National Emergency With Respect to Article 352 of the Indian Constitution | By Tripti Singh

The reign of Indira Gandhi in India has been historical be it because of her valiant attitude that led to the formation of Bangladesh or the successful introduction of Green Revolution which made India self-sufficient in food grains. She had a really glorious career as a politician but that can be said only if we overlook that period which is said to be the “darkest phase” of Indian democracy. Yes, I am talking about the biggest blot on her political career, the time when she imposed an emergency arbitrarily to suppress the opposition. We all have grown up hearing stories of that time which have seemed to be very intriguing and shocking at the same time as such events are pretty unusual in a democracy like India. The mechanism of emergency is quite intricate and has many aspects to it. Having heard such stories, it also becomes important to delve into these aspects to have a better understanding. So, let us have a look at this part of the Constitution which has always been supremely important.

The Indian constitution empowers the President to declare three types of emergencies- National Emergency, State Emergency, and Financial Emergency. These provisions have been borrowed from the Weimar Constitution of Germany. Article 352 of the Indian Constitution contains the provision of national emergency. This article like the other articles related to emergency is contained in Part XVIII of the constitution. Let us try and understand the grounds for the proclamation of the National Emergency first.

Article 352 states that the President can proclaim emergency if he/she believes 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. However, the article in its current form came into existence by the 44th Constitutional Amendment Act in 1978.
There is no defined format of the proclamation as such and the President is free to proclaim emergency the way he/she wants.
 Now let us understand the grounds mentioned above in detail. The distinction between war and external aggression is that war begins with the formal declaration to use armed forces, on the other hand, there is no such declaration before external aggression begins. The use of armed forces is undeclared and that too is one-sided in the latter one. Both these situations of war and external aggression constitute an external emergency. An armed rebellion constitutes the ground for an internal emergency. However, this term was inserted through the 44th Constitutional Amendment Act introduced by the Janata Party government under the leadership of Morarji Desai. Before the amendment, instead of “armed rebellion”, the Article stated” internal disturbances” as one of the valid grounds of declaring emergency but this term was considered to be very vague and dubious.

In India, three times the national emergency has been proclaimed. Let us know more about it. The first proclamation of emergency (Oct. 1962-Jan.1968) occurred after China attacked India on 26th Oct.1962. The then President proclaimed an emergency on the ground of external aggression to safeguard the security of the country using Article 352 and suspended all the Fundamental Rights using Article 359. It was also declared that no one could approach the Courts to enforce the Fundamental Rights.
 Apart from this, around 200 people including the leaders of the opposition were arrested on the ground that their activities were against the national interest. On 21st Nov.1962, the war with China ended but the emergency continued even after that. While the first emergency was still in continuation, in April 1965, an armed conflict took place between India and Pakistan which took the form of a war in Sept.1965.
There was a return to normalcy after the subsequent ceasefire and signing of a declaration called the “Tashkent Agreement”. But the emergency continued to prevail and with its increasing misuse, people initiated public campaigns and appeals which made the government revoke the emergency in January, 1968.

The second proclamation of emergency was issued on 3rd Dec.1971 after an armed conflict occurred between India and Pakistan. As soon as the emergency was declared, the Indian Parliament adopted MISA (Maintenance of Internal Security Act), COFEPOSA (Conservation of Foreign Exchange and Prevention of Smuggling Activities) Act and Government Defence of India Rules to ensure the security of India.
These Acts were made for the purpose of Preventive Detention. The center acquired enormous powers that were hugely misused, resulting in several arrests, custodial deaths, and encounters being reported. Before the second emergency could be revoked, the third emergency was proclaimed on the ground of “internal disturbance”. It continued from 25th June 1975 to 21st March 1977. The underlying reason was the increasing agitation among the opposition, seeking Indira Gandhi’s resignation following her disqualification by the Allahabad High Court.
The President is supposed to act on the aid and advice of the Council of Ministers before proclaiming emergency but this was not the case here.
The internal emergency of 1975 was hugely restrictive. Many constitutional amendments were made, Fundamental Rights were curtailed, political opponents were arrested and insensitive government programs like Family Planning were run. There was complete censorship on the press. On 21st March 1977, this emergency was revoked.

Coming to the process of approval of emergency now, it starts with the Cabinet. If the Cabinet gets satisfied that an emergency exists on the grounds mentioned in Article 352, a piece of written advice is passed to the President to proclaim an emergency.
If the President is satisfied by this written advice, the emergency is proclaimed subsequently. But the Parliament decides if the emergency is supposed to be continued or not. It is responsible for the further approval of the emergency. Both the Houses of the Parliament i.e., the Lok Sabha and the Rajya Sabha have to approve the emergency with Special Majority for its continuation.
This condition was introduced by the 44th amendment and before this, the emergency was supposed to be approved with Simple Majority only. After being approved with Special Majority, it remains valid for the next six months.
Although a national emergency can exist for an indefinite period of time, the Parliament has the power to approve an emergency for a period of six months only at once. If only one of the two Houses approves the emergency or neither of the two Houses takes any action, then the emergency can exist only for the duration of one month.

As far as the revocation of national emergency is concerned, the President shall revoke the proclamation of an emergency at any time, if the Lok Sabha passes a resolution by a simple majority in relation to the disapproval of continuation of National Emergency.

The impacts of National Emergency can be studied in terms of Centre-State relations and Fundamental Rights. When a National Emergency is in operation, The union may, if considered necessary direct any state in executive matters under Article 353. The states have to follow directions of the Union otherwise, President Rule can be imposed. Article 250 states that the Union Parliament can formulate laws on the subjects of the State List when National Emergency is in operation. Article 358 states that as soon as the proclamation of the National Emergency is made, each of the six Fundamental Rights under Article 19 is automatically suspended and no separate order is required. The constraints imposed by the 44th amendment, 1978 on Article 358 say that all of the six Fundamental Rights under Article 19 can be suspended only when National Emergency is declared on grounds of a war or an external aggression and not on grounds of an armed rebellion. Article 359 states that during a National Emergency, the President by an order can suspend the right to move to Court for enforcement of Fundamental Rights.

There have been many significant amendments that aimed at changing the emergency provisions from time to time. The 38th Amendment Act, 1975 states that the proclamation of National Emergency by the President is immune from Judicial Review. The 39th Amendment Act, 1975 aimed at changing the way of settling election disputes. After this, the election of the President, the Vice- President, the Prime Minister and the Speaker could not be questioned in the Courts.

Further comes, the 42nd Amendment Act, 1976 which is the most controversial one and is also called a “mini-constitution” in itself due to the slew of changes it brought. It states that constitutional amendments are not in the scope of Judicial Review. It brought a shift in the powers from the state government to the central government. It also added the terms Socialist, Secular and Integrity to the Preamble.
 Article 31D was added which dealt with the prohibition of anti-national activities and after its introduction the reasonability of laws to prevent anti-national activities could not be questioned. The next amendment was the 44th Amendment Act of 1978 which aimed to reduce the control of the Parliament over the Fundamental Rights and also the ease to proclaim emergency. It replaced “internal disturbance” with “armed rebellion” because of its vagueness and misuse, as was done by Indira Gandhi in 1975.
Moreover, Special Majority took the place of Simple Majority. It also reversed the judgment of ADM Jabalpur v. Shivkant Shukla Case and stated that even during emergency, Article 20 and Article 21 cannot be suspended, so the writ of Habeas Corpus can be issued. It also abrogated the 38th Amendment Act stating that proclamation of emergency is not immune from Judicial Review.

The National Emergency can be understood in totality by studying the grounds behind it and the relevant constitutional provisions which have been dealt with in the preceding paragraphs.
This part of the Constitution stands apart as it is undoubtedly inevitable to know what can be done to deal with such contingencies to uphold the interests of the country and its inhabitants. So, keeping the importance of this article in mind, the ruling authorities must not misuse it anyway and use the relevant provisions for safeguarding public interests.
This only can keep the spirit of democracy intact.



Tripti Singh 
B.A.LL.B.(Hons.) 
2019-2024 
Faculty of Law, Banaras Hindu University, Varanasi 
Email-imtriptisingh7@gmail.com