Introduction & Overview
The National Emergency, proclaimed under Article 352 of the Indian Constitution, is the most drastic of the emergency provisions. It is invoked in situations threatening the security of India or any part thereof, specifically due to war, external aggression, or armed rebellion.
This extraordinary measure temporarily transforms India's federal structure into a unitary one, empowering the Centre to assume sweeping legislative, executive, and financial powers over the States. Its historical application, particularly the controversial 1975 Emergency, led to significant constitutional amendments (44th Amendment Act, 1978) and landmark judicial pronouncements, fundamentally reshaping its procedural safeguards and limiting its potential for misuse.
Grounds for Proclamation (Article 352)
War, External Aggression, or Armed Rebellion
- These are the three specific grounds on which the President can proclaim a National Emergency.
- War: Actual engagement in armed conflict with another state.
- External Aggression: Hostile actions by another state or non-state actors that do not amount to full-scale war (e.g., cross-border incursions, terrorist attacks).
- Armed Rebellion: An internal armed revolt or uprising by a significant group against the government.
"Armed Rebellion" vs. "Internal Disturbance"
"Armed Rebellion" was substituted for the vague "Internal Disturbance" by the 44th Amendment Act, 1978.
This change was crucial to prevent misuse, as seen in the 1975 emergency which was declared on the ground of "internal disturbance," leading to widespread abuse of power. The 44th Amendment made it more difficult to declare an emergency for mere law and order problems or political unrest.
Imminent Danger & Partial Proclamation
- Preventive Declaration: President can proclaim even before the actual occurrence, if satisfied of imminent danger of war, external aggression, or armed rebellion.
- Geographical Scope: Can be proclaimed for the whole of India or any part thereof (provision added by 42nd Amendment, 1976), allowing flexibility for localized threats.
Proclamation & Duration Procedure
Cabinet's Written Recommendation
Prior to the 44th Amendment, the President could declare an emergency based solely on the Prime Minister's advice.
The 44th Amendment Act, 1978, mandated that the President can only issue a proclamation of National Emergency after receiving a written recommendation from the Union Cabinet. This ensures collective decision-making and reduces the scope for individual authoritarianism.
Parliamentary Approval Timeline
A proclamation must be approved by both Houses of Parliament within one month from the date of its issue.
Originally, this period was two months, but the 44th Amendment Act, 1978, reduced it to one month to ensure swifter parliamentary scrutiny. If Lok Sabha is dissolved, the Rajya Sabha's approval is critical, and the proclamation survives for 30 days from the first sitting of the reconstituted Lok Sabha.
Approval by Special Majority
Prior to the 44th Amendment, parliamentary approval required only a simple majority.
The 44th Amendment Act, 1978, raised the bar by requiring a special majority for the approval of a proclamation of emergency (both for its initial approval and subsequent continuations). This means a majority of the total membership of the House AND two-thirds of members present and voting.
Duration and Judicial Review
Once approved, emergency continues for six months, and can be extended indefinitely with Parliamentary approval (by special majority) every six months. There is no maximum limit.
The Supreme Court, in the landmark Minerva Mills Ltd. v. Union of India case (1980), held that the proclamation (or its continuance) is subject to Judicial Review (though scope limited to mala fide, extraneous considerations, or perverse grounds).
Revocation of Proclamation
By the President
The President can revoke the emergency proclamation at any time by a subsequent proclamation. This action does not require parliamentary approval.
By Lok Sabha Resolution
A significant addition by the 44th Amendment Act, 1978, empowers the Lok Sabha to terminate an emergency.
- If Lok Sabha passes a resolution disapproving the proclamation or its continuance (by a simple majority), the President must revoke the emergency.
- Provision for special sitting of Lok Sabha if 1/10th of members give written notice. This makes the executive accountable to the Lok Sabha for the continuance of the emergency.
Effects of National Emergency
On Centre-State Relations
- Executive (Article 353(a)): The Centre's executive power extends to giving executive directions to any state on any matter.
- Legislative (Article 250): Parliament becomes empowered to make laws on any subject in the State List. Such laws become inoperative six months after the emergency ceases.
- Financial (Article 354): The President can issue orders to modify the distribution of revenues between the Centre and States.
On Life of Legislatures
- Life of Lok Sabha (Article 83(2) proviso): Parliament can extend the life of the Lok Sabha by law for one year at a time, for any number of times. This extension cannot continue beyond six months after the emergency ceases.
- State Assemblies (Article 172(1) proviso): Similarly, Parliament can extend the normal tenure of a state legislative assembly by one year at a time, subject to the same six-month post-emergency limit.
On Fundamental Rights (Crucial)
Article 358: Suspension of Article 19
- Automatic Suspension: When a National Emergency is proclaimed on grounds of WAR or EXTERNAL AGGRESSION (but not armed rebellion), Article 19 rights are automatically suspended.
- Scope Restriction (44th Amendment): Article 19 can be suspended only on war/external aggression. Laws protected must be related to the emergency.
Article 359: Suspension of Enforcement of other FRs
- Presidential Order: The President can suspend the right to move any court for the enforcement of specified Fundamental Rights.
- Scope Restriction (44th Amendment): Cannot suspend the enforcement of Article 20 (protection in respect of conviction) and Article 21 (life and personal liberty) under any circumstances. Laws protected must be related to the emergency.
Distinction: Art 358 suspends Art 19 itself (automatic); Art 359 suspends enforcement of other FRs (by order).
Historical Instances of National Emergency
October 1962 – January 1968
Reason: Chinese aggression in the North-East Frontier Agency (NEFA, now Arunachal Pradesh).
It was in force for almost 5 years, even after the cessation of hostilities.
December 1971 – March 1977
Reason: Aggression by Pakistan, leading to the creation of Bangladesh (Indo-Pak War).
This emergency was still in force when the third emergency was proclaimed in 1975.
June 1975 – March 1977
Reason: Internal Disturbance (highly controversial). Declared by President Fakhruddin Ali Ahmed on the advice of Prime Minister Indira Gandhi.
This period saw widespread arrests of political opponents, suspension of fundamental rights, and restrictions on the press. Its excesses directly led to the enactment of the 44th Amendment Act, 1978, aimed at inserting stringent safeguards to prevent future misuse.
Conclusion & Significance
The National Emergency provisions, while essential for safeguarding India's unity and integrity in times of grave threat, represent a delicate balance in the Constitution. The historical experience, particularly the 1975 Emergency, served as a critical lesson, prompting robust constitutional amendments (44th Amendment Act) and landmark judicial interventions (Minerva Mills case).
These reforms have significantly enhanced the procedural safeguards, ensuring that the power to declare a National Emergency is exercised only under exceptional circumstances, with greater parliamentary oversight and judicial scrutiny. The shift from 'internal disturbance' to 'armed rebellion' as a ground, the requirement of written Cabinet advice, and the non-suspendability of Articles 20 and 21 are pivotal in preventing executive overreach. While the power remains formidable, its application is now guided by a stronger commitment to constitutional morality and the rule of law, making it a truly 'extraordinary' measure for extraordinary times, rather than a tool for political expediency.
Prelims-Ready Notes
- Article 352: National Emergency.
- Grounds: War, External Aggression, Armed Rebellion.
- "Armed Rebellion": Substituted for "Internal Disturbance" by 44th Amendment Act, 1978.
- Can be proclaimed for whole or part of India (42nd Amendment, 1976).
- Can be proclaimed even on imminent danger.
- Proclamation Procedure: Written recommendation of Union Cabinet (44th Amendment); Approved by both Houses within one month (44th Amendment); Approval by Special Majority (44th Amendment); Continues for six months, indefinitely extensible; Subject to Judicial Review (Minerva Mills case, 1980).
- Revocation Procedure: By President; By Lok Sabha resolution (simple majority); 1/10th LS members can request special sitting.
- Effects on Centre-State: Centre gives executive directions, Parliament legislates on State List, President modifies revenue distribution.
- Effects on Legislatures: LS/State Assemblies can be extended by Parliament for 1 year at a time.
- Effects on FRs:
- Art 358: Automatic suspension of Art 19. Only on War/External Aggression (NOT Armed Rebellion - 44th Amendment).
- Art 359: Presidential Order to suspend enforcement of specified FRs. Cannot suspend enforcement of Art 20 & 21 (44th Amendment).
- Instances: 1962-68 (China), 1971-77 (Pak), 1975-77 (Internal Disturbance - controversial).
Key Provisions & Changes: A Comparison
| Feature | Before 44th Amendment (1978) | After 44th Amendment (1978) |
|---|---|---|
| Grounds | War, External Aggression, Internal Disturbance | War, External Aggression, Armed Rebellion |
| PM's Advice | PM's advice to President (oral) | Written recommendation of Union Cabinet |
| Parl. Approval Time | 2 months | 1 month |
| Parl. Approval Majority | Simple majority | Special majority |
| Suspension of Art 19 (Art 358) | Automatic suspension on any ground of emergency | Automatic suspension only on War/External Aggression; not Armed Rebellion |
| Suspension of Art 20 & 21 (Art 359) | Could be suspended | Cannot be suspended |
| Lok Sabha's power to revoke | No specific power | Can revoke by simple majority resolution; 1/10th notice for special sitting |
| Judicial Review | Generally considered outside review (pre-Bommai, Minerva Mills) | Subject to Judicial Review (Minerva Mills case, 1980) |
Mains-Ready Analytical Notes
Major Debates/Discussions
- Necessity vs. Authoritarianism: The core tension between safeguarding national security and the potential for executive overreach, highlighted by the 1975 Emergency.
- "Internal Disturbance" vs. "Armed Rebellion": The crucial shift to a more precise term preventing subjective interpretation and political manipulation.
- Fundamental Rights during Emergency: The controversy of suspending FRs, especially the 44th Amendment countering ADM Jabalpur by making Articles 20 and 21 non-suspendable.
- Role of President and Cabinet: The 44th Amendment requiring written cabinet advice ensures collective responsibility and prevents unilateral action.
Historical/Long-term Trends
- Learning from Experience: Post-1975 legislative and judicial reforms (44th Amendment, Minerva Mills) reflect a constitutional response to abuses, shifting towards a more constrained framework.
- Increased Judicial Scrutiny: Judicial review provides a critical check on executive power, ensuring 'satisfaction' is not arbitrary.
- Parliamentary Oversight: Tighter timelines, special majority, and Lok Sabha's revocation power signify stronger legislative accountability.
Contemporary Relevance/Impact
- Safeguard against Tyranny: Non-suspendability of Articles 20 and 21 vital for maintaining India's democratic character even in crisis.
- Resilience of Federalism: While centralizing power, the provisions allow for nuanced responses, balancing security with state autonomy.
- Constitutional Morality: Debates underscore the importance of acting within the spirit of the Constitution, remembering the 1975 lessons.
- Global Best Practices: India's safeguards offer a model for balancing security and liberty.
Real-world Examples (India)
- No National Emergency since 1975: Despite various challenges (Kargil, terrorism), no Art 352 emergency, indicating high threshold and effectiveness of 44th Amendment.
- COVID-19 Pandemic (2020-22): Centre used Disaster Management Act, 2005, not Art 352, demonstrating ability to manage crisis without formal emergency, partly due to 1975 lessons.
UPSC Previous Year Questions (PYQs)
Prelims MCQs
1. UPSC Prelims 2017:
Which one of the following is not a feature of Indian federalism?
- (a) There is an independent judiciary in India.
- (b) Powers have been clearly divided between the Centre and the States.
- (c) The federating units have been given unequal representation in the Rajya Sabha.
- (d) It is the result of an agreement among the federating units.
Explanation: India's federalism is a 'holding together' type, not a 'coming together' (like the USA). Emergency provisions demonstrate its strong unitary bias, a key aspect of its unique federal structure.
2. UPSC Prelims 2015:
Which of the following statements is/are true regarding the 44th Amendment to the Constitution of India?
- 1. It removed the right to property from the list of Fundamental Rights.
- 2. It changed the term "internal disturbance" to "armed rebellion" for the proclamation of National Emergency.
- 3. It made the advice of the Council of Ministers binding on the President.
Select the correct answer using the code given below:
- (a) 1 only
- (b) 1 and 2 only
- (c) 2 and 3 only
- (d) 1, 2 and 3
Explanation: Statement 1 is correct (moved to Art 300A). Statement 2 is correct. Statement 3 is incorrect; the 42nd Amendment made it binding, while the 44th Amendment allowed the President to send it back for reconsideration once.
Mains Questions
1. UPSC Mains 2020 (GS Paper 2):
"Though the federal principle is dominant in our Constitution and that principle is one of its basic features, but it is equally true that federalism under the Indian Constitution leans in favour of a strong Centre. Discuss."
Direction: This question directly asks about the unitary bias in Indian federalism, for which the Emergency Provisions (especially Article 352) are a prime example.
2. UPSC Mains 2016 (GS Paper 2 - Implicit in debates on FRs):
"What are the safeguards available to a citizen against arbitrary arrest and detention under the Indian law?"
Direction: While focusing on Articles 20 and 22, this question gains significant relevance in the context of National Emergency. The 44th Amendment's non-suspendability of Articles 20 and 21 is a crucial point here.
Original MCQs for Prelims
1. During a National Emergency proclaimed on the ground of 'armed rebellion', which of the following statements is/are correct?
- 1. The six Fundamental Rights under Article 19 are automatically suspended.
- 2. The enforcement of Article 20 and Article 21 cannot be suspended.
- 3. Parliament gains the power to make laws on subjects enumerated in the State List.
Select the correct answer using the code given below:
- (a) 1 and 2 only
- (b) 2 and 3 only
- (c) 1 and 3 only
- (d) 1, 2 and 3
Explanation: Statement 1 is incorrect (Art 19 suspended only on War/External Aggression, not armed rebellion). Statement 2 is correct (44th Amendment ensures non-suspendability of Art 20 & 21). Statement 3 is correct (Parliament can legislate on State List during any National Emergency).
2. A proclamation of National Emergency, once approved by Parliament, remains in force for:
- (a) Six months, after which it ceases to operate automatically.
- (b) One year, after which it can be extended for another year by simple majority.
- (c) Six months, but can be extended for an indefinite period with parliamentary approval every six months.
- (d) Two years, provided Lok Sabha passes a resolution by special majority.
Explanation: As per Article 352(4), once approved by both Houses by special majority, a proclamation continues for six months and can be extended indefinitely with further parliamentary approval by special majority every six months.
Original Descriptive Questions for Mains
1. "The 44th Constitutional Amendment Act, 1978, significantly recalibrated the balance between national security and individual liberties during a National Emergency. Analyze the key changes introduced by this Amendment and their impact on preventing the misuse of emergency powers as witnessed in 1975." (15 marks, 250 words)
Hint: Focus on changes to grounds ("Armed Rebellion"), written Cabinet advice, special majority for approval, reduced approval period, and crucial non-suspendability of Articles 20 & 21.
2. "Discuss the implications of a National Emergency on the legislative and financial relations between the Centre and the States, as envisioned in Article 352. How does this temporary shift reflect the 'unitary bias' of the Indian Constitution?" (10 marks, 150 words)
Hint: Detail Parliament's power over State List subjects (Art 250) and President's power to modify revenue distribution (Art 354). Explain how these centralizing powers demonstrate the unitary nature in crisis.