Emergency Provisions: Articles 352, 356 and 360

Part XVIII of the Constitution gives the Union three emergency powers: a national emergency under Article 352 (war, external aggression or armed rebellion), President's Rule in a State under Article 356 (failure of constitutional machinery) and a financial emergency under Article 360. Each needs approval by both Houses of Parliament within a fixed time, and since S.R. Bommai v. Union of India (1994) the courts can review a proclamation and strike it down if it rests on no material or on bad faith.

This explainer is for B.A. LL.B. and LL.B. students preparing for constitutional law papers, and for any citizen who wants to know what actually happens when "emergency" is declared. Tamil Nadu has its own history here: President's Rule was imposed in the State on 31 January 1976, 17 February 1980, 30 January 1988 and 30 January 1991, so this is not a remote topic for us.

What does Article 352 say about a national emergency?

The President may proclaim an emergency if satisfied that a grave emergency exists by which the security of India, or any part of it, is threatened by war, external aggression or armed rebellion. A proclamation can be made before the actual war or aggression if the danger is imminent. The key safeguards, read straight from the text:

• Cabinet in writing: under clause (3), the President can issue the proclamation only after the decision of the Union Cabinet is communicated to him in writing. Advice from the Prime Minister alone is not enough.
• One month: under clause (4), the proclamation lapses after one month unless both Houses approve it.
• Special majority: under clause (6), each approving resolution needs a majority of the total membership of the House and two-thirds of those present and voting.
• Six months at a time: under clause (5), an approved proclamation runs for six months and must be renewed by both Houses for each further six months.
• Lok Sabha can end it: under clause (7), the President must revoke the proclamation if the Lok Sabha passes a resolution disapproving it. Under clause (8), one-tenth of the Lok Sabha's members can demand a special sitting, which must be held within 14 days.

Why did the 44th Amendment change the wording?

The original ground included "internal disturbance". That was the ground used for the 1975 emergency. Section 37 of the Constitution (Forty-fourth Amendment) Act, 1978 replaced "internal disturbance" with "armed rebellion", added the written Cabinet decision in clause (3) and omitted the earlier clause (5), which had tried to shut out judicial review. The same reform cycle amended Article 359 so that Articles 20 and 21 can never be suspended.

In Gujarat Mazdoor Sabha v. State of Gujarat (2020), a three-judge bench speaking through Justice D.Y. Chandrachud noted that Article 352 had been invoked three times (1962, 1971 and 1975) and held that an internal disturbance must be of the order of an armed rebellion threatening the security of India before emergency powers can be used. He described the amendments as "the product of experience".

What happens to fundamental rights during an emergency?

1. Article 358: when an emergency on the ground of war or external aggression is in force, Article 19 does not restrict the State. This does not apply to an emergency based on armed rebellion. The law must also recite that it relates to the emergency.
2. Article 359: the President may by order suspend the right to move any court to enforce named Part III rights, except Articles 20 and 21.

The background is ADM Jabalpur v. Shivkant Shukla (1976), where a five-judge bench, by 4:1 with Justice H.R. Khanna dissenting, held that detenus could not seek habeas corpus during the 1975 emergency. A nine-judge bench in K.S. Puttaswamy v. Union of India (2017) overruled it. If a question asks whether Article 21 survives an emergency, the answer today is yes, both by text and by precedent.

How does President's Rule under Article 356 work?

If the President is satisfied, on the Governor's report or otherwise, that the government of a State cannot be carried on in accordance with the Constitution, he may assume the State's executive functions and declare that Parliament will exercise the State Legislature's powers. He cannot touch the High Court.

• The proclamation lapses after two months unless both Houses approve it.
• Once approved, it runs for six months and can be extended six months at a time, up to a ceiling of three years.
• Under clause (5), an extension beyond one year is allowed only if a national emergency is in operation and the Election Commission certifies that Assembly elections cannot be held.

How have the courts read Article 356?

S.R. Bommai v. Union of India (1994) 3 SCC 1, decided by nine judges on 11 March 1994, is the leading case. Its main points:

• A proclamation is open to judicial review. It can be struck down if based on no material, irrelevant material or mala fides.
• Whether a ministry has a majority must be tested on the floor of the House, not in the Governor's office.
• The Assembly should not be dissolved until Parliament approves the proclamation; until then it can only be kept in suspended animation.
• If the proclamation is struck down, the court can restore the dismissed government.
• Secularism is a basic feature, and Article 356 is a last resort for a breakdown of constitutional machinery, not mere administrative failure.

In Rameshwar Prasad v. Union of India (2006), decided on 24 January 2006, a five-judge bench held the 23 May 2005 proclamation dissolving the Bihar Assembly unconstitutional (Justices Arijit Pasayat and K.G. Balakrishnan dissented on this point), though it did not restore the Assembly because fresh elections were under way. Students should read these Supreme Court rulings first; they bind the Madras High Court and every court in Tamil Nadu. I have not cited a separate Madras High Court ruling here because I could not confirm one that adds to this position.

What is a financial emergency under Article 360?

The President may proclaim one if the financial stability or credit of India, or any part of it, is threatened. It lapses after two months unless both Houses approve it. During its operation the Union can direct States to follow canons of financial propriety, reduce salaries of State employees, reserve Money Bills for the President and reduce the salaries of Union employees, including Supreme Court and High Court judges. Article 360 has never been invoked.

How should you write about this in an exam?

1. Open with the article and its exact ground (for example, "armed rebellion", not "internal disturbance").
2. Give the procedure with time limits: one month for Article 352, two months for Articles 356 and 360.
3. Name the safeguard added by the 44th Amendment and explain why, using ADM Jabalpur as the reason.
4. Cite Bommai for review of Article 356, and Rameshwar Prasad as its application.
5. Close with a short critical point, for instance the federal tension when the Governor's report is the only basis.

A student in Nagercoil writing a 15-mark answer on President's Rule could use the January 1991 Tamil Nadu proclamation as the opening example and then test it against the Bommai criteria. If you want to discuss these questions with faculty, see our programmes page.

Sources

• Legislative Department, Constitution of India: official English text of the Constitution, including Part XVIII.
• Indian Kanoon, Article 352: text of Article 352 with notes on the 44th Amendment changes.
• S.R. Bommai v. Union of India: summary of the 1994 nine-judge decision and its holdings.
• President's rule (Wikipedia): table of past proclamations, including the four Tamil Nadu instances.
• Rameshwar Prasad v. Union of India (2006): case note on the Bihar Assembly dissolution ruling.
• LiveLaw on Gujarat Mazdoor Sabha v. State of Gujarat: report of the 2020 judgment discussing Article 352 and the 44th Amendment.