ARTICLE 352

“The Indian Constitution of India provides three types of emergency provisions:”

1) “National Emergency”
2) “State Emergency”
3) “Financial Emergency”

National Emergency (Article 352):

“This Article says that if The President is under a satisfactory impression that a grave
emergency exists whereby the security of India or any other part of India is threatened either
by”

a) War
b) External aggression
c) Armed rebellion

“Under either of these grounds the president may make a proclamation of emergency in
respect of whole of India or part of India and may specify in his proclamation.”

No need of actual occurrence of event:

“A proclamation of emergency can be made even before the actual occurrence of event
contemplated under Article 352, it can take place if president is satisfied that there is
imminent danger of war or external aggression or armed rebellion. Therefore actual
occurrence of events mentioned under this article are not necessary. An imminent danger of
war or external aggression or armed rebellion is enough for proclaiming an emergency.”

Recommendations from cabinet:

“Cabinets recommend in form of writing which is essential for proclamation of emergency.

Cabinet is a competent authority which can make recommendations.”

“Proclamation unless decision of Cabinet consisting of Prime Minister and other minister of
cabinet rank who are appointed, any recommendation by them has to be in writing and has to
be communicated to the president.”

“This means, that emergency can be declared only on occurrence of the cabinet and not on
merely advice of Prime Minister.”
“In order to ensure that a Proclamation is issued onlyafter due consideration, it is sought to
be provided that an Emergency can be proclaimed only on the basis of written advice
tendered to the President by the Cabinet.”

Proclamation to be laid down before both the houses:

Position Prior to 44th Amendment:

“The proclamation has to be laid down before both the houses and it shall cease to operate for
a period of two months, after the two months it has to be approved by both the houses.”

Position after 44th Amendment:

“The proclamation has to be made before the expiry of one month it has to be approved by
resolutions of both the houses. In case during the proclamation of emergency if the Lok
Sabha is dissolved during that period mentioned, without approving the proclamation but the
proclamation has been approved by Rajya Sabha, the proclamation shall cease to operate the
expiration of 30 days from the date on which the Lok Sabha sits for election.”

Time Period of Proclamation of Emergency:

“A proclamation of emergency once approved by parliament shall remain in force for a

period of six months from the date of passing of second resolution, unless revoked.”

“For Continuation of emergency further six month then approval of president is needed every
six months.Article 352 has been amended in several respects by the 44thAmendment so as to
minimise the chances of abuse of power to declare Emergency.When a Proclamation of
Emergency is laid before a House of Parliament, it may adopt any one of the three
alternatives, namely:”

(i) “approve the proclamation by passing a resolution; or”

(ii) “take no action; or”
(iii) “reject or disapprove it”

Features of Article 352:

“Firstly, the expression ‘internal disturbance’ has been replaced by ‘armed rebellion’ in order
to ‘delimit’ ‘internal disturbance’ which has wide connotation.”

“Secondly, a Proclamation of Emergency will not be issued by the President unless a

recommendation of the Council of Ministers to that effect is communicated to him in writing.
This is done to eliminate any possibility of the Prime Minister alone taking a decision for the
imposition of Emergency.”

“Thirdly, the Proclamation of Emergency must be approved within one month instead of two
months as provided earlier, by resolutions of both Houses of Parliament and such a resolution
has to be passed by a majority of the total membership of the House and a majority of not less
than two-thirds of the members present and voting. Before the Amendment such resolution
can be passed by simple majority.”

“Fourthly, a Proclamation of Emergency ceases to operate automatically at the expiry of six

months and can be continued beyond that period only on approval by a resolution of both
Houses of Parliament every six months.”

“Fifthly, the President shall revoke a Proclamation of Emergency on a resolution of the

House of the People to that effect and for that purpose a special sitting of the House can be
called at a 14 days’ notice by one-tenth of the total members of that House. Before the
Amendment once a Proclamation was made and approved by Parliament it could be
continued indefinitely unless the President revoked it on his own.”

“Sixthly, the enforcement of fundamental rights in Articles 20 and 21 cannot be suspended at

all and special conditions have been introduced even in respect to those fundamental rights
whose enforcement can be suspended.”

“Seventhly, Article 19 which used to get suspended automatically on a Proclamation of

Emergency will now remain unaffected if the ground of Proclamation is only armed rebellion
and not war or external aggression. Moreover special conditions have been added to the
suspension of Article 19 even when the proclamation is on the ground of war or external
aggression.”

Conditions for Proclamation of Emergency:

“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. The three specific events mentioned in the article which
would empower the President to act are war, external aggression and armed rebellion. 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” did not occur in the original draft of the
article. These words were added in the amended draft of the article to cover acts which did
not mean actual war or were less than war.”

“The President can issue a Proclamation of Emergency not only when the actual occurrence
of the events specified in Article 352 has already taken place but also when there is an
imminent danger of it. Whenever the President is satisfied that there is an imminent danger of
any of the specified events taking place. The 44th Amendment has, however, introduced
several safeguards, as noted above, against the repetition of similar misuse.”

Notification of Proclamation of Emergency:

“A Proclamation of Emergency is generally notified by publication in the Official Gazette.

But such publication is not obligatory either for coming into effect of the Proclamation or for
its operation and continuance.”

Baburao v Union of India1

“The resolution of either houses of parliament approving,the publication of proclamation of

emergency shall not necessarily be in the official gazette, it can be publishes in any
recognized mode of publicity”

Difference between 39th Amendment and 44th Amendment:

“The Thirty-eighth Amendment seeks to clarify that the President may, if satisfied, issue
different Proclamations on different grounds as specified in clause (1) even if a proclamation

1
AIR 1988 SC 440
has already been issued and is in operation. This amendment also made the satisfaction of the
President final and conclusive and beyond judicial review though that provision was
subsequently deleted by the Forty-fourth Amendment implying that the satisfaction of the
President is not altogether beyond judicial review and may be brought within it, perhaps on
grounds of mala fides or that the satisfaction is based on wholly extraneous and irrelevant
grounds or is absurd or perverse, But mala fides is not easy to prove on the part of the
President who acts on the recommendation of the Council of Ministers which in turn enjoys
the confidence of Parliament. The remedy under these circumstances lies with the elected
representatives in Parliament to censure the Government if there is an abuse or misuse of
power.”

Makhan Singh v. State of Punjab2

“It was observed that these are matters which must inevitably be left to the executive because
the executive knows the requirements of the situation and the effect of compulsive factors
which operate during periods of grave crisis. The argument that during the period of
Emergency and the operation of the Presidential Order under Article 359, the executive may
abuse its powers and the citizens would have no remedy, it was explained, is essentially
political and its impact on the constitutional question is at best indirect. The effective
safeguard against abuse of executive powers whether in peace or in emergency is ultimately
to be found in the existence of public opinion.”

Consequences for Proclamation of emergency:

 “Executive of Union tends to give directions to any state as to manner in which the
executive power is vested and in normal circumstances it does not give any
directions.”
 “Legislative Power of Union is enlarged as the Union parliament can make laws for
state enumerated under the state list.”
 “Parliament may also make laws conferring powers and imposing duties on the
Union.”
 “The president by order may alter the financial arrangements between State and
Union.”

2
AIR 1964 SC 381,403
  “During the operation of proclamation of emergency enforcement through courts of
all and fundamental rights except those in Article 20 and Article 21 may be suspended
by the president.”

State of M.P v Thakur Bharat Singh3

“Article 358 does not operate to validate a legislative provision which was invalid before the
Proclamation of Emergency. All executive actions which operate to the prejudice of any
person must have the authority of law & the terms of Article 358 do not detract from that
rule.”

Effects of Proclamation of emergency:

“The effects of Proclamation of Emergency are given under Article 353 of the Constitution.
The power under this is provisional and cannot be used without reasonable care. The most
important effect is that during the operation of a proclamation the federal nature of the
government becomes unitary and the union has power to give directions to the state in
reference to the executive power to be exercised by them. In this way the legislative power of
the union parliament is enlarged up to the extent that it can make laws for the state and also
modify provisions regarding revenue matters. Where the fundamental rights are concerned,
during emergency arising out of war or external aggression Article 19 is suspended. During
the continuance of proclamation, power is vested in the President to suspend the right of
individual to move to the courts in case of infringement of their fundamental rights except
those under Article 20 and Article 21 under the Constitution of India.”

Bennett Coleman&Co v Union of India4

“Facts:The petitioners challenged the restrictions on the import of newsprint under Import Order
1955; the regulation of sale, acquisition, and use of newsprint under Newsprint Order 1962; and the
direct regulation of size and circulation of newspapers under the Newsprint Policy of 1972-73.”

“Contention: They contended that these orders directly affected the right to freedom of speech and
expression under Article 19(1)(a) of India’s Constitution. The Supreme Court of India accepted this
contention and struck down the impugned orders as unconstitutional.”

Judgement:

3
AIR 1967 SC 1170
4
AIR 1973 SC 106
“The Supreme Court held that the Newsprint Policy of 1972-73 which was a continuation of
the old policy made before the Proclamation of Emergency was not protected during the
Proclamation of Emergency from attack under Article 19.1t was observed that executive
action which is unconstitutional at the time of its being taken is not immune from being
challenged in a court of law during the Proclamation of Emergency. A Proclamation of
Emergency, would not authorize the taking of detrimental executive action during that period
affecting Article 19 without any legislative authority or in purported exercise of power
conferred by any pre-emergency law which was invalid when enacted.”

Writ of Habeas Corpus during Emergency:

“Parliament alone can take away this right either directly or authorise the executive to do so
whenever necessary.”

“During the two World Wars, Parliament delegated wide powers, including the power of
suspending the writ of habeas corpus, to the executive for conducting the war and regulating
the life of the civilians. But neither during the First nor in the Second World War was there
any direct suspension of the writ of habeas corpus. Access to the courts was not denied. The
courts could not, however, consider whether a particular regulation was necessary or
expedient for purposes of the Act. It was held that the power was wide enough to support a
regulation authorising imprisonment without trial.Thus, though the habeas corpus
proceedings were not suspended, there was a greater infringement of liberty in giving the
executive unrestricted power to detain without trial than in suspending habeas corpus
proceedings in respect of charges. One of the personal rights secured to an individual is the
right to move the High Court to issue an order in the nature of habeas corpus.”

“The issue relating to the suspension of the writ of habeas corpus during the period of
Emergency declared under Article 352 came up before the Supreme Court in”