Friday, April 21, 2017

National Emergency: Proclamation, Revocation & Effects Under Article 352 of Indian Constitution

The makers of our constitution foresaw that in future, there might be certain situations which require special and immediate attention.

The nature of such situations is such that they might prove hazardous to the national defence and unity.

These situations call for intensive action from the state authorities in order to protect the national security and integrity.

Keeping this in mind, they bestowed special powers to the president and the central government through the constitution.

By doing this, they gave the central government adequate tools to tackle any such situation that might be categorised as an ‘Emergency’.

An Emergency situation is such a difficult situation that demands special actions from the state authorities by using the special powers provided by the constitution.

The emergency provisions are described in Part XVIII of our constitution under Articles 352 to 360.

We all are aware that India is Federation, but under an emergency, the federal nature of the country is nulled and the country becomes unitary.

Also, the parliament doesn’t need to pass any kind of constitutional amendment to modify this behaviour.

There are three types of Emergencies as per our constitution. They are:

National Emergency(Article 352 of Indian Constitution)
President’s Rule(Article 356 of Indian Constitution)
Financial Emergency(Article 360 of Indian Constitution)

The provisions for National Emergency and President’s Rule have been amended almost extensively by the 42nd and 44th constitutional amendments.

In this article, we shall exclusively discuss National Emergencies.

The provisions for national emergencies are mentioned in Article 352 of Part 18 of the Indian Constitution.

So far, the national emergencies have been exercised three times.

1962-> Because of War against external aggression of China
1971-> Because of War against Pakistan
1975-> Due to Internal Disturbances.

Till date, financial emergency has never been exercised.

Coming back to national emergencies, the constitution provides for two such kinds of emergencies.

#External Aggression or War
#Internal Disturbances or Armed rebellion

 In 1978, the word, ‘Internal Disturbance’ was replaced with ‘Armed Rebellion’.

This was done by the 44th Amendment by the first Non-Congress central Government.

The purpose behind this was that internal disturbance was not explained in the constitution.

This led to the 1975 national emergency declared by the then Prime Minister Shrimati Indira Gandhi.

More on that particular emergency later on.

Let’s discuss the circumstances under which a National emergency can be declared.

The power to proclaim a National emergency rests with the President of the country.

Under Article 352 of Indian Constitution, the President has the power to declare an emergency if the security of India or a part of it is under threat by external forces, war and armed rebellion.

If the president is convinced of any one of these threats, then he can declare the emergency even before the events have taken place.

There is also a provision in the constitution by which the president can declare multiple emergencies at a time on different grounds.

This provision was added in the constitution by the 38th Amendment in 1975.

At that time, the first emergency was declared in 1971 on the grounds of external aggression by China, and on the advice of Smt Indira Gandhi, a second emergency was declared on the grounds of Internal Disturbances.

The members of the opposition party were thrown in jail without reason.

So now as a safeguard the president can only declare an emergency after receiving a written request from the Prime Minister and the Cabinet.

In 1975, the president Faqruddeen Ali Ahmed declared the emergency only after consulting with the Prime minister.

The cabinet was informed after the declaration as fait accompli.

The provision for the consent of the whole cabinet prior to the emergency declaration was introduced by the 44th amendment act of 1978, hence removing the possibility of the prime minister taking the decision on his own.

By the 38th Amendment Act of 1975, the declaration of emergency was made immune from judicial review.

This meant that once the emergency has been declared, it can’t be challenged in a court of law.

This was reversed by the 44th Amendment Act of 1978 to maintain the constitutional integrity.

Moreover, in the case of Minerva mills in 1980, the Supreme Court held that the emergency based on the grounds of irrelevant facts, absurdness or extra venous reasons can be challenged in a court.

Parliamentary Approval for National Emergency under Article 352 of Indian Constitution


Once emergency has been declared by the president, the same proclamation must be passed by both houses of the parliament within a month from the date of declaration.

Earlier, the duration was of two months, but it was reduced by the 44th amendment act of 1978.

In case the Lok Sabha is dissolved at the time of declaration of emergency, or it gets dissolved during the period of emergency before it has passed the proclamation, then it is passed by the Rajya Sabha.

Once a new Lok Sabha has been constituted after holding elections, it must pass the proclamation too.

From the first sitting of the newly constituted Lok Sabha, the emergency proclamation survives for 30 days.

In other words, the newly constituted Lok Sabha must pass the proclamation within 30 days.

Otherwise it is removed.

Once the emergency is approved by both houses, it is applicable for only six months.

After this period, the proclamation must be passed again both the houses.

This can be done every six months as long as necessary.

The provision for periodic approval was also added by the 44th amendment act of 1978.

Before this amendment, once the emergency has been declared, it will continue to be applicable until the president revokes it.

Before the 44th Amendment Act of 1978, the emergency proclamation could be passed with a simple majority in the parliament.

But this amendment changed this provision by stating that the bill to the proclamation of emergency or the continuance of emergency must be passed in both the houses by a special majority.

Special majority means that the bill must be passed by a majority of the total members or strength of the house and also by a majority of not less than two-thirds of the members who are present in the house and voting.

Revocation of National Emergency Under Article 352 of Indian Constitution


The declaration of emergency can be revoked at any time by the president by a subsequent proclamation without the need of parliamentary approval.

This can be done when the president is satisfied that the threat has passed.

The president must also revoke the emergency provocation if a resolution is passed in the Lok Sabha which disapproves the continuation of the emergency.

This safeguard was also introduced in the 44th Constitutional Amendment Act.

Before this amendment, emergency proclamation could be removed at any time by the president and the Lok Sabha had no power over it.

Under another provision of the 44th Amendment Act 1978, if one-tenth member of the Lok Sabha give a written notice to the speaker while the house is in session, then the discontinuation of the emergency proclamation must be considered.

If the Lok Sabha is not in session, then the notice by the one-tenth members is given to the president so that an emergency session can be summoned to consider the revocation of emergency.

This session must be held within fourteen days from the date of notice.

The difference between the process of continuation and discontinuation is that while the continuation bill must be passed with a special majority, the discontinuation motion only requires a simple majority.

Also, while the continuation motion must be passed in both the houses, the discontinuation motion can be passed only in the Lok Sabha.

Effects of National Emergency Under Article 352 of Indian Constitution


It is quite obvious that once emergency has been declared, there will be different effects on different sectors of the nation.

These can be classified into three different groups.

Effects on Centre-State Relations


We know that under emergency proclamation, our country, which is a federation, becomes a unitary state.

The central government becomes all powerful and the states have to follow the directions given by it.

The effects on three areas are as follows:

Executive:  Usually, the Centre government can only give directions to the state governments on certain matters.

These are mentioned in the Articles 256 and 257 of the Indian constitution.

But, during an emergency, the Centre government can give directions on any matter to the states.

The executive powers of the centre extends to the state governments.

Therefore, the state governments are under completely under the control of the Centre.

Keep in mind that, during national emergencies, the state government is not suspended.

Legislative: Under normal conditions, the central government is authorised to make laws on matters of the union list and the state government can make laws on the matters in state list.

During a national emergency, the constitution gives special legislative powers to the central government under which the Centre can make laws on any matter which is under state list.

As the matters in the concurrent list also come under central government, this means that the central government can make laws on basically any matter.

As mentioned above, the state government is not suspended during an emergency.

The state government still has legislative powers, it can still make laws, but these laws can be overridden by the central government in case of national emergencies.

The laws that are made by the central government on matters of state list, under national emergencies, cease to be operational after six months from the day the emergency is over.

The president also has the power to issue ordinances on state matters if the parliament is not in session.

The president can also bestow executive powers and duties upon the Centre and its offices which might help in carrying out the laws and policies made by the union under its extended jurisdiction powers, on state matters.

According to the 42nd amendment act, the legislative and executive consequences extend to the whole nation and also specifically to a particular area.

Financial: During an emergency the president can modify the distribution of funds or revenue between the states and the Centre.

The president can also reduce or cancel the amount of funds that is given to the states.

All these financial modifications stay in effect until the end of the fiscal year in which the emergency is revoked.

Effects on the life of Lok Sabha and State Assembly


Under a national emergency, the parliament can extend the life span of both the Lok Sabha and the state assembly by one year at a time. This is done by parliamentary law. But this extension cannot survive six months after the emergency has ceased to operate.

Effects on Fundamental Rights


Suspension of fundamental rights under Article 19 of Indian Constitution

Article 358 of Indian Constitution states that under a national emergency, the six fundamental rights mentioned under Article 19 of Indian Constitution are automatically suspended, without the need of any separate order.

The country can make any laws without the restrictions put in by Article 19.

No law made or executive action that is taken under emergency can be challenged on the basis of violation of Article 19.

But, by 44th Amendment Act in 1978, the scope of Article 258 was changed in the following manner:

The fundamental rights under Article 19 of Indian Constitution can only be suspended when the emergency is declared on the grounds of external aggression or war.

Only those laws or executive actions which are related to the emergency are exempt from judicial review.

Suspension of other fundamental rights

Article 359 of Indian Constitution gives the president the authority to take away the rights of the citizens to move any court for their fundamental rights during a national emergency.

This means that the fundamental rights are not suspended, but only their enforcement by the judicial bodies.

This suspension of enforcement is only for those rights that are particularly mentioned in the president’s order.

The suspension can be for the whole duration of the Emergency or for a reduced time.

The suspension can be for the whole country or a specific area.

The 44th Amendment Act of 1978 changed the scope of article 359 in following manner:

The president cannot suspend the judicial review of violation of fundamental rights mentioned in Article 20 and 21 of Indian Constitution, which are the right to protection with respect to conviction for offences and right to life and personal liberty, respectively.

The suspension of judicial help is only limited to those acts and laws which are related to the emergency.

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