“NATIONAL EMERGENCY”

Manipal University Jaipur

School of Law

Supervised by- Submitted by-

Dr Ajay Kumar Barnwal Anshul Ranjan Srivastava
(Assistant Professor) 161401020
B.A.LL.B (Hons.)
IV Semester
 CERTIFICATE

This is to certify that Mr. Anshul Ranjan Srivastava, student of B.A. LL.B. (Hons.) semester
IV, School of Law Manipal University Jaipur has completed the project work entitled
“NATIONAL EMERGENCY” under my supervision and guidance.
It is further certified that the candidate has made sincere efforts for the completion of this
project.

________________
Dr Ajay Kumar Barnwal
 ACKNOWLEDGEMENT

I hereby acknowledge the help and support of the teachers, who helped me in compiling this
project. I thank the faculty and management of Manipal University Jaipur, School of Law, as
the resources that were necessary to complete the project were provided by them.
I am highly indebted to my teacher “Dr Ajay Kumar Barnwal” for his guidance and constant
supervision as well as for providing necessary knowledge regarding the subject at hand and
also for his support in completing the project.
I would like to express my gratitude towards my parents and friends for their kind
cooperation and encouragement which help me in completion of this project.

Anshul Ranjan Srivastava

Contents
CERTIFICATE ........................................................................................................................................ 2
ACKNOWLEDGEMENT ......................................................................................................................... 3
INTRODUCTION ................................................................................................................................... 5
44th Constitutional Amendment Act 1978 ......................................................................................... 7
Effects of Proclamation of Emergency Emergency ............................................................................. 8
Relevant Case law ............................................................................................................................. 10
INTRODUCTION

The Constitution of India Provides three types of Emergencies - National Emergency

(Article 352), State Emergency (Article 356), Financial Emergency (Article 360). National
Emergency can be declared due to war external aggression or armed rebellion. State
Emergency can be declared due to the failure of Constitutional Machinery in States and
Financial Emergency can be declared due to the financial stability or credit of India or part of
the territory is threatened.
National emergency can be declared on the basis of external aggression or armed rebellion in
the whole of India or a part of its territory. Such an emergency was declared in India in 1962
(China war), 1971 (Pakistan war), and 1975 (declared by Indira Gandhi). The President can
declare such an emergency only on the basis of a written request by the Cabinet headed by
the Prime Minister. Such a proclamation must be laid before both houses of Parliament, and
the state of emergency expires after one month unless approved within that time by both
houses sitting and voting separately. However, if the Lok Sabha (the lower house) is not in
session when the state of emergency is declared, and the Rajya Sabhaapproves of the state of
emergency, the deadline for the Lok Sabha is extended until thirty days after that house
convenes. According to Article 352(6),[1] approval by each house requires a special majority:
those in favour of the motion must be two thirds of those present and voting, and amount to a
majority of the entire membership of that house. A Parliamentary resolution extends the state
of emergency for up to six months, and it can be extended indefinitely by further resolutions
in six-monthly increments.
During a national emergency, many Fundamental Rights of Indian citizens can be suspended.
The six freedoms under Right to Freedom are automatically suspended. By contrast, the
Right to Life and Personal Liberty cannot be suspended according to the original
Constitution. In January 1977, during the emergency declared controversially by Indira
Gandhi, the government decided to suspend even the Right to Life and Personal Liberty by
dispensing with Habeas corpus. Justice Hans Raj Khanna defended the Right to Life and
asked: "Life is also mentioned in Article 21 and would Government argument extend to it
also?". The Attorney General observed: "Even if life was taken away illegally, courts are
helpless".[2]
A national emergency modifies the federal system of government to a unitary one by granting
Parliament the power to make laws on the 66 subjects of the State List (which contains
subjects on which the state governments can make laws). Also, all state money bills are
referred to the Parliament for its approval.
During an emergency, the term of the Lok Sabha can be successively extended by intervals of
up to one year, but not beyond six months after the state of emergency has been revoked.

Article 352 in The Constitution Of India 1949

352. Proclamation of Emergency

(1) If the President is satisfied that a grave emergency exists whereby the security of India or
of any part of the territory thereof is threatened, whether by war or external aggression or
armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the
whole of India or of such part of the territory thereof as may be specified in the Proclamation
Explanation A Proclamation of Emergency declaring that the security of India or any part of
the territory thereof is threatened by war or by external aggression or by armed rebellion may
be made before the actual occurrence of war or of any such aggression or rebellion, if the
President is satisfied that there is imminent danger thereof
(2) A Proclamation issued under clause (I) may be or revoked by a subsequent proclamation
(3) The President shall not issue a Proclamation under clause (I) or a Proclamation varying
such Proclamation unless the decision of the Union Cabinet (that is to say, the Council
consisting of the Prime Minister and other Ministers of Cabinet rank under Article 75) that
such a Proclamation may be issued has been communicated to him in writing
(4) Every Proclamation issued under this article shall be laid before each House of Parliament
and shall, except where it is a Proclamation revoking a previous Proclamation, cease to
operate at the expiration of one month unless before the expiration of that period it has been
approved by resolutions of both Houses of Parliament Provided that if any such Proclamation
(not being a Proclamation revoking a previous Proclamation) is issued at a time when the
House of the People has been dissolved, or place during the period of one month referred to
in this clause, and if a resolution approving the Proclamation has been passed by the Council
of States, but no resolution with respect to such Proclamation has been passed by the House
of the People before the expiration of that period, 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
(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a
period of six months from the date of the passing of the second of the resolutions approving
the proclamation under clause ( 4 ); Provided that if and so often as a resolution approving
the continuance in force of such a Proclamation is passed by both Houses of Parliament the
Proclamation shall, unless revoked, continue in force for a further period of six months from
the date on which it would otherwise have ceased of operate under this clause Provided
further that if the dissolution of the House of the People takes place during any such period of
six months an a resolution approving the continuance in force of such Proclamation has been
passed by the House of the People during the said period, 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
(6) For the purpose of clause ( 4 ) and ( 5 ), a resolution may be passed by either 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
(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a
Proclamation issued under clause (l) or a Proclamation varying such Proclamation if the
House of the People passes a resolution disapproving, or, as the case may be, disapproving
the continuance in force of, such Proclamation
(8) Where a notice in writing signed by not less than one tenth of the total number of
members of the House of the People has been given of, their intention to move a resolution
for disapproving, or, as the case may be, for disapproving the continuance in force of, a
Proclamation issued under clause (l) or a Proclamation varying such Proclamation,
(a) to the Speaker, if the House is in session; or
(b) to the President, if the House is not in session, a special sitting of the House shall be held
within fourteen days from the date on which such notice is received by the Speaker, or as the
case may be, by the President, for the purpose of considering such resolution
(9) The power conferred on the President by this article shall include the power to issue
different Proclamations on different grounds, being war or external aggression or armed
rebellion or imminent danger of war or external aggression or armed rebellion, whether or not
here is a Proclamation already issued by the President under clause (l) and such Proclamation
is in operation

If the President is satisfied that a grave emergency exists whereby the security of India
or of any part of India is threatened, either by war or external aggression or armed rebellion,
he may make a Proclamation of emergency in respect of the whole of India or any part of
India. as may be specified in the Proclamation.

GROUNDS

The Proclamation of Emergency can be made on Three grounds:

i) War

ii) External aggression;

iii) Armed Rebellion

Prior to the 44th Amendment Act. 1978, one of the grounds on which emergency could
be proclaimed was "internal disturbance". These words "internal disturbance" were vague and
give wide discretion to the executive to declare a emergency even on flimsy grounds. In
1975, the emergency was declared on the ground of internal disturbance by the Prime
Minister Indira Gandhi because the position opposition parties had given a call to launch a
movement with a view to compelling P. M. to resign from her post as her election to the Lok
Sabha was declared void by the Allahabad High Court. The 44th Amendment 1978, has now
substituted the words "armed rebellion" for the words "internal disturbance" which will
exclude the possibility of a situation which arose in 1975.

Constitution 59th Amendment Act,1988 again amended Article352 and allowed the issue
of a proclamation on the ground of 'internal disturbance' only in the State of Punjab. As
Constitution 59th Amendment Act has been repealed by 63rd Amendment Proclamation of
emergency can now be issued on above mentioned three grounds. It can not be issued merely
on the Ground of Internal Disturbance unless it takes shape of armed rebellion.

44th Constitutional Amendment Act 1978

44th amendment has made important changes in Article 358, Article 19 will be
suspended only when a Proclamation of emergency is declared on the ground of war or
external aggression and not when the emergency is declared on the ground of armed
rebellion. It is also provided that the President can make a Proclamation declaring
emergency, only when he receives in writing the decision of the Union Cabinet to this effect.
DURATION

Prior 44th Amendment: Proclamation of emergency could remain in force in the first
instance for two months. But once approved by Parliament emergency could remain in force
indefinitely.. as long as executive wanted to continue.

After 44th Amendment: A proclamation of emergency may remain in force in the first
instance for one month. Such proclamation if approved by Parliament, shall remain in force
for the period of six months unless it revoked earlier.

Effects of Proclamation of Emergency Emergency

The proclamation of emergency results into serious consequences. It adversely affects

the enforcement of Fundamental Rights of the People. The following are the consequences of
the Proclamation of Emergency-

i) Executive

While a Proclamation of Emergency is in operation, the executive power of the Union

extends to giving of directions to any State as to the manner in which the executive power of
the State is to be exercised. The Constitution (Forty-second Amendment) Act 1976 made a
consequential change in Article 353.It provides that the executive power of the Union to give
directions under clause (a), and the power to make laws under clause (b), shall also extend to
any State other than a State in which or in any part of which the Proclamation of Emergency
is in operation, if and in so far as the security of India or any part of the territory thereof is
threatened by activities in or in relation to the part of the territory of India in which the
Proclamation of Emergency is in operation.

In normal time, the executive power does not extend to give such direction subject to
certain exceptions.

ii) Legislative

During the operation of Proclamation of Emergency Parliament shall have the power to
legislate as regard List II(State List) as well. The emergency does not suspend the State
Legislature but suspends the distribution of Legislative powers between the Union and State

iii) Financial: Centre empowered to alter distribution of revenue between the Union and
the State
 The President may, while a Proclamation of Emergency is in operation, by order after
the financial arrangement between State and the Union as provided in Articles 268 to 279
every such order is to be laid before each House of Parliament and will come to an end by the
financial year in which the Proclamation of Emergency ceases to operate.

iv) Extension Life of Lok-Sabha

While a Proclamation of Emergency is in operation Parliament may, by law extend the

normal life of Lok-Sabha (House of people) for a period not exceeding one year at a time and
not extending in any case beyond a period of six months after the Proclamation has ceased to
operate.

v) Suspension of Fundamental Rights guaranteed by Article 19

Article 358 of the Indian Constitution provides for Suspension 6 freedoms guaranteed
by to the citizens by Article 19 of the Indian Constitution.

While a Proclamation of Emergency in operation, nothing in article 19 shall restrict

the power of the State to make any law or to take any executive action abridging or taking
away the rights guaranteed by Article 19 of the Constitution. It means that as soon as the
Proclamation of Emergency is made the freedom guaranteed by Article 19 automatically
suspended. When the Proclamation of Emergency cease to operate Article 19 which remains
suspended during the emergency, automatically comes into life and begins to operate.

Revocation
The President shall revoke a proclamation of emergency. If the Lok-Sabha passes a
resolution by way of a written notice signed by minimum 1/10th members out of its total
strength. This should be submitted to the speaker if the Lok-Sabha is in Session, else to the
President if it is not in session.

History
History of National Emergency in India

i) 1962: 26 October 1962 to 10 January 1968, on the ground of External aggression.

ii) 1965: In 1965 Emergency was proclaimed on the ground of war with Pakistan. But instead
of issuing the fresh proclamation, the Proclamation 1962 was allowed to continue.

iii) 1973: 3 December 1973 Emergency was proclaimed on the ground of external aggression
from Pakistan.

iv) 1975: 25 June 1975 to 21 March 1977 under Indira Gandhi's Prime ministership,
President Proclaimed emergency on the ground of internal disturbance
The emergency declare during the Prime ministership Mrs Indira Gandhi was Highly
controversial.The Prime Minister has misused her power when she asked the President to
make a proclamation of emergency on the ground of internal disturbance.

Relevant Case law

a) Minerva Vs Union of India

Supreme Court held that proclamation of emergency under Article 352 is also subject to
judicial review. Court has the power to see whether it was under the provision of the
constitution or not.