Emergency Provisions, Elections & Anti-Defection

A National Emergency does not abolish the states — it converts the federal structure into a unitary one for as long as it lasts. State governments continue and state legislatures are not dissolved; they simply come under the Centre's command.

• Executive (Article 353) — the Centre may give directions to any state on any matter, not merely on subjects in the Union List.
• Legislative (Article 250) — Parliament may legislate on State List subjects. Such laws lapse six months after the Emergency ends. The state legislature is not stripped of its own power; both can legislate, with Parliament prevailing.
• Financial (Article 354) — the President may modify the distribution of revenues between the Centre and the states.
• Tenure — the life of the Lok Sabha may be extended by Parliament one year at a time (Article 83), and not beyond six months after the Emergency ceases. The same applies to a State Assembly under Article 172. In 1976 the Lok Sabha's term was extended twice this way.

The most sensitive effect is on Fundamental Rights, and here two Articles work very differently. Article 358 suspends Article 19 (the six freedoms) — automatically, without any separate order, and only for citizens. After the 44th Amendment this happens only when the Emergency rests on war or external aggression, never on armed rebellion. Article 359 empowers the President to suspend the right to move any court for the enforcement of specified Fundamental Rights — the rights survive, only the remedy is frozen, and it needs a separate Presidential Order.

Article 356 is officially called the failure of constitutional machinery in a state — popularly President's Rule, and in textbooks State Emergency or Constitutional Emergency. The President may act on the report of the Governor or otherwise, if satisfied that the government of a state cannot be carried on in accordance with the provisions of the Constitution. Note the phrase "or otherwise" — a Governor's report is not compulsory.

Article 365 is the quiet companion of 356. If a state fails to comply with any direction given by the Centre, it shall be lawful for the President to hold that the government of that state cannot be carried on in accordance with the Constitution. So Article 365 supplies a ready-made ground for Article 356.

• Approval — both Houses must approve within two months, and by simple majority only (contrast Article 352, which needs a special majority).
• Duration — six months at a time, subject to an outer limit of three years.
• Beyond one year it can be extended only if both conditions hold: (a) a National Emergency is in force in the whole of India or in that state, and (b) the Election Commission certifies that elections to that Assembly cannot be held. This double lock was added by the 44th Amendment, 1978.
• Effects — the President assumes the functions of the state government and the powers of the Governor; the powers of the state legislature are exercised by Parliament; the Assembly may be suspended or dissolved. The President cannot assume the powers of the High Court.

Under Article 360, the President may proclaim a Financial Emergency if satisfied that a situation has arisen threatening the financial stability or credit of India or of any part of its territory. It needs approval by both Houses within two months by simple majority. Once approved, it continues indefinitely until revoked — there is no maximum period and no six-monthly renewal. This is the one Emergency with no clock on it.

• The Centre may direct states to observe canons of financial propriety.
• Salaries and allowances of all or any class of persons serving the Union or a state may be reduced — including the judges of the Supreme Court and High Courts. This is the only situation in which judges' salaries can be cut.
• All Money Bills and other financial Bills passed by a state legislature may be required to be reserved for the President's consideration.

Elections are governed by Part XV, Articles 324 to 329. This short Part does something remarkable: it takes the conduct of elections completely out of the hands of the government of the day and hands it to an independent Election Commission.

Article 326 originally set the voting age at 21. The 61st Amendment Act, 1988 lowered it to 18, taking effect from 28 March 1989 — the single largest expansion of the Indian electorate. This is why India's system is described as universal adult suffrage: every citizen of 18 or above who is not otherwise disqualified gets one vote of equal value, regardless of wealth, education, caste or gender.

• Election Commission — a multi-member body since 1 October 1993: the Chief Election Commissioner and two Election Commissioners, all with equal powers, deciding by majority. Tenure 6 years or age 65, whichever is earlier.
• The CEC can be removed only in the same manner as a Supreme Court judge; the other Election Commissioners are removed by the President on the recommendation of the CEC. That asymmetry is a favourite question.
• Delimitation (Article 82) — readjustment of constituencies after each census by a Delimitation Commission. Commissions were set up in 1952, 1963, 1973 and 2002. The 84th Amendment (2001) froze the allocation of seats among states on the 1971 census basis until 2026; the 87th Amendment (2003) allowed constituency boundaries within states to be redrawn on the 2001 census.
• Reservation of seats — Article 330 reserves seats for SCs and STs in the Lok Sabha, Article 332 in the State Assemblies. Under Article 334 this reservation was extended by the 104th Amendment (2019) up to 25 January 2030, and the reservation of seats for Anglo-Indians was discontinued. Bihar's 243-member Assembly has 38 seats reserved for SCs and 2 for STs; of its 40 Lok Sabha seats, 6 are reserved for SCs. There is no reservation for OBCs in legislatures.

The Constitution lays down the basic qualifications and leaves the details to Parliament, which enacted the Representation of the People Act, 1950 (electoral rolls, seat allocation) and the Representation of the People Act, 1951 (conduct of elections, qualifications, disqualifications, corrupt practices, election petitions).

• Qualifications (Articles 84 and 173) — must be a citizen of India, take the prescribed oath, and be at least 25 years old for the Lok Sabha / Legislative Assembly and 30 years for the Rajya Sabha / Legislative Council.
• Disqualifications (Articles 102 and 191) — holding an office of profit under the Union or a state, being of unsound mind as declared by a court, being an undischarged insolvent, not being a citizen or having voluntarily acquired foreign citizenship, and any disqualification under a law made by Parliament — plus the Tenth Schedule.
• Section 8, RPA 1951 — conviction for specified offences, or any offence with a sentence of imprisonment of not less than two years, disqualifies a person from the date of conviction and for a further six years after release.
• Section 10A disqualifies for three years anyone who fails to lodge an account of election expenses; Section 8A covers corrupt practices.

• VVPAT (Voter Verifiable Paper Audit Trail) prints a slip showing the symbol and name the voter chose, visible through a glass window for about seven seconds, then dropped into a sealed box. It gives the EVM a paper trail without going back to paper ballots.
• Model Code of Conduct (MCC) — a set of norms issued by the Election Commission under Article 324. It is not a statute and has no separate penal force of its own; it takes effect the moment the EC announces the election schedule and lasts till the process is complete. It bars new schemes, transfers of officials, use of government machinery for campaigning and appeals on communal lines.
• By-election — a casual vacancy (death, resignation, disqualification) must be filled within six months of its occurrence under Section 151A, RPA 1951 — unless the remainder of the member's term is less than one year, or the EC certifies with the Centre that a poll is not feasible. The winner serves only the remainder of the original term.

The Schedule originally allowed two escapes. A split — if one-third of a legislature party broke away, they escaped disqualification. And a merger — if two-thirds of the members of a legislature party agree to merge with another party, neither the merging group nor those who stay behind are disqualified. The 91st Amendment Act, 2003 deleted the split provision entirely because one-third was too easy to arrange and had become the standard route for engineered defections. Only the two-thirds merger exception survives today.

The deciding authority is the Speaker of the House (or the Chairman, in the Rajya Sabha or a Legislative Council). In Kihoto Hollohan v. Zachillhu (1992) the Supreme Court upheld the Tenth Schedule as valid but struck down Paragraph 7, which had barred courts from interfering — because a provision curbing the jurisdiction of the Supreme Court and High Courts required ratification by half the states under Article 368(2), which had not been obtained. The Court also held that when deciding a defection case the Speaker acts as a tribunal, so the decision is open to judicial review — but only after it is made, on grounds of malafides, perversity, mala fide breach of natural justice or violation of a constitutional mandate, and not at an interlocutory stage.

• Ravi S. Naik (1994) — "voluntarily giving up membership" is wider than formal resignation. Conduct alone, such as publicly working against the party, can amount to it.
• Keisham Meghachandra Singh (2020) — the Supreme Court held that a Speaker should ordinarily decide a disqualification petition within about three months, and suggested Parliament consider handing the power to an independent tribunal headed by a retired judge.
• The Schedule is criticised for muzzling a legislator's conscience: because a whip binds on every vote, not just confidence motions, an MP or MLA cannot dissent on a bad law without losing the seat.