Under Article 352, the President can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion.
The president can declare a national emergency even before the actual occurrence of war or external aggression or armed rebellion if he is satisfied that there is an imminent danger.
When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’.
When a national emergency is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’.
The 42nd Amendment Act of 1976 enabled the president to limit the operation of a National Emergency to a specified part of India.
The 44th Amendment Act of 1978 substituted the words ‘armed rebellion’ for ‘internal disturbance’.
The President, however, can proclaim a national emergency only after receiving a written recommendation from the cabinet.
The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from the judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of 1978.
Parliamentary Approval and Duration
The proclamation of Emergency must be approved by both the Houses of Parliament within one month from the date of its issue.
Originally, the period allowed for approval by the Parliament was two months but was reduced by the 44th Amendment Act of 1978.
If approved by both the Houses of Parliament, the emergency continues for six months and can be extended to an indefinite period with an approval of the Parliament for every six months.
Every resolution approving the proclamation of emergency or its continuance must be passed by either House of Parliament by a special majority. This special majority provision was introduced by the 44th Amendment Act of 1978. Previously, such resolution could be passed by a simple majority of the Parliament.
Revocation of Proclamation
A proclamation of emergency may be revoked by the President at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval.
The President must revoke a proclamation if the Lok Sabha passes a resolution disapproving of its continuation. This provision was introduced by the 44th Amendment Act of 1978.
Before the amendment, a proclamation could be revoked by the president on his own and the Lok Sabha had no control in this regard.
Effects of National Emergency
During a national emergency, the executive power of the Centre extends to directing any state regarding the manner in which it’s executive power is to be exercised.
The state governments are brought under the complete control of the Centre, though they are not suspended.
During a national emergency, the Parliament becomes empowered to make laws on any subject mentioned in the State List.
While a proclamation of national emergency is in operation, the President can issue ordinances on the state subjects also, if the Parliament is not in session.
While a proclamation of national emergency is in operation, the president can either reduce or cancel the transfer of finances from the Centre to the states. Such modification continues till the end of the financial year in which the Emergency ceases to operate.
During this period, the Lok Sabha can extend its tenure by a period of one year at a time. However, this extension cannot continue beyond a period of six months after the emergency has ceased to operate.
The tenure of State Assemblies can also be extended in the same manner.
Articles 358 and 359 describe the effect of a National Emergency on the Fundamental Rights.
According to Article 358, the Fundamental Rights under Article 19 are automatically suspended and this suspension continues till the end of the emergency.
But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended only in case of a proclamation on the ground of war or external aggression.
Article 359 authorizes the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency.
Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.
This type of Emergency has been proclaimed three times so far in 1962, 1971 and 1975.
The first proclamation of National Emergency was issued in October 1962 on account of Chinese aggression in the NEFA (North-East Frontier Agency—now Arunachal Pradesh), and was in force till January 1968. Hence, a fresh proclamation was not needed at the time of war against Pakistan in 1965.
The second proclamation of national emergency was made in December 1971 in the wake of an attack by Pakistan. Even when this Emergency was in operation, the third proclamation of National Emergency was made in June 1975.
Both the second and third proclamations were revoked in March 1977.
The first two proclamations (1962 and 1971) were made on the ground of ‘external aggression’, while the third proclamation (1975) was made on the ground of ‘internal disturbance’.