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National Emergency

Elaborating National Emergency: role of President, Grounds for Adoption, Effect on polity, Repealing Procedure and its difference from state emergency.

In India, a state of emergency is a period of government that can be declared by the President of India in particular emergency situations. Many articles of the Constitution, which provide Fundamental Rights to Indian people, can be overruled by the President on the advice of his cabinet of ministers. A national emergency could be declared for the entire country or only a portion of it. The 42nd Amendment Act of 1976 allows the President to limit the scope of a National Emergency to a specific geographic area. Part XVIII of the Indian Constitution, from Article 352 to 360, contains the emergency provision

Declaration of National emergency

  • When the security of India or a part of it is threatened by war, external attack, or armed insurrection, the President can declare a national emergency under Article 352
  • President can declare a national emergency even before a war, external attack, or armed revolt occurs, if he believes there is an impending threat. The 38th Amendment Act of 1975 added this criterion
  • The term ‘External Emergency’ refers to when a national emergency is declared due to ‘war’ or ‘external attack’
  • It is described as an ‘Internal Emergency’ when it is declared on the grounds of ‘armed rebellion’
  • A declaration of national emergency could include the entire country or only a portion of it. The President can use the 42nd Amendment Act of 1976 to confine the scope of a National Emergency to a certain area of the country
  • The Constitution originally listed “internal disturbance” as the third cause for declaring a national emergency, but the phrase was too imprecise and had a broader connotation. As a result, the 44th Amendment Act of 1978 introduced the expression “armed rebellion” in place of “internal disturbance”
  • Only after obtaining a written recommendation from the Cabinet, the President can declare a national emergency (added by 44th Constitutional Amendment Act of 1978). This means that the emergency will only be declared with the cabinet’s approval, not just on the Prime Minister’s recommendation
  • In the Minerva Mills case (1980), the Supreme Court declared that a national emergency proclamation might be challenged in court on the basis of malfeasance, or that it is based on entirely irrelevant and extraneous facts, or that it is absurd or perverse

Parliamentary Approval and Duration

  • Within one month after its issuance, the proclamation of emergency must be approved by both Houses of Parliament
  • If an emergency proclamation is proposed while the Lok Sabha (LS) is dissolved or the Lok Sabha is dissolved for more than one month without the proclamation being approved, the proclamation is valid for 30 days from the first sitting of the Lok Sabha after its reconstitution, assuming the Rajya Sabha (RS) has approved it in the interim
  • The emergency lasts for six months if granted by each House of Parliament, and it can be prolonged indefinitely with the permission of the Parliament every six months
  • The 44th Amendment Act of 1978 introduced this provision relating to periodic legislative approval
  • Each resolution approving the proclamation of emergency or its continuation should be passed by a special majority of votes in either House of Parliament, i.e., a majority of the entire membership of that house plus not less than two-thirds of the members present and voting
  • The 44th Amendment Act of 1978 added this extraordinary majority clause

Revocation of Proclamation

  • If the Lok Sabha votes a resolution with a simple majority opposing the continuation of a proclamation, the President should rescind it
  • The 44th Amendment Act of 1978 introduced this protection provision. Prior to the modification, the President could unilaterally withdraw a proclamation, and the Lok Sabha had no say in the matter
  • The 44th Amendment Act of 1978 further stipulated that if 1/10th of the Lok Sabha’s total membership sends a written notification to the Speaker, the Speaker will convene a special session (or to the President if the House is not in session)
  • Within 14 days, the House of Representatives must convene a special session to examine a resolution opposing the proclamation’s continuation

Effects of National Emergency

  • The general fabric of Centre-State relations is altered, and the federal system is turned into a unitary one, while the Emergency is in place.
  • During this time, the National Emergency Centre grows in strength, and its executive authority extends to directing any state concerned about how its executive power should be exercised. The state governments, on the other hand, are not being held hostage in this process
  • During a national emergency, the Parliament gains more authority to enact legislation on any issue listed on the State List. The laws enacted in such circumstances become ineffective six months after the emergency has ended
  • In the event of a national emergency, the President has the authority to decrease or eliminate the distribution of funds from the federal government to the states. Such changes will continue until the end of the fiscal year, when the National Emergency will be lifted
  • In the event of a national emergency, the President has the authority to decrease or eliminate the distribution of funds from the federal government to the states. Such changes will continue until the end of the fiscal year, when the National Emergency will be lifted
  • If the Parliament is not in session when a proclamation of national emergency is in effect, the President may enact ordinances on State List items as well
  • When a declaration of National Emergency is in effect, the Lok Sabha’s term can be extended for one year at a time (for any length of time) by the legislation of Parliament, up to a maximum of six months after the Emergency has ended
  • Similarly, during a national emergency, the Parliament may extend a legislative assembly of the state’s usual term (five years) by one year at a time (for any length of time), up to a maximum of six months after the emergency has ended
  • Articles 358 and 359 detail the impact of the National Emergency on several Fundamental Rights
  • The suspension of the Fundamental Rights stated in Article 19 is called for in Article 358
  • Other Fundamental Rights can be suspended under Article 359

Conclusion

When the security of India or a part of it is threatened by war, external attack, or armed insurrection, the President can declare a national emergency under Article 352.Only after obtaining a written recommendation from the Cabinet, the President can declare a national emergency. Within one month after its issuance, the proclamation of emergency must be approved by both Houses of Parliament. The emergency lasts for six months if granted by each House of Parliament, and it can be prolonged indefinitely with the permission of the Parliament every six months. If the Lok Sabha votes a resolution with a simple majority opposing the continuation of a proclamation, the President should rescind it.