18Part XVIII (A:352-360) : Emergency Provisions
· Article 352 :
Proclamation of Emergency
352. (1) If the
President is satisfied that a grave emergency exists whereby the security of
India or of any part of the territory thereof is threatened, whether by war or
external aggression or [armed rebellion]*, he may, by Proclamation, make a
declaration to that effect [in respect of the whole of India or of such part of
the territory thereof as may be specified in the Proclamation]**.
[Explanation:- A Proclamation of Emergency declaring that the security of India
or any part of the territory thereof is threatened by war or by external
aggression or by armed rebellion may be made before the actual occurrence of
war or of any such aggression or rebellion, if the President is satisfied that
there is imminent danger thereof.]***
[(2) A Proclamation issued under clause (1) may be varied or revoked by a
subsequent Proclamation.
(3) The President shall not issue a Proclamation under clause (1) or a
Proclamation varying such Proclamation unless the decision of the Union Cabinet
(that is to say, the Council consisting of the Prime Minister and other
Ministers of Cabinet rank appointed under article 75) that such a Proclamation
may be issued has been communicated to him in writing.
(4) Every Proclamation issued under this article shall be laid before each
House of Parliament and shall, except where it is a Proclamation revoking a
previous Proclamation, cease to operate at the expiration of one month unless
before the expiration of that period it has been approved by resolutions of
both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a
previous Proclamation) is issued at a time when the House of the People has
been dissolved, or the dissolution of the House of the People takes place
during the period of one month referred to in this clause, and if a resolution
approving the Proclamation has been passed by the Council of States, but no
resolution with respect to such Proclamation has been passed by the House of
the People before the expiration of that period, the Proclamation shall cease
to operate at the xpiration of thirty days from the date on which the House of
the People first sits after its reconstitution, unless before the expiration of
the said period of thirty days a resolution approving the Proclamation has been
also passed by the House of the People.
(5) A Proclamation so approved shall, unless revoked, cease to operate on the
expiration of a period of six months from the date of the passing of the second
of the resolutions approving the Proclamation under clause (4):
Provided that if and so often as a resolution approving the continuance in
force of such a Proclamation is passed by both Houses of Parliament the Proclamation
shall, unless revoked, continue in force for a further period of six months
from the date on which it would otherwise have ceased to operate under this
clause:
Provided further that if the dissolution of the House of the People takes place
during any such period of six months and a resolution approving the continuance
in force of such Proclamation has been passed by the Council of States but no
resolution with respect to the continuance in force of such Proclamation has
been passed by the House of the People during the said period, the Proclamation
shall cease to operate at the expiration of thirty days from the date on which
the House of the People first sits after its reconstitution unless before the
expiration of the said period of thirty days, a resolution approving the
continuance in force of the Proclamation has been also passed by the House of
the People.
(6) For the purposes of clauses (4) and (5), a resolution may be passed by
either House of Parliament only by a majority of the total membership of that
House and by a majority of not less than two-thirds of the Members of that
House present and voting.
(7) Notwithstanding anything contained in the foregoing clauses, the President
shall revoke a Proclamation issued under clause (1) or a Proclamation varying
such Proclamation if the House of the People passes a resolution disapproving,
or, as the case may be, disapproving the continuance in force of, such
Proclamation.
(8) Where a notice in writing signed by not less than one-tenth of the total
number of members of the House of the People has been given, of their intention
to move a resolution for disapproving, or, as the case may be, for disapproving
the continuance in force of, a Proclamation issued under clause (1) or a
Proclamation varying such Proclamation,-
(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session, a special sitting of the
House shall be held within fourteen days from the date on which such notice is
received by the Speaker, or, as the case may be, by the President, for the
purpose of considering such resolution.]****
[ [(9)]## The power conferred on the President by this article shall include
the power to issue different Proclamations on different grounds, being war or
external aggression or 3[armed rebellion] or imminent danger of war or external
aggression or [armed rebellion]###, whether or not there is a Proclamation
already issued by the President under clause (1) and such Proclamation is in
operation.
#### ]#
--------------------
* Subs by the Constitution (Forty-fourth Amendment) Act, 1978, s. 37, for
"internal disturbance" (w.e.f. 20-6-1979)
** Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 48 (w.e.f.
3-1-1977)
*** Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 37 (w.e.f.
20-6-1979)
**** Subs. by s. 37, ibid., for cls. (2), (2A) and (3) (w.e.f. 20-6-1979)
# Ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s. 5
(retrospectively)
## Cl. (4) re-numbered as cl. (9) by the Constitution (Forty-fourth Amendment)
Act, 1978, s. 37 (w.e.f 20-6-1979)
### Subs. by s. 37, ibid., for "internal disturbance" (w.e.f
20-6-1979)
#### Cl. (5) omitted by s. 37, ibid. (w.e.f. 20-6-1979)
· Article 353 :
Effect of Proclamation of Emergency
353. While a
Proclamation of Emergency is in operation, then-
(a) notwithstanding anything in this Constitution, the executive power of the
Union shall extend to the giving of directions to any State as to the manner in
which the executive power thereof is to be exercised;
(b) the power of Parliament to make laws with respect to any matter shall
include power to make laws conferring powers and imposing duties, or
authorising the conferring of powers and the imposition of duties, upon the
Union or officers and authorities of the Union as respects that matter,
notwithstanding that it is one which is not enumerated in the Union List:
[Provided that where a Proclamation of Emergency is in operation only in any
part of the territory of India,-
(i) the executive power of the Union to give directions under clause (a), and
(ii) the power of Parliament to make laws under clause (b),
shall also extend to any State other than a State in which or in any part of
which the Proclamation of Emergency is in operation if and in so far as the
security of India or any part of the territory thereof is threatened by
activities in or in relation to the part of the erritory of India in which the
Proclamation of Emergency is in operation.]*
--------------------
* Ins. by the Constitution (Forty-second Amendment) Act 1976, s. 49 (w.e.f.
3-1-1977)
· Article 354 :
Application of provisions relating to distribution of revenues while a
Proclamation of Emergency is in operation
354. (1) The
President may, while a Proclamation of Emergency is in operation, by order
direct that all or any of the provisions of articles 268 to 279 shall for such
period, not extending in any case beyond the expiration of the financial year
in which such Proclamation ceases to operate, as may be specified in the order,
have effect subject to such exceptions or modifications as he thinks fit.
(2) Every order made under clause (1) shall, as soon as may be after it is
made, be laid before each House of Parliament.
· Article 355 :
Duty of the Union to protect States against external aggression and internal
disturbance
355. It shall
be 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 provisions of this Constitution.
· Article 356 :
Provisions in case of failure of constitutional machinery in States
356. (1) If the
President, on receipt of a report from the Governor * of a State or otherwise,
is satisfied that a situation has arisen in which the Government of the State
cannot be carried on in accordance with the provisions of this Constitution,
the President may by Proclamation-
(a) assume to himself all or any of the functions of the Government of the
State and all or any of the powers vested in or exercisable by the Governor **
or any body or authority in the State other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be
exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the
President to be necessary or desirable for giving effect to the objects of the
Proclamation, including provisions for suspending in whole or in part the
operation of any provisions of this Constitution relating to any body or
authority in the State:
Provided that nothing in this clause shall authorise the President to assume to
himself any of the powers vested in or exercisable by a High Court, or to
suspend in whole or in part the operation of any provision of this Constitution
relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a subsequent
Proclamation.
(3) Every Proclamation under this article shall be laid before each House of
Parliament and shall, except where it is a Proclamation revoking a previous
Proclamation, cease to operate at the expiration of two months unless before
the expiration of that period it has been approved by resolutions of both
Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a
previous Proclamation) is issued at a time when the House of the People is
dissolved or the dissolution of the House of the People takes place during the
period of two months referred to in this clause, and if a resolution approving
the Proclamation has been passed by the Council of States, but no resolution
with respect to such Proclamation has been passed by the House of the People
before the expiration of that period, the Proclamation shall cease to operate at
the expiration of thirty days from the date on which the House of the People
first sits after its reconstitution unless before the expiration of the said
period of thirty days a resolution approving the Proclamation has been also
passed by the House of the People.
(4) A Proclamation so approved shall, unless revoked, cease to operate on the
expiration of a period of [six months from the date of issue of the
Proclamation]***:
Provided that if and so often as a resolution approving the continuance in
force of such a Proclamation is passed by both Houses of Parliament, the
Proclamation shall, unless revoked, continue in force for a further period of
[six months]**** from the date on which under this clause it would otherwise
have ceased to operate, but no such Proclamation shall in any case remain in
force for more than three years:
Provided further that if the dissolution of the House of the People takes place
during any such period of [six months]**** and a resolution approving the
continuance in force of such Proclamation has been passed by the Council of
States, but no resolution with respect to the continuance in force of such
Proclamation has been passed by the House of the People during the said period,
the Proclamation shall cease to operate at the expiration of thirty days from
the date on which the House of the People first sits after its reconstitution
unless before the expiration of the said period of thirty days a resolution
approving the continuance in force of the Proclamation has been also passed by
the House of the People:
[Provided also that in the case of the Proclamation issued under clause (1) on
the 11th day of May, 1987 with respect to the State of Punjab, the reference in
the first proviso to this clause to "three years" shall be construed
as a reference to [five years]##.]#
[(5) Notwithstanding anything contained in clause (4), a resolution with
respect to the continuance in force of a Proclamation approved under clause (3)
for any period beyond the expiration of one year from the date of issue of such
Proclamation shall not be passed by either House of Parliament unless-
(a) a Proclamation of Emergency is in operation, in the whole of India or, as
the case may be, in the whole or any part of the State, at the time of the
passing of such resolution, and
(b) the Election Commission certifies that the continuance in force of the
Proclamation approved under clause (3) during the period specified in such
resolution is necessary on account of difficulties in holding general elections
to the Legislative Assembly of the State concerned:]###
[Provided that nothing in this clause shall apply to the Proclamation issued
under clause (1) on the 11th day of May, 1987 with respect to the State of
Punjab.]####
--------------------
* The words "or Rajpramukh" omitted by the Constitution (Seventh
Amendment) Act, 1956, s. 29 and Sch
** The words "or Rajpramukh, as the case may be" omitted by s. 29 and
Sch., ibid
*** Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 38, for
"one year from the date of the passing of the second of the resolutions
approving the Proclamation under clause (3)" (w.e.f. 20-6-1979). The words
"one year" were subs. for the original words "six months"
by the Constitution (Forty-second Amendment) Act, 1976, s. 50 (w.e.f. 3-1-1977)
**** Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 38, for
"one year" (w.e.f. 20-6-1979). The words "one year" were
subs. for the original words "six months" by the Constitution
(Forty-second Amendment) Act, 1976, s. 50 (w.e.f. 3-1-1977)
# Ins. by the Constitution (Sixty-fourth Amendment) Act, 1990, s. 2
## Successively subs. by the Constitution (Sixty-seventh Amendment) Act, 1990,
s. 2 and the Constitution (Sixty-eighth Amendment) Act, 1991, s. 2 to read as
above
### Subs by the Constitution (Forty-fourth Amendment) Act, 1978, s. 38, for cl.
(5) (w.e.f. 20-6-1979). Cl. (5) was ins. by the Constitution (Thirty-eighth
Amendment) Act, 1975, s. 6 (retrospectively).
#### Omitted by the Constitution (Sixty-third Amendment) Act, 1989, s. 2
(w.e.f. 6-1-1990). Ins. by the Constitution (Sixty-fourth Amendment) Act, 1990,
s. 2
· Article 357 :
Exercise of legislative powers under Proclamation issued under article 356
357. (1) Where
by a Proclamation issued under clause (1) of article 356, it has been declared
that the powers of the Legislature of the State shall be exercisable by or
under the authority of Parliament, it shall be competent-
(a) for Parliament to confer on the President the power of the Legislature of
the State to make laws, and to authorise the President to delegate, subject to
such conditions as he may think fit to impose, the power so conferred to any
other authority to be specified by him in that behalf;
(b) for Parliament, or for the President or other authority in whom such power
to make laws is vested under sub-clause (a), to make laws conferring powers and
imposing duties, or authorising the conferring of powers and the imposition of
duties, upon the Union or officers and authorities thereof;
(c) for the President to authorise when the House of the People is not in
session expenditure from the Consolidated Fund of the State pending the
sanction of such expenditure by Parliament.
[(2) Any law made in exercise of the power of the Legislature of the State by
Parliament or the President or other authority referred to in sub-clause (a) of
clause (1) which Parliament or the President or such other authority would not,
but for the issue of a Proclamation under article 356, have been competent to
make shall, after the Proclamation has ceased to operate, continue in force
until altered or repealed or amended by a competent Legislature or other
authority.]*
--------------------
* Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 51, for cl.
(2) (w.e.f. 3-1-1977)
· Article 358 :
Suspension of provisions of article 19 during emergencies
358. [(1)]*
[While a Proclamation of Emergency declaring that the security of India or any
part of the territory thereof is threatened by war or by external aggression is
in operation]**, nothing in article 19 shall restrict the power of the State as
defined in Part III to make any law or to take any executive action which the
State would but for the provisions contained in that Part be competent to make
or to take, but any law so made shall, to the extent of the incompetency, cease
to have effect as soon as the Proclamation ceases to operate, except as
respects things done or omitted to be done before the law so ceases to have
effect:
[Provided that [where such Proclamation of Emergency]**** is in operation only
in any part of the territory of India, any such law may be made, or any such
executive action may be taken, under this article in relation to or in any
State or Union territory in which or in any part of which the Proclamation of
Emergency is not in operation, if and in so far as the security of India or any
part of the territory thereof is threatened by activities in or in relation to
the part of the territory of India in which the Proclamation of Emergency is in
operation.]***
[(2) Nothing in clause (1) shall apply-
(a) to any law which does not contain a recital to the effect that such law is
in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a
recital.]*****
--------------------
* Art. 358 re-numbered as cl. (1) thereof by by the Constitution (Forty-fourth
Amendment) Act, 1978, s. 39 (w.e.f. 20-6-1979)
** Subs. by s. 39, ibid., for "While a Proclamation of Emergency is in
operation" (w.e.f. 20-6-1979)
*** Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 52 (w.e.f.
3-1-1977)
**** Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 39, for
"where a Proclamation of Emergency" (w.e.f. 20-6-1979)
***** Ins. by s. 39, ibid. (w.e.f. 20-6-1979)
· Article 359 :
Suspension of the enforcement of the rights conferred by Part III during
emergencies
359. (1) 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 proceedings pending in any court for the enforcement of the
rights so mentioned shall remain suspended for the period during which the
Proclamation is in force or for such shorter period as may be specified in the
order.
[(1A) While an order made under clause (1) mentioning any of [the rights
conferred by Part III (except articles 20 and 21)]* is in operation, nothing in
that Part conferring those rights shall restrict the power of the State as
defined in the said Part to make any law or to take any executive action which
the State would but for the provisions contained in that Part be competent to
make or to take, but any law so made shall, to the extent of the incompetency,
cease to have effect as soon as the order aforesaid ceases to operate, except
as respects things done or omitted to be done before the law so ceases to have
effect:]**
[Provided that where a Proclamation of Emergency is in operation only in any
part of the territory of India, any such law may be made, or any such executive
action may be taken, under this article in relation to or in any State or Union
territory in which or in any part of which the Proclamation of Emergency is not
in operation, if and in so far as the security of India or any part of the
territory thereof is threatened by activities in or in relation to the part of
the territory of India in which the Proclamation of Emergency is in
operation.]***
[(1B) Nothing in clause (1A) shall apply-
(a) to any law which does not contain a recital to the effect that such law is
in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a
recital.]#
(2) An order made as aforesaid may extend to the whole or any part of the
territory of India:
[Provided that where a Proclamation of Emergency is in operation only in a part
of the territory of India, any such order shall not extend to any other part of
the territory of India unless the President, being satisfied that the security
of India or any part of the territory thereof is threatened by activities in or
in relation to the part of the territory of India in which the Proclamation of
Emergency is in operation, considers such extension to be necessary.]##
(3) Every order made under clause (1) shall, as soon as may be after it is
made, be laid before each House of Parliament.
--------------------
* Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 40, for
"the rights conferred by Part III" (w.e.f. 20-6-1979)
** Ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s. 7
(retrospectively)
*** Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 53 (w.e.f.
3-1-1977)
# Ins. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 40 (w.e.f.
20-6-1979)
## Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 53 (w.e.f.
3-1-1977)
· Article 359A :
[Repealed.]
359A.
[Application of this Part to the State of Punjab.]* Rep. by the Constitution
(Sixty-third Amendment) Act, 1989, s. 3 (w.e.f. 6-1-1990).
--------------------
* Ins. by the Constitution (Fifty-ninth Amendment) Act, 1988, s. 3. It shall
cease to operate on the expiry of a period of two years from the commencement
of this Act, i.e., thirtieth day of March, 1988.
· Article 360 :
Provisions as to financial emergency
360. (1) If the
President is satisfied that a situation has arisen whereby the financial
stability or credit of India or of any part of the territory thereof is
threatened, he may by a Proclamation make a declaration to that effect.
[(2) A Proclamation issued under clause (1)-
(a) may be revoked or varied by a subsequent Proclamation;
(b) shall be laid before each House of Parliament;
(c) shall cease to operate at the expiration of two months, unless before the
expiration of that period it has been approved by resolutions of both Houses of
Parliament:
Provided that if any such Proclamation is issued at a time when the House of
the People has been dissolved or the dissolution of the House of the People
takes place during the period of two months referred to in sub-clause (c), and
if a resolution approving the Proclamation has been passed by the Council of
States, but no resolution with respect to such Proclamation has been passed by
the House of the People before the expiration of that period, the Proclamation
shall cease to operate at the expiration of thirty days from the date on which
the House of the People first sits after its reconstitution unless before the
expiration of the said period of thirty days a resolution approving the
Proclamation has been also passed by the House of the People.]*
(3) During the period any such Proclamation as is mentioned in clause (1) is in
operation, the executive authority of the Union shall extend to the giving of
directions to any State to observe such canons of financial propriety as may be
specified in the directions, and to the giving of such other directions as the
President may deem necessary and adequate for the purpose.
(4) Notwithstanding anything in this Constitution-
(a) any such direction may include-
(i) a provision requiring the reduction of salaries and allowances of all or
any class of persons serving in connection with the affairs of a State;
(ii) a provision requiring all Money Bills or other Bills to which the
provisions of article 207 apply to be reserved for the consideration of the
President after they are passed by the Legislature of the State;
(b) it shall be competent for the President during the period any Proclamation
issued under this article is in operation to issue directions for the reduction
of salaries and allowances of all or any class of persons serving in connection
with the affairs of the Union including the Judges of the Supreme Court and the
High Courts.
**
--------------------
* Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 41, for cl.
(2) (w.e.f. 20-6-1979)
** Cl. (5) was ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s.
8 (retrospectively) and omitted by the Constitution (Forty-fourth Amendment)
Act, 1978,s. 41 (w.e.f. 20-6-1979)