National Emergency – Article 352

Introduction:

These are the provisions which enables the central government to meet any abnormal situation effectively. The rationality behind the incorporation of these provisions in the constitution is to safeguard the sovereignty, unity, integrity and security of the country, the Democratic political system and the constitution.

Dr. B.R Ambedkar in the constituent assembly observed that:

“All federal systems including American are placed in a tight mould of federalism. No matter what the circumstances, it cannot change its form and shape. It can never be unitary.

On the other hand, the constitution of India is both unitary as well as federal according to the requirements of time and circumstances. In normal times it is framed to work as a federal system but in times of emergency, it is so designed to make it work as though it was a unitary system”.

Types of Emergencies

The Constitution Of India stipulates three types of emergencies –

  1. National Emergency (Article 352)
  2. President rule or State Emergency (Article 356)
  3. Financial Emergency (Article 360)

National Emergency

Grounds of declaration

  • Under Article 352, The president can declare a national emergency when the security of India or a part of it is threatened by war, external aggression or armed rebellion.
  • The President can declare a national emergency even before the actual occurrence of war or external aggression or armed rebellion if he is satisfied that there is an imminent danger thereof.
  • The president can also issue different proclamations on grounds of war, external aggression, armed rebellion or imminent danger thereof, whether or not there is a proclamation already issued by him and such proclamation is in operation. (Added by 38th Amendment 1975).
  • When a national emergency is declared on the ground of war or external aggression, it is known as external emergency.
  • When national emergency is declared on the ground of armed rebellion, it is known as internal emergency.
  • The president can proclaim a national emergency only after receiving a written recommendation from the union cabinet.

 Approval and duration

  • The proclamation of emergency must be approved by both the Houses of Parliament within one month from the date of its issue.
  • If the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of one month without approving the proclamation, then the proclamation survives until 30 days from the first sitting of lok sabha after its reconstitution, provided the rajya sabha has in the meantime approved it.
  • If approved by both the Houses of Parliament, the emergency continues for six months and can be extended to an indefinite period with an approval of the parliament for every six months.
  • Every resolution approving the proclamation of emergency or its continuance must be passed by either House of parliament by a special majority i.e.
  1. A majority of the total membership of that house.
  2. A majority of not less than two-third of members of that house present and voting.

Revocation of Proclamation

  • The President must revoke after Proclamation, if the lok sabha passes a resolution disapproving its continuation.
  • Where a notice in writing signed by not less than 1/10th of the total number of members of the Lok Sabha give it to the:
    • Speaker, if house is in session or
    • to the President, if the house is not in session.
  • A resolution of disapproval is required to be passed by the Lok Sabha only and by a simple majority.

Effects of National Emergency

  1. Extension of executive powers of the union  (Article 353A)It provides that while a proclamation of emergency is in operation, the executive power of the union extends to giving directions to any state as to the manner in which the executive power of the state is to be exercised.
  2. Legislative power of parliament extends to state matters (Article 250 and 353)
    • Article 250 – During national emergency, the parliament becomes empowered to make laws on any subject mentioned in the state list.
    • Article 353B – The Parliament can confer powers and impose duties upon the center or its officers and authorities in respect of matters outside the union list, in order to carry out the laws made by it under its extended jurisdiction.
  3. Alteration in distribution of revenue (Article 354(1))While proclamation of emergency is in operation, the president may by order, alter or modify the financial arrangements contained in article 268 to 279 related to distribution of revenue between the union and states.
  4. Extension in duration of House of people and legislative assemblies of State – During national emergency, the life of the lok sabha may be extended beyond its normal term i.e 5 years by a law of parliament for one year at a time for any length.

However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate.

The parliament may extend the normal tenure of a state legislative assembly by one year each time during national emergency subject to a maximum period of six months after the emergency has ceased to operate.

Effect on the Fundamental rights

  1. Suspension of fundamental rights under article 19 (Article 358)According to article 358 when a proclamation of national emergency is made, the six fundamental rights under article 19 are automatically suspended. No separate order for their suspension is required.

By 44th amendment act 1978

  • Article 19 can be suspended only when the national emergency is declared on the ground of war or external aggression and not on the ground of armed rebellion.
  • Only those laws which are related with the emergency are protected from being challenged and not other laws. Also the executive actions taken only under such a law is protected.
  1. Suspension of other fundamental rights (Article 359) – This article authorizes the President to suspend the right to move any court for the enforcement of fundamental rights during national emergency.

By 44th amendment act 1978,

  • The President cannot suspend the right to move the court for the enforcement of fundamental rights guaranteed by article 20 and 21.

Declaration of National Emergency made so far

The National emergency has been invoked three times so far-

  • October 26, 1962 on account of Chinese aggression in the NEFA North-East frontier agency.[External aggression]

It remained enforced during Indo-pak war of 1965 and was revoked in January 1968 by Tashkent agreement.

  • December 1971, IndoPak Dispute
  • June 26, 1975 – On account of internal disturbance.

Both second and third emergency was revoked in March 1977.

Naga people movement of human rights VS. Union of India 1998, the expression internal disturbance has a wider connotation than armed rebellion. Armed rebellion is likely to pose a threat to a country while internal disturbance though serious in nature could not possess a threat to the security of the country.

Justiciability of President discretion

Bhootnath vs State of West Bengal 1974 S.C

The Supreme Court held that President’s discretion for applying national emergency is purely political and not a justiciable one. The appeal should be to the polls and not to the courts.

In Minerva Mills case, Justice Bhagwati held that whether the President in proclaiming the emergency in article 352 has applied his mind or whether he acted outside his powers or acted mala-fide could not be excluded from the scope of Judicial Review.


Also Read:

State Emergency / President Rule – Article 356

Financial Emergency – Article 360

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