NATIONAL EMERGENCY (INDIAN POLITY): Full concept and study note with PDF

 

Part: 18 (Article: 352) of Indian Constitution

Grounds for proclamation: 

1. External Emergency: War or external aggression

2. Internal Emergency: Armed rebellion

Process:

1. The President can proclaim a national emergency only on the written recommendation from the cabinet.

2. The proclamation has to be approved by both the Houses of the Parliament within 1 month from the date of issuance. 

3. After the approval the Emergency can continue for six months and can be extended indefinitely with an approval from the Parliament, every 6 months.

4. The proclamation of emergency can be revoked if If one-tenth of the total members of the Lok Sabha give a written notice to the Speaker (or president, if the House is not in session) to hold a special sitting of the House within 14 days to consider a resolution for revocation of the proclamation of Emergency, which can be passed by a simple majority.

Effects:

1. All the executive powers of the state government can be superceded centre

2. The legislative powers of the state legislatures can be superceded by the Parliament. By extension, the president can promulgate ordinance on subjects of State list.

3. The Centre may readjust, reduce or cancel any financial  transfers to the state, that it is otherwise, constitutionally mandated to make.

4. Laws may be passed during the Emergency to extend the term of the Lok Sabha by one year at a time.

5. All fundamental rights except those under articles 20 and 21, can be suspended. Rights under article 19 cannot be suspended in case of Internal Emergency.

History:

1. External Emergency: 1962-1968 (Indo-China War), 1972 (Indo-Pakistan War)

2. Internal Emergency (1975-1977): It was declared only once on the ground of ‘internal disturbance’, by President Fakhruddin Ali Ahmed on the advice of the Prime Minister Mrs. Indira Gandhi. . The massive misuse of powers  led to the appointment of the ‘Shah Commission’ by the new elected government, after the emergency. The 44th amendment of the Indian constitution was done to prevent similar misuse of emergency provisions in future

ORIGINAL PROVISIONS	44th AMENDMENT (1978)
Internal reason for Emergency: Internal disturbance	Changed to ‘armed rebellion’
Emergency can be declared if the President is ‘satisfied’ with the reasons	The President can declare Emergency only at the aide and advice of the Cabinet.
National Emergency is outside judicial review (38th Amendment 1975)	Deleted in 44th Amendment National Emergency can be challenged in court (Minerva Mills case)
Proclamation must be approved by the Parliament within 2 months	Reduced to 1 month and has to be passed by a special majority of: (i) Simple majority of the total membership of the House (ii) Two-third of the total members present and voting
The proclamation can be revoked only by the President	If one-tenth of the total members of the Lok Sabha give a written notice to the Speaker (or president, if the House is not in session), a special sitting of the House shall be held within 14 days to consider a resolution for revocation of the proclamation of Emergency can be passed by a simple majority.
Emergency once declared could be in place as long as the Executive desired	Periodic approval of the parliament is required every 6 months.
By Ar. 358, all Fundamental Rights under Ar. 19 are automatically cancelled during Emergency. Laws passed during the Emergency, by-passing the fundamental rights could not be challenged in court	Ar. 19 can be suspended on in case of Emergency declared on the ground of ‘war’ or ‘external aggression’ Only those laws, which are passed during the Emergency, by-passing the Fundamental Rights and are related with the Emergency are outside judicial review.
By Ar. 359, all fundamental rights could be made non-enforceable by the President	Fundamental Rights under Ar. 20 & 21 will remain in force even during Emergency.

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