Constitutionalising Emergency Powers in India: Evaluating the restraints on the use of Emergency Powers In line with safeguards against their misuse
Authors : Srijan Kumar Sharma, Mehak Yadav, Yuvraj Singh, Kartik Sharma, Alisha Gupta
Abstract :
This paper provides a comprehensive constitutional analysis of India’s emergency powers framework, examining the historical foundations, structural architecture, and postindependence jurisprudential evolution of Articles 352, 356, 358, and 359 of the Constitution of India. Tracing the philosophical underpinnings of emergency governance from Carl Schmitt’s theory of sovereign exception and John Locke’s executive prerogative to Giorgio Agamben’s doctrine of necessity, the paper situates India’s emergency provisions within a global constitutional discourse on the tension between state authority and individual liberty. Drawing on the Constituent Assembly debates, it reconstructs the framers’ deliberate choices and their cautionary awareness of precedents such as the Weimar Constitution’s catastrophic Article 48. The paper critically examines the systematic misuse of Article 356 between 1959 and 1994, culminating in an analysis of S.R. Bommai v. Union of India (1994), which constitutionalised the floor test doctrine, established federalism as a basic structure element, and subjected presidential proclamations to meaningful judicial review. It further analyses the critical distinction between Articles 358 and 359, with particular attention to the conceptual and practical consequences of suspending rights as opposed to remedies; a distinction rendered judicially decisive in ADM Jabalpur v. Shivkant Shukla (1976) and subsequently rehabilitated through Justice H.R. Khanna’s celebrated dissent. The paper evaluates the Constitution (FortyFourth Amendment) Act, 1978, as a response to the excesses of the 1975 Emergency, including the absolute unsuspendability of Articles 20 and 21, the substitution of ‘armed rebellion’ for ‘internal disturbance,’ and the procedural safeguards on emergency proclamation. The postamendment jurisprudential trajectory is traced through Maneka Gandhi v. Union of India (1978), Minerva Mills Ltd. v. Union of India (1980), and Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), which formally overruled ADM Jabalpur and dramatically expanded the substantive constitutional floor available to citizens during emergency conditions. Through comparative analysis of the German Basic Law, South Africa’s Section 37, and the American experience, the paper identifies structural vulnerabilities that persist in the Indian framework, including the absence of granular proportionality review of emergency measures, the susceptibility of Article 19 rights to suppression, and the contingent nature of judicial independence as an institutional safeguard. The paper concludes that while India’s constitutional architecture has made genuine and significant progress, structural consolidation; through codified sunset clauses, mandatory measure-specific parliamentary accountability, and constitutionally mandated judicial timelines, remains the unfinished work of emergency law reform.
Keywords:
Emergency Powers; Fundamental Rights; Articles 358 and 359; ADM Jabalpur;S.R. Bommai Case; Forty-Fourth Amendment; Basic Structure Doctrine; Judicial Review
