National Emergency (Article 352) of the Indian Constitution
National Emergency under Article 352 of the Indian Constitution
1. Introduction
Article 352 empowers the President of India to proclaim a National Emergency if the security of India or any part thereof is threatened by:
War, or
External aggression, or
Armed rebellion (previously “internal disturbance,” amended by the 44th Amendment).
A National Emergency is the most serious form of emergency in India and affects the entire governance structure.
2. Historical Background
The emergency provisions were inspired by the Government of India Act, 1935.
The term “internal disturbance” was replaced by “armed rebellion” by the 44th Amendment Act, 1978, making it more restrictive.
National Emergency can alter the federal structure by centralizing power.
3. Grounds for Proclamation
Article 352 allows the President to proclaim emergency on grounds of:
War: Hostilities between India and another country.
External aggression: An attack or threat from outside India.
Armed rebellion: An organized violent uprising against the government.
4. Procedure for Proclamation
The President can declare National Emergency only on the written advice of the Council of Ministers headed by the Prime Minister.
The proclamation must be communicated to both Houses of Parliament.
Parliament must approve the emergency within one month.
Once approved, the emergency can last for six months and can be extended indefinitely by further parliamentary approval every six months.
5. Effect of National Emergency
5.1 On Fundamental Rights
Article 354 permits Parliament to make laws overriding fundamental rights during an emergency.
Article 358 suspends Article 19 (freedom of speech, assembly, movement, etc.) during emergency.
However, rights under Articles 20 and 21 (protection against retrospective punishment and right to life) remain enforceable.
5.2 On Centre-State Relations
The Centre gains supremacy over states.
Parliament can legislate on any subject in the State List.
The term of the State Legislative Assembly can be extended beyond five years.
5.3 On Executive Powers
The President can issue directions to states.
The administration becomes more centralized.
6. Revocation
The President can revoke the emergency anytime.
Emergency automatically ceases after six months unless extended by Parliament.
7. Important Case Law
7.1 A.K. Gopalan v. State of Madras (1950)
The Supreme Court upheld the emergency provisions but took a narrow view of fundamental rights.
However, this case predated the amendment of Article 358 and 359.
7.2 ADM Jabalpur v. Shivkant Shukla (1976) (Habeas Corpus case)
During the Emergency of 1975-77, the Court controversially held that during a National Emergency, the right to move the courts for enforcement of fundamental rights, including right to life and liberty, is suspended.
This judgment is heavily criticized and is considered a dark chapter in Indian constitutional jurisprudence.
7.3 Minerva Mills Ltd. v. Union of India (1980)
Reaffirmed the basic structure doctrine.
Held that emergency provisions cannot be used to destroy the basic structure of the Constitution.
Implied limits on the exercise of emergency powers.
7.4 R. Bommai v. Union of India (1994)
Although primarily about President’s Rule, this case emphasized the federal spirit of the Constitution and the limited and conditional use of emergency powers.
It indirectly limits arbitrary proclamations of emergencies.
8. Amendments Affecting Article 352
8.1 44th Amendment Act, 1978
Replaced “internal disturbance” with “armed rebellion” as a ground for emergency.
Introduced safeguards like requiring the proclamation to be approved by Parliament within one month.
Prevented automatic suspension of Article 21 during emergency.
8.2 Other Safeguards
Emergency can be declared only on the written advice of the Cabinet.
Duration limited to six months, with parliamentary approval required for extension.
9. Summary
| Aspect | Details |
|---|---|
| Grounds | War, External aggression, Armed rebellion |
| Authority to declare | President on advice of Council of Ministers |
| Parliamentary approval | Required within one month |
| Duration | 6 months initially, can be extended |
| Effect on Fundamental Rights | Suspension of Article 19 rights; Article 21 protected |
| Centre-State relations | Centre gains supremacy |
| Key Amendment | 44th Amendment (1978) |
10. Conclusion
Article 352 provides the Union Government with extraordinary powers during times of grave threat to the nation’s security. While it ensures the continuity and integrity of the State during crises, it also carries the risk of misuse, as seen in the Emergency of 1975-77. Subsequent amendments and judicial decisions have sought to balance this power by introducing safeguards to protect democracy and fundamental rights.
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