Author: Ishanvi Tiwari, Bennett University
Emergencies are exceptional situations that necessitate the temporary suspension of normal constitutional processes to safeguard national interests. Both India and Pakistan, as neighbouring nations with shared historical and political contexts, have incorporated emergency provisions into their constitutions. These provisions empower the executive to take extraordinary measures during times of crisis. However, the scope, application, and safeguards associated with these provisions differ significantly between the two countries.
I. Emergency Provisions in India
India’s Constitution, adopted in 1950, was heavily influenced by the experience of colonial rule and the challenges faced by early independent India. Part XVIII (Articles 352 to 360) of the Constitution deals with emergencies, providing a framework for responding to situations that threaten national integrity, constitutional governance, or financial stability.
1. National Emergency (Article 362):
Grounds for Declaration: The president may declare a national emergency if the security of India or any part thereof is threatened by war, external aggression, or armed rebellion.
Procedure: The president can proclaim an emergency only upon the written advice of the cabinet. This ensures that executive responsibility lies with elected representatives. The proclamation must be approved by both Houses of Parliament within one month and can be extended every six months as required.
Effects: During a national emergency, the federal structure becomes highly centralized. Parliament can legislate on any subject within the state list, and the Fundamental Rights under Article 19 (including freedom of speech, assembly, etc.) are suspended. This provision aims to ensure rapid and uniform decision-making in times of crisis.
Historical Context: The most controversial and infamous use of the National Emergency was between 1975 and 1977 under Prime Minister Indira Gandhi. Declared ostensibly due to internal disturbances, this period witnessed a mass curtailment of civil liberties, press censorship, and political imprisonments.
The Supreme Court’s judgment in ADM Jabalpur vs Shivkant Shukla (1976) upheld the suspension of the right to life and personal liberty during the emergency, sparking widespread criticism and subsequent constitutional amendments to safeguard fundamental rights in emergencies.
2. President’s Rule (Article 356)
Grounds for Declaration: If the President is satisfied that a state government cannot function in accordance with the Constitution, he may impose President’s Rule.
Procedure: The President acts on the Governor’s report about the state’s inability to function properly. Parliamentary approval must be secured within two months.
Effects: The state’s legislature is either dissolved or suspended, and the executive authority of the state is exercised by the President. Overuse of this provision in the past (notably in the 1970s and 1980s) led to concerns about its misuse for political gains. The landmark S. R. Bommai v. Union of India (1994) judgment imposed strict judicial review over the proclamation of President’s Rule, setting important precedents for federal democracy in India.
3. Financial Emergency (Article 360)
Grounds for Declaration: If the President is satisfied that the financial stability or credit of India or any part thereof is threatened, he may declare a financial emergency.
Procedure: Proclamation must be approved by Parliament within two months.
Effects: The President may reduce the salaries of government officials, including judges. However, this provision has never been used in India, indicating political restraint and stability in financial governance.
I. Emergency Provisions in Pakistan
Pakistan’s constitutional framework was first adopted in 1956, suspended in 1958, and the current 1973 Constitution lays out the emergency provisions in Part X (Articles 232 to 237).
1. Emergency Due to War or External Aggression (Article 232)
Grounds for Declaration: The President may declare an emergency if the security of Pakistan or any part thereof is threatened by war or external aggression.
Procedure: Based solely on the President’s satisfaction without mandatory Cabinet consultation.
Effects: Fundamental rights can be suspended, and the executive exercises direct control. The judiciary retains nominal powers to review the validity of the emergency.
Historical Context: In 1971, during the Bangladesh Liberation War, Pakistan declared a state of emergency. More controversially, in 1999, General Pervez Musharraf suspended the Constitution, imposing emergency rule and detaining judges, undermining the constitutional framework and triggering domestic and international outcry.
2. Emergency Due to Breakdown of Constitutional Machinery (Article 234)
Grounds for Declaration: The President can impose emergency rule in a province when the constitutional machinery breaks down.
Procedure: Similar to President’s Rule in India, but the threshold of “breakdown” is vague, allowing for broader discretion.
Effects: The provincial legislature is suspended or dissolved, and the central government takes control. This provision has been used multiple times, often in politically sensitive provinces like Baluchistan.
3. Financial Emergency (Article 235)
Grounds for Declaration: When the financial stability of Pakistan or any part thereof is threatened.
Procedure: Declaration requires laying the proclamation before a joint sitting of Parliament within 30 days.
Historical Context: This provision has been rarely invoked, but the broader trend of executive overreach in Pakistan has often circumvented formal emergency declarations through informal mechanisms.
Comparative Analysis
Aspect India Pakistan
A comparative legal study of emergency provisions under the Indian Constitution reveals key differences and similarities with other constitutional frameworks, such as those of the USA and the UK. India’s Constitution (Articles 352–360) provides for three types of emergencies: National, State, and Financial, allowing the central government extensive powers during crises. Unlike the USA, where emergency powers are more limited and judicially monitored, India’s framework emphasizes executive dominance, although subject to parliamentary oversight. Compared to the UK’s unwritten conventions, India’s codified emergency provisions offer detailed procedures but raise concerns of potential misuse, especially from historical experiences like the 1975 Emergency.
IV. Case Studies
1. India: The Emergency of 1975–1977
The declaration of a National Emergency by Indira Gandhi in 1975 remains one of the most infamous episodes in Indian constitutional history. The stated reason was internal disturbances, but political analysts argue that it was largely intended to suppress dissent and opposition. Civil liberties were suspended, press censorship was imposed, and thousands of political opponents were jailed without trial. The Emergency was lifted in 1977, and the subsequent elections saw a massive defeat for the Congress Party, reflecting public backlash.
2. Pakistan: Emergency Declared in 1999
In October 1999, General Pervez Musharraf imposed a state of emergency, suspending the Constitution and detaining Chief Justice Saeeduzzaman Siddiqui and other judges. This move was widely criticized domestically and internationally. The emergency was justified on the grounds of “law and order breakdown,” but many viewed it as a consolidation of military power over civilian rule. The Supreme Court later validated Musharraf’s actions in a controversial ruling, raising serious concerns about judicial independence.
FAQS
Q1: Can the President declare an emergency without consulting the Cabinet?
India: No. The President must act on the advice of the Cabinet.
Pakistan: Yes, the President can declare an emergency based solely on personal satisfaction.
Q2: Are there any safeguards against the misuse of emergency provisions?
India: The Supreme Court has the power of judicial review. Post-Emergency amendments ensure that Fundamental Rights cannot be suspended indefinitely.
Pakistan: Judicial review exists, but is often weak due to political influence over the judiciary.
Q3: Has any emergency been declared in India or Pakistan recently?
India: The last National Emergency was in 1975; no emergencies have been declared since.
Pakistan: In 2007, Musharraf declared emergency rule.
Q4: Can an emergency be declared indefinitely?
India: No. It must be renewed every six months with Parliament’s approval.
Pakistan: Every 30 days with parliamentary approval.
Q5: What happens if Parliament does not approve the emergency proclamation?
In both India and Pakistan, if the emergency proclamation is not approved within the stipulated time frame, it ceases to operate.
6. How do Pakistan’s emergency provisions differ from India’s?
While both countries have similar constitutional frameworks, Pakistan’s emergency provisions have frequently been used to justify military takeovers and long-term authoritarian rule, whereas India, despite misuse, continues to function as a democratic republic with periodic judicial interventions.
7. What reforms are suggested for India’s emergency provisions?
Clear and narrow definition of valid grounds for emergency
Mandatory time limits and periodic parliamentary review
Stronger judicial oversight
Transparent procedural safeguards
Limited suspension of fundamental rights, only as needed
8. Are emergency provisions still relevant in modern India?
Yes, but only if they are reformed to prevent misuse. A well-balanced system ensures they serve their original purpose—protecting national interest during genuine crises without threatening democratic institutions or federal autonomy.
While India and Pakistan share similar constitutional origins, their approaches to emergency provisions reflect divergent political cultures and governance practices. India’s framework is structured to provide checks and balances, with judicial review and parliamentary oversight acting as safeguards against misuse. The landmark judgments in India reinforce constitutionalism and federalism, setting boundaries for executive power.
Conversely, Pakistan’s emergency provisions are broader, allowing more discretion to the executive, which has historically led to misuse and undermining of constitutional governance. This reflects a weaker institutional structure and a tendency toward authoritarianism.
Understanding these provisions is crucial in assessing the health of democracy in both countries and appreciating the delicate balance between national security and individual freedoms in constitutional democracies.
