Emergency provisions: Articles 352, 356 and 360 and the safeguards around them

Part XVIII of the Constitution, Articles 352 to 360, provides for three emergencies. A national emergency under Article 352 may be proclaimed when the security of India or any part of it is threatened by war, external aggression or armed rebellion. A state emergency under Article 356, often called President's Rule, may be imposed when the government of a state cannot be carried on in accordance with the Constitution. A financial emergency under Article 360 may be proclaimed when the financial stability or credit of India or any part of it is threatened. No financial emergency has ever been proclaimed.

A national emergency changes the normal federal balance. Parliament may legislate on state subjects, the Union may give directions to states on how their executive power is to be exercised, and the distribution of revenues may be modified. Article 358 provides that Article 19 freedoms are suspended during a national emergency on war or external aggression grounds, while Article 359 allows the President to suspend the right to move courts for enforcement of specified fundamental rights. Articles 20 and 21, protecting against conviction under retrospective law and against deprivation of life and personal liberty except by procedure established by law, cannot be suspended even during an emergency.

The 44th Amendment of 1978 added safeguards after the Emergency of 1975 to 1977. The ground of internal disturbance was replaced with armed rebellion, and a proclamation may be issued only on the written advice of the Union Cabinet. A proclamation must be approved by Parliament within one month by a special majority, and it continues for six months at a time, renewable with parliamentary approval. A proclamation may also be revoked by a resolution of the Lok Sabha. These rules are meant to ensure that an emergency cannot rest on a single person's satisfaction alone.

Article 356 has its own safeguards, developed largely through the Supreme Court's decision in S. R. Bommai v. Union of India in 1994. The Court held that a proclamation under Article 356 is subject to judicial review, that the material on which it rests can be examined, and that a state assembly should not be dissolved before Parliament approves the proclamation. President's Rule is initially for six months and may be extended, ordinarily up to three years, with parliamentary approval every six months. The emergency provisions therefore present a permanent tension: a constitution needs extraordinary powers for crises, but those powers must remain temporary, approved and reviewable.