Question

Choose the correct statement(s) regarding the National Emergency under Article 352.

(i) The President can declare a National Emergency only after receiving written recommendations from the Cabinet.

(ii) The 44th Amendment Act of 1978 reduced the period for parliamentary approval of a National Emergency from two months to one month.

(iii) A National Emergency can be declared only after the actual occurrence of war, external aggression, or armed rebellion.

• A. (i) and (ii) only
• B. (ii) and (iii) only
• C. (i) and (iii) only
• D. All are true

Answer 1

Answer:

A. (i) and (ii) only

National Emergency (Article 352)

• The provisions for National Emergency are enshrined in Part XVIII of the Indian Constitution, covering Articles 352 to 360. These provisions enable the Central government to deal with abnormal situations effectively.

• The Constitution stipulates three grounds for the declaration of a National Emergency: war, external aggression, or armed rebellion. The term 'internal disturbance' was replaced by 'armed rebellion' by the 44th Amendment Act of 1978.

Key Facts on Declaration and Approval:

• Statement (i) is correct: The 44th Amendment Act of 1978 made a significant change, stating that the President can declare a National Emergency only upon the written recommendation of the Union Cabinet. This was introduced to prevent the misuse of emergency powers, as was perceived during the 1975 emergency.

• Prior to the 44th Amendment, the President could declare an emergency based solely on the advice of the Prime Minister. This amendment ensured that the decision is a collective one by the Cabinet, making it more difficult to impose an emergency unilaterally.

• Statement (ii) is correct: The 44th Amendment Act of 1978 also reduced the period for parliamentary approval of a National Emergency proclamation from two months to one month.

• This change aimed to ensure quicker parliamentary scrutiny and prevent the executive from exercising emergency powers for an extended period without legislative approval. If both Houses of Parliament do not approve the proclamation within one month, it ceases to operate.

• Statement (iii) is incorrect: A National Emergency can be declared not only on the actual occurrence of war, external aggression, or armed rebellion but also on the imminent danger of these threats.

• Article 352(1) explicitly states, "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 armed rebellion..." The phrase "threatened...by" implies that the declaration can be made in anticipation of the event, not just after it has happened.

Important Historical Context & Amendments:

• The 42nd Amendment Act of 1976 (during the 1975 emergency) allowed the President to declare an emergency for a part of the country. It also empowered the President to make different proclamations on different grounds for the same area or different areas.

• The 44th Amendment Act of 1978 introduced several safeguards to prevent the recurrence of the misuse of emergency powers observed during the 1975 emergency. Besides the changes mentioned above, it also restored the duration of the Lok Sabha and state assemblies to five years.

• So far, a National Emergency has been declared three times in India:

  • 1962: During the Chinese aggression (October 1962 to January 1968).

  • 1971: During the Indo-Pakistan War (December 1971 to March 1977).

  • 1975: On grounds of 'internal disturbance' (June 1975 to March 1977). This emergency was controversial and led to the 44th Amendment.

• The power of judicial review of the proclamation of National Emergency was clarified by the Supreme Court in the Minerva Mills case (1980). The court held that the proclamation can be challenged on the grounds of malafide or that the decision was based on extraneous and irrelevant facts.