What are circumstances when an emergency may be declared by the President under Article 352? Mention the effects of such emergency. Or Explain the Provisions relating to Emergency arising out of war and mention the effect of such emergency.
Ans. Circumstances when an emergency may be declared by the President under Article 352.—According to Article 352 (1), the President can proclaim Emergency when he is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened by (a) war; or (b) external aggression or (c) armed rebellion. [The words— “armed rebellion” have been substituted for the words “internal disturbance” by the Constitution (44th Amendment) Act, 1978]. Such a proclamation may be made in respect of the whole of India or of such part of territory of India as may be specified in the proclamation. A proclamation may be revoked or varied by the President by a subsequent proclamation. [Clause (2) of Article 352]. The President shall not issue such a Proclamation unless the decision of the Union Cabinet relating to it has been communicated to him in writing [Cl. (3) of ArtiCle 352]. The Proclamation of Emergency must be laid before each House of Parliament and it shall cease to be in operation at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament, In case the Proclamation is issued at a time when the Lok Sabha has been dissolved or the dissolution takes place during the period of one month referred to above, without approving the Proclamation, but the Proclamation has been approved by the Rajya Sabha it shall cease to operate at the expiration of 30 days from the date on which the Lok Sabha sits after fresh election, unless before the expiry of above period of 30 days from the date on which the Lok Sabha sits after fresh election, unless before the expiry of above period of 30 days a resolution approving the Proclamation has been passed by the Lok Sabha [Clause (4) to Article 352]. Further, Clause (5) provides that the Proclamation so approved shall remain in force for a period of six months from the date of the approval. For the further continuance of the Emergency beyond the period of six months, according to 44th Amendment Act, 1978, approval of Parliament will again be required. For the Proclamation of Emergency, the actual occurrence of war, external aggression, and internal disturbance as mentioned in Article 352, is not essential, for it can be made even when the President is satisfied that there is imminent danger of war or armed rebellion. It is to be noted that the word “satisfaction” does not mean the personal satisfaction of the President but it is the satisfaction of the Cabinet. It is very much clear from a new clause (3) to Article 352, (by the 44th Amendment Act) that the President shall declare emergency only on written advice of the Cabinet. In Minerva Mills Lid. v. Union of India, AIR 1980 SC 1789, Bhagwati. J., held that there is no bar to judicial review of the validity of the proclamation of emergency.
Effect of Proclamation of Emergency.—The following are the consequences of the Proclamation of Emergency :
1. Effect on Executive Power of the Union.—While a Proclamation of Emergency is in operation, the executive power of the Union extends to giving of directions to any State as to the matter in which executive power of the State is to be exercised. The Constitution (42nd Amendment) Act, 1976 has made a consequential change in Article 353 which provides that the executive power of the Union to give directions under clause (a) and the power to make laws under Clause (b) shall extend to any State other than the State where emergency is in operation. This provision has been made keeping in view the practicability of the situation that may arise at times.
2. Effect on legislative power of Parliament.—The Parliament is empowered to make laws with respect to any of matters in the State list during the Proclamation of Emergency. The State can make law but it is subject to the overriding power of the Parliament. If there is any inconsistency between State law and law made by the Parliament, the Parliamentary law prevail.
3. Financial effects.—The President may, by the order, alter the financial arrangement between the State and the Union as provided in Articles 268 to 279. Every such order is to be laid before each House of Parliament and will come to an end by the end of financial year in which the Proclamation of Emergency ceases to operate.
4. Extension of the duration of Lok Sabha.—During this period, the President may extend the normal life of the Lok Sabha by a year each time upto a period not exceeding beyond six months after proclamation ceases to operate.
5. Effect over Fundamental Rights.—Immediately after the Proclamation of Emergency under Article 352, the first Article which comes into operation is Article 358 (1). It provides that while a Proclamation of Emergency on the ground of war or external aggression is in operation, nothing in Article 19 shall restrict the power of the State as defined in Part III to make law or to make any executive action which the State would but for the provisions contained in that Part be competent to make or to take. But any law so made, to the extent of the inconsistency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect. The (44th Amendment) Act, 1978, has made two important changes in Article 358 : (i) Article 19 will be suspended only when a Proclamation of Emergency is declared on the ground of war, external aggression and not when the emergency is declared on the ground of armed rebellion; and
(ii) Article 358 will only protect emergency laws from being challenged in the Court of law and not other laws which are unrelated to the emergency. In M. M. Pathak v. Union of India. AIR 1973 SC 106, the Apex Court held that the effect of Proclamation of Emergency on Fundamental Rights is that the rights guaranteed by Articles 14 and 19 are not suspended during emergency but their operation is only suspended. This means that only the validity of an attack based on Articles 14 and 19 is suspended during the emergency. Article 359 empowers the President to suspend the right to enforce Fundamental Rights guaranteed by Part Ill of the Constitution. He may by order declare that the right to move any Court for the enforcement of such of the Fundamental Rights as may be mentioned in the order has been suspended. Constitution 44th (Amendment) Act exclude Articles 20 and 21 from such order and all proceedings pending in any Court for the enforcement of such rights shall remain suspended for the period the Proclamation is in force or for such shorter period as may be specified in the order. An order made under this Article may extend to the whole or any part of the territory of India. [Clause (2)1]. An order made under Clause (1) shall, as soon as possible, be laid before each House of Parliament [Clause (3)]. Clause (1-A) added in Article 359 by the Constitution 38th (Amendment) Act. 1975 provides that while an order mentioning any of the rights conferred by Part III [Except Articles 20 and 21] is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to the done before the law so ceases to have effect.