National Emergency (Article 352)
National Emergency is one of the three types of emergencies mentioned in the Indian Constitution. Declared under Article 352, it empowers the Union Government to assume sweeping powers in the interest of national security and integrity when faced with grave threats such as war, external aggression, or armed rebellion.
If a National Emergency is proclaimed on the grounds of war or external aggression, it is referred to as an External Emergency. In contrast, when it is proclaimed on the grounds of an armed rebellion, it is termed an Internal Emergency.
Grounds of Declaration of National Emergency (Article 352)
- Permissible Grounds
- The President can declare a National Emergency when the security of India or any part thereof is threatened by:
- War
- External Aggression
- Armed Rebellion
- President can declare a National Emergency even before the actual occurrence of war or external aggression or armed rebellion, if he/she is satisfied that there is an imminent danger.
- Multiple Proclamations on Different Grounds
- This provision was inserted by the 38th Amendment Act, 1975.
- The President has the power to issue multiple Proclamations of National Emergency on different grounds, even if one Proclamation is already in force.
- These grounds include:
- War
- External Aggression
- Armed Rebellion
- Imminent Danger of any of the above
- Example:
- If a Proclamation is already in force due to “external aggression,” another can still be issued for “armed rebellion,” if required.
- Why is this important?
- Provides flexibility to the executive to respond to different threats simultaneously.
- However, it also raised concerns about excessive concentration of power in the hands of the Union executive — which is why the 44th Amendment later introduced safeguards (e.g., Cabinet approval, judicial review).
- Applicability
- A proclamation of National Emergency can extend to the whole of India or be restricted to only a part of the territory. The 42nd Constitutional Amendment Act, 1976 empowered the President to confine the operation of a National Emergency to a specified region of the country instead of applying it uniformly across India.
Evolution and Safeguards in the Declaration of National Emergency
- From ‘Internal Disturbance’ to ‘Armed Rebellion’
- Originally, Article 352 of the Constitution allowed the proclamation of National Emergency on the grounds of war, external aggression, or internal disturbance.
- However, the phrase “internal disturbance” was considered too vague, and had a broad scope, leading to potential misuse.
- 44th Constitutional Amendment Act, 1978
- Replaced ‘internal disturbance’ with ‘armed rebellion’ to make the provision more precise and accountable.
- After this amendment, a National Emergency can no longer be declared on the ambiguous ground of internal disturbance, as it was during 1975 by the Indira Gandhi government.
- Cabinet Approval Mandatory
- As per the 44th Amendment Act, 1978, the President can proclaim Emergency only after receiving a written recommendation from the Union Cabinet.
- This was introduced as a safeguard after the 1975 Emergency, where the then PM Indira Gandhi advised the President unilaterally, without formal Cabinet approval. The Cabinet was informed after the proclamation.
- Now, such a proclamation requires:
- Collective decision of the Cabinet
- Written communication, not oral advice
- Judicial Review Restored
- The 38th Amendment Act, 1975 had made the President’s proclamation of National Emergency immune from judicial review.
- However, the 44th Amendment Act, 1978 deleted this immunity, allowing courts to review proclamations.
- Minerva Mills Case (1980)
- The Supreme Court held that a proclamation can be challenged in court if:
- It is mala fide (made in bad faith)
- Based on irrelevant or absurd grounds
- Perversely irrational
- This restored a constitutional check on the executive’s extraordinary power under Article 352.
Parliamentary Approval & Duration of National Emergency
Once the President issues a Proclamation of National Emergency under Article 352, it is not valid indefinitely. It requires mandatory parliamentary approval within a specific time frame.
- Initial Approval Timeline
- As per the 44th Constitutional Amendment Act, 1978:
- The Proclamation must be approved by both Houses of Parliament within 1 month from the date of its issue.
- Originally, this period was 2 months, but the 44th Amendment reduced it to 1 month to strengthen legislative oversight.
- Lok Sabha Dissolution Scenario:
- If the Lok Sabha is dissolved at the time of Emergency or during this 1-month period without having approved the Proclamation, it remains valid until 30 days from the first sitting of the newly reconstituted Lok Sabha, provided the Rajya Sabha has approved it in the meantime.
- Duration and Extension
- Once the Emergency is approved by Parliament:
- It remains in force for 6 months from the date of approval.
- It can be extended indefinitely with re-approval every six months by Parliament.
- This provision for periodical review was introduced by the 44th Amendment Act, replacing the earlier rule where Emergency could continue indefinitely once approved.
- If Lok Sabha is dissolved during any 6-month period before giving approval for continuation, the Emergency remains valid for 30 days from the first sitting of the reconstituted Lok Sabha, if Rajya Sabha has approved it.
- Special Majority Requirement
- Each resolution to approve or extend the Emergency must be passed by both Houses of Parliament with a special majority:
- Majority of the total membership of the House, and
- Two-thirds of the members present and voting.
- This safeguard was introduced by the 44th Amendment Act, 1978 to ensure that Emergency powers are not exercised arbitrarily.
- Earlier, such resolutions could be passed with a simple majority, which made it easier for ruling parties to misuse emergency powers.
UPSC Prelims Tip:
- Remember the key changes made by the 44th Amendment Act:
- Reduced approval window from 2 months → 1 month
- Introduced 6-month review requirement
- Mandated special majority for approval/extension
- Made cabinet recommendation in writing mandatory
Revocation of National Emergency
- Presidential Power of Revocation
- Under Article 352(2), a Proclamation of National Emergency can be revoked at any time by the President through a subsequent proclamation.
- Such a revocation does NOT require parliamentary approval.
- Role of Lok Sabha in Revocation
- To prevent misuse of emergency powers, the 44th Constitutional Amendment Act, 1978 introduced parliamentary checks on the continuation of Emergency.
- As per the amended provision:
- The Lok Sabha can force a revocation by passing a resolution disapproving the continuation of the Emergency.
- Upon such disapproval, the President is constitutionally bound to revoke the Emergency immediately.
- Prior to the amendment, the power to revoke a proclamation of National Emergency rested solely with the President, and the Lok Sabha had no authority to control or compel its withdrawal.
- Demand for Special Sitting
- The 44th Amendment empowered the members of Lok Sabha:
- If at least 1/10th of the total strength of Lok Sabha members submit a written notice:
- To the Speaker (if House is in session)
- Or to the President (if House is not in session)
- Then, a special sitting of Lok Sabha must be held within 14 days to consider a resolution disapproving the Emergency.
UPSC Key Facts
- Only Lok Sabha can disapprove Emergency (not Rajya Sabha).
- Simple majority is sufficient for disapproval.
- Introduced by the 44th Amendment Act, 1978 to curb executive overreach.
Resolution of Disapproval vs. Resolution of Approval
Aspect | Resolution of Disapproval | Resolution of Approval |
|---|
Who passes it? | Lok Sabha only | Both Lok Sabha and Rajya Sabha |
Type of Majority Required | Simple majority | Special majority |
Effect | Leads to revocation of Emergency | Leads to continuation of Emergency |
Effects of National Emergency
Effects on Centre–State Relations
- Executive Powers
- During a National Emergency, the executive power of the Centre is significantly expanded. Normally, under the Constitution, the Union can issue directions to states only on specific subjects. However, once a National Emergency is proclaimed under Article 352, this restriction no longer applies.
- Key Implications:
- The Centre can direct any state on any matter.
- State governments are not suspended, but their autonomy in executive matters is severely curtailed.
- Legislative Powers
- Parliament can make laws on State List subjects.
- State legislatures are not suspended, but their legislative authority becomes subordinate to Parliament.
- Duration and Scope:
- Laws made by Parliament on State subjects during Emergency cease to operate after 6 months once Emergency ends.
- The President can issue Ordinances on State subjects if Parliament is not in session.
- During a National Emergency, Parliament is empowered to confer powers and impose duties on the Centre or its officers and authorities in relation to subjects beyond the Union List. This provision enables the Union to effectively implement the laws it enacts under its extended jurisdiction that arises from the proclamation of Emergency.
- Note: The 42nd Amendment Act of 1976 laid down that the above two consequences of a National Emergency would apply not only to the state where the Emergency is in force but also to any other state in the country.
- Financial Powers
- During a National Emergency, the Centre gains greater control over financial relations with the States, altering the usual federal fiscal balance.
- Key Features:
- The President is empowered to modify the constitutional distribution of financial resources between the Centre and the States.
- This includes the power to reduce or withhold financial transfers normally due to the States under the Constitution.
- Duration of Modification:
- Any such financial modification remains valid until the end of the financial year in which the Emergency ceases to operate.
- After that, the normal constitutional provisions on Centre–State financial relations are restored.
- Parliamentary Oversight:
- Every such Presidential order must be laid before both Houses of Parliament, ensuring a basic level of accountability.
- Implication:
- This provision underscores the temporary unitarisation of the federal financial structure, centralising fiscal power in the hands of the Union Government during times of extraordinary national crisis.
Effects on the Life of Lok Sabha & State Assemblies
- During the operation of a National Emergency, the normal term limits of the elected legislative bodies can be extended to ensure continuity in governance.
- Lok Sabha Extension:
- The normal term of the Lok Sabha is five years, but it can be extended by a law of Parliament for one year at a time while the emergency is in force.
- However, such extension cannot continue beyond six months after the emergency has ceased to operate.
- Example: The term of the Fifth Lok Sabha (1971–1977) was extended twice—each time by one year—due to the 1975 Emergency.
- State Legislative Assemblies:
- Similarly, the tenure of a State Legislative Assembly (normally five years) can also be extended by Parliament for one year at a time.
- Again, the total extension cannot exceed six months beyond the end of the Emergency.
- Constitutional Backing:
- These provisions allow democratic institutions to continue functioning without fresh elections during extraordinary times, ensuring administrative continuity.
Effects on Fundamental Rights
The Constitution of India provides for the suspension of Fundamental Rights during a National Emergency under Articles 358 and 359. These provisions aim to equip the government with necessary flexibility to maintain national security while imposing constitutional checks.
Article 358: Suspension of Article 19 Rights
- Scope:
- Automatically suspends the six Fundamental Rights under Article 19 (freedom of speech, assembly, movement, etc.) once a National Emergency is declared on the ground of war or external aggression.
- No separate Presidential Order is required for this suspension.
- Implications:
- State is freed from the restrictions under Article 19. It can make laws or take executive actions inconsistent with Article 19 without facing judicial scrutiny.
- These laws/actions cannot be challenged in any court on grounds of violating Article 19.
- Once the Emergency ceases, Article 19 automatically revives. However:
- Any law made during the Emergency, if inconsistent with Article 19, ceases to have effect, but
- No retrospective remedy is available for actions taken during Emergency.
- 44th Amendment Act, 1978 – Key Safeguards:
- Suspension applies only if Emergency is declared due to war or external aggression, not armed rebellion.
- Only Emergency-related laws/actions enjoy protection—not all actions taken during the period.
Article 359: Suspension of Enforcement of Other Fundamental Rights
- Scope:
- Does not suspend rights themselves, but suspends the right to move any court for their enforcement during Emergency.
- Applies only to those Fundamental Rights specified in the Presidential Order.
- Implications:
- Fundamental Rights (other than Article 19) remain theoretically alive, but citizens cannot seek legal remedy for violations.
- Furthermore, the suspension of Fundamental Rights could remain in force for the entire duration of the Emergency or for a shorter period specified in the Presidential order. Such an order could also be made applicable to the whole country or be restricted to only a particular part of it.
- The Order must be laid before Parliament for approval.
- Effect:
- While the order is in force:
- The State can make laws or take executive actions violating the specified Fundamental Rights.
- Such actions cannot be challenged in court.
- Once the Order lapses, these laws cease to be effective to the extent of inconsistency with the specified rights. But no legal remedy is available for violations committed during the suspension.
- 44th Amendment Act, 1978 – Key Safeguards:
- Articles 20 and 21 (Protection in respect of conviction & Right to life and personal liberty) cannot be suspended, even during Emergency.
- Only Emergency-related laws and actions under such laws are protected from challenge.
Distinction Between Article 358 and Article 359
Basis of Distinction | Article 358 | Article 359 |
|---|
Scope of Rights | Applies only to Article 19 | Applies to all Fundamental Rights, except Articles 20 & 21 |
Automaticity | Suspension of Article 19 is automatic during Emergency | Not automatic; requires a Presidential Order |
Type of Emergency Applicable | Applies only to External Emergency (war/external aggression) | Applies to both External and Internal Emergency |
Duration of Suspension | For the entire duration of the Emergency | For specified period mentioned in the Presidential Order |
Territorial Extent | Applies to entire territory of India | Can apply to entire country or a part of it |
Articles 20 and 21 | Can be affected if Article 19 laws relate to them | Cannot suspend enforcement of Articles 20 and 21 |
Effect on Legislature and Executive | State can make laws or take action inconsistent with Article 19 | State can make laws/action inconsistent with specified rights |
Relation to Emergency Laws | Immunity only for laws related to Emergency | Same – protection applies only to Emergency-related laws |
Constitutional Provisions
Article 352 in Constitution of India
Proclamation of Emergency
(1)If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.Explanation–A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before theactual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.(2)A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation.(3)The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank under article 75) that such a Proclamation may be issued has been communicated to him in writing.(4)Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.(5)A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the proclamation under clause (4):Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause.Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the proclamation has been also passed by the House of the People.(6)For the purpose of clause (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of themembers of that House present and voting.(7)Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.(8)Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given of, their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (I) or a Proclamation varying such Proclamation,–(a)to the Speaker, if the House is in session; or(b)10 the President, if the House is not in session,a special sitting of the House shall be held within fourteen days from the dale on which such notice is received by the Speaker, or as the case may be, by the President, for the purpose of considering such resolution.
(9)The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or armed rebellion or imminent danger of war or external aggression or armed rebellion, whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation.Article 353 in Constitution of India
Effect of Proclamation of Emergency
While a Proclamation of Emergency is in operation, then-
(a)notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised;(b)the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List;Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India,–
(i)the executive power of me Union to give directions under clause (a), and(ii)the power of Parliament 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.Article 354 in Constitution of India
Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation
(1)The President may, while a Proclamation of Emergency is in operation, by order direct that all or any of the provisions of articles 268 to 279 shall for such period, not extending in any case beyond the expiration of the financial year in which such Proclamation ceases to operate, as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit.(2)Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.Declarations of National Emergency
- The Constitution of India has witnessed the declaration of National Emergency three times, each under different circumstances and durations.
- First Emergency (1962–1968) –
- Chinese Aggression
- Date of Proclamation: October 1962
- Ground: External Aggression (China’s attack in NEFA – present-day Arunachal Pradesh)
- Duration: In force till January 1968
- Notably: No fresh proclamation was made during the 1965 war with Pakistan, as the 1962 Emergency was still in operation.
- Second Emergency (1971–1977) –
- Indo-Pak War
- Date of Proclamation: December 1971
- Ground: External Aggression (Pakistan’s attack during Bangladesh Liberation War)
- Duration: Continued until March 1977
- Concurrent Emergency: Continued even after a new internal Emergency was declared in 1975.
- Third Emergency (1975–1977) –
- Internal Disturbance
- Date of Proclamation: June 1975
- Ground: Internal Disturbance (allegations of incitement against the government by political groups)
- Duration: Continued till March 1977
- Controversial Aspects:
- Widely criticised for abuse of executive power
- Seen as a political move by then Prime Minister Indira Gandhi following a court verdict invalidating her election
- Led to widespread censorship, arrests, and suspension of civil liberties
Shah Commission and Aftermath
After the Emergency ended in March 1977, the government appointed a commission to examine its impact and the actions taken during the period.
- The Shah Commission of Inquiry was established in May 1977, headed by Justice J.C. Shah, former Chief Justice of India.
- Its mandate was to investigate excesses committed between 25 June 1975 and 21 March 1977.
- The Commission examined the misuse of government power, preventive detentions, press censorship, and the sterilisation campaign.
- It collected evidence through public hearings, testimonies, and official records.
- The Commission submitted three reports between 1978 and 1979.
- Detentions: As of 1 January 1975, Indian jails housed 2,20,146 prisoners against a capacity of 1,83,369. Among them, 1,26,772 were under-trial prisoners.
- Sterilisation Drive: Over 1.07 crore sterilisations were conducted nationwide during the Emergency. These included 548 complaints involving unmarried individuals and 1,774 reported deaths linked to the procedures.
- Forced Retirement: 25,962 government and public sector employees were retired prematurely during the period.
- Press Restrictions: Power supply to newspaper offices in Delhi was cut off during the early days of censorship enforcement.
- Content Control: Parliamentary and judicial proceedings were censored. Court judgements were edited or controlled in their published form.
- Media Classification: Newspapers were labelled as ‘friendly’, ‘neutral’ or ‘hostile’ based on their editorial stance and coverage.
The Commission’s report did not justify the declaration of Emergency.
- In response, the 44th Constitutional Amendment Act (1978) was passed to:
- Replace “internal disturbance” with “armed rebellion”
- Require written recommendation of the cabinet for declaring Emergency
- Introduce Parliamentary safeguards and judicial review
The National Emergency provision under Article 352 of the Indian Constitution reflects the exceptional powers conferred on the Union to safeguard the sovereignty and integrity of the country during times of crisis like war, external aggression, or armed rebellion. While it empowers the Centre to act decisively, past misuse—especially during the 1975 Emergency—has revealed the potential dangers of centralisation and suspension of civil liberties.
The 44th Amendment Act of 1978 emerged as a constitutional safeguard against such misuse by:
Tightening the conditions for declaration
Protecting Articles 20 and 21 even during Emergency
Ensuring judicial review and requiring Cabinet concurrence
Thus, the National Emergency remains a powerful yet cautiously regulated tool, balancing the need for national security with the spirit of democracy and federalism.
FAQs
1. What is the constitutional basis for declaring a National Emergency?
The National Emergency is declared under Article 352 of the Constitution, when the security of India or any part thereof is threatened by war, external aggression, or armed rebellion.
2. What is the difference between Internal and External Emergency?
External Emergency: Declared in case of war or external aggression (e.g., 1962, 1971).
Internal Emergency: Declared in case of armed rebellion (formerly “internal disturbance” till 1978, e.g., 1975).
3. Who has the authority to declare a National Emergency?
The President of India declares a National Emergency on the written recommendation of the Union Cabinet (not just the Prime Minister).
4. What happens to Fundamental Rights during National Emergency?
Article 19 rights are automatically suspended (only during war/external aggression).
Other rights (except Articles 20 and 21) can have enforcement suspended through a Presidential Order under Article 359.
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