The Emergency Provisions in Outline

Article 356. Failure of constitutional machinery in a State.

Article 357. The exercise of legislative powers under a Proclamation issued under article 356.

Article 358. The suspension of the provisions of article 19 during an emergency.

Article 359. The suspension of the enforcement of the rights conferred by Part III during an emergency.

Article 360. Financial emergency.

The two provisions this paper is about

Articles 358 and 359 are the whole of MU's interest in Part XVIII, and the difference between them is the most frequently examined thing in this book. State it early and state it exactly.

Article 358 operates automatically and on article 19 only. While a Proclamation declaring that the security of India is threatened by war or by external aggression is in operation, nothing in article 19 shall restrict the power of the State to make any law or take any executive action which it would otherwise be competent to make or take. No order is needed. Since the 44th Amendment it does not apply where the Proclamation is on the ground of armed rebellion.

Article 359 operates by a Presidential order and on the remedy only. Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III, except articles 20 and 21, as may be mentioned in the order, and all pending proceedings for their enforcement, shall remain suspended.

Three differences follow, and they should be memorised as a triple.

What is affected. Article 358 affects a right; article 359 affects a remedy.

Which rights. Article 358 affects article 19 alone; article 359 may affect any right in Part III except articles 20 and 21.

How it operates. Article 358 is automatic on the proclamation; article 359 requires an order that must be laid before Parliament.

The pattern of Part XVIII, and why it takes this shape

The framers had before them the Government of India Act 1935, which contained a corresponding provision for the Governor General to assume the government of a Province, and the experience of a war just ended. What they produced has a recognisable structure.

Power is concentrated but not unconditioned. Every emergency requires parliamentary approval and every one has a stated ground.

The federal division yields first. Before any fundamental right is affected, articles 250 and 353 give the Union power over State subjects and power to direct a State's executive; that is worked in [What a Proclamation Switches On].

Rights yield next, and only under article 352. No fundamental right is affected by President's rule or by a financial emergency.

And since 1978 there is a floor. Articles 20 and 21 cannot be reached by an article 359 order, and article 358 no longer follows a proclamation made on the ground of armed rebellion.

The vocabulary trap

Three phrases are used loosely in ordinary speech and must be used precisely in an answer.

The Emergency, with a capital, in Indian usage means the period from 25 June 1975 to 21 March 1977. It was an article 352 emergency on the ground of internal disturbance.

President's rule is article 356 and is not an emergency in the sense that touches rights, though it is in the same Part.

Emergency provisions is the heading of Part XVIII and covers all three.

A student who writes that fundamental rights were suspended when President's rule was imposed in a State has made a serious error, and it is a common one.

A worked example

A Proclamation is issued under article 352 in respect of three named States on the ground of imminent danger of external aggression, and the President makes an order under article 359 suspending the right to move any court for the enforcement of articles 14 and 22.

Is article 19 suspended? Yes, by article 358 automatically, because the Proclamation is on the ground of external aggression; and, under the proviso, a law may be made or executive action taken in relation to a State where the Proclamation is not in operation if and so far as the security of India is threatened by activities in or in relation to the part where it is.

Are articles 14 and 22 suspended? No. The rights continue. What is suspended is the right to move any court to enforce them, and any pending proceedings for their enforcement.

Can article 21 be included in the order? No, not since the 44th Amendment.

Does the order need approval? It must be laid before each House of Parliament as soon as may be after it is made; the Proclamation itself must be approved within a month by both Houses by the special majority.

Would a detenu have any remedy? Yes, several. His article 21 and article 20 claims survive; the pleas that survive any article 359 order are listed in [What a Presidential Order Can Never Bar: Makhan Singh]; and if the detention order does not comply with the statute under which it purports to be made, the order is not protected at all.

What it does NOT mean

Part XVIII is not one emergency. It is three.

Article 356 does not suspend fundamental rights. Nothing in Part III is affected by it.

Article 355 is not an emergency provision. It is a duty, and it exists whether or not any Proclamation is in force.

Article 359 does not suspend rights. It suspends the right to move a court to enforce them.

Quick revision

• Three emergencies: art 352 national emergency on war, external aggression or armed rebellion; art 356 failure of constitutional machinery in a State; art 360 financial emergency, never yet declared.
• Art 353 effect on executive and legislative power; art 354 revenues; art 355 the Union's duty to protect States; art 357 legislative powers under a s.356 Proclamation.
• Art 358: automatic, art 19 only, only on a Proclamation on the ground of war or external aggression since 1978.
• Art 359: by Presidential order, any Part III right except arts 20 and 21, and it suspends the remedy and not the right.
• The Emergency with a capital means 25 June 1975 to 21 March 1977, an art 352 emergency on the then ground of internal disturbance.

Test yourself

1. Name the three emergencies and their grounds. Article 352, where the security of India or any part of its territory is threatened by war, external aggression or armed rebellion; article 356, where the government of a State cannot be carried on in accordance with the Constitution; and article 360, where the financial stability or credit of India or any part of its territory is threatened.

2. State the three differences between articles 358 and 359. Article 358 affects a right and article 359 a remedy; article 358 affects article 19 alone and article 359 may affect any Part III right except articles 20 and 21; and article 358 operates automatically on the Proclamation while article 359 requires a Presidential order laid before Parliament.

3. Which emergency has never been declared? The financial emergency under article 360.

4. Does President's rule affect fundamental rights? No. Articles 358 and 359 operate only in relation to a Proclamation under article 352.

5. What is article 355, and why is it not an emergency provision? It is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the Constitution; it is a standing duty that exists whether or not any Proclamation is in force, and it is the source of the powers rather than an exercise of them.