Introduction 

There are three types of Emergencies under the Constitution of India, 1950 (COI): 

• National Emergency (Article 352) 
• State Emergency (Article 356) 
• Financial Emergency (Article 360) 

Article 352 of COI 

• Article 352 (1) of COI provides the grounds for proclamation of national emergency. It provides that proclamation of national emergency can be done where the President is satisfied that the security of India or any part of territory of India is affected by: 
  • War 
  • External Aggression  
  • Armed Rebellion 
    • The declaration can be with respect to whole India or any part of territory of India. 
    • Explanation to Clause 1 provides that the declaration of national emergency can also be in those cases where the President is satisfied that there is imminent danger of war, external aggression, armed rebellion.   
• Article 352 (2) of COI provides that the Proclamation under clause (1) may be varied or revoked by a subsequent Proclamation. 
•  Article 352 (3) of COI provides that the President shall not issue proclamation unless decision of the Union Cabinet has been communicated to him in writing.  
• Article 352 (4) of COI provides that proclamation under this article shall be laid before each House of the Parliament and shall cease to operate at the expiration of one month unless before this period it has been approved by resolutions of both the Houses.     
• Section 352 (5) of COI provides that the proclamation so approved shall cease to operate at the expiration of six months from the date of the passing of the second resolution. 
  • The proviso provides that if the resolution approving the continuance of proclamation is passed by both the Houses of Parliament it shall continue to be in force for the further period of six months from the date it would have otherwise ceased to operate.   
• For the purposes of Clause (4) and (5) a resolution may be passed by either House of Parliament by a majority of total membership of the House and by a Majority of not less than two-third of the members present and voting.  
• Section 352 (7) of COI provides that notwithstanding anything contained in the foregoing clauses, the President shall revoke the proclamation under clause (1) if the Lok Sabha passes a resolution disapproving the continuance of the Proclamation.  
• Section 352 (8) of COI provides that when a notice in writing signed by not less than one tenth of the members of Lok Sabha has been given of their intention to move a resolution for disapproving the proclamation: 
  • To the Speaker, if the House is in session 
  • To the President, if the House is not in session 
    • A special sitting of the House shall be held within 14 days for the purpose of considering such resolution.   
• Section 352 (9) of COI provides that 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 the above grounds.  

Effect of 44^th Constitutional Amendment on Article 352 of the COI 

• The 44^th Constitutional Amendment brought the following changes to Article 352: 
  • The word ‘internal disturbance’ was replaced by ‘armed rebellion’. 
  • A proclamation of emergency will not be issued unless the recommendation of Council of Ministers is not communicated to him in writing. 
  • The Proclamation of emergency must be approved within one month instead of two months. 
  • The proclamation of emergency shall cease after six months and shall continue after six months only if proclamation regarding the continuance is approved by both the Houses. 
  • The proclamation of emergency can be revoked by a special sitting of Lok Sabha which shall be called at 14 days’ notice by one-tenth of the members of the House. 
  • The enforcement of fundamental rights under Article 20 and Article 21 of COI cannot be suspended at all. 
  • Article 19 remains unaffected if the ground of proclamation of emergency is only armed rebellion and not war or external aggression.  

Consequences of Proclamation of Emergency 

• Article 353 of COI provides for what would be the effect of the proclamation of emergency: 
  • The executive power of the Union shall extend to the State as well. 
  • The power of Parliament to make laws extends to making laws with respect to States as well. 
  • The proviso provides that where proclamation of emergency is in operation only in any part of territory of India 
    • The executive power of Union to give directions  
    • The power of Parliament to make laws as above  
    • Shall extend to any other State as well where the proclamation of emergency is in operation. 
• Article 354 of COI provides that the President may, while a Proclamation of Emergency is in operation, by order direct that all or any of the provisions of articles 268 to 279 shall for such period, not extending in any case beyond the expiration of the financial year in which such Proclamation ceases to operate, as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit.   
• Article 358 of COI provides suspension of provisions of Article 19 of COI during emergencies: 
  • While 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 is in operation 
  • nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take 
  • but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect: 
• Article 359 of COI provides for suspension of enforcement of rights conferred by Part III during emergencies: 
  • Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of 
  • the rights conferred by Part III (except Articles 20 and 21) as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended 
  • for the period during which the Proclamation is in force or for such shorter period as may be specified in the order. 
  • Clause 3 of Article 359 provides that every such order shall be laid before each House of Parliament.

Case Laws Related to Proclamation of Emergency 

• Minerva Mills v. Union of India (1980): 
  • This is the landmark judgment in which the Court evolved the doctrine of basic structure. 
  • The issue before the Court was regarding the constitutionality of Clause 4 and Clause 5 of 42nd Constitutional Amendment Act, 1976 enacted during the Emergency. 
  • The Supreme Court held that the proclamation of national emergency can be challenged in a Court on the grounds of malafide or when it is based on grounds that are extraneous or irrelevant facts.
• ADM Jabalpur v. Shivakant Shukla (1976): 
  • This case is also known as the Habeas Corpus case. 
  • During proclamation of emergency on 27th June 1975 the President by Article 359 (1) of COI declared that the right of any person including a foreigner to move any Court for the enforcement of the rights conferred by Article 14, Article 21 and Article 22 of the Constitution will remain suspended for the period during which the Proclamations of emergency is in force. 
  • The main question before the 5-judge bench of Supreme Court was whether the order issued by the President suspends the right of every person to move to the Court for enforcement of right to personal liberty under Article 21. 
  • The majority of 4 judges (Chief Justice Ray, Justice M.H Beg, Justice P.N. Bhagwati and Justice Y.V. Chandrachud) held that with the proclamation of emergency, and the subsequent suspension of enforcement of Art. 21, no writ lies in court against detention of a person. 
  • The majority held that no person has any locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus, or any other writ or order or direction, to challenge the legality of an order of detention in view of Presidential Order dated 27th June 1975. 
  • The minority opinion of Justice H.R Khanna has been one of the most important opinions that finds a special place in the judicial history of India. 
  • Justice Khanna held that “ the right to not be deprived of one’s life or liberty, without the authority of law, was not the creation of the Constitution. Such rights existed before the Constitution came into force. And even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law.” 
  • It is to be noted that the Constitution was later amended by the 44th Amendment which provided that during proclamation of emergency rights under Article 20 and Article 21 cannot be suspended.
• K.S. Puttaswamy v. Union of India (2017): 
  • Over the years the majority judgment under the Constitution has been criticized a lot and there have been several voices against it from several quarters. 
  • Finally, in 2017 in the case of K.S. Puttaswamy v. UOI the Decision of ADM Jabalpur was overruled. 
  • Justice D.Y. Chandrachud (writing with 3 other judges) held that the case of ADM Jabalpur was flawed.

Conclusion 

The Constituent Assembly took the provisions of Emergency from the Germany’s Weimar Constitution. The proclamation of Emergency has happened thrice in India: 

• Firstly, in 1962 during Indo- China War. 
• Secondly, in 1971 during Indo- Pak War. 
• Thirdly, during 1975-1977 on the grounds of internal disturbance.