Proclamation of Emergency

Proclamation of Emergency
Article 352
Reference Books:
1. V.N. Shukla’s Constitution of India
2. Constitutional Law-I, Udai Raj Rai
Article 352
• In the background of internal emergency
1975-1977 44th Amendment of the
Constitution introduced several changes in
Article 352 in 1979
Conditions
• If the President is satisfied that
• a grave emergency exists whereby
• the security of India is threatened
• whether by
– War or
– external aggression or
– Armed rebellion
• He may by proclamation make a declaration to
that effect
War etc.
• A war would exist in India if a violent struggle against a
foreign power takes place through the use of armed
forces
• The words external aggression cover act which did not
amount to actual war or were less than war
• Armed rebellion was introduced by the 44th
Amendment replacing the original expression “internal
disturbances”.
– It is likely to pose a threat to the security of the country or
a part thereof, while ‘internal disturbance’, though serious
in nature, would not pose a threat to the security of the
country or a part thereof
Satisfaction of the President
• The President may issue a proclamation of
emergency not only after the actual occurrence
of the events specified in Article 352 but also
before such occurrence if, as provided in the
Explanation to Article 352 (1), he is satisfied of an
imminent danger of its occurrence
• A proclamation of emergency is generally notified
by publication in the Official Gazette. But such
publication is not obligatory either for bringing
into effect or for the operation and continuance
of the proclamation
Duration
• A proclamation of emergency may be revoked at any time
by a subsequent proclamation
• Emergency must not be continued for any period beyond
what is absolutely necessary
• Such a proclamation shall be laid before both Houses of
Parliament and shall 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
• When a proclamation is laid before a House, it may-
– Approve the proclamation by passing a resolution; or
– Take no action
– Reject or disapprove it
…Duration
• Approve the proclamation by passing a resolution
– The proclamation shall remain in force for six months from
the date of such resolution and
– may be extended by passing similar resolutions at the
expiry of every six months,
– till it is revoked by the President either of his own or on a
resolution of the House of the People disapproving the
proclamation
…Duration
• Take no action
– Neither House takes any action or only one House approves the
proclamation, it still cease to operate at the expiration of one month
– Notably the proclamation must be approved by both Houses of
Parliament with a majority of total number of members in each House
as well as two thirds of the members present and voting
– If any such proclamation is issued at a time when the House of the
People has been dissolved, or if the dissolution of the House of the
People takes place during the period of one month referred to above,
• and the proclamation has not been approved by a resolution passed by the
House of the People before the expiration of the period,
• the proclamation shall cease to operate at the expiration of 30 days from the
date on which the House of the People first sits after its, reconstitution,
• unless before that period resolutions approving the proclamation have been
passed by both Houses of Parliament
…Duration
• Reject or disapprove it
– During the emergency Parliament continues to function and
exercise its control over the actions of the CoMs
– It may be argued that the President may continue the period of
emergency by issuing fresh proclamation every one month and
thus bypass Parliament for its approval of the proclamation
– But such a situation will bring the President in conflict with
Parliament and in such an event either a vote of no-confidence
may be passed by Parliament and CoMs may be thrown out of
office, or
– The President may be impeached in Parliament and thrown out
of office
– The House of the People can disapprove a proclamation and on
such disapproval, the President is bound to revoke it
Consequences
1. The executive authority of the Union extends
to the giving of directions to any State as to
the manner in which the executive power
vested in it is to be exercised
2. The legislative power of the Parliament is
enlarged it can make laws for a State or any
part thereof with respect to the matters
enumerated in the State List
…Consequences
– Although the law making power of the State Legislature is

not suspended during the continuance of a proclamation,
a law made by it is subject to the overriding power of the
Parliament
– The competence of Parliament to invade the exclusive
State sphere and to override State legislation comes to an
end on the expiration of the proclamation, and any law
made by Parliament during its operation becomes
inoperative six months after the proclamation has ceased
to operate
– President may, when both Houses of Parliament are not
in session, promulgate ordinances also in respect of
matters included in the State List
…Consequences
3. Parliament may also make laws conferring powers
and imposing duties on the Union and its officers and
authorities in respect of matters outside the Union
List
4. Article: 354-President may by order alter the financial
arrangements between the States and the Union as
laid down in Articles 268 to 279. Every such order, as
soon as may be after it is made, must be laid before
each House of Parliament. The alterations made by
the President shall be valid only until the end of the
financial year in which the proclamation ceases to
operate
…Consequences
5. Article: 358 – Suspension of Provisions of Article 19

during emergencies
If the emergency arises out of a declaration that the
security of India or of any territory is threatened by war or
external aggression
– Article 358 removes the fetters created on the legislative and
executive powers by Article 19
– If the legislature make laws or the executive commits acts
which are inconsistent with the rights guaranteed by Article
19, their validity is not open to challenge either during the
continuance of the emergency or even after it
– But the effect on the operation of Article 19 is not automatic
or general
…Consequences
• …Article: 358 – Suspension of Provisions of
Article 19 during emergencies
– A law which is intended to defy Article 19 must
contain a recital to the effect that such law is in
relation to the proclamation of emergency, and an
executive action taken only under such a law and not
otherwise is protected from attack under Article 19
– As soon as the proclamation ceases to operate, the
legislative enactments passed and the executive
actions taken during the course of the emergency
shall be inoperative to the extent to which they
conflict with the rights under Article 19
…Consequences
6. Article 359: Suspension of the enforcement of the rights
conferred by Part-III during emergencies
During the operation of a proclamation of emergency,
enforcement through court of all or any of the
fundamental rights except those in Article 20 and 21 may
be suspended by the President
– Such suspension has the effect of authorising the legislative
and executive action against those fundamental rights, whose
enforcement has been so suspended
– But a law intended to intrude into a fundamental right must
make a specific recital to that effect
– And an executive action causing infraction of such a right must
have its basis in such a law
…Consequences
• The suspension order issued u/a 359(1) shall
remain valid during the continuance of
emergency or
– Such shorter period as may be specified in the order
issued by the President
• An order suspending the enforcement of all or
any of the fundamental rights may extend to the
whole, or any part of the territory of India
• Every order of suspension shall, as soon as may
be after it is made, be laid before each House of
Parliament
…Consequences
• Bothe Article 358 and 359(1-A) provide that as
soon as the proclamation of emergency ceases to
operate, the effect of the suspension imposed
vanishes
• Except in respect of things done or omitted to be
done before the law so ceased to have effect
• A law inconsistent with the fundamental rights
made during the emergency would not be
validated, but only its invalidation is suspended
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Proclamation of Emergency

– Although the law making power of the State Legislature is

5. Article: 358 – Suspension of Provisions of Article 19

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