National Emergency (Article 352) ~ UPSC Polity Notes

Grounds for the proclamation of National Emergency are as follows

War: When a country declares a formal war against India and there is a violent struggle using armed forces, the President of India may impose National emergency.
External Aggression: When a country attacks another country without any formal declaration of war. It is a unilateral attack by any country towards India. In such circumstances, the President of India may impose a National emergency.
Armed Rebellion: Emergency due to the armed rebellion may be imposed by the President of India when a group of people rebel against the present government which will lead to the destruction of lives and property.

Associated Facts:

Emergency can be declared over the complete territory of India or any part thereof. The 42nd Amendment Act of 1976 enabled the president to limit the operation of a National Emergency to a specific part of India.
The President can declare an emergency only on the written advice of the cabinet. This means that the emergency may only be proclaimed with the cabinet’s approval and not only on the prime minister’s recommendation.

Procedure for proclamation of National Emergency

Once President declares emergency, within a month, the declaration of Emergency must be ratified by both Houses of Parliament.[The 44th Amendment Act of 1978 shortened the two-month time originally given to the Parliament for approval.]
Process of Ratification:
- Every proclamation made under article 352 should be laid before each house of parliament and must be approved by them with special majority, i.e., by a majority of the total membership of that house and by a majority of not less than 2/3rd of the members of that house present and voting.
Question arises on Proclamation:
- If parliament fails to approve such a proclamation, then it ceases to be in operation on the expiry of one month after the proclamation is made.
- If parliament approves such a proclamation, then it will be in force for 6 months from the date on which it was approved by the parliament, unless revoked earlier.

In case Lok Sabha is not in session

If the proclamation of emergency is issued at a time when the Lok Sabha has been dissolved or the dissolution of the Lok Sabha takes place during the period of one month without approving the proclamation, then the proclamation survives until 30 days from the first sitting of the Lok Sabha after its reconstitution, provided the Rajya Sabha has in the meantime approved it.

Revocation of Proclamation Of National Emergency:

The Proclamation of emergency may be revoked by the President by another Proclamation at any time during its continuance. Such a Proclamation need not be approved by the Parliament.
President must revoke if Lok Sabha passes a disapproval resolution by a simple majority. This was introduced by the 44thAmendment Act.

How the Lok Sabha disapproves the Emergency?

Lok Sabha has the power to disapprove the operation of a national emergency at any time, if 1/10th of members of Lok Sabha issue a notice with the intention of disapproving an emergency, to the President if the Lok Sabha is not in session.
If there is no session, a special sitting of the LS shall be held within 14 days for the purpose of considering such a resolution.

Effects of National Emergency

Centre- State Relation:

The most significant effect is that the federal form of the Constitution changes into unitary. The authority of the Centre increases and the Parliament assumes the power to make laws for the entire country or any part thereof, even in respect of subjects mentioned in the State List.
The President of India can issue directions to the states as to the manner in which the executive power of the states is to be exercised. tate governments are not dismissed, they continue to operate, but are brought under the effective control of the centre, which assumes the power to give instructions to the state government, which shall abide by such directions
During the emergency period, the Lok Sabha can extend tenure by a period of 1 year at a time. But the same cannot be extended beyond 6 months after the proclamation ceases to operate. The tenure of State Assemblies can also be extended in the same manner.
During emergency, the President is empowered to modify the provisions regarding distribution of revenues between the Union and the States.

Fundamental Rights: The effect of National Emergency on fundamental Rights is mentioned in Article 358 and 359 of the Indian Constitution.

Article 358: Clause (1) of Article 358 says that Article 19 will be suspended during a situation declared as National Emergency by the President.

The state has the authority to enact any law or take any executive action that restricts or eliminates the six Fundamental Rights guaranteed by Article 19.
Any such law or executive action cannot be challenged on the basis that it violates the six Fundamental Rights guaranteed by Article 19.
However, the scope of Article 358 was limited in two ways by the 44th Amendment Act of 1978.
The six Fundamental Rights enshrined in Article 19 can be suspended only when the National Emergency is declared due to war or external aggression, rather than armed rebellion.
Only laws related to the Emergency are protected from being challenged, not other laws.
Furthermore, only executive action taken in accordance with such a law is protected.

Article 359:

Article 359 allows the president to suspend the right to petition any court for the enforcement of Fundamental Rights.
This means that, under Article 359, the Fundamental Rights are not suspended in their entirety, but only their enforcement.
The scope of Article 359 was limited in two ways by the 44th Amendment Act of 1978.
The President cannot suspend the right to petition the Court for the enforcement of fundamental rights guaranteed by Articles 20–21. It means, even during an emergency, the right to protection from criminal prosecution (Article 20) and the right to life and personal liberty (Article 21) remain enforceable.
Only laws related to the emergency are protected from challenge, not other laws, and only executive action taken under such a law is protected.

Difference between Article 358 and 359

Article 358	Article 359
Freedoms given by Article 19 are suspended automatically under this Article as soon as the emergency is proclaimed.	Fundamental rights are not suspended automatically it has to be done by a presidential order. Only the courts cannot be moved to enforce fundamental rights.
Article 19 is suspended for the whole period of emergency.	Right to move courts is suspended for the period of emergency or until the proclamation of the president to remove suspension of fundamental right
Effective all over the country.	May be confined to an area.
It operates only in case of emergency on the ground of threat to the security of the country because of war or external aggression.	It operates in any emergency proclaimed under Article 352.
It authorises the State to enact any law or take any executive action that is inconsistent with Fundamental Rights under Article 19.	It authorises the State to enact any law or take any executive action that is inconsistent with Fundamental Rights whose enforcement is suspended by the Presidential Order.

Case Law

Issues

Whether writ of Habeas Corpus is maintainable by the High Court questioning illegal detention when an emergency was imposed by the President?
Whether suspension of Rights and Liberty of any person under Article 21 is valid under Rule of Law?
Whether detenue have locus standi during the proclamation of emergency?

Judgement in ADM Jabalpur Case: Supreme Court observed that under Article 359 clause (1) no person has locus standi to approach the High Court under article 226 to enforce his fundamental right of personal liberty in case of detention by filing a writ of habeas corpus. Fundamental Rights remain suspended during the Emergency.