Emergency Provision

Articles 352 to 360 →Part XVIII To meet abnormal situation to normal.

During an Emergency →The Central government becomes all powerful and Covert Federal into unitary system.

3 Types

1.       Art. 352 (National Emer)

2.       Art 360 (Financial Emer)

3.       Art 356 (State Emer/President’s Rule)


Article 352 – National Emergency
  ·         President Declares

·         War, External aggression or armed rebellion

·         Can declare fore if it satisfied that there eminent danger

·         38th CA, 1975 – he can issue proclamation on ground of war, external aggression, armed rebellion.

·         It can be for whole India (42nd CAA)

·         Internal disturbance 44th CA,1978 Armed rebellion

·         Written form by cabinet President can Proclaim

·         38th 1975Proclamation by 44th CAJudicial Review

·         Exempted from the judicial review

·         Minerva Mills Case can be challenged on ground of malafide

Parliamentary Approval Must be approved within one month by 44th CA 19782 month, Originally

Case-1 Proclamation of emergency →before 1 month→ Lok Sabha (L.S.) dissolve without passing Meanwhile RS passes→ dissolve Emergency and after 30 day of 1st sitting of Lok Sabha

Case-2If approved by both houses→6 month →extended for indefinite time, with the approval of Parl. after every 6 month.

Originally, it was operate as long as cabinet desires after proclamation approval by parl.

Case-3If L.S dissolve during the period of 6 month without approving for further continuance of Emergency →Proclamation service 30 days from first sitting of L.S. Meanwhile RS approved.

Resolution of proclamation must be passed by spl. majority i.e. 2/3 [P+V] + 50% of the total member.

44th CAA, Earlier →simple majority.

Scope of Judicial Review ·         Judicial Review (by 44th CA 1978)

·         Action be struck down of it was based on ground of Malafide.

·         Secularism as the basic structure.

·         356 should not be political instrument, should be used occasionally.

Suspension of FR ·         44th amendment act 1978–

a.       President cannot suspend of right to move the court for enforcement of fundamental rights guaranteed by Article21 – Article 20, Article 21 remain enforceable during emergency

b.       The first six fundamental rights under Article 19 – suspended only when national emergency is declared on the ground of war or external aggression – not on the ground of armed rebellion


Article 356 – State Emergency
President Rule Art 356, impose duty on the center that govt of every state is carried accordance with provision of const.

In case of failure, Art 356 (const, machinery impose Pres. Rules)

Parl. Approval

·         With 2 month from Parl. & if L.S. dissolve without approving, last for 30 days after the 1st meeting Rajya Sabha (R.S) → meantime RS approved.

·         Once approved max – 6 months, with repeated approval max 3years is dissolution. {simple majority}

·         President can be revoked at any time

·         Proclamation does not require Parl. approval

When state Legis. is suspended or dissolved→

a.       Parl. →law – state list

b.       Allow expenditure from S.C.F.I when L.S. is not in session.

c.        Ordinance by President when Parl. is not is session.

Consequences ·         President can take up functions of state government and powers vested in governor or any other executive authority.

·         He can declare the powers of the state legislature to be exercised by Parliament.

·         He can take all necessary steps including suspension of constitutional provisions – related to anybody or authority in the state

·         The law made by the President during such time does not repeal after the upliftment of the President’s rule

·         This law can again be passed by the state legislative assembly once formed

·         The power of the High Court of the concerned state does not vest in the president during such an emergency

·         Recently imposed in Maharashtra post the 2019 Legislative AssemblyElections

Article 360 – Financial Emergency
  ·         Art- 360 in 38th CA 1975→ made President satisfaction immune

·         As it cannot be questioned in court but by 44th CA →satisfaction of President is not beyond Judicial Review

·         Has not been imposed in India till today

Approval ·         Duration 2months

·         If L.S dissolve without approval within 2 month→ Continue till 30 days of L.S take place→ meanwhile RS approval

·         Once approved by both house of Parl.→

Ø  No max. Period for it operation

Ø  Repeated Parl. approval is not required

·         Simple Majority

·         Revoked by President

Effects of Fin. Emer. ·         Center direct states of Fin. Matters.

·         Reduction of salary (↓) →any person serving in state.

·         Reservation of all financial bill & money bill for President.

·         Judge of SC salaries & allowance of all person(↓)

Distinction b/w 358 and 359
                 Art. 358                       Art. 359
Only Art. 19 whole time Take any executive action inconsistent with FRs whose enforcement is suspended by Pres. order.
Start automatically President suspend
Only in External Emergency not in case of  internal emergency In both External & Internal Emergency.
Enable/ empowers the state to make any law or executive action inconsistent of F.R. FRs suspended for specific time either full or partial 20, 21 cannot be suspended.
Art. 352 ·         Effects FRs of the citizen.

·         L.S can pass a resolution for its revocation.

Art. 356 ·         No effects on FRs.

·         There is no such provision. It can be revoked by the President only on his own.

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