Skip to main content

Article 352 of the Indian Constitution - National Emergency

 Article 352 of the Indian Constitution deals with the Proclamation of Emergency. Here are detailed notes on its key aspects:

1. Overview:

  • Article 352 provides the President with the power to proclaim an emergency in the country if there is a threat to the security of India or any part of it, either due to war, external aggression, or armed rebellion.

2. Conditions for Proclamation:

  • The President can proclaim an emergency if:

    • The security of India or any part of it is threatened by war, external aggression, or armed rebellion.

    • This threat must be of such a nature that it requires immediate action.

3. Procedure for Proclamation:

  • The President can act on the advice of the Council of Ministers (headed by the Prime Minister) or based on his own judgment in case of a grave emergency.

  • Parliamentary Approval:

    • The proclamation must be approved by Parliament within two months from the date of its issuance.

    • If Parliament does not approve, the emergency will cease to be in effect.

4. Duration of Emergency:

  • Initially, the emergency can be proclaimed for up to 6 months.

  • It can be extended for periods of 6 months at a time, but:

    • After one year, it can only be extended beyond one year if the security of India is threatened due to external aggression or war.

5. Effect of Emergency:

  • Centralization of Power:

    • The Union Government gains power to legislate on subjects in the State List.

  • Suspension of Fundamental Rights:

    • Article 19 (freedom of speech, assembly, etc.) can be suspended.

    • Other Fundamental Rights can be restricted but not completely taken away.

  • State Governments:

    • Presidential Rule may be imposed, and States are governed by the Central Government.

6. Distinction from Other Emergencies:

  • Article 352 (National Emergency): Threat to national security (war, external aggression, armed rebellion).

  • Article 356 (President’s Rule): Failure of constitutional machinery in states.

  • Article 360 (Financial Emergency): Threat to financial stability.

7. Notable Instances of National Emergency:

  • 1962: China-India War.

  • 1971: Indo-Pak War leading to the Bangladesh Liberation War.

  • 1975-77: Emergency declared by Prime Minister Indira Gandhi (due to internal disturbances).

8. Judicial Review:

  • The Supreme Court has the power to review the proclamation of emergency, but it cannot question the grounds of the emergency under Article 352.

9. Key Case Laws:

  • 1. ADM Jabalpur v. Shivkant Shukla (1976) - The Emergency Case

    • Facts:

      • During the 1975 Emergency, the government suspended Fundamental Rights, including Article 21 (right to life and personal liberty).

      • Petitioners challenged the validity of the Emergency and the suspension of rights in the Supreme Court.

    • Issue:

      • Whether the right to life (Article 21) could be suspended during an emergency.

      • Whether the President’s proclamation of emergency could be challenged in court.

    • Judgment:

      • The Supreme Court upheld the validity of the Emergency and ruled that Fundamental Rights could be suspended during an emergency.

      • “Right to life” was interpreted to mean the right to life as it existed during normal times, and it could be restricted during an emergency.

    • Significance:

      • Controversial decision; it gave the government unchecked powers during the Emergency.

      • The case is often criticized for failing to protect Fundamental Rights.

    2. Minerva Mills Ltd. v. Union of India (1980)

    • Facts:

      • After the Emergency, the government introduced the Forty-second Amendment to the Constitution, which limited the power of judicial review.

      • The case challenged the validity of the amendment, asserting that it violated the basic structure of the Constitution.

    • Issue:

      • Whether the basic structure doctrine could limit the power of Parliament to amend the Constitution.

      • Whether the changes made during the Emergency were constitutional.

    • Judgment:

      • The Supreme Court struck down parts of the Forty-second Amendment, holding that the basic structure of the Constitution could not be altered, even during an Emergency.

      • The Court emphasized the need for judicial review to protect Fundamental Rights.

    • Significance:

      • Reaffirmed the supremacy of the Constitution and established the basic structure doctrine.

      • Limited the power of the government to amend the Constitution under the guise of emergency powers.

    3. Kesavananda Bharati v. State of Kerala (1973)

    • Facts:

      • The case dealt with the validity of the constitutional amendments made by the Parliament under the Emergency.

      • The petitioner challenged the Seventy-third Amendment, which attempted to limit the power of the judiciary.

    • Issue:

      • Whether the Parliament had the power to amend the Constitution to restrict Fundamental Rights.

      • Whether the basic structure doctrine applied to amendments made during an emergency.

    • Judgment:

      • The Supreme Court ruled that the Parliament could not alter the basic structure of the Constitution, even during an emergency.

      • The judgment laid the foundation for the basic structure doctrine, asserting that certain features of the Constitution are inalterable.

    • Significance:

      • Landmark judgment that curtailed the power of Parliament to make arbitrary constitutional changes.

      • Strengthened the role of the judiciary as the guardian of the Constitution.

    4. Maneka Gandhi v. Union of India (1978)

    • Facts:

      • During the Emergency, the government had imposed restrictions on personal liberty without proper legal procedures.

      • Maneka Gandhi challenged the validity of the passport seizure under the Emergency powers.

    • Issue:

      • Whether the right to personal liberty (Article 21) could be restricted arbitrarily during an Emergency.

      • Whether the Emergency powers were used unconstitutionally.

    • Judgment:

      • The Supreme Court ruled in favor of Maneka Gandhi, emphasizing that personal liberty could not be restricted without following legal procedures.

      • The judgment expanded the interpretation of Article 21 to include the right to live with dignity.

    • Significance:

      • Shifted the balance of power in favor of individual rights even during an Emergency.

      • Limited the arbitrary use of emergency powers by the government.

    5. Indira Gandhi v. Raj Narain (1975)

    • Facts:

      • After the Emergency was declared, Indira Gandhi’s election to Parliament was challenged by Raj Narain on grounds of electoral malpractices.

      • The case was significant because it questioned the legitimacy of the Emergency itself.

    • Issue:

      • Whether the Emergency was valid and whether it was used to protect the political interests of the ruling party.

    • Judgment:

      • The Allahabad High Court found Indira Gandhi guilty of electoral malpractices and declared her election invalid.

      • The case led to the imposition of the Emergency to avoid political consequences.

    • Significance:

      • Highlighted how Emergency powers were misused to protect political interests.

      • Led to the resignation of Indira Gandhi and the eventual end of the Emergency.

    Key Takeaways:

    • Judicial Review: The courts have the power to review the validity of the Emergency but cannot question the grounds for its declaration (as seen in ADM Jabalpur).

    • Basic Structure Doctrine: The basic structure of the Constitution cannot be altered, even during an Emergency (Kesavananda Bharati, Minerva Mills).

    • Fundamental Rights: While Fundamental Rights can be suspended during an Emergency, they cannot be completely abolished.

Comments

Post a Comment

Popular posts from this blog

Organs of Government: Relationship Between the Executive

  AUTHOR: SHIVANSHU KATARE Introduction to the Organs of Government In a modern democratic state, the government is typically divided into three branches or organs : The Legislature : Responsible for making laws. The Executive : Responsible for implementing laws and managing day-to-day administration. The Judiciary : Interprets laws and ensures justice. Each organ has distinct powers, but they function interdependently. The relationship between the executive and the other organs is crucial for maintaining the proper functioning of the government. Here, the focus is on the relationship between the executive and the legislature , which is often complex and varies across different political systems. 1. The Role and Structure of the Executive The Executive is primarily responsible for the implementation of laws and administration of government policies. It can be divided into two categories: Political Executive : Comprising the Head of State (e.g., the President in India) and the Hea...
Post a Comment
Read more

Judicial Accountability Bill, 2013

  AUTHOR: SHIVANSHU KATARE The Judicial Accountability Bill, 2013 was introduced in the Indian Parliament to address the issue of judicial accountability in the country. The bill aimed to ensure that judges, especially of higher courts, are held accountable for their conduct and decisions, while simultaneously safeguarding the independence of the judiciary. This bill was a step towards bringing transparency, fairness, and accountability in the judicial system, as it is essential for maintaining public trust in the judicial process. Context and Background The bill was introduced in response to several concerns regarding judicial accountability, the lack of transparency in the appointment and conduct of judges, and the increasing demands for judicial reforms. While the Indian judiciary is an independent body, there has been criticism about its lack of accountability mechanisms, particularly in cases involving judicial misconduct or inefficiency. The Judicial Accountability Bill, 2...
Post a Comment
Read more

Theories of law and sociology

 Theories of law and sociology provide different lenses to understand the relationship between law, society, and individuals. Law is often seen not just as a set of rules but as a reflection of societal norms, power structures, and historical context. Sociology of law explores how law functions within a society and how it shapes and is shaped by social relationships, structures, and institutions. Below is a detailed examination of key theories within these two fields: 1. Natural Law Theory Natural Law Theory is one of the oldest and most influential theories about law, originating from ancient Greece and Rome. It suggests that law is not just a human invention but is rooted in a higher, universal moral order. Natural law theorists argue that certain principles of justice and morality are inherent in nature, discoverable through human reason, and should be reflected in human-made laws. Key Figures : Aristotle, Thomas Aquinas, John Locke. Core Ideas : Laws should be based on moral va...
Post a Comment
Read more