INTRODUCTION

A state of emergency is a governmental declaration that may suspend some normal functions of the
executive, legislative and judicial powers, alert citizens to change their normal behaviors, or order
government agencies to implement emergency preparedness plans. It can also be used as a rationale for
suspending rights and freedoms, even if guaranteed under the constitution. Such declarations usually come
during a time of natural or manmade disaster, during periods of civil unrest, or following a declaration of
war or situation of international or internal armed conflict. Justitium is its equivalent in Roman law.
In some countries, the state of emergency and its effects on human rights and freedoms and governmental
procedure are regulated by the constitution and/or a law that limits the powers that may be invoked. Rights
and freedoms may be suspended during an emergency, for instance, freedom of movement, but not non-
derogable rights.1In many countries it is illegal to modify the emergency law or the constitution during the
emergency.
When the Constitution of India was being drafted, we were passing through a period of stress and strain.
Partition of the country, communal riots, the problem concerning the merger of the princely states including
Kashmir and many more problems of such nature created an abnormal atmosphere which was full of
apprehension. Therefore, the Constitution makers thought it proper to equip the Central government with the
necessary authority, so that, in the hour of emergency, when the security and stability of the country or any
part thereof is threatened, the Central government may act effectively to handle any such grave situation.
Therefore, some emergency provisions have been made in the Indian Constitution to safeguard and protect
the security, integrity and stability of the country.

The President can declare three types of emergencies:

1. National emergency
2. State emergency
3. Financial emergency
Proclamation of an emergency is a very serious matter as it disturbs the normal fabric of the constitution and
adversely affects the rights of the people. Such a proclamation should, therefore be issued only in
exceptional circumstances and not merely to keep an unpopular government in office as happened in June
1975 when an emergency was declared on the ground of internal disturbance without there being adequate
justification for the same. As a consequence thereof, the emergency provisions (especially Arts 356 and 352)
have been extensively amended by the constitution (44th amendment) act, with a view to introduce a number
of safeguards against abuse of power by the executive in the name of emergency.

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 NATIONAL EMERGENCY

An emergency can be proclaimed when the security of the country is under threat or is under the danger of a
threat from hostile countries during times of war or external aggression or armed rebellion. A state of
emergency in India refers to a period of governance under an altered constitutional setup that can be
proclaimed by the President of India, when he/she perceives grave threats to the nation from internal and
external sources or from financial situations of crisis.
The National Emergency can be declared for the whole country or for a part of it. A National Emergency,
originally declared for the whole country, can be later limited to a particular part of the country in which
there is serious emergency situation. A proclamation of National Emergency has to be passed in each house
of Parliament by more than half of the total members and at least by two-third of the members present and
voting. This proclamation will be invalid if it is not passed by both houses within one month. It has to be
passed first by the Rajya Sabha if the Lok Sabha stands dissolved at the time of proclamation of National
Emergency. It has to be passed within one month of Lok Sabha being reconstituted; otherwise the
proclamation will be invalid. The proclamation of National Emergency will remain in force for six months
after it is duly passed by both houses of Parliament. Each time it can be extended for six months with the
approval of the
Parliament. There is no limit on such extension.
The 44th Amendment Act, 1978 empowers the Lok Sabha to revoke National Emergency by simple
majority. A special session of the Lok Sabha has to be convened for this. The Lok Sabha can have a special
session if at least one-tenth of its members give a 14-day notice to the speaker to convene a special session
of the Lok Sabha. The President of India has also the power to revoke the National Emergency whenever
necessary.

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 HISTORY OF NATIONAL EMERGENCY IN INDIA

In the history of independent India, there were three periods during which a state of emergency was deemed
to have existed.
1. Between 26 October 1962 to 10 January 1968 during the India-China war "the
security of India" having been declared "threatened by external aggression".
2. Between 3 December 1971 to 21 March 1977 originally roclaimed during the Indo
Pakistan war, and later extended along with the third proclamation "the security of India" having
been declared "threatened by external aggression".
3. Between 25 June 1975 to 21 March 1977 under controversial circumstances of political instability
under the Indira Gandhi's Prime ministership "the security of India" having been declared
"threatened by internal disturbances".
For the first time, emergency was declared on 26 October 1962 after China attacked our borders in the North
East. This National Emergency lasted till 10 January 1968, long after the hostilities ceased. For the second
time, it was declared on 3 December 1971 in the wake of the second India-Pakistan War and was lifted on 21
March 1977. While the second emergency, on the basis of external aggression, was in operation, third
National Emergency (called internal emergency) was imposed on 25 June 1975.21 This emergency was
declared on the ground of internal disturbances. Internal disturbances justified imposition of the
emergency despite the fact that the government was already armed with the powers provided during second
emergency in 1971.was still in operation. And as we discussed in earlier points, that after 1978 the word
internal disturbances was substituted by armed rebellion, to narrow the view of disturbances ant to
remove the vagueness and ambiguity.

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 ARTICLE 352 (NATIONAL EMERGENCY)

Emergency was declared under this provision (Article 352) for the first time in the wake of the war with
China on October 26, 1962. It continued up to January 10, 1968. Another proclamation of emergency took
place on December 3, 1971, in the wake of the India-Pakistan war. During its continuation, a third
Emergency was declared was on June 25, 1975. It was revoked in 1977. Critics argue that the third
emergency was intended more to retain Mrs. Indira Gandhi3 in power than there was the actual threat. It was
the darkest period for Indian democracy as there were arbitrary detentions for a prolonged period of time and
accusations of widespread infringement of Fundamental Rights.
Article 352 provides that if the president is satisfied that a grave emergency exists whereby the security of
India or any part of India is threatened either by war or external agrees ions or armed rebellion4, he may
make a proclamation of emergency in respect of the whole of India or any part of India as may be specified
in the proclamation. The proclamation of emergency made under clause (1) may be varied or revoked by the
president by a subsequent proclamation.
A proclamation of emergency can be made even before the actual occurrence of even contemplated in Art.
352 have taken place if the president is satisfied that there is imminent danger of war or external aggressions
or armed rebellion. Thus the actual occurrence of the events mentioned in Art. 352 are not essential. An
eminent danger of war or external aggressions is enough for proclamation of emergency.
The president shall not issue a proclamation under cl. 1 or a proclamation varying such proclamation unless
the decision of the union cabinet (i.e. the council consisting of the prime minister and other minister of
cabinet rank appointed under Art. 75) that such a proclamation may be issued has been communicated to
him in writing. This means that the emergency can be declared only on the occurrence of the cabinet, and not
merely on the advice of the prime minister as was done by the Prime Minister Smt. Indira Gandhi in June
1975. She had advised the president to proclaim emergency without consulting her cabinet.
The proclamation of emergency must be laid before each house of parliament and it shall cease to be in
operation at the expiration of one month (prior to 44th amend. two months) unless before the expiry of one
month it has been approved by resolution of both the houses. A proclamation of emergency once approved
by the parliament shall remain in force for a period of six months from the date of the passing of the
resolution approving it, unless revoked earlier. The president shall revoke a proclamation of emergency if
the Lok Sabha passes a resolution disapproving it. The power conferred on the president by this article shall
include the power to issue proclamation on different grounds.

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 GROUNDS FOR PROCLAMATION OF EMERGENCY

Before the 44th amendment to the Constitution of India, the following are the grounds under which the
President can proclaim emergency.
1. War
2. External Aggression
3. Internal Disturbance
However, the term Internal Disturbance is too vague and might also include political agitations in the
country. Hence, the 44th amendment replaced this with armed rebellion. After the 44th amendment the
following are the grounds under with a National Emergency can be proclaimed by the President.
1. War
2. External Aggression
3. Armed Rebellion.
The Supreme Court has clarified that the term internal disturbance has a wider connotation than armed
rebellion. The intention underlying the substitution of internal disturbance with armed rebellion is to limit
the invocation of emergency powers under Art 352 to more serious cases. It may also be noted that by the
44th amendment the scope of satisfaction of the President was stripped of the immunity from judicial
review.
War
When a violent struggle between two countries with the use of armed forces. It also includes when a country
has made a formal declaration of a war against India.
External Aggression
External aggression has wide meanings. It covers unilateral attacks with force by one state against another
State without a formal declaration of war. As long as the other State has not answered with similar hostile
attacks, it can be constituted an external aggression.

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 EFFECTS OF PROCLAMATION

The effects of Proclamation of Emergency are given under Article 353 of the Constitution. The power under
this is provisional and cannot be used without reasonable care. The most important effect is that during the
operation of a proclamation the federal nature of the government becomes unitary and the union ha power to
give directions to the state in reference to the executive power to be exercised by them. In this way the
legislative power of the union parliament is enlarged up to the extent that it can make laws for the state and
also modify provisions regarding revenue matters. Where the fundamental rights are concerned, during
emergency arising out of war or external aggression Article 19 is suspended. During the continuance of
proclamation, power is vested in the President to suspend the right of individual to move to the courts in case
of infringement of their fundamental rights except those under Article 20 and Article 21 under the
Constitution of India. (In Bennett Coleman & co. v. Union of India, the supreme court held that the
Newsprint Policy of 1972-73 in continuation of the old policy made before the Proclamation of Emergency
was not protected during the operation of the proclamation from attack under Article 19.)
Extension of Centre's Executive Power
The constitution empowers the Union to extend its executive power by giving directions to state.
(a) to give directions to the State
(b) to make laws of the State
The executive power also extends to states where emergency is not in force, but are in relation to states
which the Proclamation of Emergency is in operation.
Parliament to legislate on State subjects
The law-making power of the State is not suspended, but the Parliament can amend laws which override the
state laws.
While taking all together here are the consequences of proclamation of national emergency are as follows:-
1. The Parliament gets power to make laws in relation to the State List.
2. The Union government is empowered to give directions to the state in executive matters.
3. The right to freedom under Art. 19 are automatically suspended.
4. The right of Citizen to seek constitutional remedy under Art. 32 are abridged; it may be
suspended.
5. The Union Government may suspend all other fundamental rights except Art. 20 and Art.
21.
6. The division of sources of revenue between the centre and states may be modified.

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 NEED FOR NATIONAL EMERGENCY IN INDIA:

National Emergency has been declared in our country three times so far. For the first time, emergency was
declared on 26 October 1962 after China attacked our borders in the North East. This National Emergency
lasted till 10 January 1968, long after the hostilities ceased. For the second time, it was declared on 3
December 1971 in the wake of the second India-Pakistan War and was lifted on 21 March 1977. While the
second emergency, on the basis of external aggression, was in operation, third National Emergency (called
internal emergency) was imposed on 25 June 1975.21 This emergency was declared on the ground of
internal disturbances. Internal disturbances justified imposition of the emergency despite the fact that the
government was already armed with the powers provided during second emergency in 1971.was still in
operation. And as we discussed in earlier points, that after 1978 the word internal disturbances was
substituted by armed rebellion, to narrow the view of disturbances ant to remove the vagueness and
ambiguity.
The basic need for an emergency occurs whenever there is imbalance within the country, whether wholly or
partly. The ultimate aim and object of every government or political entity is to secure good life and safe life
to its citizen, and the time we say citizen it means the public of country at large. Whether we talk about the
first emergency caused by china attack or the second or the third emergency, in all the cases the social
equilibrium of the country was imbalanced and security of citizen was on the stack. Emergency though
suspend the fundamental rights excluding those conferred in Art.20 and Art. 21, it does transfer the powers
from the hand of state government to the hand of central government.
Fundamental rights are given to individual, and the only reason they are suspended during an emergency is
to secure the interests of the citizens of the country at large. Social interest is always upper then that of
individual interest. Therefore it is necessary in order to secure peace and order at large, sometime rights of
the general public are put at stake in order to secure peace normalcy throughout the country or the state in
specific.

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 SUSPENSION OF FUNDAMENTAL RIGHTS DURING THE
EMERGENCY:

.14 The suspension of rights guaranteed by Article 19 thus removes restriction on the legislative and
executive powers of the state imposed by the constitution. Any law, executive order made by the state during
this period cannot be challenged on the ground that they are inconsistent with the rights guaranteed under
Art. 19. Such laws shall, however cease to have effect as soon as the proclamation ceases and then Article 19
is automatically revived and begins to operate. Art. 358, however makes it clear that things done or omitted
to be done during the emergency cannot be challenged even after the emergency is over.

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 CONCLUSION

The Constitution is supreme; it is the will of the people of the country. It sets the broad functional
parameters of governance. The Constitution was prepared after lengthy deliberations in the Constituent
Assembly, which began on 6 December 1946 and came into force on 26 January 1950. Thus the constitution
being supreme, therefore the sovereignty of India cannot be surrendered or pledged. India is a Republic and
cannot be turned into a monarchy. Which means the fundamental rights given to the citizens of India cannot
be surrendered, because those are the most basic and fundamental rights given to the citizens.
However, there are some exceptions to these kinds of situation where the Fundamental Rights are suspended,
and those are the emergency period. These Emergency Provisions are enshrined in Part XVIII of the
Constitution under Articles 352 to 360. There are three types of Emergency that can be declared that are
general emergency, constitutional emergency and fundamental emergency. When these emergency
provisions are applied to a country, certain fundamental rights are always suspended during this period like
Art.19 and various others.
According to the Indian Constitution, the president has been given extraordinary powers to deal with certain
abnormal situations in order to protect the security, integrity and stability of the country. Provisions have
been made in the Constitution for dealing with extraordinary situations that may threaten the peace, security,
stability and governance of the country or a part thereof. There are three types of extraordinary or crisis
situations that are envisaged. First, when there is a war or external aggression has been committed or there is
threat of the same, or if internal disturbances amounting to armed rebellion take place; second, when it
becomes impossible for the government of a State to be carried on in accordance with the Constitution; and
third, if the credit or financial stability of the country is threatened. In each case the President may issue a
proclamation with varying consequences.

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