Emergency Provisions under Articles 352, 356, and 360
The Indian Constitution, in establishing a strong democratic structure, also incorporates mechanisms for dealing with crises that can threaten the country’s stability and governance. Emergency provisions described in Part XVIII (Articles 352-360) safeguard against extraordinary situations that require immediate and decisive action. These provisions enable the central government to assume exceptional powers during times of national emergency, failure of constitutional machines in a state, or financial instability. Mouldered after the Weimar of Germany’s constitution, they intend to balance preserving democratic values and ensuring administrative efficiency in challenging times.
Of the emergency provisions, articles 352, 356, and 360 speak specifically on the three types of emergencies-national emergency, rule of the president (state emergency)-and financial emergency. Each provision enables the central government to intervene in the country’s governance, thereby modifying the constitutional structure. However necessary these powers are for national security and stability, the potential for their misuse is what has been debated legally and politically.1
Article 352: National Emergency
A National emergency may be declared under Article 3522 when the president is convinced that India’s security is at risk due to war, external aggression, or armed rebellion. In this scenario, the federal governance structure is temporarily altered, granting Parliament the authority to legislate on issues usually reserved for state legislatures. In addition, the fundamental rights of Article 193– which guarantee freedoms such as speech, expression, and assembly – are suspended during the emergency period. 4
Historically, India has experienced three national emergency cases. The first was during the Sino-Indian War in 1962, the second was during the Indo-Pakistan War in 1971, and the third was in 1975 when Prime Minister Indira Gandhi imposed an emergency quoting internal disorders. The 1975 emergency, which lasted 21 months, remains controversial as it led to widespread political repression, press censorship, and reduced civil liberties.5
Improper usage was prevented by showing the 44th Constitutional Amendment (1978) as a safeguard against cash. Now, a proclamation with an emergency shall only require the concurrent approval of both Houses of Parliament for a month and be reviewed every six months. In addition, such a statement would be possible only under the written councils of the Union Office to ensure that the president acts with collective executive wisdom rather than individual discretion.
The judiciary played a significant role in interpreting and limiting the scope of emergency provisions under Article 352 to ensure that executive uses are not made possible to subvert constitutional democracy. Over the years, some landmark judgments have determined the nature of emergency powers, mainly about fundamental rights and judicial review. The following cases highlight how courts dealt with emergency-related constitutional issues.6
1. Golak Nath v. State of Punjab (1967)
In this case, the petition did not directly affect emergency provisions. Still, it laid down the basis for subsequent rulings relating to the scope of constitutional amendments, particularly in emergencies. The petitioners were challenging the 17th constitutional amendment, which admitted specific laws of land reform into the 9th schedule, thus giving them immunity from judicial review. The Supreme Court held that Parliament can amend fundamental rights under Article 368 because such rights are sacrosanct and beyond legislative amendment. This judicial pronouncement was not explicit on emergency provisions, but it took on vital importance when the provisions of emergency amendments were challenged as violative of fundamental rights. Further, this decision endorsed judicial supremacy and checked unilateral government exercise of constitutional protection changes, a principle that continued much later in emergency-related cases.7
2. Kesavananda Bharati v. State of Kerala (1973)
This case resulted from a confrontation over land reform laws instituted in Kerala, respecting limitations on the properties of religious institutions. The petitioners challenged the competency of Parliament to modify the Constitution without limits, fearing fundamental principles could be altered through the majority domain. In this historic judgment, the court introduced the doctrine of basic structure in ruling that, although parliament can alter the constitution, it cannot change its basic structure, of which democracy, judicial revision, and federalism are fundamental. This has, hence, become a watershed in emergency case law because it prevents the government from using emergency provisions to set off against the intrinsic ideals of the Constitution.8
The trial took on particular significance when Indira Gandhi’s government proclaimed a national state of emergency in 1975, for it validated the concepts of challenging unconstitutional amendments and meeting the judiciary’s role in safeguarding the constitution from the beefed-up excess of the executives.
3. Indira Nehru Gandhi v. Raj Narain (1975)
Raj Narain lost the case against Indira Gandhi in the Supreme Court, which was filed in the name of Raj Narain after the 1975 general elections, maintaining that the election was marred with malpractices. The Allahabad Superior Court found Indira Gandhi guilty of violating electoral laws and disqualified her from keeping her office. In return, she declared a national emergency, suspended fundamental rights, and approved retrospective constitutional amendments invalidating the court’s judgment.
The defense in the election countered: During emergencies, fundamental rights are not absolute, but suspending them without exterminating constitutional democracy ought to be tolerated. In essence, it raised the question of the possible misuse of emergency powers for political purposes, and protests were instrumental in the 1978 44th Amendment that placed curbs on the arbitrary proclamation of emergencies through strict procedural safeguards.9
4. Minerva Mills v. Union of India (1980)
Due to the emergency, several amendments made to the Constitution after it had lapsed increased the power of the executive as they attempted to restrict judicial review. The 42nd Constitutional Amendment, which was passed during the emergency, tried to confer absolute power upon Parliament to amend the Constitution.
The Supreme Court invalidated provisions of this 42nd Amendment and reasserted the impracticality of removing judicial review from the Constitution, which he posited was an inherent feature thereof. He declared any law or amendment destroying the balance between fundamental rights and directive principles unconstitutional. Judicial scrutiny of the arbitrary exercise of emergency powers was also affirmed, nullifying the unconstitutional exercise of emergency powers against the backdrop of protection of rights.10
Article 356: State Emergency (President’s Rule)
According to Article 356,11 which is popularly called the president’s rule, the Constitution empowers the Central Government to directly assume and exercise authority over the state administration if, in his opinion, the President can convince the state government is unable to get under the Constitution. This should happen following a report by the state governor or some other actions that demonstrate failure of governance.
The method by which the president’s rule can be applied annihilates the state legislature, which is supposed to be dissolved or suspended, whereby the central government governs the state via the governor. The Parliament then assumes the power to legislate on those matters concerning the states, which lessens the independence and authority of the State Government. Although this has been done to protect stability in extreme governance issues, the provision has primarily been abused for political ends. The imposition of the president’s rule under Article 356 has been a contentious issue within the ambit of Indian constitutional law since it is often used for political ends instead of genuine governance failure. Over time, the Supreme Court of India has played an essential role in curbing its misuse and ensuring that it is exercised only in cases of exceptional reasons. 12
1. S.R. Bommai v. Union of India (1994),
In this case, the Supreme Court held that the dissolution of the state government under Article 356 is subject to judicial review. The case arose out of the Governor’s report that cited the majority loss in the operation of the Janata Dal government in Karnataka upon being dismissed. The Court held that federalism forms part of the basic structure of the Constitution and cannot be subjected to arbitrary dissolution of state governments. Also, in his view, the floor test in the State Assembly was a much-preferred way of testing the legitimacy of a government rather than relying upon the subjective assessment of the governor. The judgment, therefore, drastically reduced the Central Government’s power to impose Article 356 arbitrarily for political purposes and increased judicial oversight over the imposition of the President’s rule.13
2. Rameshwar Prasad v. Union of India (2006)
In another case, a vital decision was made concerning the dissolution of the Bihar Assembly in 2005, even before it could be called. The governor’s recommendation for dissolution was based on an assumed inability to form a stable government. This was accepted by the president, which subsequently led to the imposition of the president’s rule. The Supreme Court held that the decision was unconstitutional and stated that Article 356 could not be invoked on assumptions or political convenience. The court held that constitutional provisions in the present case should be left to operate, and neither the governor nor the president could act arbitrarily in dissolving an elected legislature. The case emphasized that emergency provisions should not be invoked to thwart the efforts of a rival political group trying to establish a government, and Article 356 should only be invoked in genuinely appropriate situations of constitutional impasse.
3. State of Rajasthan v. Union of India (1977)
The Supreme Court adjudicated in this case concerning the resignations or fall of Congress dominated state governments following the 1977 general elections when, asserting the center’s majority, the newly elected Janata Party government imposed President’s Rule in several states. Dismissed state governments regard it as being actuated by political motives. The Supreme Court confirmed the center’s discretionary power to impose the President’s Rule. Still, it gave primacy to the tenets of constitutional morality and the need for justification in dismissing state governments. The court may not have declared the dismissals null and void. Still, its decisions laid down the parameters restricting Article 356 from arbitrary usage, thus setting the course for more stringent judicial scrutiny in later cases such as S.R. Bommai (1994).14
By these bold propositions, the judiciary assured that Article 356 would not be misused to destabilize a state under the opposition. S.R. Bommai has laid down guidelines for the strict exercise of presidential supremacy and for enforcing federalism as a fundamental principle of the Constitution. The case of Rameshwar Prasad (2006) reaffirmed that Article 356 cannot be invoked on mere political speculation, and Rajasthan (1977) focused on its moral and constitutional limits. These cases, in conjunction, have changed Article 356 from a discretionary power to one subject to constitutional constraint. In this manner, these judges ensured that the spirit of democracy and federalism would prevail against political considerations.15
Article 360: Financial Emergency
Article 36016 empowers the President to declare a financial emergency if India’s stability or financial credit is jeopardized. On the curtailment of central authority, the central government’s power in economic affairs across India embraces entitlement to give directions concerning matters concerning the financial management of the states, disbanding government officials by the center, and other financial transactions.
Unlike any national or state emergency, India has never witnessed a financial emergency. Though India has had many economic crises, such as the balance crisis of 1991, the government took corrective actions without invoking Article 360. However, this presence has a suffocating effect against any economic destabilization since it assures the executive of having the tools to contend with any financial crisis.17
Significance and Safeguards Against Misuse
One emergency provision acts as a bulwark against national insecurities and lawless behaviour. Its misuse erodes democracy, federalism, and human rights. The Indira Gandhi Emergency is a case in point; it showed how unchecked activity by the executive can suppress dissent and political opposition across the board. The sight of such risks has prompted amendments to the Constitution and some judicial pronouncements aimed at introducing checks and balances against the arbitrary application of this emergency provision.
Judicial scrutiny is the most significant safeguard whereby courts can review whether an emergency proclamation is constitutionally valid. The essence of the 44th Amendment was to further curtail executive action by proclaiming a state of emergency subject to parliamentary approval. There are also periodic examinations to keep emergency provisions temporary and not to be misused for the indefinite suspension of democracy.
Conclusion
The emergency provisions enshrined in Articles 352, 356, and 360 of the Indian Constitution speak about the dynamic nature of this very Constitution, which strikes a balance between the values of democracy and the greater need at times of crisis for a stronger government. These provisions grant extraordinary powers to the central government, yet the history of their utilization also gave way to the need for sufficient safeguards against their misuse. The passage of time would further add to constitutional amendments and judicial interventions to strengthen the accountability of the executive with a check on the emergency powers.
Though in emergencies, perhaps all these power-centering will be only temporary, the spirit of the Indian Constitution ensures that all these cannot be more than exceptions and that the ethos of democracy will always continue to exist in the country.
1 Sukanya Bhat, Indian Journal of Law, Polity and Administration Emergency Provisions in the Indian Constitution, 1 (2020), https://www.jstor.org/stable/43952424.
2INDIA CONST. art, 352
3INDIA CONST. art, 19
4 NEXT IAS Team, National Emergency (Article 352), (May 18, 2024), https://www.nextias.com/blog/national emergency/.
5 Avni Jain, A Legal Approach on India’s National Emergency Provision, 9 INT. J. LAW SOC. SCI. 13 (2024).
6 Article 352: Proclamation of Emergency., Constitution of India
7 Golak Nath v. State of Punjab, (1967) 2 SCR 762
8 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
9Indira Nehru Gandhi v. Raj Narain, (1975) 2 SCC 159
10 Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591
11 INDIA CONST. art, 356
12 Bhat, supra note 1.
13 S.R. Bommai v. Union of India, (1994) 3 SCC 1
14 Rameshwar Prasad (6) v. Union of India, (2006) 2 SCC 1
15 State of Rajasthan v. Union of India, 1977 AIR 136
16 INDIA CONST. art, 360
17 Bhat, supra note 1.
