Article 352 of the Indian Constitution

INTRODUCTION TO ARTICLE 352

Indian Constitution practices and preaches federalism but becomes unitary at the time of emergency. An emergency can occur due to reasons like a threat to the security of India, breakdown of constitutional machinery in a state (i.e., State Emergency) and financial emergency. An emergency is a situation that disturbs the normal functioning of the nation and affects the rights of the people, which should be used only in extreme situations and circumstances. An emergency is a time of test which affects the whole nation, its rights, its duties, the power delegated.

The framers of the constitution were of the opinion to give powers to the central government in case of any emergency.  The central government is vested with the power of having control of all administrative and legislative functions during the emergency. Article 352 and 356 of the Indian Constitution deals with the provisions of emergency, which has seen amendments, i.e. the 44^th Constitutional amendment to avoid misuse or abuse of power vested in the central government, after the 1975 situation of emergency declaration by Indira Gandhi.

PROCLAMATION OF EMERGENCY

Article 352 of the Indian Constitution gives the right to the Central government/ president to declare a national emergency if there is a threat to the security of India or any part thereof, any of the following three conditions are present:

1. War
2. External aggression
3. Armed Rebellion[1]

Under Article 352(1), if the President is satisfied that a situation of grave emergency exists to the security for the aforesaid reasons, the President can issue a proclamation with respect to the whole of India or such part of Indian territory as specified.  It is clear that a national state of emergency may not apply to the whole of Indian territory.

According to the explanation provided to Article 352(1), an emergency can be declared before the actual occurrence of war, external aggression, or armed rebellion. There should be a prominent threat and danger, and the president must be satisfied with such a threat. Before 1978, the word ‘internal disturbance’ created a situation of havoc and had an undesirable situation as it has wider connotations, so the 44^th amendment substituted the words.

Facts to remember:

1. Article 352(2): A proclamation issued Article 352(1) can be revoked by a subsequent proclamation.
2. 44^th Amendment introduced A. 352(3) wherein it contained that the President shall declare no proclamation unless the same has been communicated to him in writing by the Union Cabinet.
3. 352(4): Every proclamation before being passed in presented before each house of Parliament, namely the Lok Sabha and Rajya Sabha and needs the assent of both the houses. If within the period of 1 month the proclamation is not assented to, then it ceases to operate. The time period was decreased as an effect of the 44th amendment.

For an emergency to be proclaimed, in both the houses it should be passed with such majority as is required for amending the constitution, i.e. not less than 2/3^rd majority of the member present and voting, in each house.

1. Where 1/10^th of the total members of the Lok Sabha issue a notice, in writing, to the Speaker, while the house is in session and to the President, when the house is not in session, then the meeting of the house shall be called within a period of 14 days from the date of which the notice is received.

As per Article 353(a), The centre becomes entitled to give directions to the state in a manner of exercising executive power. Article 353(b) states the power of parliament to confer powers and impose duties upon the centre or its officers.

CONSEQUENCES

There are various and serious consequences of a proclamation of emergency, which are:

1. During the proclamation, the state-centre relation is stagnated. As the central government/parliament is vested with the power to make laws with respect to matters enumerated in the State list. And the law so made will be effective for a period of 6 months after the cessation of proclamation. This also includes the power of parliament to levy any tax, which falls under the State Category.
2. Centre gets entitled to give direction to the state in respect of exercising its executive power.[2]
3. When the emergency applies not to all the nation, but to a certain territory, the centre has the power to either give directions or make such laws that shall be applicable not only to the territory where an emergency has been proclaimed but to such other areas which are threatened.
4. While the emergency is in operation, the president can order the application of any Article 268- Article 279 for the exchange of revenue between the centre and the State.
5. Fundamental rights’ operation is also affected. They are suspended.

Read Also: Financial Emergency in India

The constitution of India has unique features of the emergency provision. Similar provisions do not exist in the constitution of the U.S.A, Canada, and Australia. In Canada, the centre becomes more powerful than in normal times during the period of war. The USA, Canada, and the Constitution of Australia function very differently then they functioning in the general time. Indian Federalism is aimed to secure the same power yet in a different format. Indian Constitution has the provision of the financial emergency which is not found in any other federal constitution.

INVOCATION

In totality, there are three situations where Article 352 has been invoked.

1^st time: October 26, 1962, when India was in conflict with China and remained in force during the India-Pakistan conflict. The same was revoked in January 1968.

2^nd time: December 1971, India-Pakistan Dispute. The proclamation was issued on the ground of external aggression.

While the 1971 proclamation is continuing, the third time this article was invoked.

3^rd time: June 26, 1975, the ground being ‘internal disturbance’ which threatened the security of India. This proclamation was the most controversial one, which led its way to the 44^th amendment to stop the misuse of power. It affected the fundamental rights of individuals and censorship rights of media, extremely. A large number of people were put to preventive detention. This was the misuse of power to stop such further invocation. The word ‘internal disturbance’ was substituted with the word ‘armed rebellion.’ The word ‘internal disturbance’ has a wider connotation than that of armed rebellion which restricts the meaning.

Read Also: Judicial Powers of President – You Don’t Know

Both the 2^nd and 3^rd proclamation was revoked in 1977, March.

[1] The word prior to amendment was internal disturbance which was substituted.

[2] Article 353(a)