NATIONAL EMERGENCY IN INDIA: ARTICLE 352 UNDER THE CONSTITUTION

By- Aaditya Sinha

Introduction

There is a high probability that the youth of this country may not be interested in politics or any political topic. However, even if one is interested in politics or not, there is a high chance that he/she has heard the word “Emergency”. This, author thinks should be termed as a “National Political and Unity word”.

The reason is because this is probably a common word used by both “Ruling party” and “Opposition” now. If one has a little bit of interest and idea in politics, he/she should be well aware of the fact, that one of the most common criticisms towards this government is that they are trying to stop those people or organizations who are criticizing the government.

Whenever the government faces accusations like these, they have a shield which is a word (No points, for guessing its EMERGENCY). They use this as a shield because in India, till date, three times “National Emergency” has been imposed and all three times the ruling party then is the opposition party now.

The opposition now, however always replies back with a counter which again is this word “Emergency” and they say “Today there is undeclared Emergency”. This is the reason why the author feels this “Emergency” is the word that unites them.

In India, there can be mainly three types of “Emergencies”, one is “National Emergency” [Defined in Article 352 of Indian Constitution], State Emergency [Article 356 of Indian Constitution], and Financial Emergency [Article 360 of Indian Constitution]. In this article, we are going to discuss the National Emergency [Article 352 of the Indian Constitution].

Grounds of National Emergency: Present

In Article 352 of the Indian Constitution, “Proclamation of emergency” is defined.  The law says that the President of India can proclaim “National Emergency” on three grounds, which are War, External Aggression, and Arm Rebellion. 

War and External Aggression:  These two terms which look similar, are actually quite opposite in their meaning. For example, let’s assume there are two countries “X” and “Y”, and if both of them have decided and given a “Formal Declaration” that they are going to use “Armed forces” against each other, then it is called as “WAR” and suppose if say country X attacks on country Y without any formal declaration then it can be said as that Country Y has been attacked by the External Aggression of Country Y.

It should be noted that if the emergency has been given by “War and external Aggression” then it is known as “External Emergency” and if it is proclaimed by “Armed rebellion” then it is known as Internal Emergency.

Procedure to proclaim National Emergency

The procedure starts from the cabinet which constitutes Council Minister and Prime Minister. If the Prime minster on the advice and aid from Council Ministers feel that “National Emergency” should be proclaimed then they send a “Written advice” to the president, if the president is satisfied by the “written advice” then he can proclaim or declare the “National Emergency”. 

However, it should be noted, that the president can proclaim a national emergency but if that emergency is going to be continued or not is decided in Parliament. Here, parliament means [Lok Sabha +Rajya Sabha]. This is decided by “Special Majority.

Now, a special majority is calculated as “50% of the total strength of both Lok Sabha and Rajya Sabha + 2/3rd of the people present in both Lok Sabha and Rajya Sabha. [This type of special majority is mentioned in article 368 of Indian constitution]

If both the houses of Parliaments approve the decision, then National Emergency will be valid for “six” months.  This duration of six months is important because it gives room to the president to revoke the emergency if he feels that the emergency should be revoked.

For example, suppose in the month of March the president has decided to proclaim an emergency then, in the month of September [completion of six months], the validity of that emergency will be over. Now, if the president wants to proclaim the emergency again then the whole procedure will have to follow once again.

History of National Emergency and the need of 44TH Amendment

I suppose and hope that you must be wondering that to proclaim emergency is actually a big deal, but this was actually the motive of the 44th Amendment of the Constitution. Now, before we understand the amendment, we have to understand the history, and why is that history is still a very relevant topic in any election which happens in our country.

As the author mentioned above, National Emergency has been proclaimed three times in our Country, however, the first two times the reasons were War and external Aggression. However, the third and till today, the last National Emergency was proclaimed on 25th June and it happened because of “Internal Disturbance”, this might be a new term for you guys, but you should understand that whatever the rules were there in that time have now changed and we are trying to understand the reason behind that change or more technically “Amendment”.

So, on 25th June 1975, President proclaimed an emergency on the grounds of “Internal Disturbance”. There is a background story behind this, and the story can itself be a topic, but here we are going to talk about the background in the minimum possible way.

So, in June 1975 Allahabad High Court had said that the then Prime Minister of India is liable for corrupt practices and she is disqualified to hold a position in a public office for the next six-years. The opposition then mostly led by “Loknayak Jayprakash Narayan” and “George Fernandez” wanted a resignation from the prime minister, but the government of that time went on to a full “Totalitarian mode”.

The Prime minister without having a formal meeting with the Council of the minister with the help of the president proclaimed “National Emergency” on the night of 25th June, and most of the opposition leaders were in jail, all fundamental rights were scrapped, press censorship was all over India.

There was no judicial review for the president’s decision to proclaim National Emergency [38th Amendment]. This emergency was revoked on 23rd march 1977. In 1978 when the new government was formed, 44th amendment came and its main focus was to make the laws regarding the proclamation of National emergency more difficult and its revocation easier. One of the major changes in the 44th Amendment were are as follows:

In Minerva Mill case, the court said that the President’s decision on the grounds to proclaim “National Emergency” is final and conclusive and it is not entertained to “Judicial Review”. However, this was changed in the 44th Amendment.

The term “Internal Disturbance” was changed to “Arm rebellion”. The voting in the parliament needed was earlier “Simple Majority” but in 44th Amendment it changed to “Special Majority”. The reason to have a special majority was again to ensure that the procedure of emergency should not be simpler, and it should be more democratic in nature so that in the future no government who wants to make the government totalitarian in nature should not happen.

Another major change in the 44th amendment was that Article 19 (Freedom of speech and expression) should be revoked only if a National emergency is proclaimed on the grounds of “War” and “External Aggression” and not “Armed rebellion”. 

This is mentioned in article 358 of the Indian Constitution. Also, it should be noted that in any case, Article 20 and 21 of the Indian constitution shall not be revoked.  Also, article 19 immediately suspends if a national emergency is proclaimed except if the ground is of Armed Rebellion”, rest all Fundamental rights are dependent on the president, and Article 20 and 21 cannot be revoked. 

Apart, from all these amendments there was another landmark case, which we can talk about in detail in another blog, is of “Kesavananda Bharti V. State of Kerala” in which the court said that Parliament could amend anything in the constitution without actually changing the “Basic structure of the constitution”.

Conclusion

Today, we are living in a polarized world, thanks to social media where people are fighting with each other, on issues like India is becoming an “Authoritarian state”, a state where we are following fascism.

The author does not have any objection with opinions, neither has any problem towards criticism of the government. He also believes that there are many political leaders who spread hate through their speeches, however, our motive should be to bridge the gap between the ideologies, and probably the best example one can give to a person who feels that one day our country will become a Fascist country, is the full episode of “National Emergency”, where the ruling party tried their best to make their rules, failed to do so, because of the structure of our Constitution. So, whoever may be in the power, whatever they can amend in our constitution, but make a note they cannot change the basic structure of the Constitution”