Law and You > Constitutional Law > National Emergency (Articles 352-355, 358, 359)
Chapter XVIII of the Constitution deals with the powers of the president to act in an emergency, whereby the security of India (or any part thereof) is threatened. This part has been the subject of most acrimonious attacks by the critics in the history of Independent India. During the framing of the constitution, this part had witnessed the most agitated scenes and debates in the Constituent assembly. The definition of ’emergency’ is left to the president, but it is clear that apart from external aggression and internal disturbance, it also includes economic depression and financial crisis. Emergency provisions in India are borrowed from Weimar Constitution of Germany. In this article, we shall discuss provisions related to national emergency.
The Indian Constitution gives President the authority to declare three types of emergencies. These are-
- National Emergency (Article 352)
- State Emergency (Article 356)
- Financial Emergency (Article 360)
Article 352:
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, made 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 the actual 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 (I) may be or revoked by a subsequent proclamation
(3)The President shall not issue a Proclamation under clause (I) 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 of 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 an 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 the members of that House present and voting
(7)Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (l) 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 (l) or a Proclamation varying such Proclamation, (a) to the Speaker, if the House is in session; or (b) to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date 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 here is a Proclamation already issued by the President under clause (l) and such Proclamation is in operation
Amendments:
- 38th Constitutional Amendment Act 1975: It empowered president to proclaim national emergency on different grounds even though an emergency is already under operation. It made the satisfaction of the President in invoking Article 356 final and conclusive which would not be challenged in any court on any ground.
- 42nd Constitutional Amendment Act 1976: It empowered president to modify or vary national emergency. Under the original constitution, only the imposition or revocations were possible and under the original constitution, president could have imposed national emergency only over complete territory of India. This amendment enabled him over a part of the country.
- 44th Constitutional Amendment 1978: It was enacted to prevent the misuse of emergency power by the executive.
National Emergency:
National emergency can be declared on the basis of war, external aggression or armed rebellion. The Constitution employs the expression ‘proclamation of emergency’ to denote an emergency of this type. This type of emergency can be declared by the President of India if he is satisfied that the situation is very grave and the security of India or any part thereof is threatened or is likely to be threatened either (i) by war or external aggression or (ii) by armed rebellion within the country. The President can issue such a proclamation even on the ground of threat of war or aggression. According to the 44th Amendment of the Constitution, the President can declare such an emergency only if the Cabinet recommends in writing to do so.
External Emergency:
When the emergency is declared on the ground of war or external aggression. First National Emergency was declared from 26 Oct 1962 to10 Jan 1968 during the India China War Second National Emergency was declared from Dec 1971 during the India Pakistan War
Internal Emergency:
If the emergency is declared on the ground of armed rebellion. Only instance of internal emergency was in the period 25 June 1975 to 21 March 1977 on the basis of Internal Disturbance. The word Armed Rebellion substituted by the 44th Amendment Act 1978 for internal disturbance.
Proclamation of National Emergency:
Article 352(1) provides that if the President is satisfied that a grave emergency exists whereby the security of India or any part of India is threatened, either by war or external aggression or armed rebellion, he may make a Proclamation of Emergency in respect of the whole of India or any part of India as may be specified in the Proclamation. Note the Power of President to declare an Emergency even before the actual occurrence of aggression or disturbance.
It is to be noted that the proclamation of a war emergency cannot be made by the president unless the Union Cabinet gives him in written that such proclamation should be made.
Revocation of National Emergency:
Article 352(2) provides that the Proclamation of Emergency made under clause (1) may be varied or revoked by the President by a subsequent Proclamation.
A Proclamation of Emergency shall on its own cease to operate on the expiration of the period for which the Proclamation has been approved by the Houses of Parliament. President shall revoke the Proclamation of Emergency, if the Lok Sabha passes a resolution by a special sitting held for this purpose.
Approval of National Emergency:
If a proclamation is NOT revoked subsequently, it should be laid before the parliament. Both houses of parliament must approve such proclamation within two months. If the parliament does not approve the proclamation, it will become ineffective. A special majority is required to approve the emergency resolution.
It may be that at the time of the proclamation, the Lok Sabha has been dissolved or its dissolution takes place within the period of two months after the proclamation. In these cases, the proclamation shall be laid before Rajya Sabha. If Rajya Sabha passes it, it must be approved by Lok Sabha within the 30 days of the new meeting of the Lok Sabha. A special majority is required to approve the emergency resolution. However, if Rajya Sabha itself does not pass the proclamation, the proclamation would cease to be valid.
Once approved, an emergency shall operate for a maximum period of not more than six months. For the further continuance of the emergency beyond the period of six months approval by Parliament would be required every six months.
Lok Sabha has the power to disapprove the operation of national emergency at any time, if not less than 1/10th members of Lok Sabha in writing to the speaker, if house is in session, or to the president, the speaker or president as the case may be, shall convene a special session of Lok Sabha within 14 days and if such a resolution is passed, president shall revoke national emergency
Duration of Emergency:
Without Approval:
A Proclamation of Emergency made under Article 352 (1) may continue in force for a period of one month from the date of proclamation without approval by Houses of Parliament. Prior to the 44th Amendment, the period was of two months.
If Proclamation is issued at the time when the House of People has been dissolved, during the period of one month, the Proclamation expires within 30 days from the date on which the House of People first sits after its reconstitution after elections.
If only one of either Houses passes the resolution, the Proclamation ceases to operate at the expiration of this one month.
With Approval:
A Proclamation of Emergency needs to be approved by resolutions passed in each House of Parliament, by the majority of the total membership of that House and by the majority of not less than two thirds of the members of the House present and voting.
Once approved by the Parliament, an emergency shall operate for a maximum period of not more than six months. For the further continuance of the emergency beyond the period of six months approval by Parliament would be required every six months.
If the resolutions for approval are passed by two Houses on different dates, the period of six months would run from the date of the passing of the later of the resolutions. The Proclamation can be renewed after every six months by passing from both the Houses.
In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, case, it has been held that there is no bar to judicial review of the validity of the proclamation of emergency issued by the president under Article 352(1). However, the court’s power is limited only to examining whether the limitations conferred by the Constitution have been observed or not. It can check if the satisfaction of the president is valid or not. If the satisfaction is based on mala fide or absurd or irrelevant grounds, it is no satisfaction at all.
Instances of National Emergency
- The national emergency was for the first time proclaimed in 1962 in the wake of the Chinese invasion. This emergency was also used by the government to tide over the situation arising out of the Indo-Pak war of 1965. The emergency was finally lifted in January 1968.
- The second national emergency was declared in December 1971 during the Bangladesh war and remained in force till March 1977.
- The third national emergency was declared in June 1975 on grounds of internal disturbance and was revoked in March 1977.
However, as a result of the 44th amendment of the constitution, it is no more possible to declare a national emergency on grounds of internal disturbances. Instead, it can be declared on grounds of armed rebellion.
Effects of Proclamation of National Emergency:
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 t 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 the 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
Effect on Executive Powers:
According to Article 353(a) following are the consequences of the Proclamation of Emergency:
- During the operation of a Proclamation of Emergency the executive power of the Union extends to giving of directions to any State as to the manner in which the executive power of the State is to be exercised.
- State governments are not dismissed, they continue to operate, but are brought under the effective control of the centre, which assumes the power to give instructions to the State government, which shall abide by such directions.
Parliament empowered to legislate on State Subjects [Article 353(b)]
According to Article 353(b) following are the consequences of the Proclamation of Emergency:
- While the Proclamation of Emergency is in operation, the Union Parliament is empowered to make laws with respect to any of the matters in the State List.
- State legislatures continue to operate and legislate, but parliament assumes concurrent legislative power on state subjects and a law such enacted by parliament, shall cease to operate at the expiry of six months after the revocation of national emergency, to the extent of incompetency.
Article 354:
Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation
(l) 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 specific in the order, have effect subject to such exceptions or modifications as he thinks fit
(2) Every order made under clause (l) shall, as soon as may be after it is made, be laid before each House of Parliament.
According to Article 354(1) of the Constitution, the President may, while a Proclamation of Emergency is in operation by the order alter the financial arrangement between the State and the Union as provided in Articles 268 to 279. Thus, the President can suspend the distribution of financial resources between centre and states and centre can make use of any national resource to fight the cost on the basis of which, the emergency is declared.
According to Article 354(2) of the Constitution, every such order under 354(1) is to be laid before each House of Parliament and will come to an end by the end of the financial year in which the Proclamation of Emergency.
Article 355:
Duty of the Union to protect States against external aggression and internal disturbance:
It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution.
Object of this Article is to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. The “public order” and “police” are state subjects and states have exclusive power to legislate on these matters.
Article 355 itself does not give power to the centre to impose emergency because mere internal disturbance short of armed rebellion cannot justify a proclamation of emergency under Art. 352 nor can such disturbance justify issuance of proclamation under Art.
In Sarvanand Sonowal vs. Union of India AIR 2005 SC, case, where questions were raised on the validity of the Illegal Migrants (Determination by Tribunals) Act, 1983. The Act was introduced as a solution to the problem of illegal migrants in the state of Assam. Under this act, the Union was empowered to detect as well as deport illegal migrants who were residing in Assam. The Apex Court after considering the facts and circumstances of the case held that – There was a scenario that amounted to foreign hostility and civil unrest. As a result, it was remarked that it has become the responsibility of the government at the central level to take all steps necessary to defend the State of Assam from external aggression and internal disturbance, as stipulated in Article 355 of the Indian Constitution. However, after a thorough examination of the provisions of the Illegal Migrants (Determination by Tribunals) Act, 1983, it was decided that the Act as well as the Guidelines promulgated under it “override the constitutional authority embedded in Article 355 of the Constitution,” according to which the Union of India is obligated to protect each state against external aggression or internal disturbance. The Act was found to be ultra-wires because it violated Article 355 of the Indian Constitution.
In Naga People’s Movement of Human Rights v. Union of India, 27 November, 1997 case, where the question was raised on the validity of the Armed Forces (Special Powers) Act, 1958 (AFSPA). Under this act, the Union is granted the power to send the centrally governed armed forces to help the forces of the state in any area which is designated as a ‘disturbed area’. The Supreme Court upheld the validity of the Armed Forces (Special Powers) Act, 1958 (‘AFSPA’). It stated that the legislature is competent to make laws on this subject under Entry 2A of the Union List of the Schedule VII. The Apex Court further observed that the provisions of the Armed Forces (Special Powers) Act, 1958 were enacted to empower the union to discharge its duty in accordance with Article 355 of the Constitution of India. This will prevent the declaration of state emergency under Article 356 by protecting the states from the escalation of situations that are grave in nature such as the breakdown of constitutional machinery or internal disturbances.
Suspension of fundamental rights guaranteed by Article 19:
Article 358:
Suspension of provisions of Article 19 during emergencies:
(1) While 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 is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect: Provided that where such Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not 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
(2) Nothing in clause ( 1 ) shall apply (a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or (b) to any executive action taken otherwise than under a law containing such a recital.
Article 358 deals with the suspension of the six Fundamental Rights guaranteed by Article 19. The Article 358 says that while a Proclamation of Emergency is in operation nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action abridging or taking away the rights guaranteed by Article 19 of the Constitution. It means that as soon as the Proclamation of Emergency is made the freedoms guaranteed by Article 19 are automatically suspended.
The (44th Amendment) Act, 1978 – has made two important changes in Article 358:
(i) Article 19 will be suspended only when a proclamation of emergency is declared on the ground of war, external aggression and not when the emergency is declared on the ground of armed rebellion; and
(ii) Article 358 will only protect emergency laws from being challenged in the court of law and not other laws which are unrelated to the emergency.
Article 359:
Suspension of the enforcement of the rights conferred by Part III during emergencies
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order
(1A) While an order made under clause ( 1 ) mentioning any of the rights conferred by Part III (except Article 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions containing in that Part be competent to make or to take, but any law so made shall, to the extent of the in competency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not 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
(1B) Nothing in clause (1A) shall apply
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital
(2) An order made as aforesaid may extend to the whole or any part of the territory of India: Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that 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, considers such extension to be necessary
(3) Every order made under clause (1) shall, as soon may be after it is made, be laid before each House of Parliament
Article 359 deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21). Under Article 359 the Fundamental Rights of the citizens of India can be suspended during times of war, external aggression, armed rebellion, financial crisis and more. The right of free movement can be suspended under this act depending on the magnitude of the situation. The power of suspending the Fundamental Rights is given to the President by the Constitution of India. Article 359 enables the President to make any law or take any executive action regarding human rights and the president has a right to reject or accept it.
Article 359 authorizes the president to suspend the right to move any court for the enforcement of fundamental rights during a National Emergency except for Article 20 and Article 21. During an emergency the enforcement of fundamental rights of the people is declined by the Supreme court of India until the situation improves.
Extension of the life of Lok Sabha [Article 83(2)]:
- While the Proclamation of Emergency is in operation, the President may extend the normal life of the Lok Sabha by a year each time up to a period not exceeding beyond six months after Proclamation ceases to operate.
- Similarly, the Parliament may extend the normal tenure of a state Legislative Assembly by one year each time during a national emergency, subject to a maximum period of six months after the emergency has ceased to operate.
In M.M. Pathak v. Union of India, AIR 1973 SC 106 case, the Court held that the effect of Proclamation of Emergency on Fundamental rights is that, the rights guaranteed by Articles 14 and 19 are not suspended during the emergency but their operation is only suspended.
In A.D.M. Jabalpur v. S. Shukla, 1976 SC 1207 (popularly known as Habeas corpus case), case, the respondent challenged the validity of the Proclamation of Emergency under Article 352. The main question for the consideration of the Supreme Court was whether in view of the President order any writ under Article 226 for habeas corpus to enforce the right to personal liberty of a person detained under the Act on the ground that the order of detention is not in compliance with the Act. The Supreme Court held that no person has any legal right to move any writ petition under Article 226 before a High Court for a habeas corpus or any other writ or order or direction to challenge the legality of the detention order, on the ground that the order is not under or in compliance with the Act or is illegal or vitiated by mala fide, factual or legal or is based on extraneous consideration.
In Makhan Singh v. State of Punjab, AIR 1964 SC 382 case, where the validity of the suspension of the right to move any court for the enforcement of Articles 14, 21 and 22 under the proclamation of emergency declared during the Indo-China war was challenged. The Supreme Court held that the rights were suspended only for legally detained persons and not applicable to persons illegally detained under preventive detention law. The Supreme Court pointing out that a citizen would not be deprived of his right to move the appropriate court for a writ of habeas corpus if his detention has been mala fide.
Dr. Ram Manohar Lohiya vs. State of Bihar AIR 1966 SC 766 case, where Ram Manohar Lohia, a member of the Lok Sabha, has moved the Court under Art. 32 of the Constitution for a writ of habeas corpus directing his release from detention under an order passed by the District Magistrate of Patna made under r. 30(1)(b) of the Defence of India Rules, 1962. The Court held that under r. 30(1) no power is conferred upon that authority to detain a person on the ground that it is necessary so to do in order to prevent that person from acting in a manner prejudicial to the maintenance of order in a local area. There is an ambiguity on the face of the order and, therefore, the order must be held to be bad. And Dr. Ram Manohar Lohiya was freed.
In Mohd. Yaqub v. State of Jammu Kashmir, AIR 1968 SC 765 case, the Supreme Court held that an order issued by the President under article 359(1) was not law within the meaning of article 13(2) and therefore its validity cannot be challenged with reference to the Provisions of Part III. Thus, if the order suspends the enforcement of article 14, it cannot be challenged on the ground that it is discriminatory under article 14. The validity of the order cannot be tested under the very fundamental rights, i.e., article 14, which may be suspended.
Misuse of National Emergency Provisions:
Since the independence of India, national emergencies were imposed three times. In two instances, emergency was used to protect Indian land from the external threats especially when China attacked India in 1962 and East Pakistan – West Pakistan war in 1971. But in the third instance, in 1975 it was used due to political reasons. The verdict of Allahabad High Court which went against Prime Minister Indira Gandhi. Under this circumstance, Jayaprakash Narayan had called upon the army, police, and government employees not to obey any order, which they considered wrong. He also urged the Chief Justice Mr. A.N. Roy not to sit on the bench to hear the election appeal of Prime Minister. All the opposition political parties and leaders met in a meeting to form ‘Lok Sangharsh Samiti’. Later, under the leadership of Jayaprakash Narayan, it declared “a total revolution” which in fact increased mass mobilization against the autocracy and corruption. The real problem arose on the use of Article 352, when Congress Government at the centre under the leadership of Prime Minister Indira Gandhi restricted freedom of speech and association in 1975. The national emergency of that time received enormous criticisms across the country.
Conclusion:
Emergency not only suspends the autonomy of the States but also converts the federal structure of India into a unitary one. Still, it is considered necessary as it equips the Union Government with vast powers to cope up with the abnormal situations. The exigencies of the situation prevailing in the period 1975-77 necessitated certain changes in the Constitution regarding emergency provisions. Therefore, the 44th amendment was passed on 30th April 1979 to strengthen the democratic features of the Indian Constitution and to protect citizens’ rights even during the national emergency.