Emergency Provisions Part XVIII of the Constitution of India contains Articles 352-360 which deals with 'Emergency Provisions'. There are three kinds of provisions according to the Constitution.

Introduction

Part XVIII of the Constitution of India contains Articles 352-360 which deals with 'Emergency Provisions'. There are three kinds of provisions according to the Constitution. 

National Emergency 

State Emergency 

Financial Emergency 

National Emergency 

Article 352 deals with the National Emergency. An emergency arising from the threat to the security of the country is called National Emergency. A national emergency can be proclaimed by the President of India when he is satisfied that a grave security threat exists to the national. The threat can either be by war, external aggression or armed rebellion. 

The expression "Proclamation of Emergency" or "Emergency" deals only with Clause (1) of Article 352 of the Constitution of India and it does not include articles 356 and 360. 

In the case of Minerva Mills vs Union of India AIR 1980, SC held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under 352(1). However, court's power is limited only to examining whether the limitations conferred by the constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.

Prior to 44th amendment, duration of emergency was two months initially and then after approval by the houses, it would continue indefinitely until ended by another proclamation. However after 44th amendment, the period is reduced to 1 month and then 6 months after approval.

Grounds for Proclamation of Emergency 

Before the 44th amendment to the Constitution of India, the following are the grounds under which the President can proclaim emergency. 

War 

External Aggression 

Internal Disturbance 

However, the term Internal Disturbance is too vague and might also include political agitations in the country. Hence, the 44th amendment replaced this with armed rebellion. After the 44th amendment the following are the grounds under with a National Emergency can be proclaimed by the President. 

1. War 

2. External Aggression 

3. Armed Rebellion. 

War 

When a violent struggle between two countries with the use of armed forces. It also includes when a country has made a formal declaration of a war against India. 

External Aggression 

External aggression has wide meanings. It covers unilateral attacks with force by one state against another State without a formal declaration of war. As long as the other State has not answered with similar hostile attacks, it can be constituted an external aggression. 

Publication of Proclamation of Emergency 

There is no prescribed format in which a Proclamation of Emergency needs to be published. The publication can be made in any manner deemed fit in order to be known to public. 

Effects of Proclamation of emergency  The following are the effects arising out of proclamation of emergency in art 352. Art 353

A. executive power of the Union shall extend to giving directions to any state.

B. parliament will get power to make laws on subjects that are not in Union list.

if the emergency is declared only a part of the count, the powers in 1 and 2 shall extend to any other part if that is also threatened.

Art 354 Provisions of art 268 to 279, which are related to taxation, can be subjected to exceptions as deem fit by the president. Every law such made shall be laid before each house of the parliament.

Art 355 says that it is the duty of the Union to protect States against external aggression.

Art 358 While proclamation of emergency declaring that security of India or any part of the territory of India is threatened due to war or external aggression, is in operation, the state shall not be limited by art 19. In other words, govt may make laws that transgress upon the freedoms given under art 19 during such emergency. However, such a law will cease to have effect as soon as emergency ends. Further, every such law or very executive action that transgresses upon freedoms granted by art 19 must recite that it is in relation to the emergency otherwise, it cannot be immune from art 19.

It also says that any acts done or omitted to be done under this provision cannot be challenged in the courts after the end of emergency.  In the case of M M Pathak vs Union of India AIR 1978, SC held that the rights rights granted by 14 to 19 are not suspended during emergency but only their operation is suspended. This means that as soon as emergency is over, rights transgressed by a law will revive and can be enforced. In this case, a settlement that was reached before emergency between LIC and its employees was rendered ineffective by a law during emergency. After emergency was over, SC held that the previous settlement will revive. This is because the emergency law only suspended the operation of the existing laws. It cannot completely wash away the liabilities that preexisted the emergency.

Art 359 This article provides additional power to the president while proclamation of emergency is in operation, using which the president can, by an order, declare that the right to move any court for the enforcement of rights conferred by part III except art 20 and 21, shall be suspended for the period the proclamation is in operation of a shorter period as mentioned in the order. Further, every such law or every executive action recite that it is in relation to the emergency.

In the case of Makhan Singh vs State of Punjab AIR 1964, SC distinguished between art 358 and 359 as shown below:

 Art 358 Art 359    

1. Freedoms given by art 19 are suspended. Fundamental rights are not suspended. Only the courts cannot be moved to enforce fundamental rights.    

2. Any actions done or omitted to be done cannot be challenged even after emergency. 

3. Any action done by the legislature or executive can be challenged after the suspension is over.    

Art 19 is suspended for the period of emergency. Right to move courts is suspended for the period of emergency or until the proclamation of the president to remove suspension.    

Effective all over the country. May be confined to an area.  

Art 83(2) While the proclamation is in operation, the president may extend the normal life of the Lok Sabha by one year each time up to a period not exceeding beyond 6 months after proclamation ceases to expire.

Provisions in case of failure of constitutional machinery in States Art 356 says that if, upon the report of the Governor of a state, the president is satisfied that the govt. of the state is cannot function according to the provisions of the constitution, he may, by proclamation, assume to himself all or any of the functions of the govt, or all or any of the powers vested in the governor, or anybody or any authority in the state except the legislature of the state. The power of the legislature of the state shall be exercised by the authority of the parliament.

Under this article, president can also make such incidental and consequential provisions which are necessary to give effect to the objectives of the proclamation. This includes suspension of any provision of this constitution relating to any body or authority in the state.

However, this article does not authorize the president to assume the powers vested in the High Courts.

Art 357 provides that in the case of proclamation under art 356 

1. parliament can confer upon the president the power of legislature of the state to make laws or the power to delegate the power to make laws to anybody else.

2. The parliament or the president can confer power or impose duties on the Union or Union officers or Union authorities.

3. President can authorize the expenditure from the consolidated fund of the stat pending sanction of such expenditure by the parliament.

Financial Emergency

Art 360 provides that if the president is satisfied that a situation has arisen whereby the financial security of India or the credit of India or of any part of India is threatened; he may make a declaration to that effect. Under such situation, the executive and legislative powers will go to the center.  

This article has never been invoked.

Changes made by 44th Amendment 44th amendment substantially altered the emergency provisions of the constitution to ensure that it is not abused by the executive as done by Indira Gandhi in 1975. It also restored certain changes that were done by 42nd amendment. The following are important points of this amendments-

"Internal disturbance" was replaced by "armed rebellion" under art 352.

1. The decision of proclamation of emergency must be communicated by the Cabinet in writing.

2. Proclamation of emergency must be by the houses within one month.

3. To continue emergency, it must be re approved by the houses every six month.

Emergency can be revoked by passing resolution to that effect by a simple majority of the houses present and voting. 1/10 of the members of a house can move such a resolution.

Art 358 - Under this article art 19 will be suspended only upon war or external aggression and not upon armed rebellion. Further, every such law that transgresses art 19 must recite that it is connected to art 358. All other laws can still be challenged if they violate art 19.

Art 359, under this article, suspension of the right to move courts for violation of part III will not include art 20 and 21.  Reversed back the term of Lok Sabha from 6 to 5 years.