Why emergency powers: sources, design and the Constituent Assembly's fears

Detail

1. The design problem in 1947

• India faced three big threats when the Constitution was being made:
• violence after Partition;
• more than 500 princely states that had to be brought into India;

• hostile borders, with war in Kashmir from 1947.

• What the framers wanted:

• a federation (power shared between the Union and the states, with each having its own area of work);
• one that could turn unitary (almost all power with the Centre) during a crisis;

• all of this without a formal amendment to the Constitution.

• Ambedkar's formula: the Constitution "can be both unitary as well as federal according to the requirements of time and circumstances" (Constituent Assembly, 4 November 1948).

• NCERT view (Class 11, Federalism): the emergency provisions are among the features that "turn our federal polity into a highly centralised system".
• Other such features are the Governor's role and Parliament's power to change state boundaries.
• T.T. Krishnamachari said there was a "drift… towards the centre" in the Assembly's work. The partition crisis pushed the framers to give the Union a strong hand.

2. Part XVIII: three emergency regimes

• Part XVIII (Arts. 352-360) is the emergency chapter.

Regime	Article	Ground (in short)	Does the heading say "emergency"?	Main source
National emergency	Art. 352	Threat to the security of India or any part of it	Yes ("Proclamation of Emergency")	GoI Act 1935, s. 102
President's rule (failure of constitutional machinery in a state)	Art. 356 (with Arts. 355, 357, 365)	A state's government cannot be carried on as the Constitution requires	No	GoI Act 1935, s. 93
Financial emergency	Art. 360	Threat to India's financial stability or credit	Yes	New design; no older model

• Rights during an emergency, Arts. 358-359:
• Art. 358: the freedoms in Art. 19 are suspended while a national emergency is in force.
• Art. 359: the President can suspend the right to move courts to enforce named fundamental rights.

• The framers chose this narrower route. They suspended the court remedy instead of giving the head of state the open-ended decree power that Weimar Germany had [4].

• Linked articles around Art. 356:

• Art. 355: the Union has a duty to protect every state from external aggression and internal disturbance. It must also make sure each state's government runs according to the Constitution.
• Art. 357: during President's rule, Parliament makes laws for the state, or hands that power to the President.

• Art. 365: if a state does not follow the Union's lawful directions, the President may treat this as a failure of constitutional machinery. This opens the door to Art. 356.

• Trap: the heading of Art. 356 never uses the word "emergency". "State emergency" and "constitutional emergency" are only textbook terms.

• How the wording of Art. 352 changed during drafting:
• Ambedkar moved the emergency article as draft Art. 275 on 2 August 1949 [4].
• Its ground was first "war or domestic violence". This was widened to "war or external aggression, or internal disturbance" to cover more threats [4].
• The 1975 Emergency was later proclaimed on this "internal disturbance" ground.

3. Where the powers came from

• Government of India Act 1935. This was the British-made constitution for India. The Constitution of India borrowed most of its emergency design from it.
• Section 102: once an emergency was proclaimed, the federal legislature could make laws on provincial subjects. This is the ancestor of Art. 352 and Art. 250.
• Section 45: dealt with a breakdown of constitutional machinery at the Centre. The Governor-General could then take over the federal government's powers.
• Section 93: if a province's government could not be run under the Act, the provincial Governor could take over its administration by proclamation. He could also take over the legislature's powers.
  • Use in 1939: the Congress ministries resigned in 1939, in protest at India being made a party to the Second World War without being asked.
  • Governors then ran those provinces under s. 93 for years.
  • Section 93 is the direct model for Art. 356.
• In the Assembly, members cited s. 93 on both sides [2]:
  • critics called it a colonial tool that should be dropped;
  • supporters called it a tested precedent.

• Algu Rai Shastri criticised the heavy borrowing from s. 93. He also asked why the Governor should become a powerless "show-boy" in such a crisis [2].

• Weimar Constitution (Germany, 1919), Art. 48.

• It let the Reich President issue emergency decrees without Parliament's prior approval. He could also take other emergency measures that the text did not spell out [4].
• It is the source for suspending fundamental rights during an emergency.
• The warning from history:
  • after the Reichstag fire, Hitler persuaded President Hindenburg to use Art. 48;
  • the result was the Reichstag Fire Decree of February 1933, which suspended civil liberties [4];
  • this opened the way to the Enabling Act of 1933, which removed all checks on Hitler and allowed the Nazi dictatorship [4].

4. Fears in the Constituent Assembly

• H.V. Kamath:
• warned that the chapter would lay the foundation of a totalitarian "police state";
• said India's provisions were "even more sweeping" than Weimar's Art. 48 [4];

• told the Assembly: "if we are aiming at that objective… be honest; be straight; do not adopt subterfuges" [4].

• Naziruddin Ahmad:

• said the emergency articles would create a "vicious circle" leading to dictatorship;

• compared them with Hitler's rise to power [2].

• A.C. Guha: said the Indian President's emergency powers looked like those of the German President before Hitler [4].

• K.T. Shah and H.N. Kunzru: feared that a financial emergency would destroy the states' financial autonomy (their control over their own money).
• Kunzru objected to the Centre taking revenues assigned to the states. He compared this to a capital levy (a one-time tax on wealth) (20 August 1949) [5].
• The financial emergency article (draft Art. 280A, now Art. 360) came up on 16 October 1949, very late in the debates. Kunzru protested that he had received it only that morning, and the debate was put off [3].

• Naziruddin Ahmad said it brought in "a new kind of emergency unknown in any system" [3].

• Supporters: Pandit Thakur Das Bhargava called the articles necessary "cementing measures" for the federation. He argued that provincial autonomy cannot be separated from the Union's responsibility to keep constitutional government going [2].

5. Ambedkar's defence (August 1949)

• New article 277A (now Art. 355):
• it puts a duty on the Union to protect the states;

• this means Union action under Art. 356 rests on a constitutional duty, so it would not be "wanton" or "arbitrary".

• "Dead letter" hope. Ambedkar hoped that Arts. 356-357 "would never be called into operation" and would "remain a dead letter" (4 August 1949) [2].

• Ambedkar's three steps before using Art. 356 [2]:
• first, give the province a warning;
• next, if the warning fails, order an election so the people can settle the matter;

• only as a last resort, use the article.

• Result: draft Arts. 277A, 278 and 278A (now Arts. 355, 356 and 357) were adopted despite strong opposition [2].

6. The NCERT assessment: trust in parties, not tight rules

• Class 12, The Crisis of Democratic Order: the framers trusted political parties to respect democratic norms. So they gave "wide and open-ended powers" without tight limits in the text.
• What happened next:
• these powers were abused in 1975, when an emergency was proclaimed on the ground of "internal disturbance";
• Art. 356 was used again and again against opposition-ruled states (Class 12, Regional Aspirations: Punjab, J&K);

• Ambedkar's "dead letter" hope failed.

• Two kinds of correction followed:

• by amendment: the 44th Amendment (1978) replaced "internal disturbance" with "armed rebellion" and added safeguards (Class 11, Constitution as a Living Document);

• by the courts: S.R. Bommai v. Union of India (1994) made President's rule open to judicial review (courts can check whether the government acted within the Constitution).

• This gives the frame for the whole topic: constitutional text → political practice → review by the courts.

Prelims Hooks

• Art. 356's heading does not use the word "emergency". "State emergency" is only textbook usage.
• Art. 356 ← Section 93, Government of India Act 1935 (a provincial Governor took over when constitutional government failed). It was used widely after the Congress ministries resigned in 1939.
• Section 102, GoI Act 1935 → federal laws on provincial subjects during an emergency. Section 45 → breakdown at the Centre.
• Suspension of fundamental rights during an emergency ← Weimar Constitution, Art. 48. Hitler used it to issue the Reichstag Fire Decree (1933) [4].
• Art. 355 began as draft Art. 277A. It places a duty on the Union to protect states and keep their governments constitutional.
• The ground "war or domestic violence" in draft Art. 275 was changed to "war or external aggression, or internal disturbance" [4].
• Ambedkar's "dead letter" remark (August 1949) was about Arts. 356-357, not Art. 352.
• Financial emergency (Art. 360) was attacked as "a new kind of emergency unknown in any system" [3]. Its main critics were H.N. Kunzru and K.T. Shah.
• "Can be both unitary as well as federal": Ambedkar, 4 November 1948.
• H.V. Kamath feared a "police state".

Mains Points

• Trust versus text: the framers left the emergency powers open-ended. They relied on conventions and party behaviour instead of written limits (NCERT). 1975 and the repeated misuse of Art. 356 showed that conventions alone cannot protect federalism. The answer came later through the 44th Amendment (1978) and judicial review under Bommai (1994).
• Was centralisation justified? For: Partition, the princely states and hostile borders. Bhargava called the articles "cementing measures" [2]. Against: Kamath and Naziruddin Ahmad warned of the Weimar path [2][4]. A balanced answer: a strong Centre was right in 1950, but the safeguards had to be tightened later.
• Colonial carry-over: Art. 356 copied the colonial s. 93, so a tool once used to rule over Indian ministries became part of a democratic constitution. This argument backs reforms such as the Sarkaria Commission, set up in 1983 to review Centre-state relations [6]. It recommended using Art. 356 only as a last resort, which is close to Ambedkar's own warning → election → last resort steps [2].
• Fiscal federalism: the fears of Kunzru and Shah about Art. 360 show why states' financial autonomy needs protection. Art. 360 has never been used, but its design still lets the Centre control state finances.