National Emergency: Provisions, Impacts & Its Revocation

Table of contents

Context (IE): On June 25, India marked fifty years since the imposition of the Emergency.
During 21-month period from 1975 to 1977, civil liberties were suspended, press freedom was curtailed, mass arrests were conducted, elections were cancelled, and rule by decree was enforced.

About National Emergency

An emergency is a state of affairs that departs from normalcy and necessitates prompt corrective actions.
The Constitution of India outlines three categories of emergencies:
- National Emergency (Article 352)
- President’s rule or State Emergency (Article 356)
- Financial Emergency (Article 360)
These provisions are less extreme than martial law but have faced criticism for overreach, as seen during the 1975-77 Emergency.

Under Article 352, when war, external aggression, or armed rebellion threatens the security of India or a part of it, the President can declare a national emergency.
The President may declare a national emergency, even before the occurrence of the actual threat, if he is satisfied that the safety of India or a part of it is threatened.

External Emergency: Due to war or external aggression, it is an external emergency.
Internal Emergency: Due to armed rebellion, it is an internal emergency.

Proclamation made under Article 352 for the imposition of a national emergency should be laid before each House of Parliament and must be approved by them with a special majority.
Approval:
- Within one month after the date of the proclamation of national Emergency, it must be ratified by both houses of Parliament.
- If the Lok Sabha is not in session or has been dissolved before the expiry of one month after promulgation, the proclamation must be approved within 30 days from the first sitting of the newly constituted Lok Sabha, provided that the Rajya Sabha approves it in the meanwhile.

Special majority required for approval of emergency: 50% of the total membership of the House, and a majority of not less than 2/3rd of the members of that House present and voting.

Duration:
- Normally, the Emergency will be in effect six months after approval.
- However, such a proclamation may be extended indefinitely, with each extension receiving parliamentary approval by a special majority every six months.

Executive: Centre’s executive authority extends to advising any state to exercise its executive authority.
Legislative: The Parliament can enact laws on any item in the state list.
Financial: The President is empowered to modify the provisions regarding the distribution of revenues between the Union and the States.
Lok Sabha: For up to one year at a time, while a declaration of National Emergency is in effect, the Lok Sabha’s life may be prolonged beyond its regular term.
- This extension, however, is only valid for a maximum of six months after the Emergency has ended.
State Assembly: Parliament may repeatedly extend the normal term of a state Legislative Assembly by one year, up to a maximum of six months after the situation has ended.

Article 358:
- Suspension of fundamental rights under Article 19.
- The six fundamental rights under Article 19 are immediately suspended when a proclamation of national Emergency is made under Article 358 on the grounds of war and external aggression.
Article 359:
- Suspension of other fundamental rights.
- President is authorised to suspend the right to petition in any court to enforce fundamental rights.
- However, the right to judicial remedy for enforcing Articles 20 and 21 cannot be suspended.
- The suspension of enforcement relates to only those fundamental rights per the presidential order.

Articles 352(2) and 352(7) provide for the revocation of the proclamation of Emergency.
The President may revoke an emergency proclamation by making a subsequent proclamation without parliamentary approval.
The proclamation ceases to operate on the expiry of 6 months unless the continuance of the proclamation for a further period of 6 months has been approved by both houses of the Parliament.

Indo-China war, 1962
- The first Emergency was declared in October 1962, when the Indo-China war broke out. Although a ceasefire was declared a month later, the Emergency was not revoked.
Bangladesh Liberation War (Indo-Pak War), 1971
- The second Emergency was imposed in December 1971, when the Bangladesh Liberation War broke out, and India was a significant player in it.
Internal Emergency, 1975
- Unlike the first two, the third Emergency was an internal Emergency, and it was imposed on the ground of internal disturbances.

After 1978, Crucial Role For Parliament: A National Emergency can only last for six months and requires continuous approval by Parliament.
Judicial Review: The courts can review emergency declarations, ensuring they align with constitutional provisions.
Some fundamental rights, like the Right to Life (Article 21) and Right to Equality (Article 14), remain protected even during an emergency.
The Army does not assume control over governance or law enforcement.

The 1977 elections saw four major opposition parties merge into the Janata Party, forming a united front against Congress and resulting in India’s first non-Congress government.

It reversed many constitutional changes enacted by the 42^nd Amendment Act 1976.
The amendment restricted the President’s power to proclaim a National Emergency under Article 352, requiring written advice from the Cabinet and parliamentary approval within a month.
It limited the duration of emergency to 6 months unless approved by a special majority in Parliament.
It restored judicial review of emergency proclamations.
It limited grounds for an emergency to armed rebellion, war, and external aggression.
It limited the period of the President’s Rule (Article 356) in states to one year, extendable by six months with parliamentary approval.

It was established by the Janata government to investigate the emergency’s imposition and its effects.
The commission’s report was highly critical, finding the decision to be unilateral and leading to a violation of civil liberties during the emergency period.