The provisions relating to national emergency under the Indian Constitution

The President shall not issue a proclamation under clause (1) or a proclamation varying such proclamation unless the decision of the Union Cabinet has been communicated to him in writing. It means that the emergency can be declared only on the concurrence of the Cabinet and not merely on the advice of the Prime Minister as was done by the then Prime Minister, Mrs. Indira Gandhi in June, 1975.

The proclamation of Emergency is to be laid before each House of the Parliament. It ceases to operate at the expiry of two months unless in the mean time it has been approved by resolutions of both Houses of Parliament.

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If at the time of the issue of the proclamation or thereafter, the Lok Sabha is dissolved without approving the proclamation, and the Rajya Sabha approves it, then the proclamation ceases to operate only 30 days after the Lok Sabha sits again after fresh elections, unless in the meanwhile the new Lok Sabha passes a resolution approving the proclamation.

A resolution approving the proclamation must be passed by special majority that is by a majority of the total members of each House. Prior to the Constitution (44th Amendment) Act, 1978, such resolution could be passed by Parliament by a simple majority.

A proclamation of emergency once approved by Parliament shall remain in force for a period of six months from the date of passing of the second resolution approving it under clause (4) of Article 352, unless revoked earlier.

For the further continuance of the emergency beyond the period of six months, approval by Parliament would be required every six months. If the dissolution of the Lok Sabha takes place during the period of six months without approving the further continuance of emergency, but it has been approved by the Rajya Sabha, the proclamation shall cease to operate at the expiry of 30 days after the Lok Sabha sits after fresh election unless before the expiry of the above period, it is approved by the Lok Sabha. Here also the resolution is required to be passed by the special majority referred to as above.

According to clause (7) of Article 352, the President shall revoke a proclamation issued under clause (1) or a proclamation varying such proclamation if the Lok Sabha passes a resolution disapproving, or as the case may be, the continuance in force of, such proclamation.

Clause (8) of Article 352 provides that where a notice in writing signed by not less than 1/10 of the total number of members of the Lok Sabha, have been given their intention to move a resolution for disapproving the discontinuance of a proclamation of emergency :

(a) To the speaker, if the House is in session, or

(b) To the President, if the House is not in session, a special sitting of the Lok Sabha shall be held within 14 days from the date on which such a notice is received by the Speaker or the President for the purpose of considering the resolution. In such a case, the session must be convened for considering the resolution.

Clause (9) of Article 352 provides that the power conferred shall include the power on the President to issue different proclamations on different grounds, being war or external aggression or firmed rebellion or imminent danger thereof, whether or not, there is a proclamation already issued by the President under clause (1) and such proclamation is in operation.

The “satisfaction” of the President about the threatened security of India for making a proclamation of emergency is “the subjective satisfaction” of the President and it cannot be challenged in any court of law.

The President is the sole judge to decide whether the circumstances existed to justify the proclamation of emergency. But the word “satisfaction” does not mean the personal satisfaction of the President; rather it is the satisfaction of the Union Cabinet. The new clause (3) of Article 352 added by the Constitution (44th Amendment) Act, 1978, makes it clear that President shall declare emergency on the written advice of the Cabinet.

Article 352 enables the President to make a proclamation of emergency either “in respect of whole of India or of such part of the territory as may be specified”. These words were added by the Constitution (42nd Amendment) Act, 1976, which now enables the President to confine the declaration of emergency to any part of the territory of India.

Prior to Constitution (44th Amendment) Act, 1978, a proclamation of emergency could remain in force in the first instance for two months. But once approved by Parliament, emergency could remain in force indefinitely.

But the Constitution (44th Amendment) Act, has curtailed the power of the executive to prolong the operation of emergency unnecessarily. Now for the continuance of emergency beyond six months, the approval of Parliament would be necessary after every six months. Thus, after the above Amendment, the continuance of emergency does not depend upon the discretion of the executive. It can now be done only with the approval of Parliament and that too by a special majority of the House.