Origin And Development Of Emergency: Nature And Effect Of Declaration Of Emergency, History Of Emergency Provisions; Suspension Of Fundamental Rights: Comparative Study With USA
- IJLLR Journal
- Nov 9, 2025
- 2 min read
Ishani Bisht, LL.M. (Master of Laws), University Institute of Legal Studies, Chandigarh University, Mohali, Punjab, India.
ABSTRACT
This paper examines the origin, design, and evolution of constitutional emergency powers in India, the nature and effects of a formal proclamation, and the suspension of fundamental rights, set against a comparative lens with the United States. It maps India’s textually codified architecture—Articles 352, 356, and 360—together with collateral provisions and the post-1978 recalibration that replaced “internal disturbance” with “armed rebellion,” required written Cabinet advice, and narrowed rights suspensions. Methodologically, the study deploys doctrinal analysis of constitutional text and leading judgments (e.g., ADM Jabalpur, Puttaswamy, S.R. Bommai, Minerva Mills), supplemented by limited statutory and policy materials for precision. It then contrasts India’s ex ante, calendar-bound code with the U.S. system’s dispersed statutory ecosystem (e.g., National Emergencies Act, Insurrection Act) and rights adjudication under due process, habeas corpus, and free speech. The principal findings are fourfold: first, India’s framework couples rapid central coordination with time-bound legislative renewal, tempered by non-derogable floors for Articles 20 and 21 and a narrowed Article 358 trigger; second, judicial review—through proportionality, record-based scrutiny, and the basic structure doctrine—constrains misuse while permitting tailored crisis responses; third, American emergency practice hinges on inter-branch contestation, statutory specificity, and case- by-case rights balancing (Youngstown, Hamdi, Boumediene); and fourth, contemporary risks—especially digital shutdowns and surveillance—require clearer necessity standards, granular territorial tailoring, and transparent reporting. The implications are practical: strengthen evidentiary thresholds and renewal discipline, codify digital-age safeguards, institutionalize real- time oversight dashboards, and refine drafting protocols for Article 359 orders to ensure precision and temporariness. Together, these measures preserve decisiveness in genuine crises while guarding against normalization of exceptional authority.
Keywords: Emergency provisions; Article 352; Article 356; Article 360; Article 358; Article 359; Forty-fourth Amendment; basic structure; proportionality; habeas corpus; National Emergencies Act; preventive detention; internet shutdowns
