National emergency – article 352 of Indian Constitution   

National emergency under article 352 of Indian Constitution – proclamation & impacts

Introduction

India being a federal country of its own kind. It acquires unitary features during an emergency. This was the particular reason; Dr BR Ambedkar called the Indian federal system unique because of unitary features of emergency. Emergency refer to a period of governance under changed constitutional setup that can be proclaimed by president of India. The constitution of India states three kinds of emergency-

  1. National Emergency – Article 352
  2. President’s rule/ State Emergency- Article 356
  3. Financial Emergency- Article 360

In this article we will be putting light on Article 352- National Emergency. In this article we will discuss about national emergency, its grounds, proclamation and its impact. National Emergency is the most extensive among all 3 emergencies.

National Emergency- Article 352

National emergency under article 352 can be declared on the grounds mentioned in article 352(1) and can only be proclaimed by president of India. Article 352 authorizes president of India to proclaim emergency. When he is satisfied that a war, external aggression or internal disturbance or a threat endangering the security of the whole or part of India created a grave emergency in the country. However, article 352(3), states that such proclamation by president cannot be made without any given written advice by the union cabinet. Such proclamation must be placed before parliament for the approval.

Procedure for approval of national emergency

The written advice is given by cabinet to the president. Cabinet includes Council of Minister and Prime Minister. Cabinet will, when satisfied on the ground mentioned under article 352, pass written advice to president, If president satisfied with the written advice given by cabinet, will proclaim or declare emergency. National emergency will be effected all over the state the moment the president proclaims national emergency. But the question whether the emergency should continue or not, will be passed to parliament for further approval. Approval from the parliament should be given by both the houses Rajya Sabha and Lok Sabha by approving the emergency by special majority.

See also  Is Weed or Marijuana legal in India?

There are two requirements of special majority-

  1. 50% of total strength of both houses should approve the emergency.
  2. 2/3rd of members present and voting should approve the emergency.

(These conditions of the special majority are included by 44th Amendment[1], before the amendment parliament had to approve the emergency by simple majority.)

When approved by the parliament, the national emergency will be valid for next 6 months. National emergency can exist for indefinite time but parliament at once can only approve the emergency for 6 months. After 6 months, if president thinks national emergency should continue then the whole procedure of approval by parliament will be followed. If approval by parliament only given by one house or not given by any house then the emergency will only exists for 1 month.

Revocation of National Emergency

There are two ways to revoke national emergency

  1. If president deems fit that conditions for which emergency was proclaimed no longer exists, then president can revoke the emergency.
  2. If Lok Sabha disapproves the national emergency.

(After 44th Amendment[2], approval of emergency became tough and revocation of emergency became very easy)

The proclamation of emergency cease to operate on the expiry of 6 months unless the continuance approval by parliament is not passed.

Grounds of National Emergency

There are three grounds under Article 352 on which president can proclaim national emergency-

  1. War

When a country declares formal war against India and there are violent tussle using armed forces, will be called the situation of war. The president of India may impose national emergency on this ground.

  1. External Aggression

When a country attacks India without any formal declaration of war or any unilateral attack on India, will be called external aggression. President in this case can proclaim emergency.

  1. Armed Rebellion

This term was inserted by 44th Amendment. When a group of people rebel against the government of India which leads to destruction of property and lives, will be called armed rebellion. Before 44th Amendment, this was known as ‘Internal Disturbance’.

National emergency declared on the grounds of ‘War’ or ‘External Aggression’ is know as ‘External emergency’. National emergency declared on the ground of armed rebellion is known as ‘Internal emergency’.

See also  All Contracts are Agreements but All Agreements are not Contracts

Proclamation of National emergency

There are three instances when national emergency was declared in India.

  1. 1962- China War (External Aggression)
  2. 1971- Pakistan War (War)
  3. 1975- declared by Indira Gandhi (Internal Disturbance)

1. 1st National Emergency (1962) – China War (External Aggression)

China attacked India on 26th Oct 1962 as a reason president announced first emergency on the ground of External aggression under article 352. President under article 359 suspended all fundamental rights including article 21 and 22. Even the leaders of opposition and member of various parties were arrested on grounds that their activities are against the national interest.

On 21st Oct 1962 war with China was over but the emergency continued. Amid first emergency armed conflict took place between India and Pakistan. In 1965 this armed conflict converted into war.

On January 1966 heat between India and Pakistan settled down and an agreement was signed by both countries known as Tashkent agreement. Everything was normal but 1st emergency still existed till January 1968, major appeals and international focus compelled government to dismiss the 1st emergency.

2. 2nd National Emergency (1971) – Pakistan War (War)

On 3rd December 1971, due to attack on India by Pakistan, parliament enacted Maintenance of Security Act (MISA), COFE POSA Act and Government defence of India rules. These three acts were made for the reason of preventive detention. Due to these three acts central government got more power which was heavily misused. Many arrests, custodial deaths and encounters were reported.

Just like first emergency, second emergency continued even after the war was finished between India and Pakistan. During 1974 President proclaimed that under MISA Act no one can enforce fundamental rights through the way of courts. Before the revocation of revocation of 2nd emergency, 3rd emergency was declared.

3. 3rd National Emergency (1975) – declared by Indira Gandhi (Internal Disturbance)

3rd emergency was declared in July 1975, the then Prime Minister of India, Smt Indira Gandhi declared National emergency under article 352 on the grounds of internal disturbance.

Famous case of Raj Narain vs Indira Gandhi [3]in Allahabad court in election petition held Indira Gandhi guilty of corrupt practices and was disqualified of her public office. Court also held that Indira Gandhi will not hold any public office till next 6 years. Indira Gandhi appealed to Supreme Court against the decision of High Court but Supreme Court was on vacation. Opposition was demanding Indira Gandhi resignation by the way of widespread agitation in the country. For this particular reason, Indira Gandhi on 25th

June 1975 declared national emergency on the grounds of internal disturbance without the consent of council of ministers and sent a written application to president.

See also  Wages Act,1936 to Code on Wages,2019

Modus operandi to proclaim emergency is that president can only proclaim emergency on the aid and advice of council of ministers but this time only on the direction of Prime Minister, President declared emergency.

3rd emergency (1975) was most restrictive among all. Constitutional rights were curtailed, leaders of various political parties were arrested, many insensitive programmes were effected like slum clearance, family planning etc. Total censorship on press was imposed. Finally on 23rd March 1977 this emergency was revoked.

Impact of the National Emergency

Article 353 states that during national emergency central government can use its executive power to the extent of giving direction to the state.

Parliament can make laws relating to the matters listed in state list given under Article 353(b).

According to Article 354 the arrangement of revenue between states and union can be altered by the centre.

Effects on Fundamental Rights in National Emergency

  1. Article 358 – During National Emergency under Article 358, the fundamental rights given under Article 19 will be suspended automatically. There is no need for the president to proclaim so. However, 44th amendment 1978 changed the Article 358 and puts a restriction on Article 358 that only when the national emergency is declared on the grounds of war or external aggression the fundamental rights under Article 19 are suspended.
  2. Article 359 – Article 359 states suspension of other fundamental rights except Article 20 and Article 21. It states that the president has authority to suspend all the fundamental rights from Article 12 to 35 except Article 20 and Article 21 through proclamation.

[1] The Constitution (Forty-fourth Amendment) Act, 1978

[2] https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-forty-fourth-amendment-act-1978

[3] https://indiankanoon.org/doc/196752/

Author: sarthbodhi wankhade,
Symbiosis Law School and 5th Year (BA LLB)

Leave a Comment