Question

Choose the correct statement(s) regarding the proclamation of a national emergency under Article 352:

1. A national emergency requires parliamentary approval within one month by a special majority.

2. The six Fundamental Freedoms under Article 19 are automatically suspended during a national emergency.

3. The President can proclaim a national emergency without the written recommendation of the Cabinet.

• A. 1 only
• B. 1 and 2 only
• C. 2 and 3 only
• D. All of the above

Answer 1

Answer:

A. 1 only

National Emergency (Article 352)

• The provision for a National Emergency is enshrined in Article 352 of the Indian Constitution. It allows the President to declare an emergency if the security of India or any part of it is threatened by war, external aggression, or armed rebellion.

• The term 'armed rebellion' was added by the 44th Amendment Act of 1978, replacing 'internal disturbance' to prevent misuse of emergency powers.

Parliamentary Approval and Duration

Approval Timeline and Majority

• A proclamation of National Emergency must be approved by both Houses of Parliament within one month from the date of its issue.

• Prior to the 44th Amendment Act of 1978, this period was two months.

• The approval requires a special majority of both Houses. A special majority means:

  • A majority of the total membership of that House; and

  • A majority of not less than two-thirds of the members of that House present and voting.

Duration and Revocation

• Once approved by Parliament, the emergency continues for six months.

• It can be extended indefinitely for periods of six months each, with repeated parliamentary approval by a special majority.

• The President can revoke the emergency at any time by a subsequent proclamation. Such a proclamation does not require parliamentary approval.

• Also, if the Lok Sabha passes a resolution disapproving the continuation of the emergency by a simple majority, the President must revoke it. This power was also introduced by the 44th Amendment Act.

Suspension of Fundamental Rights

Article 19 and Article 358

• Article 358 deals with the suspension of fundamental rights guaranteed by Article 19 (six freedoms).

• When a National Emergency is declared on the grounds of war or external aggression, the six Fundamental Freedoms under Article 19 are automatically suspended.

• However, if the emergency is declared on the ground of armed rebellion, Article 19 rights are not automatically suspended. This distinction was introduced by the 44th Amendment Act of 1978.

Other Fundamental Rights and Article 359

• Article 359 empowers the President to suspend the right to move any court for the enforcement of other Fundamental Rights (except Article 20 and Article 21).

• This suspension is not automatic and requires a Presidential Order.

• The 44th Amendment Act of 1978 specifically ensured that the rights under Article 20 (protection in respect of conviction for offences) and Article 21 (protection of life and personal liberty) cannot be suspended even during an emergency.

Role of the Cabinet

Written Recommendation

• The President can proclaim a National Emergency only upon the written recommendation of the Union Cabinet.

• This crucial safeguard was added by the 44th Amendment Act of 1978.

• Before this amendment, the President could declare an emergency based solely on the advice of the Prime Minister, which led to controversies like the 1975 emergency. This amendment aims to prevent such solitary decisions.