A state of emergency in India refers to a period of governance that can be declared by the President of India during specific crisis situations. Upon the advice of the cabinet of ministers, the President gains the authority to override several provisions of the Constitution, which guarantees Fundamental Rights to Indian citizens.
The constitutional provisions for emergencies in India are outlined in Part XVIII of the Constitution, from Article 352 to 360. These provisions empower the Central government to effectively address any abnormal situation that threatens the country’s sovereignty, unity, integrity, security, democratic political system, and the Constitution.
There are three types of emergencies stipulated in the Constitution:
- National Emergency
- Constitutional Emergency
- Financial Emergency
National Emergency:
A national emergency can be declared based on war, external aggression, or armed rebellion. The Constitution uses the term ‘proclamation of emergency’ to indicate this type of emergency.
Grounds for Declaration:
Under Article 352, the President can declare a national emergency when India’s security or any part of it is under threat due to war, external aggression, or armed rebellion. The President has the power to declare a national emergency even before these situations actually occur.
Types of National Emergency:
When a national emergency is declared based on ‘war’ or ‘external aggression,’ it is known as an ‘External Emergency.’ Conversely, when it is declared due to ‘armed rebellion,’ it is termed an ‘Internal Emergency.’ The term ‘armed rebellion’ was inserted through the 44th Amendment, replacing the previous term ‘internal disturbance.’
Examples:
A situation where India and Pakistan openly declare the use of armed forces against each other is considered a war. If there is no formal declaration of armed forces’ usage against a country, it is termed external aggression. The proclamation of emergency is then based on either of these grounds, termed an external emergency.
Facts:
The 38th Amendment Act of 1975 made the declaration of a National Emergency immune to judicial review. However, this provision was later removed by the 44th Amendment Act of 1978. The Supreme Court, in the Minerva Mills case (1980), ruled that a National Emergency can be challenged in court on the grounds of Malahide or if the declaration was based on wholly extraneous and irrelevant facts.
Parliamentary Approval and Duration:
The proclamation of a national emergency must be approved by both houses of parliament within one month of its issue. If the Lok Sabha (Lower House) has been dissolved at the time of the proclamation or is dissolved during the one-month period without approving the emergency, the proclamation remains valid until 30 days after the first sitting of the reconstituted Lok Sabha, provided the Rajya Sabha (Upper House) has approved it in the meantime.
If approved by both houses, the emergency continues for six months and can be extended indefinitely with parliament’s approval every six months. Each resolution approving the emergency or its continuation must be passed by either house of parliament by a special majority.
Revocation of Proclamation:
The President can revoke a proclamation of emergency at any time through a subsequent proclamation, which does not require parliamentary approval. The emergency must be revoked if the Lok Sabha passes a resolution disapproving its continuation by a simple majority.
Effects of National Emergency:
A proclamation of a national emergency has wide-ranging effects on the political system, including the relationship between the center and states, the tenure of the Lok Sabha and state assemblies, and fundamental rights.
Effects on Center-State Relations:
During a national emergency, the normal fabric of center-state relations undergoes a significant change. The center becomes entitled to give executive directions to a state on any matter. The parliament gains the power to make laws on any subject mentioned in the state list, and the President can issue ordinances on state subjects if the parliament is not in session. The laws made on state subjects by the parliament become inoperative six months after the emergency has ceased to be in operation. The President can also modify the constitutional distribution of revenues between the center and the states.
Effect on the Life of the Lok Sabha and State Assemblies:
While a national emergency is in operation, the life of the Lok Sabha can be extended beyond the normal term for one year at a time, subject to a maximum period of six months after the emergency 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, again subject to a maximum period of six months after the emergency has ceased to operate.
Effect on Fundamental Rights:
Articles 358 and 359 describe the effect of a national emergency on Fundamental Rights. Article 358 states that when a national emergency is proclaimed, the six Fundamental Rights under Article 19 are automatically suspended. However, Article 19 is automatically revived after the emergency ends. The 44th Amendment Act clarified that Article 19 can only be suspended when a national emergency is declared on the grounds of war or external aggression, and not in the case of armed rebellion.
Under Article 359, the President is authorized to suspend, by order, the right to move any court for the enforcement of Fundamental Rights during a national emergency. This suspension is limited to only those Fundamental Rights specified in the Presidential Order. The suspension may apply for the period of the emergency or shorter duration. The order must be laid before each House of Parliament for approval. The 44th Amendment Act prohibits the suspension of the right to move the court for the enforcement of Fundamental Rights guaranteed by Articles 20 and 21.
| Article 358 | Article 359 |
| It only acts in an emergency when the country’s security is threatened by war or external aggression. | It operates in any emergency proclaimed under Article 352. |
| It deals with the suspension of the Fundamental Rights guaranteed by Article 19 | It deals with the suspension of other Fundamental Rights (except those guaranteed by Articles 20 and 21) |
Declarations Made So Far:
The national emergency has been proclaimed three times in India – in 1962, 1971, and 1975. The first proclamation was issued in October 1962 due to Chinese aggression in the Northeast Frontier Agency (NEFA) and remained in force until January 1968. The second proclamation was made in December 1971 following an attack by Pakistan. The third proclamation occurred in June 1975. Both the second and third proclamations were revoked in March 1977.
A national emergency in India is a critical constitutional provision designed to deal with extraordinary situations that threaten the nation’s security and integrity. However, this power must be exercised with great caution to prevent any abuse and ensure that fundamental rights and democratic values are protected. The parliamentary approval and revocation mechanisms act as crucial checks and balances to safeguard the democratic fabric of the nation during an emergency.
National Emergency of 1975The National Emergency of 1975, also known as the “Emergency,” was a dark chapter in India’s political history. It was imposed by then-Prime Minister Indira Gandhi on June 25, 1975, and remained in effect until March 21, 1977.
The Emergency was declared on the grounds of “internal disturbance,” as per the provisions of Article 352 of the Indian Constitution. It was a period marked by severe curtailment of civil liberties, suppression of political opposition, and an abuse of power by the government. Consequences of the Emergency:
Controversies Surrounding the Emergency:
Lessons from the Emergency:
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