File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Article 352 Constitution of India: Proclamation of Emergency

What is meant by Emergency?

Part XVIII of the Constitution of India contains articles 352- 356 which lays down the EMERGENCY PROVISIONS.

These provisions permit the Centre to restrain activities and put a draconian command on the functioning of the society to avoid any unwanted event.

Prevention is better than cure:
An emergency acts like a valve for the Centre to uphold the sovereignty and freedom of the society, when there is a threat on the security of the nation. An emergency enables the Centre to calm down or even suppress the premonitions.

The provision of emergency has been borrowed from Germany.
Emergency represents a circumstance which calls for immediate action to be taken by the Centre to handle the fiasco in governance system before something unfortunate and irreparable happens to the security and sovereignty of the country.

KC Wheare has called India a Quasi-Federal form of Government, where the Centre and the states maintain a cordial relation and their power to make decisions on certain matter are distributed and mentioned in their respective lists. But when the country is under the weather and an emergency is in force, the Centre is allowed to act like the parent of the states and take over the operations of the state. It controls all the decision-making process in order to ensure speedy remedies. Thus, it can be said, when the Emergency is imposed in India, it becomes a Unitary form of Government for the period of Emergency.

Our constitution makers should be appreciated to realize that some situations may arise in country in future which can make the country's security compromised, therefore, the government shall become forced to take authoritarian yet necessary actions in order to prevent greater harm. In order to legalize and justify these actions of the government (if taken), articles 352-360 were added in the constitution.

Through these provisions the constitutional makers made India ready to face any unfortunate event.

While Emergency provisions are necessary, it should not be resorted to by the Government for every problem which arises in the nation and thus all of the other alternative methods for solving such a situation should be used, and only when these methods cannot be used to effectively tackle such a situation, Emergency can be used for solving the grave problem.

Let's begin this article by quoting Indira Gandhi infamous line you must learn to stay still in the midst of activity and to be vibrantly alive in response.

An overview of Types of emergencies:[1]

  1. National emergency:

    • Article 352 talks about the provisions of National Emergency
    • A national emergency can be proclaimed by the president after the written advice of Union Cabinet headed by the Prime Minister.
    • Grounds for proclaiming such emergencies are war, external aggression or armed rebellion.
    • The emergency can be proclaimed even before the commencement of war or external aggression. Reasonable threats or suspicions are enough to declare it.
    • When a national emergency is declared on the grounds of 'war' or 'external aggression', it is known as 'External Emergency'.
    • When it is declared on the grounds of 'armed rebellion', it is known as Internal Emergency.
       
  2. Presidential Rule/ state emergency/ constitutional emergency: [2]

    • Article 355 of the constitution holds Centre responsible to ensure that the functioning of every state is peaceful and in accordance with the law
    • Article 356 allows the Centre to take over the governance of any state, under serious threat of unlawful upheaval.
    • A notice accepting the inability of the state to work in accordance of the constitution should be notified by the Governor of that State to the President, which would be taken as a request by the Governor to impose President's rule in that state. However, such notice is only optional in nature, the president can use his own discretion.
       
    • Ground of imposition:

      Whenever a state falls flat to conform with or give implementation to any direction and instruction of the center, it shall be lawful for the president under article 356 to hold such state liable of failure of constitutional machinery in the state.
    • From 20 June 1951 to 17 April 1952, the president's rule was first imposed in Patiala, Punjab.
    • President's rule has been imposed maximum number of times in Uttar Pradesh (10 times) while it had been imposed in Punjab for maximum number of days (more than 3000 days) [3]
    • President's rule was imposed 35-39 times during the session of Indira Gandhi.
    • Chhattisgarh and Telangana are the only states where the President's rule has not been imposed so far[4]
       
  3. Financial Emergency:

    • Article 355 of the constitution holds Centre responsible to ensure that the functioning of every state is peaceful and in accordance with the law
    • Article 356 allows the Centre to take over the governance of any state, under serious threat of unlawful upheaval.
    • A notice accepting the inability of the state to work in accordance of the constitution should be notified by the Governor of that State to the President, which would be taken as a request by the Governor to impose President's rule in that state. However, such notice is only optional in nature, the president can use his own discretion.
    • Ground of imposition:
      Whenever a state falls flat to conform with or give implementation to any direction and instruction of the center, it shall be lawful for the president under article 356 to hold such state liable of failure of constitutional machinery in the state.
    • Article 360 allows the president, after the assent of Union Cabinet headed by Prime Minister, to declare financial emergency either to the while of India or to a particular territory of it which is under financial instability or credit threat.
    • Financial emergency has never been imposed in India as of yet.
      In this article, we shall discuss Article 352 in detail.
       

An Overview of the clauses contained in Article 352 [5]

Who proclaims the emergency?
Clause (1) of the article says that, if the PRESIDENT feels that there is a threat on security to the whole of India or to any part of its territorywhether by war or external aggression or armed rebellion, then the president by a PROCLAMATION, may declare a state of emergency on the whole of India or to the particular territory under threat. President is satisfied that there is imminent danger.

Clause (3) inhibits the president to issue any proclamation under clause (1) under any other proclamation of such kind unless the assent to declare such proclamation has been given to him by the Union cabinet in writing.

This clause basically takes away the discretionary powers of the president to declare emergency, the Council consisting of the Prime Minister and other Ministers of Cabinet rank under Article 75, should make the final call, the president should act only like an outlet of such declarations.

Extension of the Proclamation.
Clause (2) says that the proclamation declared under clause (1) can be revoked by a subsequent proclamation.

Clause (4) talks about the expiration of such emergency. The national emergency is not indefinite. The clause says, that such proclamation shall die within one month of its declaration unless the proclamation gets renewed by both the Houses of the Parliament before the expiration of one month.

However, if a situation arises when the renewal of such proclamation has been approved by the Council of States only but the House of people (Lok Sabha) has been dissolved therefore, no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period of one month, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.

After renewal
Clause (5) says that the newly approved proclamation shall be given an extension of further six months from the date of the passing of the second of the resolutions approving the proclamation under clause (4), after expiration of which, it has to undergo the same procedure to get a further six months allowance.

If again seconded by both the house, the proclamation lives for another six months starting from the day it was supposed to be ceased. It can be extended indefinitely by further resolutions in six-monthly increments.

(NOTE: during this time period of six months, House of People has the authority to revoke the proclamation at any time and not wait for the six-month period to end.)
Similarly, if the situation arises that the renewal of the proclamation is wanted the dissolution of the House of the People takes place during any such period of six months, then the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the proclamation has been also passed by the House of the People
(NOTE: both houses should be sitting and voting separately.)

Threshold for the Resolution to pass.
Clause (6) says that for the fulfilment of the purpose in clauses (4) & (5), the resolution has to be passed by either of the House of Parliament only by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting.

Revocation of the proclamation
Clause (7) allows the president, on the decision by the House of the People, to put an end to the proclamation which has been issues under clause (1), ceasing all the emergency activities, at any given time.

(NOTE: the revocation of the proclamation requires the resolution from the House of people only, not the Council of states. While the approval to declare and continue such proclamation should be passed by both the houses.)

Clause (8) tells that the notice, in writing, which has to be signed by not less than one-tenth of the member of House of People, disapproving the proclamation altogether from the starting under clause (1) or disapproving the continuation of the proclamation, shall be handed over to:
  1. To the speaker, if the House of People is in session
  2. To the President, if the House of People is not in session;
A special meeting shall be conducted by either the speaker or the president, whomsoever receives the notice, within fourteen days for the purpose of considering such resolution. This revocation is passed by simple majority.

Effect of national emergency.[6]

  • On Centre- State relations:
    1. Executive: Centre becomes entitled to give executive directions to any state on any matter.
    2. Legislature: the legislature gains the power to make laws on any subject mentioned in the state list. However, any law made during this time period shall become inoperative after termination of emergency. President gains the power to declare ordinances on State subjects also.
    3. President is allowed to redistribute the salaries and remunerations of government officials and alter the distribution of revenues between Centre and state to maintain financial stability in country.
       
  • Life of Lok Sabha and State Legislative Assembly:
    During emergency, the parliament is allowed to extend the term of Lok Sabha and State Legislative Assembly for a period of one year at a time. However, once the emergency has ceased, the Lok Sabha and LA shall be given six-month period only before the new elections are contested.
    This extension has to get passed by simple majority in Parliament.
     
  • Fundamental Rights:
    Article 358 says that six provisions of Article 19 are to be suspended during National Emergency. 44th amendment said that any provision of Article 19 can only be suspended when the emergency is imposed on the grounds of either war or external aggression
    Article 359: All articles can be suspended by President except Articles 20 and 21 in any kind of emergency.
    If emergency is on ground of armed rebellion then all fundamental rights except Article 19, 20 and 21 can be suspended.[7]

Times article 352 has been imposed in India

  1. Sino- Indian War [ 1962- 1968][8]

    • Emergency was imposed on the ground of Threat by External Aggression
    • During the 1959 Tibet uprising, when India took in Tibet refugees and asylum to the Dalai Lama, China perceived this as a threat over its rule on Tibet.
    • When china demanded that the control over Aksai chin in exchange of its letting go of its claim over Arunachal Pradesh formerly known as the North Eastern Frontier Agency, the then Prime Minister Jawaharlal Nehru declined this assertion saying China had no legitimate claims over the areas of either Arunachal Pradesh or Aksai Chin.
    • India was ill-prepared for this war. There were skirmishes throughout the four years. the war ended when China cease fired after India gave in to the demands on China.
    • The then Defence Minister, V.K. Krishna Menon, had to reign from his post because he received heavy backlash after the defeat of India in the war.
       
  2. Indo- Pakistan War [ 1971][9]

    • The historic war which led to the liberation of present-day Bangladesh.
    • After a landslide victory of Mujibur's party East Pakistani Awami League tension arose between West Pakistan leader Tikka Khan and East Pakistan.
    • India supported East Pakistan leaders vociferously and took in refugees.
    • 3rd December 1971, Pakistan launched attack on Indian airfields. The same evening the then Prime Minister, Indira Gandhi, announced on the radio that the attacks were an invitation to war.
    • Emergency was imposed on the ground of Threat by External Aggression
    • The war was fought on land, sea as well as air.
    • The war lasted only 13 days and it ended with the surrender of the Pakistani army on the Eastern front on 16 December 1971. And subsequent segregation of East Pakistan (Bangladesh) from West Pakistan (present day Pakistan)
    • In 1972, the Shimla Agreement was signed between India and Pakistan by which in lieu of the return of the Pakistani POWs, the Pakistan government would recognise the independence of Bangladesh.
       
  3. The Darkest Hour of Indian Democracy [1975- 1977]:

    • Winning the 1971 elections with a landslide victory, Indira Gandhi had gained immense popularity as the 'First Woman Prime Minister of India'. She was bestowed with Bharat Ratna in 1971.
    • One 26th of June 1971, 12a.m there came the announcement on the All-India Radio declaring the proclamation of National Emergency by the Prime Minister on the ground of Internal Disturbance under Article 352.
    • The populace was as bewildered as the Union Cabinet who had been informed of this final decision just hours before the PM proceeded on the radio.
    • Gandhi justified her actions by great lengths, during this 21-month long emergency basic fundamental and human rights were suspended, amendments were made in constitution and judiciary was dismembered.
       
    • Reasons for the declaration of Emergency: [11]
      1. The JP Movement:

        Started as a student reform movement in Bihar took the shape of coup against government in 1974. The 71-year-old freedom fighter Jayaprakash Narayan a.k.a JP lend the students great support. He travelled places in North India to gather mass to support his revolution. There were numerous incidents of clashes of the protestors with police, and Gandhi supporters. Educational institutions, courts and offices were put in a lockdown. JP induced the students and supporters to boycott their classes and work towards the collective consciousness of the society. However, Gandhi refused to give in to the demands of the students and also avowed JP as extra- parliamentary and challenged him to stand against her in 1976 elections.
         
      2. The Navnirman Protest in Gujarat:

        The students of L D College of Engineering in Ahmedabad in 1973, went out on a strike against the hike in school fee. Nearly a month later when their demands were not satisfied, they busted into a protest demanding the ruling government to step down which gathered magnanimous support from the locals, factory workers etc.

        The Gandhi government was seen corrupted and received terrible backlash. Even constitutional emergency under Article 356 was imposed. Finally, Gandhi had to surrender onto some demands.
         
      3. The Railway Protest:

        Led by George Fernandes in May 1974 for three weeks. The railway services were paralyzed halting the transport of goods and people. Gandhi government came down terribly on protestors.
         
      4. The Raj Narain Verdict:

        Raj Narain was defeated by India Gandhi in the 1971 elections, charged her for cases of fraud. The petitioner wanted to court to hold Gandhi accountable for winning the 1971 elections through corrupt practices and declare the 39th amendment as invalid.

        On March 19, 1975, Gandhi became the first Indian prime minister to testify in court.

        Allahabad High Court found Gandhi guilty and rejected her election to Lok Sabha to be null and void and also banned her from contesting election for the next six years. Gandhi was given a deadline of 20 days to raise an appeal in the apex court against the high court's order. After which, she had to step down from her office.
        Indira nevertheless refused to resign. While JP organized rallies and urges the police not to take ordered from the government, Indira feared things were getting out of hand and declared emergency signed by the then President Fakhruddin Ali Ahmed.
         
Aftermath:
  1. Gandhi arrested many opposition leaders like JP, Morarji Desai, Charan Singh, Acharya Kripalani, etc.
  2. All fundamental rights were suspended. People got arrested without any warrant and call of court.
  3. Foreign media was suspended and local media was put under censorship. Anything published had to pass the Information and Broadcasting ministry.
  4. Sanjay Gandhi, Indira's son, gained extra constitutional powers and forced mass sterilization and birth control program.
  5. Seven freedoms guaranteed under Article 19 were suspended.
  6. There were many instances of human rights violations in India. Curfews were imposed.

Role of Judiciary: [12]
  1. Amendments 38th 42nd were passed during the course of the emergency, most of which curtailed the power of judiciary and retained those power in executive. Many of the provisions were, however, reversed or dropped by 44th amendment, 1978.
     
  2. 38th amendment, 1975 provided that the President can make declaration of emergency and the promulgations of ordinances by the President, Governors and UT Administrators would be final and cannot be challenged in any court of law. Therefore, this amendment carried emergency and ordinances imposing decisions out of judicial review.
     
  3. 39th amendment, 1975: provided that the elections to parliament of any person who was/is holding the office of PM or President or the Speaker could not be challenged in court of law.
     
  4. 41st Amendment: said no criminal proceedings whatsoever could lie against a President, Prime Minister, or Governor for acts before or during their terms of office.
     
  5. 42nd Amendment, 1976: provided supremacy of the Parliament and put Directive Principles over Fundamental rights. It also added fundamental duties and various articles. It extended parliament's powers to amend the Constitution, even its 'basic structure' and curtail any fundamental rights.
     
  6. 44th Amendment, 1978: [13]
    • Article 352 was amended to replace Internal disturbance as one of the grounds for imposing National Emergency by Armed Rebellion
    • The 44th Amendment Act of 1978 reversed the provision made by the 42nd amendment act that allowed the government to amend the constitution on its wish by Article 368. 44th Amendment Act nullified this unjustified power to the government.
    • An emergency can be proclaimed only on the basis of written advice tendered to the President by the Cabinet.
    • The right to liberty is further strengthened by the provision that law for preventive detention cannot authorize, in any case, detention for a longer period than three months.
    • Emphasized on Right of the media to report freely and without censorship the proceedings in Parliament and the State Legislatures.
    • Proclamation of emergency should be approved by both the houses within one month.
    • And to renew the emergency, it should be approved by both the houses in every six months. This keeps the power of Cabinet and President in check. Even though the decision-making process takes long but still the decision is regarded as unanimous and in the best interest of the public.

Conclusion
From a careful reading of the emergency provisions, their intent is understandable, but at the same time there is no assurance that the provisions will always be invoked in the best interest of the citizens of the country, as has been witnessed in the past. A provision that allows the executive to suspend fundamental rights of the people will never be uncontroversial in nature, especially in a democracy.

It can be argued that the provisions do give a lot of powers to the executive and they shake the balance of the institution too in one way or another, it is hard to come out to a solution where the executive exercises the powers required by it in an emergency while protecting the interests of individuals at the same time.

While it is perfectly reasonable for the people to expect their leaders to not misuse the provisions, the same cannot be left just to trust and expectations. The Courts of Justice have an important role to play, as is supported by history. If the Judiciary fails to intervene in matters where the fundamental rights of people are at stake, the spirit of democracy suffers blows from both, the executive and the judiciary, two important pillars of a democracy.

While defending the emergency provisions in the Constituent Assembly, Dr Ambedkar accepted the possibility of their misuse. He observed:
I do not altogether deny that there is a possibility of the Articles being abused or employed for political purposes.

End-Notes:
  1. DD basu introduction to the constitution of india 25th edition, Lexis Nexis, New Delhi, 2018
  2. DD basu introduction to the constitution of india 25th edition, Lexis Nexis, New Delhi, 2018
  3. https://factly.in/state-presidents-rule-number-times/
  4. https://en.wikipedia.org/wiki/President%27s_rule#:~:text=Chhattisgarh%20and%20Telangana%20are%20the,not%20been%20imposed%20so%20far.
  5. https://indiankanoon.org/doc/1018568/
  6. DD basu introduction to the constitution of india 25th edition, Lexis Nexis, New Delhi, 2018
  7. https://www.drishtiias.com/to-the-points/Paper2/emergency-provisions
  8. Maxwell, N. (1972). India's China War. Penguin Books.
  9. Rawat, R. B. (2015). 1965: Stories from the second Indo-Pak war. Penguin Books.
  10. Chandra, B. (2003). In the name of democracy: Jp movement and the emergency. Penguin Books.
  11. https://indianexpress.com/article/research/four-reasons-why-indira-gandhi-declared-the-emergency-5232397/
  12. DD basu introduction to the constitution of india 25th edition, Lexis Nexis, New Delhi, 2018
  13. http://www.legalservicesindia.com/article/1769/Emergency-Provisions:-Effects-and-Impact..html

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly