Declaration of

emergency
and impact on
fundamental rights
 What is Emergency?
• Emergency means a situation in which there is a failure of the governance
system and which calls for an immediate action to be taken so that the
appropriate steps can be taken timely to tackle such situation.
• During an Emergency the Center takes all the power to make decisions and
the form of government becomes unitary
• Indian constitutions emergency is derived from Germanys YMR
constitution
• Part 18 of Indian constitution talks about emergency
• Article 352 -360.
• If approved by both houses of Parliament then National Emergency can
continue for 6 months and it can be renewed by approval of Parliament
after every 6 months.
 EMERGENC
Y
ARTICLE 352-
360

NATIONAL STATE FINANCIAL

EMERGENC EMERGENC EMERGENC
Y Y Y
ARTICLE 352 ARTICLE 356 ARTICLE 360
 GROUNDS FOR NATIONAL
EMERGENCY

EXTERNAL INTERNAL

EXTERNAL ARMED
WAR
AGGRESSION REBELLIONS
APPROVAL OF EMERGENCY
First it needs to be passed by the
Council of Ministers and Prime
minister

Once they are satisfied they send it in

written form to the President who
declares emergency

Once emergency is declared it goes

to the parliament where Rajya Sabha
& Lok Sabha approve it with special
majority
 REVOCATION OF
EMERGENCY
• If the situation improves the emergency can be revoked by the
President of India through another proclamation.
• The 44th Amendment of the Constitution provides that a
requisition for the meeting can be made by ten per cent or
more members of the Lok Sabha and in that meeting; it can
disapprove or revoke the emergency by a simple majority.
 National Emergency 1
China Attack On India 1962
CHINA ATTACK ON INDIA
26th October 1962 china attacked India. India declared
emergency on the grounds of external aggression

Art 359 was used & all fundamental rights(20 21 22)

which cant be enforced at courts.

Opposition leaders and more than 200 people arrested.

21st November 1962 war ended but emergency didn’t.

During first emergency war between India and Pakistan

erupted & normalized Jan 1966 but still emergency didn’t
end.

Finally due to public campaigns and international in

January 1968 it was revoked
National Emergency 2
Indo Pak War Of 1971
 On 3rd December 1971 a war started between India and Pakistan

Preventive detention acts were imposed by parliament and these were

misused by the center.

Huge arrests, custodial deaths and encounters were being reported

The war ended but emergency wasn’t revoked.

Much later in 1974 president said again that fundamental rights couldn’t
be enforced in courts

Even before this could be revoked, 3rd emergency was declared in July
1975
National Emergency 3
The Emergency of 1975
 On the night of 25th June 1975 president of India on the grounds of internal
disturbance declared 3rd emergency

This came few days after Allahabad court had found Indira Gandhi guilty for
corrupt practices in an election petition and decided to disqualify her from the
position and not let her take any public position for 6 years.

Indira Gandhi went to Supreme court but they were on a break due to which
she acquired conditional stay

This led to fights by opposition and demanded her to resign and country wide
agitation.
Indira Gandhi had taken this decision without consulting other ministers and
asked the president to declare emergency

The situation was very serious as fundamental rights were curtained and all
opposition leaders were arrested and insensitive programs were implemented
like slum clearance and family planning

The press wasn’t allowed to report anything and the emergency powers were
totally misused.
Finally it was revoked on 23rd March 1977.
 44th Constitutional
Amendment 1978
• First it changed presidents power to suspend fund rights, he
cannot suspend article 20 and 21
• "Internal disturbance" was replaced by "armed rebellion"
under art 352.
• To continue emergency, it must be re-approved by the houses
every six month.
• Article 358 provides that Article 19 will be suspended only
upon war or external aggression and not upon armed
rebellion.
 FUNDAMENTAL RIGHTS
DURING EMERGENCY
• Fundamental rights and emergencies are part of the same
document.
• Sometimes during extreme situations fundamental rights are
suspended under Article 359.
• Makers of the constitution kept in mind the rise of events in
future that could be threat to national security due to which
state might have to suspend the liberties
• President can suspend fundamental rights under article 359
except Article 20 and 21.
 MALAFIDE DETENTION

• The Supreme Court has made it clear that the nature of

detention whether mala fide or bonafide is important in any
case.
• If a person’s fundamental right is reduced from their
detention, then he can move to court praying for obtaining a
writ of habeas corpus if such detention has been ordered
malafide.
• any infringement of a right which has not been suspended
under the order made by the President can be challenged in the
court of law.
 CONCLUSION

• It is easy to see what the purpose was behind to make such

provisions but these provisions are provided for the security
of the, the provisions in themselves give a lot of drastic
discretionary powers in the hands of the Executive.
• This turns the structure unitary one while it seeks to safeguard
the interests of the state and the people.