Grounds For Invocation Of Emergency

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Category: General Law

Published: 2026-08-23T20:07:07.044+00:00

Updated: 2026-08-30T07:07:43.103Z

GROUNDS FOR INVOCATION OF EMERGENCY

Rewa Sharma & Jash Shah, O. P. Jindal Global University Emergency- For the people or the politicians? The term ‘Emergency’ according to Black’s Law Dictionary, is any situation requiring immediate attention and remedial action. 1 Introduction What does "emergency" mean in the context of a country? Is it simply an act of war, a threat to the government, or a state of chaos? What precisely constitutes an emergency? These questions highlight the complexity of the term, proves that there is no one solid definition of emergency but various situations that can be put under this umbrella. Situation which encompasses various scenarios that can disrupt the normal functioning of governance and society can come under it.

Understanding the nuances of what defines an emergency is essential for analysing the implications of governmental responses and the balance between state authority and individual rights during critical situations. “All writers of the Constitution of India are unanimous that there are three kinds of emergency as provided in our Constitution and these are (a) National Emergency (Article 352), (b) Failure of constitutional machinery in States (Article 356) and (c) Financial Emergency (Article 360). ”2 Article 352 of the Indian Constitution empowers the President to declare a National Emergency in response to threats to the nation's security due to war, external aggression, or armed rebellion. Article 356 provides the mechanism for declaring a State Emergency, allowing the President to intervene when a state government is unable to function effectively, based on reports from the Governor.

Lastly, Article 360 addresses the declaration of a Financial Emergency, permitting the President to act if convinced that India's financial stability is at risk, again relying on the Governor's assessment. Notably, Article 360 has never been invoked. Together, these provisions outline the constitutional framework for managing exceptional circumstances,

1 Black’s Law Dictionary

2 Dash, S. C. “EMERGENCY PROVISIONS AND UNION-STATE RELATIONS IN INDIA.” The Indian

Journal of Political Science, vol. 22, no. 1/2, 1961, pp. 53–63. JSTOR, http://www. jstor. org/stable/41853870. accessed 5 October 2024. reflecting the balance between central authority and state autonomy in India’s federal structure. A proclamation of Emergency has far-reaching effects on individual rights, state sovereignty, and the balance of power between the Union and the States. During a National Emergency, federal laws override state laws, and the Union assumes control over areas usually reserved for the States. The Fundamental rights guaranteed to the citizens of India under Part III (Article 12 to 35) of the Constitution of India may also be suspended by the President, which contain freedom of profession, religion, equality before the law, speech, and expression.

According to the Emergency Provisions stated in the Constitution of India, it might also be possible to suspend the right to move to court for the enforcement of the rights conferred under Part III of the Constitution. However, infringement of Article 20 and 21 will not be included under these provisions. 3 This paper argues that while the invocation of emergency provisions for protection of the citizens is vital for maintaining law and order, it must be used with great caution. History shows that unchecked powers can lead to political oppression, the erosion of civil liberties, and an imbalance in the federal structure. This paper reviews the potential for government misuse in declaring emergencies on various grounds and examines how the judiciary acts as a safeguard in protecting citizens' rights.

The main discussion focuses on the grounds for invoking emergencies and the need for stronger legal safeguards to prevent abuse, ensuring that democracy is preserved. The Concept of Emergency in the Indian Constitution All constitutions both ancient and modern provide for an emergency government in addition to the normal one. The concept of emergency has passed into political theory. ‘To guard against accidental emergence of dictatorship because of war, external aggression or internal disturbance, it is always desirable to make specific emergency provisions in the constitution’4. With this end in view, the Constitution of India has allotted a separate part altogether to emergency provisions. Part XVIII, therefore, is an element of modernism in our Constitution.

3 The Constitution of India 1950, art 359.

4 DAS, B. C. “EMERGENCY PROVISIONS IN THE INDIAN CONSTITUTION

A STUDY IN COMPARATIVE

ANALYSIS.” The Indian Journal of Political Science, vol. 38, no. 2, 1977, pp. 237–52. JSTOR, http://www.jstor.org/stable/41854792. accessed 5 October 2024.

The inclusion of emergency provisions in the Indian Constitution was heavily influenced by the socio-political challenges of the time. Communal tensions between Hindus and Muslims, coupled with rampant casteism and regionalism, posed significant threats to the newly established democracy. Additionally, states like Junagarh and Hyderabad hesitated to join the Union, prompting concerns about national unity. The rise of communist activities further shaped the need for provisions like Article 356, allowing central intervention in states, while the economic instability following partition led to the inclusion of Article 360 for financial emergencies. These factors collectively underscored the urgency for robust emergency measures in the Constitution. Invocation of emergency under Article 352 Indian Constitution uses the phrase "Proclamation of Emergency" to refer to a national emergency.

When war, external aggression, or armed rebellion endanger the security of India or a portion of it, the President of India may, under Article 352, proclaim a National Emergency. "Internal Disturbance" was formerly listed in the Constitution as the third reason to declare a national emergency. However, “internal disturbance” as a ground for invocation of national emergency resulted in grave injustice and oppression during the emergency of 1975, the country endured harsh repression over the 20 months of the Emergency, with many professionals surrendering fundamental liberties in order to curry favour with the government and the judiciary. As Sanjay Gandhi positioned himself for greater power, the general acquiescence of politicians suggested that India’s democracy was on the verge of tyranny5.

This misuse of power is further explored in the paper to illustrate the exploitation of constitutional authority by leaders, highlighting the urgent need for checks and balances to protect democratic principles. Article 356 President’s Rule (Article 356) in a State, as one of the three types of emergencies provided for by the Indian Constitution, remains a critical tool in the hands of the Central Government to resolve any constitutional breakdown or failure of governance at the State level. It is widely regarded as a crucial instrument to preserve the constitutional order, guarantee the continuity Jayaprakash Narayan, “An Idealist betrayed”, https://www. thehinducentre. com/the-arena/currentissues/article25188707. ece accessed 5 October 2024.

of governance, and safeguard citizens' interests in situations where the State government is unable to operate in accordance with the constitution, despite the fact that it is not without criticism. The phrase “failure of constitutional machinery” used in Article 356 of the Indian Constitution is notably vague, allowing significant interpretive flexibility. This ambiguity has led to its frequent misuse, especially by central governments to dismiss democratically elected state governments and impose President’s Rule. Such instances are further discussed in this paper. The intention of the Constitution's writers was for this clause to serve as a safety net, permitting federal intervention in extremely rare situations where a state government is unable to carry out its duties in accordance with the constitution.

In actuality, though, Article 356 has frequently been cited for political purposes as opposed to actual constitutional violations. For instance, central governments have frequently used it to overthrow state governments run by the opposition on the grounds that they were upholding law and order or because they were making false accusations of instability. Historical Context Indira Gandhi’s Emergency of 1975 (Article 352) On June 26, 1975, the President of India, under Article 352(1) of the Constitution, declared a State of Emergency, citing threats to national security from internal disturbances. This move, however, was widely seen as an effort by Indira Gandhi to retain her political position after the Allahabad High Court's decision to unseat her on grounds of electoral corruption.

Following the declaration, swift and authoritarian measures were implemented to eliminate political competition. Opposition leaders were arrested overnight, press censorship was imposed, and fundamental rights were suspended through amendments to laws like the Maintenance of Internal Security Act (MISA). 6 The Emergency specifically targeted prominent figures like Jayaprakash Narayan (JP), who had united factions against Gandhi’s government through his call for a "Total Revolution" to combat corruption and restore democracy. His arrest, along with those of other opposition leaders, was aimed at silencing any threats to Gandhi’s hold on power. 6 Morris-Jones, W. H. “Whose Emergency — India’s or Indira’s? ” The World Today, vol. 31, no. 11, 1975, pp. 451–61. JSTOR, http://www. jstor. org/stable/40394828. accessed 5 October 2024.

One of the most notorious actions during this period was the forced sterilization campaign led by Sanjay Gandhi, carried out under the guise of population control. Thousands of men, particularly from marginalized communities, were coerced into sterilization, often through threats of losing essential state services like land and ration cards. This campaign, along with the suppression of political dissent, reflected the government’s attempt to consolidate power and suppress opposition, while violating fundamental human rights and creating a climate of fear and oppression throughout the country7. These authoritarian measures were implemented to eliminate political competition and maintain control following the High Court’s. Kerala Crisis, 1959 (Article 356) Kerala was the first state to be subject to Article 356 dismissal of a democratically elected administration, having happened in 1959.

The central Nehru government overthrew the first Communist-led government in India, that of E. M. S. Namboodiripad. Although the stated justifications listed a collapse of public order and demonstrations against the government's land reform initiatives and education measures, the decision was largely seen as political in nature, swayed by pressure from opposition organizations led by Congress. With this expulsion, the central government set a precedent for future abuse of Article 356 by effectively removing a competing political party from power. “During their period of control in Kerala, the Communist leaders strengthened their position with the electorate while simultaneously weakening the opposition, all in an effort to prepare for a greater election victory in 1962.

”8 Bihar, 1980 (Article 356) When Indira Gandhi came back to power in 1980, President's Rule was installed, and the Bihar Assembly was dissolved. This was perceived as political payback against the state's Janata Party government, which had opposed her during the Emergency. The action followed a pattern in which Article 356 was invoked to retake control of states run by non-Congress parties, rather than to guarantee the smooth operation of state government. Karnataka 1989, (Article 356) The Ramakrishna Hegde government was overthrown in Karnataka in 1989, right before the state elections that year. The central government claimed that there were anomalies, and that https://www. asianstudies. org/publications/eaa/archives/india-the-emergency-and-the-politics-of-masssterilization/ 8 Schoenfeld, Benjamin N. “Kerala in Crisis. ” Pacific Affairs, vol. 32, no. 3, 1959, pp. 235–48.

JSTOR, https://doi. org/10. 2307/3035113. accessed 6 October 2024. law and order had collapsed, but many believed that the move was a ploy to keep Hegde from running for re-election. Since the elected administration was overthrown before the public had a chance to cast a ballot in the state assembly elections, this pre-emptive application of Article

356 has drawn criticism for undercutting the democratic process.

Consequences of such misuse of power Impact on India’s Union-State relations Article 356 of the Indian Constitution allows the President to exercise his or her "satisfaction," based on the state governor's report. This gives the Governor the ability to use his or her emergency powers to reshape the federal government. 9 During Indira Gandhi's Emergency in 1975, the 38th Amendment was notably passed with the intention of prohibiting judicial scrutiny of the President's approval of emergency proclamations. Constitutional framework highlights the necessity of balancing central authority with the rights of states, reinforcing the notion that while federalism promotes unity, it must also protect the pluralistic nature of Indian society.

The evolution towards a Monistic Federalism reflects the ongoing need to adapt constitutional provisions to the realities of governance, ensuring that the integrity of the Union is maintained while respecting the diversity of its constituent units. Oppression of civil liberties and human rights During Indira Gandhi’s Emergency of 1975, the 42nd Amendment of the Indian Constitution10 was passed in 1976 which made several changes to the Constitution because of which it is also called the “Mini-Constitution”. This Amendment expanded the emergency powers of the state by extending the President’s Rule from six months to one year and allowed the President to declare emergency in just one part of the country, not the entire country. It also allowed for the suspension of fundamental rights contained within Article 20 and 21 with Presidential Order.

The hardest knock came most unexpectedly from the Supreme Court. In its decision in A. D. M. Jabalpur V. Shivkant Shukla11 delivered on 28 April 1976 (During the national emergency) the, ruled that the presidential order was constitutional and valid, and no individual had the right to approach any court even if he was deprived of his fundamental rights whilst they were suspended during the Emergency Period. 9 Tummala, Krishna K. “The Indian Union and Emergency Powers. ” International Political Science Review / Revue Internationale de Science Politique, vol. 17, no. 4, 1996, pp. 373–84. JSTOR, http://www. jstor. org/stable/1601275. accessed 5 October 2024.

10 42nd Amendment of the Indian Constitution.

11 A.D.M. Jabalpur v. Shivkant Shukla 1976 (2) SCC 521.

The Supreme Court in its judgment delivered on 25 January 1977 in Union of India V. Bhanudas,12 went much further. It ruled that the Presidential Orders suspending enforcement of fundamental rights impose blanket bans on any and every judicial enquiry and investigation into the validity of an order depriving a person of his personal liberty and that the Court was debarred from even granting relief in the shape of giving facilities to a detenu to be taken from his place of detention to his home or to an examination hall or for special medical treatment under a doctor of his choice or for any other facility because that would be enforcing fundamental right through the aid of the Court. 13 These two disastrous judgments resulted in horrendous consequences for the masses and violated their basic human rights.

The Supreme Court held all previously filed writ of habeas corpus as not maintainable and upheld the validity of Maintenance of Internal Security Act,

1971. Arbitrary detentions increased, conditions and treatment of detenus in jail

worsened and the executive in many cases became a law unto itself. Judiciary as a guardian The biggest influence brought about by the case of ADM Jabalpur v. UOI was the introduction of the 44th Amendment of the Indian Constitution in 1978 14 under the rule of Janata Party which was primarily passed to amend and remove various provisions added through the 42nd Amendment and provide safeguard against misuse of Emergency Provisions as the 42nd Amendment was introduced during Emergency when executive was in complete control and had brought forth many changes to the constitution which could lead to misuse and arbitrary actions.

In the 44th Amendment, the duration of President’s Rule was restored to six months, the term “internal disturbance” was replaced with “armed rebellions” to limit the scope of when emergency can be declared, and the president could only declare emergency after a written recommendation is received from the cabinet. It also added safeguards for protection of Fundamental Rights. It ensured that the rights guaranteed under Article 20 and 21 would not be suspended again, even in case of emergency. Later, the ADM Jabalpur case was overturned by the case of K. S. Puttaswamy v. Union of India

12 Union of India V. Bhanudas (1977) 1 SCC 834.

13 Mr. Soli J. Sorabjee (Former Attorney General of India), “Human Rights During Emergency”,

https://www.allahabadhighcourt.in/event/humanrightsduringemergency.html accessed 5 October 2024.

14 44th Amendment of The Indian Constitution.

(2017)15 and also, Maneka Gandhi v UOI16 played a huge role in establishing the primacy of fundamental rights. In these cases, it was held by the Supreme Court that even in situations such as emergency, an individual must be provided with safeguards to prevent abuse and misuse of power by the administration and the opinion of Justice Khanna (Dissenting Opinion in A.D.M. Jabalpur V. Shivkant Shukla) was upheld and emphasized that Article 21 is an integral part of the fundamental rights, and it cannot be alienated or suspended even during proclamation of emergency. The landmark case of S.R. Bommai v. Union of India has great implications in Center-State relations as the Supreme Court marked out the limitations within which Article 356 has to function. The bench in this case opined that the authority granted to the President by Article

356 is a conditional force, not a complete force. The requirement that material is present,

including the Governor’s paper, is a prerequisite. It was also held that the Governor may only proclaim emergency if both the Houses of Parliament have authorized it according to paragraph three of Article 356. The Supreme Court in this judgement held Article 356 to be an extreme power which is to be used only in case where the State’s constitutional machinery has collapsed, and these views are in similar lines with the concerns of the Sarkaria Commission. Lessons from the USA and Germany: Safeguarding Democracy Through Emergency Provisions USA: Unlike India, where unrestrained authority resulted in authoritarianism during the 1975 Emergency, the USA has substantial restrictions on the President's emergency powers because of the National Emergencies Act of 197617.

To maintain a balance between democratic monitoring and executive action, Congress in the United States has the authority to rescind a declaration of national emergency. This provides a strong defense against abuse. India could learn from the National Emergencies Act of 1976 (USA) by implementing similar checks on the executive's emergency powers. India could introduce similar legislative oversight, requiring parliamentary approval and periodic review of emergency declarations. Germany: The emergency clauses in Germany's constitution are thoughtfully crafted to guard against abuse of authority. Three types of emergencies are recognized under Article 11518: tension, defense, and internal emergencies. Each has particular requirements, guaranteeing that

15 Justice KS Puttaswamy (Retd) & anr v Union Of India & ors (2017) 10 SCC 1.

16 Maneka Gandhi v. Union of India AIR 1978 SC 597.

17 The National Emergency Act 1976.

18 Germany Constitution

the federal government can only take action in these precisely defined circumstances. An internal emergency, on the other hand, deals with serious dangers to democratic order, but a defensive emergency permits swift response in the event of armed attack against the nation. Germany's emergency powers rules aim to prevent misuse by precisely defining their scope and application and maintaining a balance between federal and state authority, in contrast to India's extensive use of these powers. India can take inspiration from Germany's structured emergency provisions by adopting more precise definitions and limitations to prevent misuse of power.

Conclusion In summary, emergency plans are essential for guaranteeing that a country can react quickly to emergencies; but their possibility for abuse, as demonstrated by the Emergency of 1975 in India, emphasizes the necessity for more robust protections. The executive branch became the centre of power during this time due to the unchecked use of emergency powers, which resulted in the widespread suppression of civil freedoms and arbitrary detentions. India can take a cue from nations like the USA and Germany, whose emergency powers are more strictly governed through checks and balances, to avoid such incidents in the future. For instance, the 1976 USA National Emergencies Act requires congressional supervision, enables Congress to overturn emergency declarations, and ensures presidential accountability.

In a similar vein, Germany's constitution prevents the over-centralization of authority by organizing emergency measures into clearly defined categories and situations. Through the integration of these worldwide insights into its domestic legal structure, India can institute recurring legislative evaluations, mandate more stringent delineations of emergency situations, and guarantee the preservation of fundamental rights amidst emergencies. These steps will balance the need for emergency powers with the defense of individual liberties and state sovereignty, assisting in the preservation of democratic institutions while enabling the government to act decisively when necessary.