National Emergency (Article 352)

1) Introduction

          The Constitution of India Provides three types of Emergencies  - National Emergency (Article 352), State Emergency (Article 356), Financial Emergency (Article 360). National Emergency can be declared due to war external aggression or armed rebellion. State Emergency can be declared due to the failure of Constitutional Machinery in States and Financial Emergency can be declared due to the financial stability or credit of India or part of the territory is threatened. 



2) National Emergency (Article 352)

         If the President is satisfied that a grave emergency exists whereby the security of India or of any part of India is threatened, either by war or external aggression or armed rebellion, he may make a Proclamation of emergency in respect of the whole of India or any part of India. as may be specified in the Proclamation.


3) Grounds 

The Proclamation of Emergency can be made on Three grounds:

i) War

ii) External aggression;

iii) Armed Rebellion 

        Prior to the 44th Amendment Act. 1978, one of the grounds on which emergency could be proclaimed was "internal disturbance". These words "internal disturbance" were vague and give wide discretion to the executive to declare a emergency even on flimsy grounds. In 1975, the emergency was declared on the ground of internal disturbance by the Prime Minister Indira Gandhi because the position opposition parties had given a call to launch a movement with a view to compelling P. M. to resign from her post as her election to the Lok Sabha was declared void by the Allahabad High Court. The 44th Amendment 1978, has now substituted the words "armed rebellion" for the words "internal disturbance" which will exclude the possibility of a situation which arose in 1975.

    Constitution 59th Amendment Act,1988 again amended Article352 and allowed the issue of a proclamation on the ground of 'internal disturbance' only in the State of Punjab. As Constitution 59th Amendment Act has been repealed by 63rd Amendment Proclamation of emergency can now be issued on above mentioned three grounds. It can not be issued merely on the Ground of Internal Disturbance unless it takes shape of armed rebellion.   


4) 44th Constitutional Amendment Act 1978

                     44th amendment has made important changes in Article 358, Article 19 will be suspended only when a Proclamation of emergency is declared on the ground of war or external aggression and not when the emergency is declared on the ground of armed rebellion. It is also provided that the President can make a Proclamation declaring emergency, only when he receives in writing the decision of the Union Cabinet to this effect.



5) Duration

      Prior 44th Amendment: Proclamation of emergency could remain in force in the first instance for two months. But once approved by Parliament emergency could remain in force indefinitely.. as long as executive wanted to continue.

     After 44th Amendment: A proclamation of emergency may remain in force in the first instance for one month. Such proclamation if approved by Parliament, shall remain in force for the period of six months unless it revoked earlier.


6) Effects of Proclamation of Emergency  Emergency

       The proclamation of emergency results into serious consequences. It adversely affects the enforcement of Fundamental Rights of the People. The following are the consequences of the Proclamation of Emergency-


i) Executive        

            While a Proclamation of Emergency is in operation, the executive power of the Union extends to giving of directions to any State as to the manner in which the executive power of the State is to be exercised.  The Constitution (Forty-second Amendment) Act 1976 made a consequential change in Article 353.It provides that the executive power of the Union to give directions under clause (a), and the power to make laws under clause (b), shall also extend to any State other than a State in which or in any part of which the Proclamation of Emergency is in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.

   In normal time, the executive power does not extend to give such direction subject to certain exceptions.


ii) Legislative

        During the operation of Proclamation of Emergency Parliament shall have the power to legislate as regard List II(State List) as well. The emergency does not suspend the State Legislature but suspends the distribution of Legislative powers between the Union and State

                       
iii) Financial: Centre empowered to alter distribution of revenue between the Union and the State

             The President may, while a Proclamation of Emergency is in operation, by order after the financial arrangement between State and the Union as  provided in  Articles 268 to 279 every such order is to be laid before each House of Parliament and will come to an end by the financial year in which the Proclamation of Emergency ceases to operate.



iv) Extension Life of Lok-Sabha

        While a Proclamation of Emergency is in operation Parliament may, by law extend the normal life of Lok-Sabha (House of people) for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.


v) Suspension of Fundamental Rights guaranteed by Article 19

             Article 358 of the Indian Constitution provides for Suspension 6 freedoms guaranteed by to the citizens by Article 19 of the Indian Constitution.

           While a Proclamation of Emergency in operation, nothing in article 19 shall restrict the power of the State to make any law or to take any executive action abridging or taking away the rights guaranteed by Article 19 of the Constitution. It means that as soon as the Proclamation of Emergency is made the freedom guaranteed by Article 19 automatically suspended. When the Proclamation of Emergency cease to operate Article 19 which remains suspended during the emergency, automatically comes into life and begins to operate.


7) Revocation 

   The President shall revoke a proclamation of emergency. If the Lok-Sabha passes a resolution by way of a written notice signed by minimum 1/10th members out of its total strength. This should be submitted to the speaker if the Lok-Sabha is in Session, else to the President if it is not in session.


8) History

 History of National Emergency in India 

i) 1962:  26 October 1962  to 10 January 1968, on the ground of External aggression.

ii) 1965: In 1965 Emergency was proclaimed on the ground of war with Pakistan. But instead of issuing the fresh proclamation, the Proclamation 1962 was allowed to continue.

iii) 1973: 3 December 1973 Emergency was proclaimed on the ground of external aggression from Pakistan.

iv) 1975: 25 June 1975 to 21 March 1977 under Indira Gandhi's Prime ministership, President Proclaimed emergency on the ground of internal disturbance

     The emergency declare during the Prime ministership Mrs Indira Gandhi was Highly controversial.The Prime Minister has misused her power when she asked the President to make a proclamation of emergency on the ground of internal disturbance. 


9) Relevant Case law

a) Minerva Vs Union of India

       Supreme Court held that proclamation of emergency under Article 352 is also subject to judicial review. Court has the power to see whether it was under the provision of the constitution or not.

 

See also 

1)  State emergency Under Article 356

2) Financial Emergency under Article 360

3) Salient features of Indian Constitution

4) Why the constitution of India is the lengthiest constitution in the world ??

5) Menaka Gandhi Vs Union of India AIR 1978 SC 597