Question

Which of the following statements regarding National Emergency in India are correct?

1. National Emergency has been declared three times in India’s history.

2. The first National Emergency was declared due to internal armed rebellion.

3. The 42nd Amendment made the declaration of Emergency immune from judicial review.

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

Answer 1

Answer:

A. 1 and 3 only

National Emergency in India

• The provision for National Emergency in India 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 its territory is threatened by war, external aggression, or armed rebellion.

• Initially, the grounds for declaring a National Emergency were war, external aggression, or 'internal disturbance'. The term 'internal disturbance' was replaced by 'armed rebellion' by the 44th Amendment Act of 1978.

Instances of National Emergency Declarations:

• India has experienced a National Emergency three times in its history:

  • First Emergency (October 26, 1962 – January 10, 1968): Declared due to the Sino-Indian War, which constituted a threat of external aggression.

  • Second Emergency (December 3, 1971 – March 21, 1977): Declared during the Indo-Pak War, again on the grounds of external aggression. This emergency was in effect when the third emergency was declared.

  • Third Emergency (June 25, 1975 – March 21, 1977): Declared by President Fakhruddin Ali Ahmed on the advice of Prime Minister Indira Gandhi, on the grounds of 'internal disturbance'. This was a controversial declaration and led to significant constitutional reforms.

Judicial Review of Emergency Proclamation:

• The 42nd Amendment Act of 1976 (also known as the 'Mini Constitution') made a significant change by inserting Clause (5) in Article 352. This clause stipulated that the President's satisfaction in declaring an emergency was final and conclusive and could not be challenged in any court on any ground. Essentially, it made the declaration of Emergency immune from judicial review.

• However, this provision was later repealed by the 44th Amendment Act of 1978. This amendment explicitly provided that the satisfaction of the President in declaring an emergency is subject to judicial review. This change was a direct response to the excesses of the 1975 emergency.

• The Supreme Court, in the landmark Minerva Mills case (1980), further reinforced that the proclamation of a National Emergency can be challenged in a court of law on the ground of malafide or that the decision was based on wholly irrelevant and extraneous facts or was a perverse one.