Constitutional Provisions for Declaring National Emergency in India

Part XVIII of the Constitution of India deals with emergency provisions from Articles 352 to 360. Article 352 empowers the President to proclaim a National Emergency when the security of India or any part of its territory faces a threat. The emergency framework allows the Central government to convert the federal structure into a unitary system to tackle grave security crises.

Constitutional Grounds for Declaration

• War: Proclaimed when an actual armed conflict occurs with another nation.
• External Aggression: Declared when a foreign nation commits hostile acts against India without a formal declaration of war.
• Armed Rebellion: Introduced to replace the term “Internal Disturbance” through the 44th Constitutional Amendment Act, 1978 to prevent political misuse of emergency powers.

Key Procedural Safeguards

• Written Cabinet Advice: The President can issue a proclamation only after receiving a written decision from the Union Cabinet under Article 352(3). A decision by the Prime Minister alone is insufficient.
• Territorial Scope: The 42nd Constitutional Amendment Act, 1976 allowed the President to limit the operation of a National Emergency to a specified region rather than the entire country.

Parliamentary Approval and Duration

• Time Limit for Approval: Both Houses of Parliament must approve the emergency proclamation within one month from its date of issue.
• Majority Requirement: Approval requires a special majority in each House, defined as a majority of total membership and a two-thirds majority of members present and voting.
• Period of Extension: Once approved by Parliament, the emergency stays in force for six months. It can be extended indefinitely for six months at a time through repeated approvals.
• Dissolution of Lok Sabha: If the Lok Sabha is dissolved when the proclamation is issued, the Rajya Sabha must approve it within one month. The reconstituted Lok Sabha must approve the proclamation within 30 days of its first sitting.

Revocation of National Emergency

• Presidential Order: The President can revoke the emergency at any time through a subsequent proclamation without requiring parliamentary approval.
• Mandatory Disapproval by Lok Sabha: The 44th Constitutional Amendment Act made it mandatory for the President to revoke the emergency if the Lok Sabha passes a resolution disapproving its continuation.
• Voting Threshold for Revocation: A resolution for disapproving the continuation of an emergency requires a simple majority in the Lok Sabha.
• Special Sitting Provision: If one-tenth of the total members of the Lok Sabha give a written notice to the Speaker or President, a special sitting must be held within 14 days to consider the disapproval resolution.

Constitutional Effects of National Emergency

Executive and Legislative Impact

• Executive Directions: The Union executive acquires the power to give binding instructions to any state regarding the exercise of its executive power.
• Legislative Override: Parliament gets the power to make laws on subjects listed in the State List under Article 250. State legislatures are not suspended, but their legislative power becomes subject to parliamentary overriding authority.
• Ordinance Power: The President can issue ordinances on State List subjects if Parliament is not in session.
• Tenure Extension: Parliament can extend the normal tenure of the Lok Sabha by one year at a time during an emergency. This extension cannot continue beyond six months after the emergency ceases to operate.

Financial Distribution and Fundamental Rights

• Financial Adjustments: The President can modify the constitutional distribution of revenues between the Centre and the States under Article 354.
• Automatic Suspension under Article 358: Fundamental Rights under Article 19 automatically suspend when an emergency is proclaimed on grounds of war or external aggression. Article 19 rights remain unaffected if the emergency rests on armed rebellion.
• Suspension of Enforcement under Article 359: The President can issue an order suspending the right to move courts for enforcing specified Fundamental Rights. Articles 20 and 21 cannot be suspended under any circumstances.

Declarations of National Emergency in India

Exam-Oriented Key Facts

• Part XVIII of the Constitution contains emergency provisions spanning Articles 352 to 360.
• Article 352 governs the proclamation of a National Emergency across India or specific parts of its territory.
• The 44th Constitutional Amendment Act, 1978 replaced the ground “Internal Disturbance” with “Armed Rebellion”.
• The Union Cabinet must communicate its decision in writing to the President before a proclamation can be issued under Article 352(3).
• Parliamentary approval for a National Emergency requires a special majority in both Houses within one month.
• Approved emergencies stay valid for six months and can be extended indefinitely every six months.
• A resolution disapproving the emergency requires approval by a simple majority in the Lok Sabha.
• Article 358 automatically suspends Article 19 rights during emergencies declared on grounds of external threat only.
• Articles 20 and 21 remain enforceable even during a National Emergency under Article 359.
• India has witnessed three National Emergency declarations: 1962, 1971, and 1975.