Emergency provisions

The Constitution gives the Union special powers to deal with extraordinary situations that threaten the country or a part of it. During an emergency, the federal system can work almost like a unitary one. There are three kinds of emergency.

1. National emergency (Article 352)

The President can proclaim a national emergency when the security of India or a part of it is threatened by war, external aggression or armed rebellion. The proclamation can be made even before the event, if the danger is close.

• The President can act only on the written advice of the Union Cabinet.
• Each house of Parliament must approve the proclamation within one month, by a special majority.
• Once approved it runs for six months and can be extended, six months at a time, with fresh approval each time.
• The Lok Sabha can end it at any time by a simple resolution.

Effects: the Union can give directions to any state and Parliament can make laws on State List subjects. The six freedoms of Article 19 are suspended when the emergency is due to war or external aggression (Article 358), and the President can suspend the right to move the courts for the enforcement of other Fundamental Rights (Article 359). However, the rights under Articles 20 and 21 can never be suspended. The life of the Lok Sabha can be extended by one year at a time.

A national emergency has been proclaimed three times: in 1962 (war with China), in 1971 (war with Pakistan) and in 1975 (on the ground of internal disturbance). The emergency of 1975 to 1977 saw the arrest of opposition leaders and censorship of the press, and it led to important changes in the law.

2. President's rule in a state (Article 356)

If the President is satisfied, on a report from the Governor or otherwise, that the government of a state cannot be carried on in accordance with the Constitution, the President can take over the administration of that state. This is called President's rule, or state emergency. Article 355 places a duty on the Union to protect every state against external aggression and internal disturbance.

• Parliament must approve the proclamation within two months.
• It lasts six months at a time and can continue for a maximum of three years, subject to conditions after the first year.
• The state's Council of Ministers is dismissed, the assembly is suspended or dissolved, the Governor runs the state on behalf of the President, and Parliament makes laws and passes the budget for the state.

Article 356 has been used many times, and often criticised as a tool against state governments run by opposition parties. In the S. R. Bommai case (1994), the Supreme Court held that a proclamation under Article 356 can be reviewed by the courts, that the majority of a government should be tested on the floor of the assembly, and that the assembly should not be dissolved before Parliament approves the proclamation.

3. Financial emergency (Article 360)

If the financial stability or credit of India or a part of it is threatened, the President can proclaim a financial emergency. It must be approved by Parliament within two months. The Union can then direct the states to observe financial discipline and can order a reduction in the salaries of government servants, including judges. A financial emergency has never been proclaimed in India.

Safeguards added by the 44th Amendment (1978)

After the experience of 1975 to 1977, Parliament made it harder to misuse the emergency powers:

• "internal disturbance" was replaced by the narrower "armed rebellion";
• the written advice of the Cabinet, not of the Prime Minister alone, became necessary;
• approval by a special majority within one month, and renewal every six months, were introduced;
• Articles 20 and 21 were placed beyond suspension;
• the Lok Sabha was given the power to revoke the emergency.