Article 352: National Emergency in India

• These provisions have been borrowed from the Government of India Act 1935. It converts the federal structure into a unitary one without a formal amendment of the Constitution. 
• It is needed to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution.
• “Suspension of Fundamental Rights during Proclamation of Emergency” provision borrowed from the Weimar Constitution.

Important Articles

• Article 352: Emergency due to war, external aggression or armed rebellion (National Emergency).
• Article 356: Emergency due to the failure of the constitutional machinery in the states (President’s Rule).
• Article 360: Financial emergency due to threat to financial stability or credit of India.

• Proclamation of Emergency: Commonly referred to as a ‘National Emergency‘, In the Constitution, the term used to denote such an emergency is ‘proclamation of emergency‘.
• President: On the grounds of war or external aggression or armed rebellion. Also, can declare even before the occurrence if he satisfies that there is imminent danger.
• External Emergency: Declared on the grounds of ‘war’ or ‘external aggression’.
• Internal Emergency: Declared on the grounds of ‘armed rebellion’.
• 38th Amendment: Can issue different proclamations on the mentioned grounds, whether or not there is a proclamation already issued by him.
• 42nd Amendment: Proclamation of a National Emergency may be applicable to the entire country or part of it.
• 44th Amendment: ‘Internal Disturbance’ replaced by ‘Armed Rebellion’.

• Original Constitution: No mention of the role of cabinet.
• 44th Amendment: The President can proclaim only after a written recommendation from the cabinet.

• • Originally: 2 months.
  • 44th Amendment: Approval by both the Houses within one month.
• If the proclamation of emergency is issued at a time when the LS has been dissolved, or the dissolution of the LS takes place during the period of 1 month without approving the proclamation, the proclamation survives until 30 days from the first sitting of the LS after its reconstitution, provided the RS has in the meantime approved it.

• Originally: Simple majority.
• 44th Amendment: Introduced special majority for the approval.

• Originally, once approved, an emergency could remain as long as the executive desires.
• 44th Amendment: Can be extended indefinitely but with the approval of the Parliament for every six months with a special majority.
• If the dissolution of the LS takes place during the six months without approving the further continuance of Emergency, then the proclamation survives until 30 days from the first sitting of the LS after its reconstitution, provided the RS has in the mean-time approved its continuation.

• No explicit mention of judicial review regarding National Emergency.
• 38th Amendment: Made national emergency immune from judicial review.
• 44th Amendment: Provision under 38th amendment was deleted.
• Minerva Mills Case: Proclamation of national emergency can be challenged in the court on the grounds of malafide or that the declaration is based on wholly extraneous or irrelevant facts or is absurd or perverse.

• The President can revoke it. Parliamentary approval is not necessary.
• 44th Amendment: President must revoke the emergency if Lok Sabha passes a resolution disapproving its continuation. (Earlier LS had no role in revocation).
  • 1/10th of LS members need to give written notice to the speaker or president (if LS is not in session). 
  • A special session is held within 14 days to consider such a resolution.

• Executive power of the Centre extends to directing any state regarding any matter it feels necessary.
• During normal times, the Centre can give executive directions to state only on  Jurisdiction of Courts.
• Though the states are brought under complete control of the Centre, they are not suspended.

• Parliament becomes empowered to make laws on any subject under the State List.
• Though the state legislatures are not suspended, parliament acquires the overriding powers.
• Such laws by parliament on the State List become inoperative 6 months after the revocation of emergency.
• If parliament is not in session, the president can issue ordinances on state subjects.
• 42nd Amendment: The above legislative and executive functions extend not only to a state where emergency is in operation but also to any other state.

• The President can modify (reduce/cancel) the constitutional distribution of revenues between Centre and states.
• Such modification continues till the end of the financial year in which emergency ceases to operate.
• Every such order of the president has to be laid before both the houses.

• During the National Emergency, the life of LS may be extended by the law of the parliament for one year at a time for any number of times.
• This extension cannot continue beyond 6 months after the emergency has ceased to operate.

• Only parliament can extend the life of assemblies.
• It can be extended by one year each time (for any length of time) i.e. the period of extension is the same as parliament.

• Deals with the suspension of Fundamental Rights under. (Art. 19)
• Six FRs under Art.19 are automatically suspended and no separate order is required for the suspension.
• The state can make laws or take executive actions to take away these rights under Art.19. Such laws cannot be challenged in the courts during and even after an emergency.
• After the emergency ceases to operate, Art.19 revives automatically. And any law inconsistent with Art.19 also ceases to operate.

• Deals with the suspension of other Fundamental Rights. (except Art. 20 & 21).
• It authorizes the president to suspend the right to move to any court for the enforcement of Fundamental Rights during national emergency.
• The Fundamental Rights as such are not suspended, but only their enforcement. The said rights are theoretically alive but the right to seek remedy is suspended.
• The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order and the suspension order may extend to the whole or any part of the country
• Any such order should be laid before both the houses for approval.

• Six FRs under Art.19 can be suspended only when National Emergency is declared on the grounds of “war or external aggression” & not the ground of “armed rebellion”.
• Only those laws which are related to emergency are protected from judicial review and no other laws.

• The President cannot suspend the right to move the court for the enforcement of Fundamental Rights under Art. 20 & 21.
• Only those laws which are related to emergency are protected from judicial review and no other laws.

• By President (Lok Sabha only).
• No Parliamentary approval required.

• By President. 
• No Parliamentary approval required.

• By President. 
• No Parliamentary approval required.