Article 352 of Indian constitution deals with the emergency provision mentioned in part XVIII (Art.352 – Art. 360). The Emergency Provisions are taken from the Weimar constitution of Germany. According to this President has the power to declare three types of emergencies: National emergency (Art.352), Emergency in state (Art.356), Financial Emergency (Art.360).
Under Article 352 if the President is satisfied or
feels there is a grave emergency exists, whereby the security of the nation or
any territory part of the country is threatened on the grounds of – external
aggression, war or armed rebellion (before the amendment the term used instead
of “armed rebellion”, was “internal disturbance”), then it was dealt as one of
the valid ground for declaring the emergency.
As per this article, the President has the power to declare the emergency all over the territory of India or any part. The president can declare such emergency on the written advice of the cabinet (includes Prime Minister along with Council of Ministers). The President can proclaim the emergency by the special majority approval. It includes two conditions for the special majority:
- Majority of both the houses should approve the resolution.
- And 2/3rd members should be present and vote.
This resolution
will be valid till six months, and if any of the houses have not taken any
actions for the emergency then it will be applicable for 1 month.
The Emergency Provisions can be revoked either by the
president or by the Lok Sabha. The President can revoke if he/she feels that
the conditions of grave emergency doesn’t exist anymore. And the Lok Sabha has
the power to disapprove the operation of Emergency.
The first emergency was introduced on 26th
October 1962 when China attack India. Keeping in mind the security of the
nation, President of India proclaimed first emergency under Art.352 of External
aggression.
Second proclamation was introduced on 3rd December 1971 due to an armed conflict between India and Pakistan. In April 1965, an armed conflict raised between India and Pakistan which leads to war in Sept. 1965. Later on both the countries normalized and signed a declaration known as” Taskent agreement”. When it was found that the situations are under the control, the government revoked first emergency in January 1968.
The parliament has imposed MISA, COFEPOSA and Government Defense of India rule act was adopted for the security of India and for prevention of detention. It was observed that the power of the center was misused and number of arrest, custodial death and encounter were taking place.
Before the revocation of 2nd emergency, the third proclamation was made in the year 1975 by P.M Indra Gandhi.
As per the 38th Amendment Act 1975 the
president has the power to impose national emergency on different grounds even
though the country is already under some emergency.
On June 25, 1975 Prime Minister Indira Gandhi proclaimed a state of nationwide emergency and suspended fundamental rights & division of power. The 42nd amendment known as mini constitution due to its wide changes. The emergency also provided the power to postpone the election by one year. The amendment act was containing the addition of the words socialist and secular to the preamble of the constitution.
The fundamental rights are suspended during
the time of emergency
And during the proclamation the center has the
power to make laws with respect to the matter listed in the state list. Laws
made will be effective till 6 months after the cessation of proclamation.
The president can order the application of any Art 268, Art 279 regarding the exchange of revenue.
Consequences
- The fundamental rights of the constitution mentioned under Art.14, Art.21, and Art.22 were suspended when the emergency was proclaimed.
- Art.14 which deals with the equality before law
- Art.21 it deals with the protection of life and personal liberty.
- Art.22 it deals with the protection against arrest and detention in certain cases.
- Elections were cancelled for one year
The most famous landmark Judgment of Supreme Court of India on this article is ADM JABALPUR V.S SHIVKANT SHUKLA, (1976) AIR 1207, 1976 SCR 172. [To Read the same, Click Here]
About the Author: This Law Notes is prepared by Ms. Bhawna Sharma, law student at Amity Law School, Noida and was an intern at MyLawman. She can be reached at bsharma96031@gmail.com.
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