National Emergency (Article 352) of the Indian Constitution

A National Emergency is a special legal measure provided under Article 352 of the Indian Constitution. This provision allows the central government to take extraordinary steps when the security of the nation or any part of it is threatened by war, external aggression, or armed rebellion. 

The declaration of a National Emergency grants the Union government exceptional powers, including the ability to suspend certain fundamental rights, centralise authority, and make laws that override state matters. Though this provision aims to safeguard the sovereignty and integrity of the country, its use is not without controversy. It raises important questions about the balance between national security and individual freedoms.

This article will explore the detailed provisions of Article 352, its constitutional framework, the process of declaring a National Emergency, its historical applications, effects on governance, judicial review, and the potential criticisms of its use.

What is a National Emergency under Article 352?

Under Article 352 of the Indian Constitution, the President of India is empowered to proclaim a National Emergency when the security of India, or any part of it, is threatened by:

• War
• External aggression
• Armed rebellion

The proclamation of a National Emergency is a drastic step, giving the Union government the ability to take immediate and far-reaching actions. These measures often include the suspension of fundamental rights, particularly those relating to freedom of speech and expression, assembly, and movement. The government can also centralise legislative and executive powers to address the crisis more effectively.

Constitutional Provisions Relating to National Emergency

Article 352 falls under Part XVIII of the Constitution, which deals with emergencies. The relevant constitutional provisions in this context are:

These provisions work together to define how and when a National Emergency can be declared, the process for parliamentary approval, and the effects it has on the country’s governance.

Grounds for Declaring a National Emergency

A National Emergency can be declared if the President is satisfied that the country’s security is at risk due to:

1. War: If India is officially engaged in hostilities with another country, this can lead to the declaration of a National Emergency.
2. External Aggression: This refers to an invasion or attack on India by a foreign power, which threatens the country’s sovereignty.
3. Armed Rebellion: The declaration can also be made in cases where there is an internal armed uprising, where groups or individuals use force to challenge the government.

While these three grounds are well-defined, the Constitution originally allowed the declaration of an emergency due to “internal disturbance.” This term was vague and led to ambiguity, especially during the 1975 Emergency. As a result, the Forty-Fourth Amendment of 1978 replaced “internal disturbance” with “armed rebellion” to provide greater clarity.

Procedure for Declaration of National Emergency

1. Cabinet Recommendation: The President cannot declare a National Emergency on their own; they must act based on the written recommendation of the Union Cabinet. This safeguard ensures that the decision to declare an emergency is backed by the collective opinion of the executive branch of government.
2. President’s Proclamation: Once the Cabinet submits a recommendation, the President can issue a proclamation declaring the National Emergency.
3. Parliamentary Approval:
   • The proclamation must be laid before both Houses of Parliament within one month of its issuance.
   • If the Lok Sabha (lower house) is not in session, or if it is dissolved, the proclamation continues until 30 days after the new Lok Sabha convenes, provided the Rajya Sabha (upper house) has approved it.
4. Special Majority:  Both Houses of Parliament must approve the emergency by a special majority (i.e., at least 50% of the total membership and two-thirds of those present and voting).

Duration and Extension of National Emergency

• Initial Duration: A National Emergency remains in force for six months after it is proclaimed. However, it can be extended indefinitely, provided Parliament continues to approve it every six months.
• Extensions: Each extension requires a fresh approval from both Houses of Parliament by a special majority. The emergency can continue as long as Parliament grants approval, but this process of periodic renewal ensures that the emergency is not prolonged unnecessarily.

Revocation of National Emergency

The President has the power to revoke a National Emergency at any time through a subsequent proclamation. This can happen if the President believes the grounds for the emergency no longer exist.

1. Parliamentary Disapproval: A National Emergency must also be revoked if the Lok Sabha passes a resolution disapproving of its continuation. The simple majority of the Lok Sabha is enough for the revocation to take place. This ensures that Parliament has a check on the continuation of emergency powers.
2. Automatic Revocation: If the Lok Sabha disapproves of the emergency, the President must revoke it. If there is a written request from one-tenth of the Lok Sabha members, a special sitting must be convened to discuss the revocation.

Effects of National Emergency

A National Emergency leads to several significant changes in the way the country is governed.

Impact on Centre-State Relations

During a National Emergency, the balance of power between the central and state governments changes drastically.

• Executive Powers: The central government gains the authority to issue directives to state governments on any matter. While the state governments are not suspended, they come under the complete control of the central government.
• Legislative Powers: The Union Parliament is empowered to legislate on matters that are normally under the jurisdiction of the State List. This means that Parliament can make laws on subjects which are usually within the domain of state legislatures.
• Financial Powers: The President can modify the distribution of financial resources between the Union and the States, potentially reducing the funds transferred to the states.

Impact on Fundamental Rights

• Suspension of Article 19 Rights: When a National Emergency is declared, the six freedoms under Article 19 (freedom of speech, assembly, movement, etc.) are automatically suspended. This means the government can restrict these rights without facing legal challenges.
• Protection for Articles 20 and 21: However, the rights enshrined under Articles 20 and 21 (protection against retroactive criminal laws and the right to life and personal liberty) cannot be suspended. These rights are preserved during a National Emergency.

Impact on Legislative Bodies

• Extension of Terms: The tenure of the Lok Sabha and State Legislative Assemblies can be extended during a National Emergency. These extensions cannot continue beyond six months after the Emergency has ceased.

Judicial Review of Proclamation

In the past, the National Emergency was immune to judicial review. This changed with the Forty-Fourth Amendment Act of 1978, which restored the judiciary’s power to review the validity of the Proclamation.

Minerva Mills Case (1980): The Supreme Court held that the Proclamation of National Emergency could be challenged in court if it was based on mala fide reasons or irrelevant facts. This case reinforced the need for judicial oversight to ensure that the emergency powers are not abused.

Criticisms of the National Emergency Provision

While Article 352 is crucial for national security, it has faced criticism over the years.

Risk of Abuse of Power

The greatest criticism of the National Emergency provisions is the potential for abuse. The government may misuse the emergency powers for political gains, rather than addressing a legitimate threat to the nation. This was seen during the 1975 Emergency, when political opposition was suppressed, and civil liberties were severely restricted.

Undermining Democracy

The declaration of a National Emergency leads to the centralisation of power, which can weaken the checks and balances of the democratic system. It often limits the freedom of the press and suppresses dissenting voices, which is contrary to democratic principles.

Threat to Federalism

The emergency powers undermine the federal structure of the country. The central government assumes control over matters that would otherwise fall under state jurisdiction, thereby reducing the autonomy of state governments.

Conclusion

Article 352 of the Indian Constitution allows the central government to take extraordinary steps in times of national crisis, ensuring the security and integrity of the country. However, the wide-ranging powers granted during a National Emergency can also lead to a concentration of power in the hands of the central government, risking abuse and undermining democratic principles. It is crucial that the provisions under Article 352 are used judiciously, with robust oversight from both the judiciary and Parliament, to protect the fundamental rights of citizens while addressing genuine threats to national security.