National Emergency (Article 352)

Art.352 permits a Proclamation on the ground of war, external aggression or armed rebellion. The 44th Amendment substituted 'armed rebellion' for 'internal disturbance', required written Cabinet advice, tightened approval, and put Arts.20 and 21 beyond suspension under Art.359.

Article 352(1) empowers the President, if satisfied that a grave emergency exists whereby the security of India or of any part of its territory is threatened, whether by war, external aggression or armed rebellion, to make a Proclamation to that effect in respect of the whole of India or of such part as may be specified.

Why emergency powers exist at all. A constitution which distributed power in normal times but provided nothing for a crisis would either break or be broken. The framers therefore built the crisis into the document, so that extraordinary power could be taken lawfully, temporarily and accountably rather than by suspending the Constitution. Dr Ambedkar's formulation, that the Constitution is federal in structure but can become unitary in an emergency, describes exactly this design.

Legal Framework

Provision	Subject	Key Rule
Art.352(1)	Proclamation	On the President's satisfaction that a grave emergency exists threatening the security of India by war, external aggression or armed rebellion; may extend to the whole of India or to a specified part
Art.352(3)	Written Cabinet advice	The President may not issue a Proclamation unless the decision of the Union Cabinet has been communicated to him in writing
Art.352(4)	Laying and approval	The Proclamation must be laid before each House and ceases to operate at the expiration of one month unless approved by resolutions of both Houses
Approval majority	Art.352(6)	Not less than two thirds of the members present and voting and a majority of the total membership of each House
Art.352(5)	Duration	Once approved, continues for six months from the date of approval, extendable by further six monthly approvals without limit
Art.352(7)	Mandatory revocation	The President shall revoke a Proclamation if the House of the People passes a resolution disapproving it
Art.352(8)	Special sitting	On notice by not less than one tenth of the total members of the House of the People, a special sitting must be held to consider a disapproval resolution
Art.352(9)	Different Proclamations	The power includes the power to issue different Proclamations on different grounds while one is already in operation
Art.353	Effect on executive and legislative power	The Union may give directions to a State as to the manner of exercising its executive power, and Parliament's legislative power extends to State List subjects
Art.250	Parliament's legislative power	Parliament may legislate on any State List matter; such a law ceases six months after the Proclamation ceases
Art.354	Revenue distribution	The President may by order modify the application of Arts.268 to 279 relating to the distribution of revenues
Art.83(2) proviso	Term of the House	May be extended by Parliament by law for one year at a time, and not beyond six months after the Proclamation ceases
Art.358	Suspension of Art.19	Available only where the Proclamation is on the ground of war or external aggression
Art.359	Suspension of enforcement of Part III rights	The President may suspend the right to move any court for enforcement of specified rights, except Arts.20 and 21

The 44th Amendment: The Central Comparison

The Emergency of 1975 was proclaimed on the ground of internal disturbance and lasted until 1977. The Constitution (Forty-fourth Amendment) Act, 1978 was enacted specifically to make its repetition difficult. Every one of its changes answers a particular feature of that experience, and the comparison is the most reliably examined part of this topic.

Matter	Before the 44th Amendment	After the 44th Amendment
Third ground	"Internal disturbance", a vague and elastic phrase	"Armed rebellion", a narrower and more objective condition
Advice to the President	No express requirement	Decision of the Union Cabinet communicated in writing (Art.352(3))
Time to obtain approval	Two months	One month
Majority for approval	Simple majority	Two thirds of those present and voting and a majority of total membership
Duration of each approval	Indefinite once approved	Six months at a time
Revocation by the House	No provision	Mandatory revocation on a resolution of the House of the People (Art.352(7)), with a special sitting on one tenth notice
Art.358	Applied to every Proclamation	Applies only to war or external aggression, and protects only laws reciting a connection with the emergency
Art.359	Every Part III right could be suspended	Arts.20 and 21 cannot be suspended
Judicial review	The 38th Amendment had made the Proclamation immune	Immunity removed; the Proclamation is reviewable

Effects on Fundamental Rights

Article 358 operates automatically once a Proclamation on the ground of war or external aggression is in force. Nothing in Art.19 restricts the power of the State to make any law or take any executive action which it would otherwise be incompetent to make or take. Since the 44th Amendment, only a law which contains a recital that it relates to the emergency, and executive action taken under such a law, enjoy the protection.

Article 359 operates only if the President makes an order, and it suspends not the right itself but the right to move any court for its enforcement. The order must specify the rights concerned, may be limited to a part of India, and must be laid before each House. Articles 20 and 21 are outside it altogether.

**ADM Jabalpur v Shivkant Shukla (1976)** Supreme Court of India

Facts: During the Emergency proclaimed in 1975, a large number of persons were detained under the Maintenance of Internal Security Act, 1971. A presidential order under Art.359 suspended the right to move any court for the enforcement of Arts.14, 21 and 22. Detenus filed petitions for habeas corpus, contending that they could still challenge detentions that were not in accordance with the detaining statute itself.

Issue: Whether a detenu can maintain a petition for habeas corpus during an Emergency when the enforcement of Art.21 has been suspended by an order under Art.359.

Held: By a majority of four to one, no such petition was maintainable. The majority reasoned that Art.21 is the sole repository of the right to life and personal liberty, that liberty exists only as conferred by that article and not independently of it, and that once the right to move a court for its enforcement is suspended no person has locus standi to complain of illegal detention, however arbitrary. H R Khanna J dissented, holding that the right to life and liberty is not the gift of the Constitution but antecedent to it, that even without Art.21 no person could be deprived of liberty without authority of law, and that the rule of law does not permit a State to detain without legal warrant. He was superseded in the succession to the office of Chief Justice.

Relevance: The most criticised decision in Indian constitutional history and the direct cause of the 44th Amendment. Its majority reasoning has been expressly overruled, notably in K S Puttaswamy v Union of India (2017), where the Court held the dissent to be the correct view. Cite it as a cautionary case, and note the two safeguards that now make its result impossible: Art.359 cannot touch Arts.20 and 21, and Art.358 does not apply to a Proclamation on the ground of armed rebellion.

**Makhan Singh v State of Punjab (1964)** Supreme Court of India

Facts: During the Emergency proclaimed at the time of the conflict with China, detenus under the Defence of India Act challenged their detentions notwithstanding a presidential order under Art.359 suspending the enforcement of Arts.14, 21 and 22.

Issue: How far does an order under Art.359 exclude a challenge to a detention?

Held: The bar is limited to the rights specified in the order. A detenu remains free to raise any ground outside those rights. He may contend that the detention is mala fide, or that the order was made by an authority not empowered to make it, or that the detention does not fall within the four corners of the statute at all, or that the statute is invalid for a reason unconnected with the suspended articles, for example want of legislative competence. What he may not do is complain that the detention infringes the very rights whose enforcement has been suspended.

Relevance: The correct and enduring statement of the reach of Art.359. It shows how far the majority in ADM Jabalpur departed from the earlier position, since Makhan Singh had already held that a detention outside the statute could be challenged.

**Minerva Mills Ltd v Union of India (1980)** Supreme Court of India

Facts: The case principally concerned clauses (4) and (5) of Art.368, inserted by the 42nd Amendment, which sought to exclude judicial review of constitutional amendments. The 38th Amendment had separately provided that the satisfaction of the President in proclaiming an Emergency should be final and conclusive and not questionable in any court.

Issue: Whether a Proclamation of Emergency is immune from judicial review.

Held: Clauses (4) and (5) of Art.368 were struck down as destroying the basic structure by removing judicial review and the limits on the amending power. On the emergency question the Court held that a Proclamation under Art.352 is not beyond judicial scrutiny: it may be challenged on the ground that it was issued mala fide, or that the declaration rested on wholly extraneous or irrelevant facts, or that it was absurd or perverse. The satisfaction of the President is that of the Council of Ministers and cannot be treated as unquestionable.

Relevance: Establishes the justiciability of the Proclamation. Read with S R Bommai (1994) on Art.356, the two together show that no emergency power in the Constitution is wholly outside review.

Illustrations

Proclamation on internal disturbance: The President proclaims an Emergency on the ground of widespread civil unrest not amounting to armed rebellion. This is incompetent, the ground of internal disturbance having been removed by the 44th Amendment.
Proclamation without written advice: A Proclamation is issued on the Prime Minister's oral advice. It offends Art.352(3), which requires the Union Cabinet's decision to be communicated in writing.
Proclamation not approved in time: A Proclamation is laid before the Houses and five weeks pass without approval. It ceases to operate at the end of one month.
Approval by simple majority: Both Houses approve by a simple majority of those present. The approval is ineffective, Art.352(6) requiring two thirds of those present and voting and a majority of total membership.
Disapproval by the popular House: The House of the People passes a resolution disapproving the Proclamation. The President shall revoke it under Art.352(7); he has no discretion.
Extension of the term of the House: While the Proclamation operates, Parliament extends the life of the House of the People by one year. This is permitted by the proviso to Art.83(2), but the extension cannot run beyond six months after the Proclamation ceases.
Art.358 and armed rebellion: An Emergency is proclaimed on the ground of armed rebellion, and a State pleads Art.358 to justify a law abridging freedom of speech. The plea fails, Art.358 being confined to war and external aggression.
Law without a recital: During a war Emergency, a law abridging Art.19 rights contains no recital connecting it to the emergency. It is not protected by Art.358 as amended.
Art.359 order covering Art.21: The President makes an order suspending the enforcement of Arts.19, 21 and 22. The order is void so far as it relates to Art.21, and equally would be as to Art.20.
Detention outside the statute: A detenu shows that the detaining authority was not empowered to make the order. Applying Makhan Singh (1964), the challenge is available notwithstanding an Art.359 order, since it does not depend on the suspended rights.
Proclamation on extraneous grounds: A Proclamation is issued to deal with a political crisis, no external threat or armed rebellion existing. Applying Minerva Mills (1980), it may be challenged as mala fide or as founded on wholly extraneous facts.

Recall Check

State the three grounds in Art.352(1) and identify which one the 44th Amendment substituted and for what.
Set out the timetable and majorities for approval and continuance of a Proclamation.
Distinguish Art.358 from Art.359 on four points.

Key Cases

ADM Jabalpur v Shivkant Shukla (1976) ADM Jabalpur v Shivkant Shukla 1976
Issue: Whether habeas corpus is available during an Emergency when the enforcement of Art.21 stands suspended under Art.359.
Rule: The majority held Art.21 to be the sole repository of the right to life and personal liberty, so its suspension left no enforceable right.
Held: The petitions were not maintainable, by four to one, H R Khanna J dissenting. The majority view has since been expressly overruled.

Makhan Singh v State of Punjab (1964) Makhan Singh v State of Punjab 1964
Issue: The reach of a presidential order under Art.359.
Rule: The bar is confined to the rights specified in the order; grounds outside those rights remain available.
Held: A detenu could still plead mala fides, want of power in the detaining authority, that the detention fell outside the statute, or that the statute was invalid on unrelated grounds.

Minerva Mills Ltd v Union of India (1980) Minerva Mills v Union of India 1980
Issue: Whether a Proclamation of Emergency is immune from judicial review.
Rule: It is reviewable on the grounds of mala fides, reliance on wholly extraneous or irrelevant facts, or perversity.
Held: Clauses (4) and (5) of Art.368 were struck down, and the immunity of the Proclamation from scrutiny was rejected.

Distinctions

Basis	Art.358	Art.359
Rights affected	Art.19 only	Any rights in Part III except Arts.20 and 21
How it operates	Automatically on the Proclamation	Only on a presidential order
Grounds of Proclamation required	Only war or external aggression	Any ground, including armed rebellion
What is suspended	The right itself, so far as State power is concerned	Only the right to move a court for enforcement
Territorial extent	The whole area where the Proclamation operates	May be confined to a part of India
Protection of laws	Only laws reciting a connection with the emergency	As specified in the order
Effect on past acts	Things done during the Proclamation remain valid after it ends	Likewise, as to proceedings barred during the period

Basis	Art.352 National Emergency	Art.356 President's Rule
Ground	War, external aggression or armed rebellion	Failure of constitutional machinery in a State
Extent	Whole of India or a specified part	A particular State
Effect on the State legislature	Continues; Parliament acquires concurrent power over State subjects	May be dissolved or kept in suspended animation
Effect on the State executive	Continues, subject to Union directions under Art.353	Assumed by the President
Fundamental rights	Affected through Arts.358 and 359	Not affected
Maximum duration	No outer limit, subject to six monthly approval	Ordinarily three years, with conditions after one year

Flashcards

What are the three grounds for a Proclamation under Art.352?

War, external aggression, and armed rebellion.

Which ground did the 44th Amendment substitute, and for what?

"Armed rebellion", substituted for "internal disturbance".

What must precede a Proclamation under Art.352(3)?

The decision of the Union Cabinet communicated to the President in writing.

Within what period must a Proclamation be approved?

One month, failing which it ceases to operate.

What majority is required for approval?

Not less than two thirds of the members present and voting, and a majority of the total membership of each House.

For how long does an approved Proclamation continue?

Six months from the date of approval, extendable by further six monthly approvals.

What happens if the House of the People disapproves the Proclamation?

The President shall revoke it (Art.352(7)). Revocation is mandatory.

How many members must give notice for a special sitting to consider disapproval?

Not less than one tenth of the total members of the House of the People.

When does Art.358 apply?

Only where the Proclamation is on the ground of war or external aggression.

Which rights can never be suspended under Art.359?

Arts.20 and 21.

What is suspended by an order under Art.359?

Not the right itself, but the right to move any court for its enforcement.

What did the majority hold in *ADM Jabalpur*?

That Art.21 is the sole repository of the right to life and personal liberty, so no habeas corpus petition lay once its enforcement was suspended.

Who dissented, and on what reasoning?

H R Khanna J, holding the right to life and liberty to be antecedent to the Constitution and the rule of law to forbid detention without legal authority.

What may a detenu still argue despite an Art.359 order?

Mala fides, want of power in the detaining authority, that the detention falls outside the statute, or that the statute is invalid on grounds unconnected with the suspended rights (Makhan Singh, 1964).

Is a Proclamation of Emergency justiciable?

Yes. Minerva Mills (1980) held it reviewable for mala fides, reliance on wholly extraneous facts, or perversity.

What is the effect of a Proclamation on Parliament's legislative power?

Under Arts.250 and 353 Parliament may legislate on State List subjects, such laws ceasing six months after the Proclamation ends.

Exam Scenario

Problem: Following a period of violent agitation in three States, with arson and attacks on police stations but no organised armed uprising and no external threat, the President issues a Proclamation of Emergency for the whole of India on the ground of "internal disturbance and armed rebellion". The Proclamation is issued on the Prime Minister's oral advice, the Cabinet having met but sent nothing in writing. It is laid before the Houses and approved forty five days later by a simple majority of those present. The President then makes an order under Art.359 suspending the enforcement of Arts.14, 19, 21 and 22. Farhan is detained without any order being made by the authority empowered under the detaining statute, and files a habeas corpus petition. The Union relies on ADM Jabalpur. Advise.

Step 1: Test the ground against Art.352(1) as amended

"Internal disturbance" ceased to be a ground with the 44th Amendment, so that limb of the Proclamation is simply unavailable.

The remaining ground of armed rebellion requires more than violent agitation, arson and attacks on police stations. It connotes an organised armed challenge to the authority of the State, and on these facts the ground is not made out.

Applying Minerva Mills Ltd v Union of India (1980), the Proclamation is not immune from review and may be challenged as founded on wholly extraneous or irrelevant facts, the 38th Amendment's finality clause having been rejected. The Proclamation is vulnerable on this ground alone.

Step 2: Take the two independent procedural defects

Art.352(3) requires the decision of the Union Cabinet to be communicated to the President in writing. Oral advice by the Prime Minister does not satisfy it. The requirement was inserted precisely to prevent a single individual from procuring a Proclamation.

Art.352(4) requires approval within one month. Forty five days is outside it, so the Proclamation had already ceased to operate before the vote was taken.

Step 3: Test the approval majority under Art.352(6)

Approval requires two thirds of the members present and voting and a majority of the total membership of each House.

A simple majority of those present satisfies neither limb, so even had the vote been timely the approval would have been ineffective.

Step 4: Take the Art.359 order article by article

Right named in the order	Competence of the suspension
Art.21	Void. The 44th Amendment placed Arts.20 and 21 beyond the reach of Art.359
Art.14	Competent in form
Art.22	Competent in form
Art.19	Competent in form, but Art.358 is confined to a Proclamation on the ground of war or external aggression and would not assist the State here in any event

Step 5: Argue Farhan's entitlement to habeas corpus in this order

Art.21 cannot be suspended, so Farhan's right to move the court for its enforcement survives.
Even on the older law, Makhan Singh v State of Punjab (1964) held that an Art.359 order bars only reliance on the suspended rights. It leaves open a plea that the detaining authority was not empowered, or that the detention falls outside the four corners of the statute, which is exactly Farhan's case.
The majority reasoning in ADM Jabalpur v Shivkant Shukla (1976), that Art.21 is the sole repository of the right to life and liberty, has been expressly overruled, and H R Khanna J's dissent is now accepted as the correct view. The Union's reliance on it is misplaced.

Traps in this problem

The two limbs of Art.352(6) are cumulative. Two thirds of those present and voting is not enough on its own. A majority of the total membership is also required, and a simple majority of those present satisfies neither limb.

"Internal disturbance" is no longer a ground. Reciting it adds nothing, and violent agitation short of an organised armed challenge does not become armed rebellion.

Art.358 and Art.359 are separate. Art.358 operates automatically but only on war or external aggression. Art.359 needs a presidential order and can never reach Arts.20 and 21.

The detention question no longer turns on ADM Jabalpur. Its majority reasoning has been overruled, and the two safeguards inserted by the 44th Amendment make its result impossible today.

Conclusion. The Proclamation fails on the ground, on the want of written Cabinet advice, and on the lapse of one month. The approval is ineffective for want of the prescribed majorities. The Art.359 order is void as to Art.21, and Farhan is entitled to habeas corpus both because Art.21 survives and because his challenge falls outside the suspended rights.