National Emergency (Art. 352)

♤ 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 44th Amendment Act of 1978 substituted the words ‘armed rebellion’ for ‘internal disturbance’. Thus, it is no longer possible to declare a National Emergency on the ground of ‘internal disturbance’.

♤ It may be noted that 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.

♤ 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. This provision was added by the 38th Amendment Act of 1975.

♤ When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’.

♤ A proclamation of national emergency may be applicable to the entire country or only a part of it. The 42nd Amendment Act of 1976 enabled the President to limit the operation of a National Emergency to a specified part of India.

♤ The President can proclaim a national emergency only after receiving a written recommendation from the Cabinet. This means that the emergency can be declared only on the concurrence of the Cabinet and not merely on the advice of the Prime Minister. The 44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the Prime Minister alone taking a decision in this regard.

♤ The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from the judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of 1978. Further, in the Minerva Mills case (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.

♤ The proclamation of National Emergency must be approved by both the Houses of the Parliament within one month from the date of its issue. Originally, the period allowed for approval by the Parliament was two months, but it was reduced by the 44th Amendment Act of 1978.

o However, 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 the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it.

o If the Lok Sabha stands dissolved at the time of the declaration of emergency, then it must be approved by the reconstituted Lok Sabha within thirty days from its first sitting, provided the Rajya Sabha has approved it in the meantime.

♤ After approval 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. This provision for periodical Parliamentary approval was also added by the 44th Amendment Act of 1978.

All such resolutions must be passed by a special majority, that is, majority of the total membership of that house and majority of not less than two-thirds of the members of that House present and voting (this special majority provision was also introduced by the 44th Const. Amendment, 1978).

♤ The declaration of National Emergency brings about a lot of changes in the constitutional set up of the country.

o The immediate effect of such a declaration is that the federal structure of the country is folded to a unitary one for purposes of uniformity of administration. The law making power of Parliament is extended to the items in the State list.

o The President acquires certain extra ordinary powers. He can issue directions or instructions to any State indicating the manner in which their executive power is to be exercised.

o He is also empowered to rearrange the distribution of revenues between the union and the states to ensure availability of sufficient funds to the central government.

o The fundamental rights granted to the citizens can be reasonably restricted in the greater interest of the country. However, such restrictions are withdrawn immediately after the revocation of emergency. Also, the life of the Parliament may be extended by a year.

Note: Kindly refer to the ‘Emergency Provisions’ document