Emergency Provisions in the Indian Constitution

Introduction: The Logic of Extraordinary Powers

The Indian Constitution grants the Union government special emergency powers to respond to
extraordinary situations such as war, external aggression, armed rebellion, or a threat thereof. These
provisions, though dramatic in their potential impact on federalism, democracy, and civil liberties,
were designed to ensure the survival and integrity of the Indian state in times of peril. However, the
chapter candidly admits that the use of these powers must be subject to constitutional discipline, lest
they become instruments of political dominance.

I. The Declaration of Emergency under Article 352

Article 352 permits the President to declare a national emergency if satisfied that the security of India
or any part thereof is threatened by war, external aggression, or armed rebellion. Originally, this
provision was more liberally framed — the word “internal disturbance” being used before its
amendment — but the 44th Amendment substituted this with the more specific “armed rebellion.”

A vital constitutional question has long been whether this “satisfaction” of the President is justiciable.
In Bhut Nath v. State of West Bengal (1974), the Supreme Court declined to judicially scrutinise
the declaration or continuance of emergency, terming it a “political question.” The 38th Amendment
of 1975 tried to codify this position by inserting clause (5) in Article 352, making the President’s
satisfaction final and non-justiciable. But this shield did not last — the 44th Amendment repealed
clause (5), restoring the court’s potential authority to review the declaration of emergency.

Justice Bhagwati, in Minerva Mills (1980), suggested that while the Court must respect the executive’s
prerogative, it should retain power to examine whether the President acted mala fide or without proper
application of mind — thus ensuring that emergency powers are not wielded arbitrarily .

II. Constitutional Consequences of a Proclamation

The proclamation of emergency has a profound impact on Indian federalism. Under Article 250,
Parliament can legislate on matters in the State List. Article 353(b) allows the Centre to give directions
even in areas normally under state control. The entire balance of legislative and executive authority
tilts dramatically in favour of the Union.

Other consequences include:

• Suspension of revenue sharing obligations under Article 354.

• Parliament's power to tax within the State List under Article 250.
• Extension of the life of the Lok Sabha and State Assemblies during the emergency.
• Suspension of enforcement (though not existence) of Fundamental Rights under Article 359,
except Articles 20 and 21 which remain sacrosanct post-44th Amendment .
III. The Judicial Attitude to Emergency Powers

Bhut Nath v. State of West Bengal (1974) was emblematic of a deferential judiciary. The Court
refused to invalidate the emergency, calling the question political, not judicial. This non-interventionist
stance emboldened the executive, particularly during the 1975-77 Emergency.

However, this changed after the excesses of the Emergency became evident. The Minerva
Mills judgment marked a significant judicial pivot. The Court held that clauses (4) and (5) of Article
368, inserted by the 42nd Amendment (which sought to place constitutional amendments beyond
judicial review), were unconstitutional. Judicial review, the Court held, is part of the Constitution’s
basic structure and cannot be abrogated even during an emergency. This reinforced the idea that no
power — not even emergency power — is beyond constitutional scrutiny .

IV. S.R. Bommai v. Union of India: Reviving Judicial Review

S.R. Bommai v. Union of India (1994) is arguably the most comprehensive judicial treatment of
Article 356 — the provision empowering the President to impose President’s Rule in states where
constitutional machinery has failed.

Facts and Background:

The case arose from the dismissal of the Bommai government in Karnataka, based on a Governor's
report claiming the Chief Minister had lost his majority. Similar proclamations in Meghalaya,
Nagaland, Madhya Pradesh, Rajasthan, and Himachal Pradesh were also reviewed by the Court. For
the first time, the Supreme Court took a decisive stand on the scope of judicial review over emergency
powers under Article 356 .

Key Doctrines and Holdings:

1. Judicial Review is Permissible: The Court held that a proclamation under Article 356 is not
immune from judicial scrutiny. If mala fide, based on irrelevant grounds, or not supported by
relevant material, the proclamation can be invalidated.
2. Floor Test is Essential: The majority ruled that whether a Chief Minister enjoys legislative
support must be tested on the floor of the Assembly, not by the Governor’s subjective opinion
.
3. Dissolution Not Automatic: Dissolution of the Assembly must not be automatic upon
issuance of the proclamation — it requires independent justification.
4. President's Power is Not Absolute: The Court declared that Article 356 is a “conditioned
power” — relevant material must exist before the President acts.

Outcome:
The Court invalidated the proclamations in Karnataka, Meghalaya, and Nagaland for violating
constitutional norms. However, it upheld proclamations in Madhya Pradesh, Rajasthan, and Himachal
Pradesh due to the secularism concerns post-Ayodhya incident .
Implications:
Bommai fundamentally altered the federal balance. It re-established the judiciary’s role as the guardian
of constitutional morality, limited the arbitrary use of Article 356, and reaffirmed secularism as part of
the Constitution’s basic structure.

V. Karnataka v. Union of India: Centre’s Inquiry Power

In Karnataka v. Union of India (1977), the issue was whether the Centre could institute a
Commission of Inquiry into corruption allegations against State Ministers. The State argued this was
an encroachment on federal autonomy.

The Supreme Court upheld the Centre’s power. It reasoned that the Inquiry Commission was a mere
fact-finding body, not an adjudicatory institution. Moreover, the power was traced to Entries 94 of
List I and 45 of List III of the Constitution. Importantly, the Court held that monitoring corruption
and administrative efficiency in States could fall under the Centre’s obligation to ensure that
governments function in accordance with the Constitution — possibly invoking Article 356 if needed
.

This case reflects a constitutional tension: how to ensure good governance in States without
undermining federalism. The Court leaned towards central supervision but only as a preliminary step,
not as coercion.

VI. The Anti-Defection Law and Emergency Powers

The Bommai case also touched upon the Tenth Schedule (anti-defection law). In Nagaland, the
Court dealt with defections and whether a breakaway group forming a new party invalidated the
government. The Court upheld the defections, noting that the Tenth Schedule allows 1/3rd of
members to split and form a new party (pre-91st Amendment), which could then claim majority.

This nuance was important. Rather than punishing political realignments with Article 356, the Court
insisted on democratic testing via floor votes.

VII. Comparative Perspectives and Theoretical Reflections

The chapter ends with comparisons to other federal constitutions. In the U.S., Canada, and Australia,
emergencies were managed through expansive judicial interpretations of “war” or “defence” powers.
Indian emergency provisions, by contrast, are overt, textual, and codified.

The Indian model creates a drastic centralisation of power during emergencies — one that
overrides normal federal arrangements. While theoretically democratic controls exist (Cabinet advice,
Parliamentary approval), these can be rendered ineffective if the ruling party has a strong majority.
Hence, judicial review remains the most reliable check.

Conclusion: Democracy Under Strain

Emergency powers in India are constitutionally sanctioned but politically dangerous. They grant the
Centre sweeping authority over States, the judiciary, and citizens’ rights. The record of their use —
especially during the 1975-77 Emergency — has shown how easily these powers can be abused.

Yet, the post-Emergency jurisprudence, especially Minerva Mills and Bommai, shows that the
Supreme Court has become increasingly vigilant in policing the boundaries of emergency powers. The
development of doctrines like basic structure, judicial review, and the primacy of floor tests in federal
crises have added substantial safeguards.

The chapter concludes with a cautious optimism: while India’s constitutional design allows for central
domination in crises, the maturing of judicial review and evolving conventions may ensure that
democracy is not sacrificed at the altar of expediency.

“Constitution and 'Extraconstitution': Colonial Emergency Regimes in Postcolonial India

and Pakistan" by Anil Kalhan

Anil Kalhan’s chapter explores how colonial emergency regimes shaped the legal and political
frameworks of India and Pakistan after independence, arguing that despite formal constitutional
change, the substance of emergency governance remains deeply rooted in colonial legacies. Both
countries, he contends, inherited not just the laws of the British Empire but its legal mentality: one in
which the state’s coercive powers take precedence over civil liberties during times of perceived crisis.
This continuity has meant that both constitutional and extraconstitutional emergency powers are
deployed in ways that undermine democratic accountability and reinforce executive dominance.

Kalhan begins by examining the colonial origins of emergency power. British rule in India was
grounded in an executive-heavy legal structure, most clearly reflected in the Government of India Act
of 1935. This legislation gave sweeping authority to the Viceroy and provincial Governors to declare
emergencies and rule by ordinance. These powers were not intended to preserve constitutional
government, but rather to uphold imperial control. Emergency was not the exception — it was a
default method of governance, particularly in the face of dissent, political unrest, or nationalist
movements.

Preventive detention and other authoritarian tools were used liberally by the British to suppress Indian
political agitation. The logic was clear: order and authority trumped individual rights. When India and
Pakistan gained independence in 1947, they did so with legal systems that still bore the structural and
ideological imprint of this colonial model. Although both countries would go on to adopt written
constitutions, the emergency powers embedded in these documents carried forward many of the same
principles: centralized authority, broad executive discretion, and few checks during times of crisis.

The Indian Constitution of 1950, for example, formalised a comprehensive set of emergency
provisions that allowed the central government to dramatically expand its power during declared
emergencies. Article 352 permitted the declaration of a national emergency on vague grounds such as
“internal disturbance,” which could be triggered even by political unrest. Article 356 allowed the
President to dissolve state governments, while Article 360 gave the executive sweeping control over
economic policy during a financial emergency. Most alarmingly, these provisions allowed for the
suspension of fundamental rights and permitted preventive detention without trial.

Pakistan’s 1973 Constitution included similar measures, permitting the President to declare
emergencies in response to war, external aggression, or internal disturbances. It too allowed the federal
government to assume control over provincial affairs and suspend civil liberties. Kalhan argues that
while these emergency provisions were framed in the language of legality and constitutionalism, they
effectively reproduced the colonial state’s readiness to prioritize order over rights, and executive fiat
over judicial review.

What is striking, Kalhan observes, is how both India and Pakistan have experienced emergency
regimes that function similarly whether they are proclaimed constitutionally or imposed extra-legally.
In India, the most notorious example was the 1975–77 Emergency declared by Prime Minister Indira
Gandhi. Officially triggered by a judicial ruling that invalidated her election, the emergency was
justified as a response to internal instability. In practice, it led to mass detentions, censorship, and
sweeping authoritarianism. Thousands of political opponents were imprisoned, often under
preventive detention laws. The judiciary, notably, failed to provide a meaningful check: the Supreme
Court held that even the right to life could be suspended during an emergency.

Although this emergency followed constitutional procedures, it resulted in the suspension of

democratic governance and basic liberties. It showed that a formally “constitutional” emergency could
be just as repressive as a military coup. In fact, Kalhan argues that the 1975–77 Emergency effectively
blurred the line between legality and authoritarianism. Constitutional powers were used to achieve
extralegal ends, exposing the weaknesses of formal safeguards when political will drives the abuse of
power.

In Pakistan, the dynamic has played out even more frequently through outright military rule.
Successive coups in 1958, 1977, and 1999 saw the constitution suspended and military leaders declare
martial law. The courts often validated these takeovers using the doctrine of necessity, which held that
unconstitutional actions could be justified if they were taken to preserve national stability. Yet even
when emergency regimes in Pakistan were proclaimed outside the framework of the Constitution, the
outcomes resembled those of India’s constitutional emergency: mass arrests, restrictions on speech
and assembly, weakened courts, and an unchecked executive.

The 2007 emergency declared by President Pervez Musharraf is a case in point. Faced with a judiciary
that was increasingly assertive and potentially threatening to his rule, Musharraf suspended the
Constitution, imposed a state of emergency, dismissed judges, and governed by decree. Although he
claimed this was necessary to address terrorism, the move was widely understood as an attempt to
neutralize political opposition. The judiciary, civil society, and legal profession resisted more forcefully
than in the past, and the courts eventually struck down the emergency as unlawful. Still, the episode
reaffirmed Kalhan’s central insight: whether inside or outside the constitution, emergency powers tend
to produce the same results — executive domination and the erosion of democratic constraints.

This leads Kalhan to a powerful argument: that the form of emergency power — whether
constitutional or extraconstitutional — may matter less than we think. In both India and Pakistan,
legal structures have facilitated the use of emergency powers to suppress dissent and evade
accountability. Emergency powers have become tools not for preserving democracy but for
circumventing it. And the formal distinction between constitutional legality and authoritarian
improvisation often collapses in practice. Both forms of emergency, he notes, serve to shield rulers
from political and legal scrutiny.

One reason for this is the judiciary’s ambiguous role. In India, the courts during the Emergency
endorsed the government’s actions, only to reverse course later. In Pakistan, the judiciary has oscillated
between validating military rule and later repudiating it. These patterns reveal that courts in both
countries have struggled to consistently uphold the rule of law under emergency conditions. Their
dependence on executive favor, or on political stability more broadly, often compromises their
independence.

Kalhan concludes by returning to the colonial legacy. He argues that the tendency to resort to
emergency powers in postcolonial South Asia reflects not just legal continuity, but a deeper
institutional and political culture shaped by the imperial past. The British model emphasized order,
executive dominance, and the subordination of rights in the face of dissent. This model was not
dismantled at independence; rather, it was absorbed into the new constitutional orders. As a result,
emergency powers — and the conditions under which they are used — remain structurally embedded
in both India and Pakistan’s legal systems.

The implications of this analysis are sobering. Efforts to constrain emergency powers through
constitutional design alone may be insufficient. The endurance of emergency governance in both
countries suggests that legal texts matter less than political incentives, institutional behavior, and
historical habits. Unless those underlying forces are transformed — through stronger democratic
norms, judicial independence, and public accountability — the risk of emergency abuse remains high.

Ultimately, Kalhan challenges readers to rethink the meaning of emergency power in constitutional
democracies. He warns that in societies with deep authoritarian legacies, the distinction between law
and its suspension is precarious. Emergency rule, whether justified in the name of national security or
internal stability, often becomes a mask for executive overreach. And unless vigilant safeguards are
put in place — legal, political, and cultural — the line between constitutional governance and
repression may continue to blur.

Granville Austin – Working a Democratic Constitution – Chapter 13: "26 June 1975"

Granville Austin’s thirteenth chapter opens with a metaphorical obituary for Indian democracy, as
published by The Times of India on 26 June 1975. That date marked a watershed moment in Indian
constitutional history—the formal imposition of a state of Emergency by Prime Minister Indira
Gandhi. Austin’s narrative details how, in the early hours of that day, Mrs. Gandhi oversaw a
coordinated and secretive clampdown: mass arrests of opposition leaders, sweeping detentions, a press
blackout, censorship of news, and a rapid suspension of fundamental constitutional rights.

According to Austin, the Emergency was framed by the government as a necessary response to alleged
rebellion and instability—a means to protect democracy, not dismantle it. But the real intent, he
argues, was self-preservation. The country had been in political ferment: popular protests were rising,
particularly in Gujarat and Bihar; Jayaprakash Narayan was mobilising massive civil resistance; and
legal pressure mounted with Indira Gandhi's conviction for electoral malpractice. The Emergency
allowed her to hold onto power while circumventing legal and electoral accountability.

Austin makes clear that what unfolded was not merely a legal aberration, but a thorough distortion of
the Constitution’s intent. The suspension of Articles 14, 21, and 22 effectively disabled the judiciary
from protecting civil liberties. Preventive detention laws like MISA were weaponised with impunity:
thousands were imprisoned for tenuous reasons, from political criticism to mere suspicion. This shift
in the law—particularly the amendments to MISA—transformed a legal framework originally meant
for extreme situations into a tool for authoritarianism.

The chapter underscores how swiftly India transitioned from a vibrant, albeit flawed, democracy into
an authoritarian state under constitutional cover. Sanjay Gandhi, Indira’s unelected and unofficially
empowered son, began to exert significant influence. The bureaucracy grew complicit, the press was
muzzled, and Parliament became a rubber stamp. Public fear replaced public debate. As Austin
poignantly observes, Indira Gandhi's invocation of democracy became a rhetorical sleight of hand—
used not to strengthen, but to systematically suppress democratic structures.

This chapter acts as a prelude to the more detailed legal and institutional dismantling that followed.
Austin paints a bleak but precise picture of how personal political survival was elevated above
constitutional integrity, and how this moment of concentrated power left enduring scars on the
democratic ethos of the Indian Republic.

Sudipta Kaviraj – Trajectories of the Indian State – Chapter 6: "Indira Gandhi and Indian
Politics"

Sudipta Kaviraj’s sixth chapter is a reflective and analytical examination of Indira Gandhi’s political
career, divided into four broad periods: 1966–1971, 1971–1975, 1975–1980, and 1980–1984. His goal
is not to narrate events per se, but to extract the deeper political and structural meaning of her actions
and leadership style within Indian democracy.

Kaviraj opens with the observation that Indira Gandhi’s rise was both unexpected and transformative.
Contrary to popular assumptions of dynastic succession, her ascension was a result of political
compromise and weakness—she was chosen because she seemed non-threatening, ideologically
indistinct, and unlikely to disrupt the Congress Party's balance of power. Ironically, these traits later
facilitated her assertion of total control.
During her early years (1966–71), she played a strategic, almost passive game, winning internal battles
by splitting the Congress Party and appealing directly to the people. Through policies like bank
nationalisation and the abolition of privy purses, she built a narrative of progressive populism,
repositioning herself as a radical reformer. Her leadership during the Bangladesh crisis of 1971
demonstrated her decisiveness on the international stage, marking the peak of her prestige.

Kaviraj then shifts to the 1971–75 phase, during which Indira Gandhi mastered the art of electoral
politics as referenda. Elections ceased to be verdicts on five-year performances and instead became
simplistic, emotive contests driven by singular issues like poverty eradication. The 1971 slogan "Garibi
Hatao" was not just populist but structurally strategic—it reframed the public discourse and
marginalised her opposition. Political complexity was reduced to symbolic battles, with her
government depicted as the embodiment of national interest.

The Emergency years (1975–80) are analysed as a consequence of both growing opposition pressures
and the contradictions in her own populist logic. The rise of mass movements in Gujarat and Bihar,
the railway strikes, and the JP Movement exposed the limits of her centralised style. Lacking a
functioning Congress Party machinery, she turned to the bureaucracy for political execution,
demanding political loyalty from civil servants under the guise of a "committed bureaucracy." The
Emergency, thus, was not merely a reaction to political turmoil but also a structural expression of how
centralised power had eroded institutional balances.

In the post-Emergency years (1980–1984), Indira Gandhi returned to power largely due to the failures
of the Janata government, which, despite its democratic rhetoric, failed to provide a viable alternative.
Yet this second tenure was marked by intensified challenges: from economic liberalisation pressures
to the resurgence of regionalism and communal tensions. Her handling of Punjab, in particular,
demonstrated the limits of her earlier strategies—centralisation could no longer contain the fractured
political field. Her assassination by Sikh bodyguards, ironically tied to her secular convictions, closed
a career fraught with contradictions.

Kaviraj’s core argument is that Indira Gandhi’s rule signified a rupture within Indian politics. She
retained Nehru’s economic policy shell but dismantled the political institutions that made that policy
framework effective. She transformed Congress from a federal, consensus-driven party into a
centralised tool of personal power, weakening the state’s long-term viability. This centralisation—
equating national strength with her personal authority—may have increased her power, but at the cost
of democratic depth and institutional resilience.

Kaviraj ends by reflecting on the long-term consequences: Indian politics has since oscillated between
incoherence and repression, without crafting a viable third path. Indira Gandhi, for better or worse,
redefined Indian democracy—not by developing it, but by testing its limits