The Indian Constitution is a written document that defines and limits the
powers of the three government organs: the Legislature, the Executive, and the
Judiciary. It establishes a defined set of rights and responsibilities for
India's citizens and government. Furthermore, the Constitution has a provision
for "Emergency" under Part XVIII to prevent damage from an extremely dangerous
situation occurring throughout the country or on any of its territories (Article
352 to Article 360).
External aggression, armed rebellion, and/or war are all grounds for declaring a
state of emergency under Article 352(1) of the Constitution. Internal
Disturbance was the previous language, which was larger and undefined until the
44th Constitutional Amendment in 1978 adopted the term "Armed Rebellion."
Furthermore, except for Articles 20 and 21, all Fundamental Rights can now be
suspended during such a period, whereas previously, all of them could be.
This amendment was enacted to prevent the recurrence of the harm inflicted by
the National Emergency imposed by then-Indian Prime Minister Indira Gandhi in
1975, which many people believe was unjustified. The Executive grew powerful,
while the judiciary's independence was jeopardized. As a result, the focus of
this research is on how the provisions of the Emergency Act evolved after the
1975 Emergency, what happened during that time, and the likelihood of a repeat
forty-seven years later. For research, the author relied on secondary sources of
On August 15, 1947, India gained independence from British rule, and the Indian
Constitution, in its full, went into effect on January 26, 1950. The
Constitution was drafted following many rounds of deliberation among members of
the Constituent Assembly, and as a result, it is a very comprehensive and
prolific document that defines and limits the State's authorities. The clause
"Emergency" is a prominent aspect of the Indian Constitution. The framers of the
constitution were concerned that there would be times when the country's
stability would be jeopardized and situations would become volatile.
As a result, this clause was enacted to minimize the damage during such a
period. In India, an "emergency" can be declared in three situations: a threat
to India's security or any portion of its territory (Article 352), a breakdown
of a state's constitutional machinery (Article 356), or a financial emergency
(Article 360). Under Article 352(1) of the Constitution, a threat to the
security of India or any portion of its territory can occur as a result of war,
external aggression, or armed rebellion.
According to Article 356(1) of the Constitution, a state's constitutional
machinery breaks down when the state's government is unable to comply with the
Constitution. Finally, a financial emergency is deemed to have occurred when
India's financial stability or credit, or any part of its territory, is
threatened, as defined by Article 360(1) of the Constitution. On the advice of
the cabinet of ministers, the President of India can declare an emergency under
any of the aforementioned circumstances.
Article 355 of the Indian Constitution mandates that the central government take
steps to ensure that all states in India are safe from external invasion and
internal strife and that all states' governments are run in line with the
Constitution. While Article 356 has been utilized and misused numerous times,
the Centre has rarely used Article 355, which, while serving as a forerunner to
Article 356, carries an onerous responsibility. forces to a state reeling from
any of the aforementioned events, as defined in this Article.
In a nutshell, it is thus established that an emergency might be declared in the
entire country or a specific area of it. The fact that the Central Executive
becomes disproportionately powerful during an emergency is common to both. The
founders of the Constitution believed that in the event of a national emergency,
the Centre should be able to control and direct all parts of administration and
legislation across the country.
The general situation of affairs is absent during a nationwide emergency. The
relationship between the federal government and the states changes dramatically,
and the powers granted to the legislature are greatly expanded. Citizens' rights
are also impacted negatively. Other than Articles 20 and 21, the enforcement of
Fundamental Rights is suspended, even though Article 19 can only be suspended if
the emergency is caused by War or External Aggression, as defined by Article 358
of the Constitution. The fact that Articles 20 and 21 could not be suspended was
finally made possible by the 44th amendment in 1978.
Before the amendment, India had been subjected to a 21-month state of emergency
under then-Prime Minister Indira Gandhi, during which many severe measures were
taken. This demanded such a modification, as it was purportedly done just to
keep Indira Gandhi's unpopular government in office. Many people believe that
the 1975 Emergency was completely unjustified and that the consequences could
have been prevented. The 1975 Emergency was the turning point in the Indian
Constitution and India's history.
On the other hand, when the Governor of the state concerned submits a report to
the President of India affirming the same, a state emergency might be declared
as a result of a breakdown of constitutional machinery in that state. Once the
President is satisfied with the state's disintegration, he can declare an
emergency. Except for the powers of the relevant Legislature, the President can
assume all or any powers of the Government, the Governor, or any other body or
authority of that state under Article 356 (1).
Furthermore, under Article 356(1)(a), the President can proclaim that the State
Legislature's powers can be exercised by the Parliament during an emergency. The
current paper is an exploratory study that will be used to conduct an objective
and descriptive examination. The study has a doctrinal bent to it. While writing
the study, secondary sources such as published articles, research papers, and
content available on relevant websites were used to gather data.
The interim report of the Shah Commission, which was established to look into
the 1975 Emergency, was also read and examined. In addition, the decision in the
case of Indira Nehru Gandhi against Raj Narain and others was discussed.
Interim findings were reached on a variety of dimensions, including political
and constitutional issues, as well as other points of view.
Provisions For Emergencies as Outlined in The Constitution at The Time of Its
India's emergency preparedness has progressed over time. The provisions of the
Indian Constitution at the time of its inception and the provisions currently
are vastly different, with various seminal implications if an emergency is
declared. Article 352(1) provided for the installation of Emergency on grounds
of "war, external aggression, and internal disturbance" before the 44th
amendment, i.e., from the Constitution's inception until the 42nd Amendment
during the 1975 Emergency.
In the year 1962, a state of emergency was established on the grounds of "war,"
after China declared war on India despite having previously professed no such
intentions. The same provision was used to declare an Emergency in 1971 when
India and Pakistan were at war. "External Emergency" is the term for such a
situation. However, President Fakhruddin Ali Ahmad, on the suggestion of Prime
Minister Indira Gandhi, declared an emergency on the grounds of "internal
unrest" only once, in 1975.
"Internal Emergency" is the term for such a situation. The proclamation of
emergency on the grounds of "internal unrest" in the country sparked
controversy, as most people did not see the need for such a drastic measure.
People believed Ms. Gandhi established the emergency for political reasons since
her position as Prime Minister and Member of Parliament had been jeopardized by
the Allahabad High Court's decision in State of Uttar Pradesh v Raj Narain's
case on June 12, 1975.
People became agitated as a result of this verdict, which was aided by a variety
of other causes, including widespread poverty. They then demanded the Prime
Minister's resignation. The agitation was labeled "internal disturbance," and a
state of emergency was declared. This incident became a model for how a broad
ground like "internal disturbance" might be abused to impose urgency. The
internal disturbance is recognized to include nearly any form of aggression
occurring within the country, even if it is peaceful.
The ground, like Ms. Gandhi, was vulnerable to massive misappropriation. The
clause has been replaced by "armed rebellion," which has a restricted scope and
so is less likely to be abused, thanks to the 44th amendment. The subsection
discusses the events that led to the revision. Furthermore, Article 352 of the
Constitution formerly stated that the President could only declare an emergency
if the Cabinet Ministers had given their written approval. This, too, was a
rather open-ended provision. Only a few members of the Cabinet might persuade
the President to declare an emergency, rather than the entire Cabinet.
Possibilities for constructive and necessary disagreement may potentially wither
in such a scenario. It is said that Ms. Indira Gandhi did not even consult the
Cabinet of Ministers when she declared an emergency in 1975. According to some,
the only persons she contacted were then-West Bengal Chief Minister Siddharth
Shankar Ray and her son Sanjay Gandhi, among others. They made the decision
totally on their own, and the Cabinet was not consulted on it. To eliminate the
potential of a repeat of such an event in the future, Article 352(3) currently
states that the President may only declare an emergency if the Cabinet of
Ministers has advised him and the communication has been made and signed in
It was also emphasized that the President has the authority to send such a
proclamation for review just once. Before the 44th Amendment, another
significant aspect of the Emergency Provisions was the protection of fundamental
rights. When the National Emergency is declared, all Fundamental Rights may be
suspended. During the 1975 Emergency, the same tactic was employed to varying
Articles 20 and 21 of the Constitution cannot be suspended under any
circumstances, according to Article 358 (1 A) of the Constitution, which was
adopted through the 44th Amendment. Article 19 will also be suspended only if
the Emergency was created due to "war" or "foreign aggression," rather than
"armed rebellion." As a result, the interim conclusion we can reach is that
emergency powers before the 44th Amendment were substantially open-ended, and
were massively abused during the 1975 Emergency.
The 44th amendment in 1978 made the following changes:
- Under Article 352 of the constitution, the word "armed revolt" was
replaced by "internal disturbances."
- For the declaration of an emergency under the leadership of the prime
minister, the cabinet ministers should communicate the proclamation in
- Within one month of the proclamation of the emergency, both houses of
parliament must be present.
- For the emergency to continue, the houses must re-approve it within six
- For the emergency to be revoked, a simple majority must adopt a
resolution and vote.
- Article 19 shall not be suspended in the event of armed revolt;
nevertheless, after revision, it was claimed that article 19 will be
suspended only in the event of wars or external attacks.
- It is also stated that articles 20 and 21 of the Indian constitution
would not be included in the suspension of the ability to file a lawsuit if
part iii of the constitution is violated.
- The Lok Sabha's term has been reduced from six to five years. These
amendments in the 44th Amendment of 1978 were implemented to improve upon
the 42nd Amendment of 1976, as well as to improve the national emergency. As
a result, the 44th Amendment of 1978 has proven to be one of the most
After significant research, exhaustive studies, and protracted deliberations,
the Indian constitution was drafted and framed. The most significant and vital
emergency provision is placed with prudence and care. Over time, the provisions
have proven insufficient, leading to the perception that they are ineffective in
practice. India can only succeed if safeguards are put in place to prevent the
abuse of emergency powers.
When it comes to emergency provisions, it's easy to see why they're included in
the Indian constitution. However, upon further examination, we discover that,
while these clauses are intended to ensure India's security and preserve
individual fundamental rights, they also grant the government a great deal of
The exercise of executive powers transforms the federal system into a unitary
one. We continue to believe that the check and balance system, which did not
exist during the third national emergency in 1975, should be reinstated to
ensure that the ruling party and executive use their authority wisely. Our
constitution allows for the exercise of powers that may infringe on an
individual's fundamental rights in times of emergency. The third national
emergency was declared in 1975 in response to internal disturbances (later known
as armed rebellion) in which many people's fundamental rights were violated.
Within the scope of the Indian constitution, the researcher proposes certain
control mechanisms for the limiting authority.
Every June, the Indian democracy is reminded of one of its darkest episodes: the
Emergency of 1975. In a historical review of the events that led to the
declaration of the Emergency in 1975 under Article 352 (1) and everything that
followed, several authors argue that such a situation should not occur again.
The Constitution was turned into a toy by the authorities at the time. The
Constitutional modifications, particularly the 42nd amendment, which became
known as the Mini Constitution because it changed the fundamentals of the Indian
Constitution, inflicted a great deal of damage to the rule of law.
However, this did not go down well with the electorate, and Ms. Gandhi was
defeated in the General Elections that followed the end of the Emergency. As a
result, the next government was charged with ensuring that such an event never
happened again in India, and the 44th amendment was enacted as a result. The
44th amendment righted the wrongs of the previous amendments and revitalized the
Constitution's spirit. Since then, imposing an Emergency has become a more
difficult task, and it is also ensured that people's rights are not
inadvertently violated when the Emergency is in effect.
Finally, in light of the prospect of an emergency in today's circumstances, the
provision for one should be abandoned. No doubt, if events warrant it, an
emergency should be declared; but, an emergency like the one declared in 1975
should never be repeated because it will irreparably destroy the constitutional
principles upon which Indian democracy is founded.
Furthermore, according to a huge number of authors, some of whom had previously
been referenced, there is little chance that such irresponsibility would occur
again because India has seen a wave of "media activism," and the voter is now
conscious of its rights. According to the Supreme Court in Bhut Nath v Union of
India, which was based on Goldwater v Carter, the subject of Emergency and
President's satisfaction therefore is a political question, and though overruled
in Minerva Mills, the voter will never allow such an extreme to sustain.
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8TH MAY 2022.
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8TH MAY 2022
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8th May 2022.
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8th May 2022.
- Bhut Nath Mete Vs. The State of West Bengal - Lnind 1974 Sc 31 (1974) 1
- Goldwater V. Carter, 444 U.S. 996, (U.S. December 13, 1979)
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