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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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.

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  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.

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  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.

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  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.

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  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.

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  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.