National Emergency (Article 352)

Grounds of Declaration

The Constitution empowers the President to declare a National Emergency if the security of India (whole or part) is threatened by:

War
External aggression
Armed rebellion

👉 Important point: The President can declare even before the actual event—if there is an imminent danger. For example, if intelligence agencies report an attack is about to happen, Emergency can be declared pre-emptively.

If declared due to war or external aggression → called External Emergency.
If declared due to armed rebellion → called Internal Emergency.

🔹 Originally, the term used was “internal disturbance” (vague and broad). That’s how Indira Gandhi declared Emergency in 1975.
🔹 But the 44th Amendment Act (1978) replaced it with “armed rebellion” → much narrower, less prone to misuse.

Amendments and Safeguards

38th Amendment Act (1975): Allowed multiple proclamations (even if one is already in force). Also made Presidential decision immune from judicial review.
44th Amendment Act (1978): Rolled back these excesses:
- Replaced internal disturbance with armed rebellion.
- Made Presidential proclamation subject to judicial review (Minerva Mills case, 1980 confirmed this).
- Required written recommendation of the Union Cabinet (not just PM alone). This was inserted because in 1975, Indira Gandhi advised the President unilaterally, without consulting Cabinet.

Thus, 44th Amendment introduced strong checks and balances.

Parliamentary Approval & Duration

Once declared, Emergency must be approved by both Houses of Parliament within 1 month (earlier 2 months, changed by 44th Amendment).
If Lok Sabha is dissolved during that month → Emergency survives until 30 days after reconstitution of new Lok Sabha, provided Rajya Sabha has approved it.
If approved → lasts for 6 months.
Can be extended indefinitely, but every 6 months approval required from Parliament.
Majority required for approval/extension:
- Special majority (introduced by 44th Amendment):
  1. Majority of total membership of that House, and
  2. 2/3rd of members present and voting.
- Earlier, only simple majority was enough.

Revocation of Proclamation

President can revoke Emergency anytime by issuing a new proclamation (no parliamentary approval needed for revocation).
After 44th Amendment, Lok Sabha was also given control:
- If Lok Sabha passes a resolution disapproving continuation, President must revoke it.
- Even 1/10th members of Lok Sabha can demand a special sitting (within 14 days) to discuss disapproval.

🔹 Difference between Approval Resolution vs Disapproval Resolution:

Approval → needs both Houses + special majority.
Disapproval → only Lok Sabha + simple majority.

A Simple Analogy

Imagine the Constitution like a safety vault.

Normally, the keys are shared between Centre and States (federalism).
But during crisis, the vault must be locked by one strong authority (Centre).
Yet, after the misuse of 1975 Emergency, people realized that too much power in one hand is dangerous.
That’s why, after 44th Amendment, multiple locks and keys were added—Cabinet’s recommendation, Parliament’s special majority, judicial review, and Lok Sabha’s power to revoke.

Effects of National Emergency

Once a National Emergency is proclaimed, the political system of India undergoes major changes. These effects can be studied under three broad heads:

Effect on Centre–State Relations
Effect on the life of Lok Sabha and State Assemblies
Effect on Fundamental Rights

1. Effect on Centre–State Relations

In normal times, our Constitution is federal—powers divided between Centre and States. But under National Emergency, the system becomes unitary in practice. Let’s see how under three dimensions:

(a) Executive:

Normally, Centre can give directions to States only in certain limited areas.
During Emergency → Centre can direct States on ANY matter.
State governments are not suspended, but they work under the complete control of the Union.

(b) Legislative:

Normally, Parliament cannot legislate on State List subjects.
During Emergency → Parliament can make laws on any subject, including State List.
State legislatures continue, but their power is overshadowed by Parliament.
Laws made by Parliament under this special power last until 6 months after Emergency ends.
President can also issue Ordinances on State List subjects if Parliament is not in session.
Parliament may also delegate powers to Union officers on matters outside Union List (extended authority).

42nd Amendment (1976): Extended these changes not just to the affected state but to all states.

(c) Financial:

President can modify the financial distribution between Centre and States.
This means reducing or even cancelling transfer of funds to States.
Such orders last till the end of financial year in which Emergency ends, and must be placed before Parliament.

👉 Summary: Executive, Legislative, Financial powers—all shift to Centre → federalism collapses into unitary system temporarily.

2. Effect on the Life of Lok Sabha and State Assemblies

Normally, Lok Sabha term = 5 years.
During Emergency → Parliament can extend its term 1 year at a time (indefinitely, as long as Emergency continues).
But → extension cannot continue beyond 6 months after Emergency ends.
Same rule applies to State Legislative Assemblies.

📌 Example: The 5th Lok Sabha (1971–1977) had its term extended twice by one year each during Emergency.

3. Effect on Fundamental Rights

Now comes the most sensitive and controversial area.

Article 358 – Automatic Suspension of Article 19

As soon as National Emergency is declared, all 6 Fundamental Rights under Article 19 (freedom of speech, assembly, movement, etc.) are automatically suspended.
No separate Presidential Order needed.
State can make laws or take executive actions violating Article 19, and they cannot be challenged.
After Emergency ends → Article 19 revives.
But → past actions during Emergency cannot be challenged later.

44th Amendment (1978) restrictions:

Article 19 rights can be suspended only in case of war or external aggression, NOT armed rebellion.
Only those laws connected with Emergency are protected, not unrelated ones.

Article 359 – Suspension of Enforcement of Other Rights

President may issue an Order suspending the right to move courts for enforcement of certain Fundamental Rights.
Rights are not abolished, but remedy is suspended (rights exist in theory, not in practice).
Suspension may be for whole or part of India, and for full or partial duration of Emergency.
State can make laws/executive actions inconsistent with these rights → cannot be challenged during the order’s operation.
After Emergency ends → rights revive, but past actions remain valid.

44th Amendment safeguards:

Rights under Articles 20 and 21 (Protection in respect of conviction + Right to life & personal liberty) cannot be suspended even during Emergency.
Again, only Emergency-related laws/actions are protected.

Distinction Between Articles 358 & 359

Basis	Article 358	Article 359
Scope	Only Article 19	Any FR (except 20 & 21)
Automatic?	Automatic suspension when Emergency declared	Suspension only if Presidential Order issued
Type of Emergency	Only External Emergency (war/aggression)	Both External & Internal
Duration	Entire Emergency period	For period mentioned in Presidential Order
Coverage	Entire country	Whole or part of country
Protection	Suspends Article 19 completely	Does not cover 20 & 21

👉 Similarity: Both protect only Emergency-related laws/actions, not unrelated ones.

Historical Proclamations of National Emergency

1962 – Chinese aggression (External Emergency) → lasted till 1968.
1971 – Indo-Pak war (External Emergency) → continued till 1977.
1975 – Declared on ground of “internal disturbance” (controversial) → used by Indira Gandhi.
1975 Emergency → most controversial, considered misuse of power.
Widespread criticism, suppression of rights, media censorship.
After Emergency, Congress lost 1977 elections, Janata Party came to power.
Shah Commission found the declaration unjustified.
Result → 44th Amendment (1978) introduced strong safeguards.

Analogy

Think of Emergency like a fire alarm system in a building:

In normal times, residents manage their own rooms (federalism).
But when fire breaks out, the central control takes over—everyone must follow one authority’s instructions.
Once fire is gone, autonomy returns.
But if the alarm is misused (like in 1975), residents lose faith. Hence, safeguards were later added so that the alarm can’t be pulled just by one mischievous person.