Grounds of Declaration
The President can declare a National Emergency on grounds of war or external aggression or armed rebellion, if the President is satisfied that there is imminent danger thereof.
War or External aggression means an External Emergency, and an armed rebellion means Internal Emergency.
As per the Constitution’s 44th amendment in 1978, the President can declare National Emergency in whole or in any part of India on grounds of war or external aggression or internal disturbance.
Also National Emergency can be declared by President if any minister of cabinet rank headed by PM tells him to do so.
44th Amendment of 1978
It replaced “internal disturbance” with “armed rebellion”; as “internal disturbance” is a vague term and can be misused; as was done by Indira Gandhi in 1975 to declare an Emergency on grounds of Internal Disturbance.
Now, the President can declare an Emergency only on the written advice of the Cabinet and not on the request of the Prime Minister alone, as was done by Indira Gandhi in 1975 without consulting the Cabinet.
Parliamentary Approval and Duration of National Emergency
Every Proclamation of Emergency shall be laid down before each house of the Parliament and must get approval in one month from its date of issue.
Provided that if at time of proclamation the Lok Sabha has been dissolved or dissolution of the Lok Sabha takes place in mean time (i.e. within one month from date of issue), then the Rajya Sabha must approve it within 30 days but such proclamation shall cease to operate after 30 days from the first sitting of the Lok Sabha after its reconstitution, if not, then after getting the approval of the new Lok Sabha in 30 days.
Originally, the period for approval was 2 months; but it was reduced to one month by the 44th Amendment passed in 1978.
If approved by both the houses of Parliament, then a National Emergency shall continue for 6 months and it can be renewed any number of times by approval of Parliament after every 6 months. But if the dissolution of the Lok Sabha takes place in those 6 months and a resolution for renewal of National Emergency is under consideration, then the Emergency continues till 30 days from the first sitting of the newly elected Lok Sabha provided that has already been approved by the Rajya Sabha.
As per the the 44th amendment of 1978, if the Parliament approves proclamation of a National Emergency, then it remains in operation on pleasure or desire of the Cabinet or the Executive.
Any of above resolutions related to the proclamation or renewal of a National Emergency must be passed by both houses of Parliament by special majority (i.e. majority of total membership of that house or not less than 2/3rd of members present and voting).
This provision was again added by the 44th Amendment of 1978 and before that, such a resolution could be passed by a simple majority, i.e. more than the total number of members present and voting.
Revocation or End of Proclamation
The President shall revoke the proclamation of an Emergency at any time, if the Lok Sabha passes a resolution by simple majority in relation to disapproval of continuation of National Emergency.
A notice in writing shall be given to the Speaker of the Lok Sabha or to the President if the House is not in session, and that notice shall be signed by at least one tenth of the total members of the Lok Sabha, in relation to their intention to move a resolution to revoke a National Emergency.
A special sitting of the Lok Sabha shall be called within 14 days from date of such notice.
Until the 44th amendment, 1978, there was no requirement of resolution to be adopted by Lok Sabha for the removal of proclamation of National Emergency.
The differences between Resolution of Proclamation and Revocation of National Emergency are as follows:-
- The approval resolution must be passed by both houses but disapproval resolution is required to be passed by the Lok Sabha only.
- The approval resolution must be passed by special majority but disapproval resolution is need to be passed by simple majority.
Scope of Judicial Review
The 38th Amendment, 1975, states that proclamation of National Emergency by President is immune from Judicial Review.
And the 42nd Amendment, 1976 states that constitutional amendments are not in scope of judicial review to give effect to 38th amendment.
The above provisions are deleted by the 44th Amendment, 1978, and the power of Judicial Review is restored.
Further, in the Minerva Mills case (1980), the Supreme Court held that the proclamation of a National Emergency can be challenged in any court of law on ground of malafide intention.
Effects of National Emergency
Center State Relations during National Emergency:
- Executive – When a National Emergency is in operation, the Union may, if considered necessary, direct any state on any executive matter i.e. the State Governments are under the full control of the Union, as the states have to follow directions of Union, otherwise President Rule can be imposed.
- Legislative –Although the State Legislature is remains in operation during a National Emergency, it is subject to the overriding power of the Parliament.
The Parliament is empowered to make laws on any subject matter included in State List. If any such law made by the Parliament is in conflict with the law made by the state legislature either during or before the Emergency, then the former shall prevail. The laws made by Parliament cease to operate on expiration of 6 months after revocation of proclamation of emergency. The President can issue ordinances on any matter in State List if either house of Parliament is not in session.
- Financial – While a National Emergency is in action, the President may by order, direct the allocation of financial resources between the Union and the States, subject to any modifications or exceptions as he thinks fit. But such an order shall not extend beyond that financial year, and the order shall be laid before each house of Parliament as soon as it is made.
- Life of the Lok Sabha and State Assembly:
- While a National Emergency is in action, the Parliament may by law extend the normal term of the Lok Sabha for a period of a single year at a time, and it can renew it any number of times as thinks fit. But it cannot extend to beyond a period of 6 months after the Emergency has ceased to operate.
- Similarly the Parliament empowers to extend life of state assembly for a period of 1 year at a time during a National Emergency and cannot extend to beyond a period of 6 months after emergency has ceased to operate.
Fundamental Rights during a National Emergency
Article 358 states that as soon as proclamation of National Emergency is made, each of the six Fundamental Rights (FRs) under Article 19 (such as freedom of speech or expression) are automatically suspended and no separate order is required.
Article 19 restricts power of state to make any law or take any executive action. But any such law or executive action ceases to have effect as soon as the proclamation cease to operate, except if provisions which are in conflict with Fundamental Rights under Article 19 are either modified or omitted before law cease to have effect.
It means that legislative or executive action taken at the time of an Emergency cannot be challenged even after the Emergency has ceased to operate.
The constraints imposed by the 44th Amendment, 1978 on Article 358 say that, firstly, all of the six Fundamental Rights under Article 19 can be suspended only when National Emergency is declared on grounds of war or external aggression and not on grounds of armed rebellion.
Only laws related to emergency are in protection from being challenged and not other laws. Also, any executive action related to only those laws are protected.
During a National Emergency, the President by order, can suspend the right to move court for enforcement of such Fundamental Rights as mentioned in the order.
This means that the mentioned Fundamental Rights are alive but their enforcement is suspended. The Fundamental Rights can be suspended for the whole of a National Emergency or for a shorter duration, and the suspension can be applied to the whole or any part of India as mentioned in the order.
But any such order must be laid before each house of Parliament for approval as soon as may be after it is made. When the suspension order is in force, the States are empowered to make any law or take any action either in violation of the mentioned Fundamental Rights. But any such law or action cease to have effect as soon as proclamation of the National Emergency ceases to operate.
Any such law made by parliament or any executive action taken by the Governmentt, while suspension order is in action, cannot be challenged in any court on grounds of violation of any Fundamental Rights as mentioned in the order, even after the order ceases to have effect.
Unlike Article 358, the President order in Article 359 can be issued after proclamation of a National Emergency on any grounds (war or external aggression or armed rebellion).The constraints imposed by the 44th Amendment, 1978 on Article 359 are as follows:-
“The Fundamental Rights under Article 20 and 21 (Right to life or Right against arbitrary detention) can’t be taken away i.e. even at time of National Emergency, the enforcement of Fundamental Rights under Article 20 and 21 by court of law can’t be suspended. Only laws related to emergency are in protection from being challenged and not other laws. Also, any executive action related to only those laws, is protected.”
Declarations Made so Far
The National Emergency has been proclaimed three times so far in 1962, 1971 and 1975.
In 1962, due to war or external aggression by China in Arunachal Pradesh, National Emergency remained in force till 1968 due to war with Pakistan in 1965 as there was no provision of renewal in the constitution till 44th amendment, 1978. In 1971, a National Emergency was declared on grounds of war with Pakistan. And in 1975, a fresh proclamation of National Emergency was made on grounds of Internal disturbance even when the previous one was in operation.
Difference between Articles 358 and 359
Article 358 is like the extreme case of Article 359.
Article 358 is confined to Fundamental Rights guaranteed under Article 19 only, whereas Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential order.
Article 358 automatically suspends rights under Article 19. Whereas, Article 359 does not suspend the rights, (except Article 20 and Article 21) but only their enforceability.
Article 358 is applicable only in case of external emergency. And Article 359 is applicable for both Internal and External emergency. So in case of a Internal emergency, no rights get suspended but only their enforceability under Article 359. In case of External emergency, Article 19 gets automatically suspended.
Declarations made so far
- 1962 to 1968
- During the India-China war — “the security of India” having been declared “threatened by external aggression”
- During the Indo-Pakistani war, “the security of India” having been declared “threatened by external aggression”.
- 1975 to 1977
- Under controversial circumstances of political instability under Indira Gandhi’s prime ministership — “the security of India” having been declared “threatened by internal disturbances”.