NATIONAL EMERGENCY
- A national emergency occurs during a war, external aggression, or armed rebellion. (Note: The 44th Amendment Act of 1978 replaced the term "internal disturbance" with "armed rebellion" due to the ambiguity of the term).
- National Emergency is also categorized into two parts. One of them is declaring an emergency based on war or external aggression, referred to as an external emergency. Other armed rebellions occur on the ground of armed rebellion, often known as an internal emergency.
- The term "national emergency" can apply to the entire nation or just a specific region (Limiting the operation to any part of the country is enabled by the 42nd Amendment Act 1976).
- The President may declare a national emergency only after receiving a written recommendation from the Cabinet.
Declaration of National Emergency
- In accordance with Article 352, the President may declare a national emergency when war, an external assault, or an armed revolt threatens India's security in whole or in part.
- President may proclaim a national emergency even before a war, external aggression, or armed rebellion occurs if he believes an impending threat exists. This requirement was imposed in 1975 by the 38th Amendment Act.
- When a national emergency is declared as a result of "war" or "an external attack," this situation is known as an "external emergency."
- When it is declared due to "armed revolt," it is referred to as an "internal emergency."
- A national emergency could be declared for the entire nation or only a segment. The 42nd Amendment Act of 1976 allows the President to limit the scope of a National Emergency to a certain region of the nation.
- The phrase "internal disturbance" was initially listed in the Constitution as the third reason to declare a national emergency, but it was too vague and had a larger meaning. As a result, "armed rebellion" was substituted for "internal disturbance" in the 44th Amendment Act of 1978.
- The President can only declare a national emergency with the Cabinet's written approval (added by the 44th Constitutional Amendment Act of 1978). Hence, the Emergency will only be proclaimed with the Cabinet's approval and not only on the Prime Minister's advice.
- According to the Supreme Court's ruling in the Minerva Mills case from 1980, A national emergency proclamation may be challenged in court on the grounds of wrongdoing, being based on totally irrelevant and extraneous facts, or being illogical or perverse.
Parliamentary Approval and Duration
- The Emergency proclamation must get approval from both Houses of Parliament within one month of its issue.
- The emergency proclamation is valid for 30 days from the first Lok Sabha meeting following its reconstitution if it is proposed during the dissolution of the Lok Sabha (LS) or if the dissolution lasts for more than one month without the proclamation being approved. This is assuming the Rajya Sabha (RS) has approved it in the interim.
- If both Houses of Parliament approve it, the Emergency lasts for six months, although it may be extended forever with the permission of the Parliament every six months.
- This clause regarding recurring parliamentary approval was first added by the 44th Amendment Act of 1978.
- A special majority of votes in either House of Parliament, defined as a majority of the total membership plus not less than two-thirds of the members present and voting, is required to approve the declaration of an emergency or its renewal.
- The extraordinary majority clause was added by the 44th Amendment Act of 1978.
Revocation of Proclamation
- The President should revoke a proclamation if the Lok Sabha adopts a motion with a simple majority opposing its continuation.
- This safety measure was added by the 44th Amendment Act of 1978. Before the change, the Lok Sabha had no authority against the President's unilateral withdrawal of a proclamation.
- The 44th Amendment Act of 1978 further stated that the Speaker must call a special session if written notification is received from 1/10th of the Lok Sabha's entire membership (or to the President if the House is not in session)
- The Lok sabha shall hold a special session within fourteen (14) days to consider a resolution opposing the continuation of the proclamation.
Effects of National Emergency
- While the Emergency is in effect, the fundamental structure of relationships between the Center and the States is changed, and the federal system is transformed into a unitary one.
- While the Emergency is in effect, the fundamental structure of relationships between the Center and the States is changed, and the federal system is transformed into a unitary one.
- The Centre gained power during a national emergency and can advise any state on executing its executive powers.
- The Parliament gains extra power to pass laws on any topic on the State List during a national emergency. The legislation passed under these conditions expires six months after the Emergency has ended.
- The President has the power to reduce or stop giving money to the states from the central government in the case of a national emergency. These alterations will persist until the fiscal year's conclusion when the National Emergency will be lifted.
- When a national emergency has been declared and is in existence, the President may also enact ordinances on State List items if the Parliament is not in session.
- The Lok Sabha's tenure can be prolonged during a National Emergency by parliamentary legislation for periods of up to one year at a time (for any duration), with a maximum extension of six months after the Emergency has ended.
- Similarly, during a national emergency, the Parliament may extend the tenure of a legislative assembly beyond its standard (five-year) duration by up to one year at a time (for any period of time), with a maximum extension of six months after the Emergency has ended.
- The effects of the National Emergency on various Fundamental Rights are described in detail in Articles 358 and 359.
- Article 358 mandates the suspension of the fundamental rights outlined in Article 19. Article 359 permits the suspension of other fundamental rights.
Safeguard against misuse (44th amendment act 1978)
- The internal disturbance was replaced by armed rebellion.
- Special majority for ratification of Emergency
- Written advice by Cabinet instead of by only the PM.
- Lok sabha can initiate action for premature termination.
- Repeated approval after every six months, unlike one year earlier.
- Control of Lok sabha in case of revocation of Emergency. Earlier, the President could revoke the proclamation on his own, and the lok sabha had no control in this regard.
Criticism of emergency provision
- Destroy federal feature:
- Executive rule
- Dictator
- Affect financial authority
- Curb freedom
Way forward
- Not for political gain: The nation's security and stability are considered when providing the Emergency. Nonetheless, they must not be employed for political purposes or to undermine the country's democratic system.
Only in a real crisis: provision must be used only in real crises.
