Article 352 of Indian Constitution: Proclamation of Emergency
Article 352 of Indian Constitution
Original Text:
(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or 1[armed rebellion], he may, by Proclamation, make a declaration to that effect 2[in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.]
[Explanation. —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 or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.]
(2) A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation.
(3) The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated to him in writing.
(4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or the dissolution of the House of the People takes place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the Proclamation under clause (4):
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause:
Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People.
(6) For the purposes of clauses (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting.
(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.
(8) Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under clause (1) or a Proclamation varying such Proclamation, —
(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 House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.]
(9) 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 2[armed rebellion] or imminent danger of war or external aggression or 2[armed rebellion], whether or not there is a Proclamation already issued by the President under clause (1) and such Proclamation is in operation.
Article 352 of Indian Constitution Explanation:
Grounds of Emergency
- Under Article 352 of Indian Constitution, a National emergency can be proclaimed in the following situations:
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- War or external aggression
- Armed rebellion
- 44th Constitution amendment, 1978: It replaced the term ‘internal disturbances’ with ‘armed rebellion’. The infamous Emergency of 1975 was proclaimed on the grounds of ‘internal disturbances. Now, it is no longer possible to declare an emergency on the grounds of mere internal disturbances.
- When an emergency is declared on the premises of war or external aggression, it is known as an ‘External emergency’; when it is declared on the grounds of internal rebellion, it is known as ‘Internal Emergency’.
- An emergency can be declared even before the actual occurrence of war, external aggression or armed rebellion if the President is satisfied that there is a possibility of such events occurring.
- 38th Constitutional Amendment, 1975: The Amendment added the Provision that the President of India can issue different proclamations on any of the permissible grounds even if an emergency is already in operation.
- Enforcement: The Emergency can be applicable to the entire territory or a part of it. The 42nd Amendment provided that the ‘National Emergency’ can be applied to a specified part of Indian Territory.
Approval, Duration & Revocation of National Emergency
- Cabinet’s Consent Required: The President can declare the Emergency only on the written concurrence of the Cabinet and his satisfaction regarding the prevailing situation. The 44th Constitutional Amendment added this safeguard to ensure that the Prime Minister alone cannot make the decision regarding this, as was the case in the Emergency declared in 1975.
- Parliament’s approval: Every Proclamation of National Emergency must be laid before each house of the Parliament. If both houses do not approve the Proclamation during the expiry of one month of operation, the Emergency will cease to operate. The original duration was two months, which was reduced to one month by the 44th Constitutional Amendment Act.
- Special Majority: Every resolution concerning the Emergency, either for approval or for continuation, must be passed by a special majority, i.e. a majority of the total members of the house and the majority of 2/3rd of the members present and voting.
- In case of dissolution of Lok Sabha: If the Proclamation of Emergency is declared when the Lok Sabha is dissolved or gets dissolved before the expiry of the one-month duration of Emergency, then the Emergency continues till the 30 days of the first sitting of Lok Sabha after its reconstitution, provided that the Rajya Sabha, in the meantime has approved it.
- Duration: If approved by both the Lok Sabha and the Rajya Sabha, the Emergency remains operative for 6 months. It can be extended indefinitely with the approval of Parliament every 6 months. The 44th Constitutional Amendment added the Provision of the requirement of Parliamentary approval every 6 months.
- Judicial review: The 38th Constitutional Amendment Act of 1975 made the declaration of emergency immune from judicial review. However, this Provision was repealed by the 44th Amendment. Further, in the Minerva Mills judgement of 1980, the apex court held that the Proclamation of Emergency could be challenged in the Court on the grounds of malafide intention or the declaration was based on irrelevant, absurd or perverse reasons.
- Revocation: The President can revoke the Proclamation of Emergency at any time by a subsequent proclamation; it does not require Parliamentary approval.
- The Emergency can also be revoked if the Loksabha passes a resolution (by simple majority) disapproving the continuation of the Emergency. This Provision was added by the 44th Constitutional Amendment.
- The Amendment also added that if 1/10th of the total members of the Lok Sabha give notice to the Speaker (or President in case the house is not in session), a special sitting of the house must be convened for the consideration of disapproving the resolution.
List of Amendments in Article 352 of Indian Constitution:
| Amendment | Description |
| 38th Constitutional Amendment, 1975 |
· The Amendment added the Provision that the President can issue different proclamations on any of the permissible grounds even if an emergency is already in operation. · The Act of 1975 made the declaration of emergency immune from judicial review. |
| 42nd Amendment, 1976 | · The act provided that the ‘National Emergency’ can be applied to a specified part of Indian Territory. |
| 44th Constitution amendment, 1978 |
· It replaced the term ‘internal disturbances’ with ‘armed rebellion’ · The President can declare the Emergency only on the written concurrence of the Cabinet and his satisfaction regarding the prevailing situation. · Every Proclamation of National Emergency must be laid before each house of the Parliament. If both houses do not approve the Proclamation during the expiry of one month of operation, the Emergency will cease to operate. The original duration was two months, which was reduced to one month by the 44th Constitutional Amendment Act. · The 38th Constitutional Amendment Act of 1975 made the declaration of emergency immune from judicial review. However, this Provision was repealed by the 44th Amendment. |
For further Reference:
Read the constitution of India.
