The document discusses the concept of national emergency in India, focusing on its constitutional provisions, historical instances, and implications for center-state relations. It outlines the conditions under which a national emergency can be declared, the process for its approval, revocation, and the suspension of fundamental rights during such periods. Additionally, it highlights amendments made to safeguard fundamental rights and the responsibilities of the Union government to protect individual states during emergencies.

1. National Emergency and
Centre State Relations
Shreya Sarkar
LLM 1 year course (2020-2021)
New Law College, Bharati Vidyapeeth Deemed to be University

2. Contents
• Introduction
• Art 352 (1) – satisfaction of president, territorial extent etc.
• 1975 Emergency at a glance
• Period of emergency
• Revocation of emergency
• Judicial review of such proclamation
• Effects of emergency – centre state relations
• Duty of union to protect the state
• Suspension of Fundamental Rights
• References

3. Introduction
Blacks Law Dictionary “Emergency is a situation which requires quick
action and immediate notice , as such a situation causes a threat to the
life and property of the nation. It is a failure of social system to deliver
reasonable conditions of life.
Three types of emergency
1. National emergency
2. State emergency
3. Financial emergency

4. Art 352
• (1) If the President is satisfied that a grave emergency exists whereby
the security of India or of any part of the territory thereof is
threatened, whether by war or external aggression or armed
rebellion, he may, by Proclamation, make a declaration to that effect
[in respect of the whole of India or of such part of the territory
thereof as may be specified in the Proclamation].
• [Explanation.—A Proclamation of Emergency declaring that the
security of India or any part of the territory thereof is threatened by
war or by external aggression or by armed rebellion may be made
before the actual occurrence of war or of any such aggression or
rebellion, if the President is satisfied that there is imminent danger
thereof.]

5. History
• Emergency of 1962 (Indo – China) – external aggression
• Emergency of 1971 (Indo- Pak) - war
• Emergency of 1975 (Indira Gandhi Govt.) – internal disturbance

6. 1975 emergency and 44th Amendment
• Before 1975- emergency on grounds of “internal disturbance”
• 1971 general election- Congress won with majority
• State of UP v. Raj Narain
• 1977 election- Janata Govt. came into power
• 44th amendment : STATEMENT OF OBJECTS AND REASONS ‘Recent
experience has shown that the fundamental rights, including those of life
and liberty, granted to citizens by the Constitution are capable of being
taken away by a transient majority. It is, therefore, necessary to provide
adequate safeguards against the recurrence of such a contingency in the
future and to ensure to the people themselves an effective voice in
determining the form of government under which they are to live. This is
one of the primary objects of this Bill.’

7. Approval and Period of Emergency Art 352 Clause
3,4 and 6
• Cl(3) The President shall not issue a Proclamation under clause (1) or a Proclamation varying such
Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the
Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a
Proclamation may be issued has been communicated to him in writing. (Read with Art 74)
• Cl(4)Every Proclamation issued under this article shall be laid before each House of Parliament and
shall, except where it is a Proclamation revoking a previous Proclamation, 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
• Provided further that if the dissolution of the House of the People takes place during any such
period of six months and a resolution approving the continuance in force of such Proclamation has
been passed by the Council of States but no resolution with respect to the continuance in force of
such Proclamation has been passed by the House of the People during the said period, the
Proclamation shall cease to operate at the expiration of thirty days from the date on which the
House of the People first sits after its reconstitution unless before the expiration of the said period
of thirty days, a resolution approving the continuance in force of the Proclamation has been also
passed by the House of the People.
• Cl(6) For the purposes of clauses (4) and (5), a resolution may be passed by either House of
Parliament only by a majority of the total membership of that House and by a majority of not less
than two-thirds of the Members of that House present and voting.

8. Revocation of emergency
• Cl(2) A Proclamation issued under clause (1) may be varied or revoked by a
subsequent Proclamation.
• Cl(4) – Lok sabha not in session
• Cl(7) Notwithstanding anything contained in the foregoing clauses, the President
shall revoke a Proclamation issued under clause (1) or a Proclamation varying such
Proclamation if the House of the People passes a resolution disapproving, or, as
the case may be, disapproving the continuance in force of, such Proclamation.
• Cl(8) Where a notice in writing signed by not less than one-tenth of the total
number of members of the House of the People has been given, of their intention
to move a resolution for disapproving, or, as the case may be, for disapproving the
continuance in force of, a Proclamation issued under clause (1) or a Proclamation
varying such Proclamation,—
• (a) to the Speaker, if the House is in session; or
• (b) to the President, if the House is not in session,
a special sitting of the House shall be held within fourteen days from the date on which such
notice is received by the Speaker, or, as the case may be, by the President, for the purpose of
considering such resolution.

9. Period of emergency
• Art 352 (5) and (6)
• Emergency in effect for 1 month (during pendency of approval)
• If approved by parliament then for a period of six months (unless revoked
earlier)
• Special majority required i.e. majority of the total membership of that House
and by a majority of not less than 2/3rd members present and voting
• Extension of emergency beyond 6 mos- again approval by Parliament required

10. Judicial review of Emergency
• 38th amendment enacted during 1975 emergency–
• “satisfaction of the president final and conclusive”
• Supreme court nor any other court have any jurisdiction
• Minerva Mills v. Union of India AIR 1980 SC 1789
• No bar on judicial review of the validity of proclamation of emergency
• Satisfaction of president should not be absurd, perverse or malafide or based
on wholly extraneous and irrelevant ground
• S.R. Bommai v. Union of India (1994) 3 SCC 1
• Presidents rule imposed in Madhya Pradesh, Himachal Pradesh and Rajasthan
• Judicial review of Presidents order actually done
• Presidents rule to not be imposed on mere suspicion of breakdown of state
machinery

11. Centre- state relations during emergency
• Art 353- Executive power vests in Union
• Art 250 – Parliament can make law on state subject (Art 353 (b))
• Art 251 – Central law will override State law with respect to matter given in
State list.
• Art 353 Proviso- Laws to have power not just on the territory where
emergency is proclaimed but also to any other state (42nd Amendment)
• Art 354 - Distribution of revenue between centre and state subject to
subjections and modifications of the President
• Extension of life of Lok Sabha (Art 83 (2)) and State Legislature (Art 172)
• Suspension of FR (only during war and external aggression) and
enforcement of the same (Art 358 and 359)

12. Duty of Union to Protect the State
• Art 355 imposes two fold duty on Centre
i. To protect every state against external aggression and internal disturbance, and
ii. To ensure that govt. of every state is carried on in accordance of provision of the
constitution
• Centre intervenes when aggression is beyond the state control
• On state’s request
• Suo moto
• 42nd Amendment and Art 275 A (repealed by 44th amendment) and entry 2
A List 1.
“Deployment of any armed force of the Union or any other force subject to the control
of the Union or any contingent or unit thereof in any State in aid of the civil power,
powers, jurisdiction, privileges and liabilities of the members of such forces while on
such deployment”

13. Suspension of Fundamental Rights
• Art 358: Suspension of provision of Art 19 during emergencies
• 6 freedoms under Art 19 suspended only during emergency
• Only on the grounds of war and external aggression and not armed rebellion
• No action lies against laws related to emergency
• Art 359: Suspension of RIGHT OF ENFORECEMENT of fundamental
rights
• Only on Presidential order
• Suspension of right to move to any court for enforcement of FR
• For whole duration of emergency
• For a shorter period
As mentioned in the
order

14. • Makhan Singh v. State of Punjab AIR 1964 SC 381
• Makhan Singh and ors. were detained under Defence of India Act 1962
• Contended that such detention was illegal and contravened their FR
• SC stated that such detention can be challenged if its mala fide.
• Right to move court for a writ of habeas corpus cannot be denied.
• ADM Jabalpur v. Shivkant Shukla AIR 1976 SC 1207
• Respondents detained under MISA .
• But court did not apply the judgement of Makhan Singh .
• 44th amendment : Art 20 and 21 cannot be suspended during
emergency and allows people to challenge validity of detention even
during the operation of emergency

15. Reference
• The Constitution of India- Bare Act .
• MP Jain , Indian Constitutional Law , 7th Edition.
• M Laxmikanth, Indian Polity, 6th Edition.
• Dr. J.N. Pandey, Constitutional Law of India , 53rd Edition.
• 44th Amendment Act, https://www.india.gov.in/my-
government/constitution-india/amendments/constitution-india-forty-
fourth-amendment-act-1978.