage of the very same provisions contained in
that constitution. He thus urged the house to have a mature debate regarding the same and
consider how the provisions would breach the Fundamental Rights enshrined in Part III.
Further, the Member expressed concern regarding the distinction created between war and
external aggression and moved an amendment so that Clause 3 said that the Proclamation
may be made before the actual occurrence of such disturbance if the President is satisfied
that there is imminent danger thereof. The Member also warned the house of a possible
misuse of powers by the President by virtue of the extensive powers that were granted to him
under these Emergency provisions, and placed reliance on the fact that States were provided
with adequate police forces to manage internal disturbance and created a distinction between
said that the fear of war and external aggression was a contingency that no one could assess,
and these powers should only be vested when there is an imminent fear of internal
disturbance.
6 Constituent Assembly Debates, Volume IX.
9|Page

However, the Honourable Members points were countered by Prof. Shibban Lal Saksena,
who tackled the comparison to the Weimar Constitution by saying that the power vested
under that Constitution to the government and that vested to the Government under our
Constitution are different, and further, that this emergency provision gives us exactly what we
need: the essential power required to carry on the administration when there is a war on or
where there is an internal insurrection.7
B. Before and After the 44th Amendment, 1978
Before 1978, an emergency could be declared because of war, external aggression or internal
disturbance (rather than armed rebellion, as the provision now reads). The Supreme Court
has explained that internal disturbance has a wider connotation than armed rebellion, in
the sense that armed rebellion is likely to pose a threat to the security of the country, or a
part thereof, while internal disturbance, would not pose a threat to the security of the
country, or a part thereof, though it might be serious in nature. 8 The amendment was
introduced because the legislature felt that recent experiences had shown that the fundamental
rights, including those of life and liberty, granted to citizens by the Constitution are capable
of being taken away by a transient majority. Therefore, the legislature felt it necessary to
provide adequate safeguards against the recurrence of such a contingency in the future
and to ensure to the people themselves an effective voice in determining the form of
government under which they are to live.9
Further, in order to ensure that a Proclamation is issued only after due consideration, the
legislature proposed that an Emergency can be proclaimed only on the basis of written advice
tendered to the President by the Cabinet, and that such Proclamation would have to be
approved by the Houses of Parliament by the same majority which is necessary to amend the
Constitution and such approval would have to be given within a period of one month. Any
such Proclamation would be in force only for a period of six months and can be
continued only by further resolutions passed by the same majority. The Proclamation
7 Constituent Assembly Debates, Volume IX.
8 Naga Peoples Movement of Human Rights v. Union of India, AIR 1998 SC 431.
9 Statement of Objects and Reasons to the Constitution (Forty-Fourth Amendment) Act,
1978.
10 | P a g e

would also cease to be in operation if a resolution disapproving the continuance of the

Proclamation is passed by Lok Sabha. As a further check against the misuse of the
Emergency provisions, the legislature sought to provide that the power to suspend the right to
move the court for the enforcement of a fundamental right cannot be exercised in respect of
the fundamental right to life and liberty as provided under Article 21.10
C. The Satisfaction of the President: The Justiciability of his Discretion
According to the language of Article 352(1), the question of whether the security of India is
threatened or not lies within the subjective satisfaction of the President, acting on the advice
of the Cabinet.11 The following question of imperative importance hence arises: How does the
President become satisfied before proclaiming an Emergency?
In answering this question, we must consider case law relevant to the subject:
i.

Bhut Nath v. State of West Bengal12

The petitioner was detained under Section 3 of the Maintenance of Internal Security Act,
1971 on the ground that he broke open wagons and looted wheat and tea. One of the
contentions of the petitioner was that there was no real emergency and yet the proclamation
of emergency remained unretracted with consequential peril to fundamental rights. The
Supreme Court refused to hold the continuance of the emergency under Article 352 as void
and stated that the question is a political one and not a justiciable issue. The 38 th Amendment
Act, 1975 added clause 5 to Article 352 which declared that the satisfaction of the President
mentioned in Article 352(1) and (3) shall be final and conclusive and shall not be
questioned in any court on any ground. It further stated that neither the Supreme Court, nor
any other court shall have jurisdiction to entertain the question, on any ground, the validity of
a declaration made by proclamation by the President to the effect stated in clause (1) or the
continued operation of such proclamation.13 The satisfaction of the President in declaring the
10 Items 6, 7, 8 of the Statement of Objects and Reasons to the Constitution (Forty-Fourth
Amendment) Act, 1978.
11 Article 74(1), Constitution of India, 1950.
12 Bhut Nath v. State of West Bengal, AIR 1974 SC 806.
13 Constitution (Thirty-eighth Amendment) Act, 1975.
11 | P a g e

emergency, and thus the proclamation of the emergency under Article 352 were thus sought
to be placed beyond the ambit of judicial scrutiny.
The amendment sought to put the judicial view of the Supreme Court in Bhut Nath in the
form of a constitutional form, lest the court change its opinion in the future. 14 The 44th
Amendment, 1978 repealed Article 352(5), and the position has been restored to what it was
before the 38th Amendment, 1975.
ii.

Minerva Mills v. Union of India

Justice P.N. Bhagwati in this case expressed the view that whether the President in
proclaiming the emergency under Article 352 had applied his mind, or whether he acted
outside his powers, or acted mala fide in proclaiming the emergency could not be excluded
from the scope of judicial review.15 Further, he observed that the 38th Amendment which
barred the satisfaction of the President from being called into question by a court could be
declared unconstitutional as being violative of the basic structure of the Constitution, since
judicial review has now been regarded as a basic feature of the Constitution as laid down in
Kesavananda Bharati v. State of Kerala. Further, the apex Court did go into the validity of a
proclamation of emergency issued under Article 356 in the case of S.R. Bommai v. Union of
India16, hence it can be safely said that a proclamation of emergency under Article 352 can
also be reviewed by the Court on the grounds mentioned in the Minerva Mills decision.
D. Consequences of a Proclamation under Article 352
A reading of all the provisions of Article 352 makes clear the consequences resulting from a
Proclamation of Emergency under the same. Primarily, the nature of Centre-State relations
undergoes a sea change, with Parliament being awarded extensive powers to legislate on any
matter in the State List.17 Further, a law made by Parliament that it would not have been
ordinarily competent to enact shall, to the extent of the incompetency, cease to operate after a
period of six months after the Proclamation ceases to operate, except in respect of things done
14 M.P. Jain, Indian Constitutional Law, 7th Edn., 2014, pp 676.
15 Minerva Mills v. Union of India, AIR 1980 SC 1840.
16 S.R. Bommai v. Union of India, AIR 1994 SC 1918.
17 Article 250(1), Constitution of India, 1950.
12 | P a g e

or omitted to be done before the expiration of the said period.18 This implies a significant
change in the normal peace-time distribution of legislative powers. State Legislatures would
continue to function and would still be competent to enact laws; however, the Central
Legislature would also be empowered to make laws on subjects exclusively reserved for the
States to legislate on. Further, a Central Law would override a State Law even if the law
concerned is made with respect to a State subject.19
The Centre is further empowered to give directions to the state as to the manner in which they
are to exercise their executive functions, 20 and make law with respect to any matter which
includes power to make law conferring powers and imposing duties, or authorising the
conferring of powers and imposition of duties, upon the Union or officers and authorities of
the Union as respects that matter, regardless that is a matter not enumerated in the Union
List.21 These powers of the Centre also extend to any state other than a state in which or in
any part of which the Proclamation of emergency is in operation if and in so far as the
security of India or any part of the territory thereof is threatened by activities in or in relation
to the part of the territory of India in which the Proclamation is in operation. 22 This provision
has been inserted in the Constitution in order to make the emergency effective in the area
where it has been imposed by restricting undesirable activity in the adjoining areas.23
The life of the Lok Sabha may be extended beyond its regular 5 year period by Parliament by
law for a year each time, up to a period not extending beyond six months after the
proclamation of Emergency ceases to operate.24 Similarly, the Parliament may by law extend

18 Article 250(2), Constitution of India, 1950.

19 Article 251, Constitution of India, 1950.
20 Article 353(a), Constitution of India, 1950.
21 Article 353(b), Constitution of India, 1950.
22 Proviso to Article 353, Constitution of India, 1950.
23 M.P. Jain, Indian Constitutional Law, 7th Edn, 2014, pp 677.
13 | P a g e

the life of the State Legislatures by one year each time during an emergency, subject to a
maximum period of six months after the emergency ceases to operate.25
However, one of the most fundamental consequences of the imposition of Emergency is the
profound impact it has on civil liberties. Before 1978, the provisions under Article 358
allowed for an automatic suspension of Article 19 as soon as an emergency was declared
under Article 352. The validity of laws or executive actions was not open to challenge either
during the continuance of the emergency, or even thereafter. Under Article 359, Fundamental
Rights as such are not suspended, but their enforcement is.26
Important to note is Clause (2) to Article 358 that states that Clause (1) only applies to the
laws which contain a recital to the effect that such law is in relation to Proclamation of
Emergency in operation when it is made, or to any executive action which contain such a
recital. The effect of Article 358 thus is that a law of the type mentioned above enacted
during the emergency cannot be challenged under Article 19.27
E. Invocation of Article 352: Instances
Article 352 has been invoked thrice so far: in 1962, in wake of the Indo-China war. It
remained in force during the Indo-Pak war of 1965 as well and was revoked only in January,
1968. Emergency was once again declared in December 1971 as a consequence of the
Bangladesh issue and the resulting war between India and Pakistan, on the ground of external
aggression.
While the 1971 proclamation was still effective, another proclamation was issued on June 26,
1975 on the grounds of internal disturbance, by the then President Fakhruddin Ali Ahmed.
These proclamations were only revoked in March 1977 and hence from June 1975 to March
1977, two proclamations of emergency were in force simultaneously.

24 Proviso to Article 83(2), Constitution of India, 1950.

25 Proviso to Article 172, Constitution of India, 1950.
26 M.P. Jain, Indian Constitutional Law, 7th Edn, 2014, pp 1340.
27 T.K. Patel v. State of Gujarat, AIR 1975 SC 270.
14 | P a g e

The Proclamation of Emergency in 1975 is the most controversial so far, because there have
been allegations that the Emergency was not declared on justifiable grounds, but only to
protect the then Prime Minister, Indira Gandhi from being dethroned. The background to the
Proclamation includes the contentious court case between Indira Gandhi and Raj Narain 28,
where Indira Gandhi was accused of electoral malpractice on account of using government
officials in her campaign. Further, another issue of contention was the way that the
Emergency was declared, with Indira Gandhi recommending proclamation to the President on
the night of June 25, 1975 just before midnight. The period of the Emergency from 19751977 is characterised by the arrest of opposition leaders, heavy press censorship, suppression
of fundamental rights, custodial deaths, and the rise of extra-constitutional authorities like
Sanjay Gandhi.29
There were two direct consequences of the Emergency: one, the Janata Party government that
came to power after the Congress lost its majority set up the Shah Commission to probe into
the excesses committed during the emergency; and two, Article 352 was amended by the 44 th
Amendment so as to introduce more safeguards.

II.

FAILURE OF CONSTITUTIONAL MACHINERY IN A STATE: ARTICLE 356

Provisions in case of failure of constitutional machinery in State30

(1) If the President, on receipt of report from the Governor of the State or otherwise, is
satisfied that a situation has arisen in which the government of the State cannot be carried on
in accordance with he provisions of this Constitution, the President may be Proclamation
(a) 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 or any body or authority in the State
other than the Legislature of the State;
28 Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.
29 J. R. Siwach , Misuse Of Emergency Powers In India And Nature Of Amended InstitutionalSafeguards, The
Indian Journal of Political Science, Vol. 40, No. 4 (December 1979), pp. 651-668.

30 Article 356(1), Constitution of India, 1950.

15 | P a g e

(b) declare that the powers of the Legislature of the State shall be exercisable by or under the
authority of Parliament;
(c) make such incidental and consequential provisions as appear to the president to be
necessary or desirable for giving effect to the objects of the Proclamation, including
provisions for suspending in whole or in part the operation of any provisions of this
constitution relating to any body or authority in the State Provided that nothing in this clause
shall authorise the President to assume to himself any of the powers vested in or exercisable
by a High Court, or to suspend in whole or in part the operation of any provision of this
Constitution relating to High Courts
Clause (2) says that such a Proclamation may be revoked or varied by a subsequent
Proclamation. Clause (3) provides a check upon the power contained in clause (1). It says that
"every Proclamation under this article shall be laid before each House of Parliament and
shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at
the expiration of two months unless before the expiration of that period it has been approved
by resolutions of both Houses of Parliament" (The proviso to clause (3) provides certain
details which it is not necessary to notice for the purpose of this paper). Clause (4) provides
that "a Proclamation approved by both the Houses of Parliament shall, unless revoked, cease
to operate on the expiration of a period of six months from the date of issue of the
Proclamation (The 44th Amendment Act reduced the period in this clause from one year to
six months). The proviso to clause (4), however, empowers such Proclamation to be
extended, beyond six months subject to the approval of Parliament for a further period of six
months at a time subject to an outer limit of three years. The second proviso to clause (4)
provides for a specific situation which it is not necessary to refer to for the purpose of this
paper. The third proviso to clause (4) is applicable to the State of Punjab and provides for a
particular situation and is of no general relevance. Clause (5) has been substituted altogether
by the 44th Amendment Act. The said clause was in fact inserted by the Constitution (38th)
Amendment Act, 1975 with retrospective effect. The clause inserted by 38th Amendment Act
barred judicial review of the Proclamation issued under clause (1). Inasmuch as, it has been
substituted by the present clause (5), it is not necessary to deal with the language or effect of

16 | P a g e

clause (5) as originally inserted. The present clause (5) provides certain details concerning the
approval contemplated by clause (3) and is in fact a continuation of clause (4).31
The maximum period for which a proclamation can remain in force in a state is three years.32
A

Consequences of Imposition of Article 356

When an Article 356 proclamation declares that the powers of the State Legislature are to be
exercised by or under the authority of the Parliament, the Parliament can then confer on the
President the power of the State Legislature to make laws. The President may also be
authorised by the Parliament to delegate the power so conferred to any other authority
specified by him subject to such conditions as he may impose. 33 The President may authorise,
when the Lok Sabha is not in session, expenditure from the Consolidated Fund of India
pending its sanction by Parliament. This provision finds its place in Article 357(1)(c) of the
Constitution.
When Article 352 is invoked, Parliament continues to function, however Article 356
application means that the State Legislature ceases to function as it is either dissolved or kept
in suspended animation.
F. Invocation of Article 356: Instances
Allegedly, Article 356 has been invoked more than a 100 times to impose Presidents Rule in
the States.34 The first instance was the imposition of Presidents Rule in Kerala in 1959 and
most recently in Arunachal Pradesh. Following is an enumeration of some instances of
Presidents Rule:

31 National Commission to Review the Working of the Constitution, Consultation Paper on

Article 356, Ministry of Law and Justice, Government of India, 2001.
32 First Proviso to Article 356(4).
33 Article 357(1)(a), Constitution of India, 1950.
34 Congress responsible for Presidents Rule more than 100 times: Kiren Rijiju - See more at:
http://indianexpress.com/article/india/india-news-india/congress-responsible-for-presidentsrule-more-than-100-times-kiren-rijiju/#sthash.3haAWwAF.dpuf
17 | P a g e

Kerala, 1959

Kerala witnessed history in 1957, when for the first time in the world; a communist
government came to power through democratic means. However, this was short lived as the
within two years, there was widespread discontent in the State against the policies of the
Government and the law and order situation broke down. The Prime Minister advised the
State Government to resign and dissolve the house but this was not done and the Centre
invoked Article 356 to dismiss the State Government in 1959. 35 The State government argued
that the Centres actions were a result of political intolerance, whereas the Centre tried to
justify the same on the ground that law and order had been broken down and the constitution
had been subverted in the State.

iii.

Uttar Pradesh and Others, 1992

On December 6, 1992, the Ram Janmabhoomi-Babri Masjid disputed structure was

demolished by the volunteers of some Hindu nationalist organisations. Consequently, the BJP
Government in the State of U.P. resigned. The Central Government invoked Article 356 and
also dismissed the Governments headed by the BJP in Madhya Pradesh, Rajasthan and
Himachal Pradesh. 36
iv.

Arunachal Pradesh, 2016

In the Arunachal Pradesh Assembly, 21 out of the 47 MLAs rebelled. Even the Deputy
Speaker was among those who rebelled. While the Congress moved a motion demanding
removal of the Deputy Speaker, the BJP sought the Speakers removal. The Governor
intervened and advanced a session of the assembly. He also sent a letter directing that the first
item on the agenda of the session should be a resolution for removal of the Speaker. He
directed that the Deputy Speaker, who is disgruntled with the Congress, shall preside over
the House from the first moment of the first sitting of the House in accordance with
provisions in article 181(1) of the Constitution. This controversial decision of the Governor

35

Kerala

Crisis

(1957-1959):

First

Litmus

Test

of

Indian Democracy,

http://revisitingindia.com/2012/11/22/kerala-crisis-1957-1959-first-litmus-test-of-indiandemocracy/
36 M.P. Jain, Indian Constitutional Law, 7th Edn, 2014, pp 693.
18 | P a g e

is already pending before a five-judge Constitution bench of the Supreme Court. 37 On the
basis of these facts, the Union Cabinet recommended Presidents Rule in Arunachal Pradesh.

III.

FINANCIAL EMERGENCY: ARTICLE 360

Provisions as to financial emergency
(1) If the President is satisfied that a situation has arisen whereby the financial stability
or credit of India or of any part of the territory thereof is threatened, he may by a
Proclamation make a declaration to that effect.

When such a proclamation is in operation, the Centre can give directions to any State to
observe such canons of financial propriety as may be specified in the directions, and further
any other directions as the President may deem necessary and adequate for the purposes of
Article 360(3). The Centre may require that all money bills, or financial bills or those which
involve expenditure from the State Consolidated Fund, shall be reserved for the Presidents
consideration after being passed by the State Legislature.38
The argument given by the Constituent Assembly to support this provision was that the
Indian government should face no trouble in coping with emergency economic problems, the
way the U.S. did when they passed the National Industrial Recovery Act in the wake of the
depression.39
Financial Emergency has never been imposed in India.

37 Union Cabinet recommends Presidents Rule in Arunachal Pradesh - See more at:
http://indianexpress.com/article/india/politics/union-cabinet-recommends-presidents-rule-inarunachal-pradesh/#sthash.NsYaVKRB.dpuf
38 Article 360(4)(a)(ii), Constitution of India, 1950.
39 Constitutional Assembly Debates, Volume X.
19 | P a g e

20 | P a g e

THE POSSIBLE MISUSE OF EMERGENCY POWERS BY THE PRESIDENT AND

GOVERNOR

After an analysis of the instances aforementioned, it becomes clear that there is a real
possibility of misuse of powers accorded to the Central Government under Part XVIII of the
Constitution. In proclaiming the Emergency, the Constitution seeks to control the exercise of
power by mandating that the President act on the advice of the Prime Minister and Cabinet,
and that parliamentary approval for the proclamation is necessary immediately after it is
made. But these safeguards may prove tenuous in practice because the government enjoys the
support of the majority party and a strong willed Prime Minister may have his/her way and
mobilise support for the Emergency even though there may be no real case for the same. It
hence appears essential that a judicial review, even if limited be made possible.
In the various episodes of invocation of Article 356, the Centre has taken a broad view of
Article 356 and at times may invoke it merely to promote the political interests of the party in
power at the Centre.40 However, Article 356 is meant to be invoked in cases of demonstrable
breakdown of Constitution in a state and not to get rid of inconvenient governments. The
Indian version of federalism envisages coexistence of governments of different political
ideologies.
The then Chief Minister of Madhya Pradesh whose government was dismissed in 1992 after
the Babri Masjid incident challenged the dismissal of his government in court. 41 This decision
is important not only because a chief minister successfully challenged the dismissal of his
duly elected government in court, but also because the court asserted its power of judicial
review.
Further, some lacuna still exists in the new safeguards introduced by the 44 th Amendment, for
example, how is armed rebellion to be defined? How many people rebelling would satisfy
the requirement of this clause? Further, if the armed rebellion is in one part of one state,
would it be plausible to declare an Emergency for the entire country? Moreover, mandating
40 M.P. Jain, Indian Constitutional Law, 7th Edn, 2014, pp 693.
41 Sunderlal Patwa v. Union of India, AIR 1993 MP 214.
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written advice from the Cabinet does not necessarily delete the possibility of misuse, but only
creates more transparency.42

42 J.R. Siwach, Misuse of Emergency Powers in India and Nature of Amended Institutional
Safeguards, The Indian Journal of Political Science, Vol. 40, No. 4 (December 1979), pp.
651-668.
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CONCLUSION

In conclusion, the project has answered the questions it had sought to answer. We find that
the nature of federalism changes to a completely unitary form of government during the
application of emergency provisions.
The long history of Article 352 has been traced, from its pre-44 th Amendment days to the
present. An analysis of the 1975 Emergency under the Indira Gandhi government has proved
the need for the Amendment, however, an analysis of the provisions of the Amendment itself
has shown that they may not be sufficient to eliminate misuse of powers.
Article 356, which provides for Presidents Rule in case of failure of constitutional machinery
in a state, has been analysed and the various instances that have been examined also show
that many a times this provision has been used only to further the political agenda of the party
at the Centre rather than to ensure smooth functioning of the government in the State. Further,
invocation of Article 356 hinges on the satisfaction of the President and hence, the Cabinet
has a huge role to play in determining whether a government in a state will fall or stand.
These provisions must be used sparingly, so as to not belie the motivations of our founding
fathers for enacting them.
All federal systems including the Americans are placed in a tight mould of federalism. No
matter what the circumstances, it cannot change its form and shape. It can never be unitary.
On the other hand, the Draft Constitution (of India) can be both unitary as well as federal
according to the requirements of time and circumstances. In normal times, it is framed to
work as a federal system. But in times of war, it is so designed to make it work as though it
was a unitary system. Once a President issues a Proclamationthe whole scene becomes
transformed and the State can become a unitary State.
-B.R. Ambedkar, introducing the emergency provisions in the Draft Constitution

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BIBLIOGRAPHY
Cases
Bhut Nath v. State of West Bengal, AIR 1974 SC 806.10
Minerva Mills v. Union of India, AIR 1980 SC 1840..............................................................11
Naga Peoples Movement of Human Rights v. Union of India, AIR 1998 SC 431....................9
S.R. Bommai v. Union of India, AIR 1994 SC 1918................................................................11
Smt. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299.................................................13
Sunderlal Patwa v. Union of India, AIR 1993 MP 214...........................................................18
T.K. Patel v. State of Gujarat, AIR 1975 SC 270.....................................................................12
Statutes
Constitution (Thirty-eighth Amendment) Act, 1975................................................................10
Statement of Objects and Reasons to the Constitution (Forty-Fourth Amendment) Act, 1978. 9
Treatises
M.P. Jain, Indian Constitutional Law, 7th Edn. 2014..................................................................6
Constitutional Provisions
Article 250(1), Constitution of India, 1950..............................................................................11
Article 250(2), Constitution of India, 1950..............................................................................11
Article 251, Constitution of India, 1950..................................................................................11
Article 352(1), Constitution of India, 1950................................................................................7
Article 353(a), Constitution of India, 1950..............................................................................11
Article 353(b), Constitution of India, 1950..............................................................................11
Article 356(1), Constitution of India, 1950..............................................................................13
Article 357(1)(a), Constitution of India, 1950.........................................................................15
Article 360(4)(a)(ii), Constitution of India, 1950....................................................................17
Article 74(1), Constitution of India, 1950................................................................................10
Explanation to Article 352(1), Constitution of India, 1950.......................................................7
First Proviso to Article 356(4)..................................................................................................15
Proviso to Article 172, Constitution of India, 1950.................................................................12
Proviso to Article 353, Constitution of India, 1950.................................................................12
Proviso to Article 83(2), Constitution of India, 1950...............................................................12
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Constituent Assembly Debates

Constituent Assembly Debates, Volume IX...............................................................................8
Constitutional Assembly Debates, Volume X..........................................................................17
Reports
National Commission to Review the Working of the Constitution, Consultation Paper on
Article 356, Ministry of Law and Justice, Government of India, 2001...............................15
Journal
J. R. Siwach , Misuse Of Emergency Powers In India And Nature Of Amended Institutional 13
J.R. Siwach, Misuse of Emergency Powers in India and Nature of Amended Institutional
Safeguards, The Indian Journal of Political Science, Vol. 40, No. 4 (December 1979), pp.
651-668................................................................................................................................19
Web Resources
Congress responsible for Presidents Rule more than 100 times: Kiren Rijiju - See more at:
http://indianexpress.com/article/india/india-news-india/congress-responsible-forpresidents-rule-more-than-100-times-kiren-rijiju/#sthash.3haAWwAF.dpuf......................15
Kerala

Crisis

(1957-1959):

First

Litmus

Test

of

Indian Democracy,

http://revisitingindia.com/2012/11/22/kerala-crisis-1957-1959-first-litmus-test-of-indiandemocracy/.............................................................................................................................6
Union Cabinet recommends Presidents Rule in Arunachal Pradesh - See more at:
http://indianexpress.com/article/india/politics/union-cabinet-recommends-presidents-rulein-arunachal-pradesh/#sthash.NsYaVKRB.dpuf....................................................................6

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