National Emergency in India

Grounds of Declaration

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

War
External Aggression
Armed Rebellion

Key Points:

The President can declare an emergency even before the actual occurrence of war, external aggression, or armed rebellion if satisfied that there is an imminent danger.
The 38th Amendment Act of 1975 empowered the President to issue different proclamations on grounds of war, external aggression, armed rebellion, or imminent danger, even if a proclamation is already in operation.

Types of National Emergency:

External Emergency: Declared on the grounds of war or external aggression.
Internal Emergency: Declared on the grounds of armed rebellion.

The 42nd Amendment Act of 1976 enabled the President to limit the operation of a National Emergency to a specific part of India.

Historical Changes:

Initially, the Constitution mentioned "internal disturbance" as a ground for National Emergency. This was vague and broad.
The 44th Amendment Act of 1978 replaced "internal disturbance" with "armed rebellion", making it more specific. Thus, it is no longer possible to declare an emergency on grounds like in 1975 during Indira Gandhi’s tenure.

Cabinet’s Role:

The President can proclaim a National Emergency only after receiving a written recommendation from the Cabinet.
This provision was introduced to prevent unilateral decisions, as seen during the 1975 Emergency when Indira Gandhi advised the President without consulting her Cabinet.

Approval Process of National Emergency: Role of Lok Sabha and Rajya Sabha

When I said "both the Lok Sabha and the Rajya Sabha must approve", I meant that their approval is mandatory for the Emergency to continue beyond the initial one-month period.

Here's how it works:

Proclamation of Emergency: The President can declare a National Emergency immediately.
Within 1 Month: Both Houses of Parliament (Lok Sabha & Rajya Sabha) need to approve this proclamation with a special majority.
What If One House Rejects?
- If one House approves and the other rejects, the Emergency will automatically end after one month.
- This means approval is required from both Houses, but they have the power to reject if they disagree.

So, while both Houses' approval is compulsory for the continuation, they can choose to reject it, which would lead to the Emergency ending.

Procedure for Declaration and Approval of National Emergency in India

Great question! This comes down to the difference between declaring a National Emergency and continuing it. Here's how it works:

1. Declaration of National Emergency:

The President of India can immediately declare a National Emergency under Article 352 of the Constitution.
This declaration is based on the written advice of the Cabinet (headed by the Prime Minister).
No prior approval from the Lok Sabha or Rajya Sabha is needed at the time of declaration.
This allows the government to respond quickly to urgent threats like war, external aggression, or internal disturbances.

2. Approval by Parliament:

Once declared, the Emergency is valid for 30 days.
Within this period, both the Lok Sabha and the Rajya Sabha must approve the proclamation with a special majority.
If both Houses approve, the Emergency can continue for 6 months at a time (with further extensions if needed).
If either House rejects it, the Emergency automatically ends after 30 days.

✅ Why This System?

The Constitution allows for immediate action in emergencies without delays caused by parliamentary debates.
However, to prevent misuse of power, the continuation of the Emergency requires democratic approval from both Houses.

So, the President can act immediately, but Parliament’s approval acts as a safeguard to ensure checks and balances.

Judicial Review:

The 38th Amendment Act (1975) made the declaration of National Emergency immune from judicial review.
This was reversed by the 44th Amendment Act (1978). In the Minerva Mills case (1980), the Supreme Court held that the proclamation can be challenged on grounds of mala fide intentions or irrelevant facts.

Parliamentary Approval and Duration

A proclamation must be approved by both Houses of Parliament within one month.
If issued when the Lok Sabha is dissolved, it survives until 30 days after its reconstitution, provided the Rajya Sabha has approved it in the meantime.

Duration:

Once approved, the emergency continues for six months and can be extended indefinitely with parliamentary approval every six months.
This provision for periodic review was added by the 44th Amendment Act (1978).
If the Lok Sabha gets dissolved while a National Emergency is in effect and has not yet approved its extension for the next 6 months,
The Emergency will continue to remain in force temporarily.
It will remain valid for 30 days from the date when the newly elected Lok Sabha holds its first meeting after elections.
However, this is only possible if the Rajya Sabha has already approved the continuation of the Emergency during that time.

✅ In Simple Words:

If the Lok Sabha is dissolved, the Rajya Sabha’s approval is enough to keep the Emergency active temporarily—but the new Lok Sabha must approve it within 30 days of its first meeting.

Voting Requirement:

Approval requires a special majority:
- A majority of the total membership of the House, and
- A majority of two-thirds of members present and voting.

Revocation of Proclamation

The President can revoke the emergency at any time without parliamentary approval.
The President must revoke it if the Lok Sabha passes a resolution disapproving its continuation.
If 1/10th of Lok Sabha members give written notice, a special sitting must be held within 14 days to consider the resolution.

Simple Explanation

1. How Can the Emergency Be Revoked?

The President of India can cancel (revoke) the National Emergency at any time by issuing another official order (proclamation).
The President doesn’t need Parliament’s approval to cancel the Emergency.

2. When Is the President Forced to Cancel the Emergency?

If the Lok Sabha passes a resolution saying it doesn’t want the Emergency to continue, the President MUST cancel it.
This rule was added by the 44th Amendment Act of 1978.
Before 1978, only the President had the power to revoke the Emergency, and the Lok Sabha had no say in the matter.

3. Special Rule: How Can Lok Sabha Force a Discussion on the Emergency?

If 10% of Lok Sabha members give a written request to the Speaker (or the President if Lok Sabha isn’t in session), a special meeting must be held within 14 days.
In this meeting, the Lok Sabha will discuss and vote on whether the Emergency should continue.

🚩 What’s the Difference Between Disapproving and Approving an Emergency?

Point	Disapproving the Emergency 🚫	Approving the Emergency ✅
Who Votes?	Only the Lok Sabha	Both Lok Sabha and Rajya Sabha
Majority Needed?	Simple Majority (more than 50% of those present & voting)	Special Majority (majority of total members + 2/3 of present & voting members)

In Simple Words:

The President can cancel the Emergency anytime.
If the Lok Sabha says ‘NO’ to the Emergency, the President MUST cancel it.
If 10% of Lok Sabha members want to discuss ending the Emergency, a special meeting has to be held within 14 days.
Ending the Emergency is easier (simple majority) than continuing it (special majority).

Effects of National Emergency

A National Emergency has wide-ranging effects on India's political system. These effects can be divided into three main categories:

Effect on Centre-State Relations
Effect on the Life of the Lok Sabha and State Assemblies
Effect on Fundamental Rights

1. Effect on Centre-State Relations

During a National Emergency, the balance of power between the Centre and the States changes drastically. This can be understood under three areas:

(a) Executive Effects

Normally, the Centre can give directions to states only on specific matters.
During an Emergency, the Centre can control the executive powers of states on ANY matter.
While state governments continue to exist, they are brought under the complete control of the Centre.

(b) Legislative Effects

Under normal conditions, states make laws on subjects listed in the State List.
During an Emergency, Parliament can make laws on State List subjects.
The state legislatures are not suspended, but their powers are overridden by Parliament.
After the Emergency ends, the laws made by Parliament on state subjects remain valid for 6 more months.
The President can also issue ordinances on state subjects if Parliament is not in session.
42nd Amendment (1976): These changes apply nationwide, not just in states directly affected by the Emergency.

(c) Financial Effects

The President can change how money is distributed between the Centre and the states.
This means the President can reduce or stop financial transfers to states.
These changes continue until the end of the financial year in which the Emergency ends.
Such financial decisions must be presented to both Houses of Parliament.

2. Effect on the Life of the Lok Sabha and State Assemblies

Normally, the Lok Sabha’s term is 5 years.
During an Emergency, Parliament can extend the term of the Lok Sabha by 1 year at a time for as long as the Emergency lasts.
However, once the Emergency ends, the Lok Sabha’s term can be extended for only 6 more months.
Example: The 5th Lok Sabha (1971–1977) was extended twice during the Emergency (1975–77).

Similarly, the State Legislative Assemblies:

Can have their terms extended by 1 year at a time during the Emergency.
But like the Lok Sabha, the extension can’t go beyond 6 months after the Emergency ends.

3. Effect on Fundamental Rights

When a National Emergency is declared, certain Fundamental Rights can be suspended. The rules for this are given in Articles 358 and 359 of the Indian Constitution.

These provisions limit citizens' rights during emergencies to give the government more power to maintain law and order.

1️⃣ Suspension of Fundamental Rights under Article 19 (Article 358)

What Happens?
When a National Emergency is declared, the six Fundamental Rights under Article 19 (like freedom of speech, assembly, movement, etc.) are automatically suspended.
No Separate Order Needed:
The government doesn’t need to issue a separate order—they are suspended as soon as the Emergency is declared.
Government Powers:
The government can make laws or take actions that restrict or remove these rights without being challenged in court.
After the Emergency Ends:
- Article 19 rights automatically come back.
- Laws made during the Emergency that violate Article 19 become invalid.
- However, actions taken during the Emergency cannot be challenged later, even if they violated Article 19.

🔒 44th Amendment (1978) Changes:

Suspension applies only if the Emergency is declared due to war or external aggression (NOT for internal armed rebellion).
Only laws related to the Emergency are protected from legal challenges, not other laws.

2️⃣ Suspension of Other Fundamental Rights (Article 359)

What Happens?
The President can issue an order to suspend the right to approach the courts for the enforcement of certain Fundamental Rights (except Articles 20 & 21).
Important Point:
The rights themselves are NOT suspended, but you can’t go to court to enforce them.
Scope of Suspension:
- Applies only to the rights mentioned in the President’s order.
- Can apply to the entire country or just a specific region.
- The suspension can be for the entire duration of the Emergency or for a shorter period.
After the Order Ends:
- The affected Fundamental Rights become fully enforceable again.
- However, any actions taken during the suspension cannot be challenged, even after the Emergency ends.

🔒 44th Amendment (1978) Changes:

The President CANNOT suspend the right to go to court for rights under:
- Article 20 – Protection against conviction for offenses
- Article 21 – Right to life and personal liberty
Only Emergency-related laws and actions are protected from being challenged.

🗒️ Key Differences Between Article 358 & 359

Aspect	Article 358 (Article 19)	Article 359 (Other Rights)
Rights Affected	Only Article 19 rights	Any rights (except Articles 20 & 21) specified in the order
Automatic Suspension?	Yes, automatic during Emergency	No, needs a Presidential Order
Effect	Rights are completely suspended	Only enforcement is suspended, rights still exist
Post-Emergency	Rights revive automatically, inconsistent laws invalid	Rights can be enforced again, but past actions can’t be challenged
Protection after 44th Amendment	Applies only to war/external aggression	Article 20 & 21 always remain enforceable

✅ Summary

Article 19 rights are automatically suspended during an Emergency declared due to war or external aggression.
Other Fundamental Rights can be suspended through a Presidential Order (except the right to life and personal liberty).
The 44th Amendment ensures some rights, like Articles 20 and 21, are always protected, even in the toughest times.

🚩 Distinction Between Articles 358 and 359 – Simplified

Articles 358 and 359 deal with the suspension of Fundamental Rights during a National Emergency, but they work differently. Let’s break down the key differences and similarities to make it easy to understand.

Key Differences Between Article 358 and Article 359

Aspect	Article 358	Article 359
Scope of Rights Affected	Only affects Article 19 rights (like freedom of speech)	Can affect any Fundamental Right (except Articles 20 & 21)
Automatic Suspension?	Yes, automatically suspends Article 19 when Emergency is declared	No, requires a Presidential Order to suspend enforcement
Type of Emergency	Applies only during External Emergency (war/external aggression)	Applies during both External and Internal Emergencies
Duration of Suspension	Suspends Article 19 for the entire Emergency period	Suspension lasts for the period specified by the President
Geographical Scope	Applies to the entire country	Can apply to the whole country or a specific part
Protection of Articles 20 & 21	Not applicable (since it only deals with Article 19)	Cannot suspend enforcement of Articles 20 & 21
Government Powers	Government can make laws/executive actions inconsistent with Article 19	Government can make laws/actions inconsistent with specified rights in the Presidential Order

📜 Articles 358 & 359 of the Indian Constitution

Articles 358 and 359 explain what happens to Fundamental Rights during a National Emergency. They describe how certain rights can be suspended or their enforcement restricted to help the government manage extreme situations like war, external aggression, or internal rebellion.

🚩 Article 358 – Suspension of Fundamental Rights under Article 19

What It Does:
Automatically suspends the Fundamental Rights under Article 19 (like freedom of speech, expression, assembly, etc.) as soon as a National Emergency is declared due to war or external aggression.
Key Points:
1. Automatic Suspension: No need for a special order; rights are suspended immediately after the Emergency is declared.
2. Government Powers: The government can make any law or take any action even if it violates Article 19 rights.
3. Restoration: When the Emergency ends, Article 19 rights are automatically restored.
4. Limitation (44th Amendment, 1978): Now, these rights can be suspended only if the Emergency is due to war or external aggression, not during an internal disturbance (armed rebellion).

⚖️ Article 359 – Suspension of the Right to Enforce Fundamental Rights

What It Does:
Allows the President to issue a special order that suspends the right to move any court to enforce specific Fundamental Rights during a National Emergency.
Key Points:
1. Not Automatic: Rights are not suspended automatically; the President must issue an order specifying which rights are affected.
2. Rights Affected: Can apply to any Fundamental Right, except Articles 20 & 21 (protection in criminal cases and right to life & personal liberty), which cannot be suspended even during an Emergency.
3. Legal Protection: People cannot challenge laws or actions violating the specified rights while the order is in force.
4. Duration: The suspension lasts as long as specified in the Presidential Order, which could be for the entire Emergency or a shorter period.
5. Geographical Scope: Can apply to the entire country or just a part of it.

🗒️ In Simple Words:

Article 358 = Automatically suspends Article 19 rights (like freedom of speech) during war or external aggression.
Article 359 = The President can suspend your right to go to court to protect certain rights during any National Emergency.

Both articles are tools for the government to respond quickly in crisis situations, but they also have constitutional safeguards to prevent misuse.

🚨 National Emergencies Declared So Far in India

India has declared a National Emergency three times in history:

1962 – First Emergency (due to Chinese aggression in NEFA, now Arunachal Pradesh)
- Reason: External Aggression (China)
- Duration: October 1962 – January 1968 (longest Emergency)
- Note: The Emergency continued even during the 1965 Indo-Pak war without needing a fresh proclamation.
1971 – Second Emergency (due to Indo-Pak war during the creation of Bangladesh)
- Reason: External Aggression (Pakistan)
- Declared: December 1971
- Note: This Emergency overlapped with the next one (1975).
1975 – Third Emergency (due to "internal disturbance")
- Reason: Internal Disturbance (political unrest, protests, and opposition movements)
- Declared: June 1975 by Prime Minister Indira Gandhi
- Revoked: March 1977
- Impact: Most controversial Emergency in Indian history, leading to the loss of democracy, press censorship, arbitrary arrests, and widespread criticism.

⚖️ Aftermath of the 1975 Emergency

1977 General Elections:
The Congress Party, led by Indira Gandhi, lost power for the first time after independence. The Janata Party came to power.
Shah Commission Inquiry:
The new government set up the Shah Commission to investigate the misuse of Emergency powers. The commission concluded that the declaration of Emergency in 1975 was not justified.
44th Amendment Act, 1978:
To prevent future misuse of Emergency powers, the 44th Amendment was passed, introducing strong safeguards:
- Stricter rules for declaring an Emergency.
- Articles 20 & 21 (protection against conviction & right to life) cannot be suspended even during an Emergency.
- Stronger parliamentary oversight for Emergency declarations.

🗒️ Summary

Article 358 deals with the automatic suspension of Article 19 rights during an External Emergency.
Article 359 allows the President to suspend the enforcement of other Fundamental Rights through a special order.
The 1975 Emergency exposed the potential for misuse, leading to constitutional reforms to safeguard democracy.

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