Who can proclaim the Emergency? Describe the effect of proclamation of Emergency?

The National Emergency under Article 352 can be proclaimed only by the President of India, but this power is not exercised on the President's independent discretion; it can be exercised only upon the written recommendation of the Union Cabinet, and once proclaimed, the Emergency produces sweeping effects across executive, legislative, and financial relations between the Union and the States, as well as upon the tenure of legislative bodies and the enforceability of fundamental rights.

Who Can Proclaim the Emergency: Article 352

Article 352(1) provides that if the President is 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, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or such part of its territory as may be specified in the Proclamation. The ground of "armed rebellion" replaced the original, considerably vaguer expression "internal disturbance" through the Constitution (Forty-Fourth Amendment) Act, 1978, a change introduced specifically because the earlier, looser standard had permitted the 1975 Emergency, proclaimed on the ground of internal disturbance, to be invoked in circumstances that fell well short of any genuine threat to national security.

While the constitutional text vests the formal power to proclaim the Emergency in the President, Article 352(3), also inserted by the Forty-Fourth Amendment, provides that the President shall not issue any such Proclamation, or any Proclamation varying such Proclamation, unless the decision of the Union Cabinet, meaning the Council consisting of the Prime Minister and other Ministers of Cabinet rank, that such a Proclamation may be issued, has been communicated to him in writing. This requirement of a written Cabinet decision was introduced precisely to prevent a repetition of the events of 1975, when the Emergency was proclaimed essentially on the advice of the Prime Minister alone, without prior collective Cabinet deliberation or written confirmation, and to ensure that a decision of this magnitude reflects genuine collective responsibility rather than the isolated judgment of any single individual, even the Prime Minister.

Article 352(4) requires that every Proclamation be laid before each House of Parliament and, unless approved by resolutions of both Houses before the expiration of one month, cease to operate. Article 352(4) further specifies, following the Forty-Fourth Amendment, that such approval requires a special majority, namely a majority of the total membership of each House and a majority of not less than two-thirds of the members present and voting, a considerably higher threshold than ordinary legislative majorities, again introduced to prevent a Proclamation from being sustained merely through the ordinary parliamentary majority of the ruling party. Article 352(5) provides that a Proclamation so approved continues in force for six months from the date of the approving resolution, unless revoked, and may be extended for further periods of six months at a time through similar resolutions of both Houses. Article 352(7) and (8) further empower the Lok Sabha, through a resolution passed by a simple majority of members present and voting, to disapprove the continuance of the Proclamation, and require the President to revoke it if the Lok Sabha passes such a resolution, or if not less than one-tenth of the total membership of the Lok Sabha gives notice in writing of an intention to move such a resolution during a session, requiring a special sitting of the House within fourteen days to consider it.

Effects of the Proclamation on Executive Relations: Article 353

Article 353(a) provides that while a Proclamation of Emergency is in operation, the executive power of the Union shall extend, notwithstanding anything in the Constitution, to giving directions to any State as to the manner in which its executive power is to be exercised. This effectively subordinates the States' ordinarily autonomous exercise of executive authority under Article 162 to Union direction for the duration of the Emergency, marking the first and most immediate sign of the shift from the Constitution's federal character toward a unitary one.

Effects on Legislative Relations: Articles 250 and 353(b)

Article 250(1) confers upon Parliament the power to make laws for the whole or any part of India with respect to any matter in the State List while the Proclamation is in operation, a power Parliament would not otherwise possess under the ordinary distribution of legislative fields in Article 246(3). Article 250(2) provides that any such law, being one Parliament would not otherwise be competent to enact, ceases to have effect six months after the Proclamation ceases to operate, except as respects things done or omitted before that expiry. Article 353(b) similarly empowers Parliament, during the Emergency, to make laws conferring powers and imposing duties upon the Union or its officers and authorities with respect to any matter, even one not enumerated in the Union List, further extending the Union's reach into fields ordinarily beyond its competence.

Effects on Financial Relations: Article 354

Article 354 empowers the President, while the Proclamation is in operation, to direct that all or any of the provisions relating to the distribution of revenues between the Union and the States contained in Articles 268 to 279 shall have effect subject to such exceptions or modifications as he thinks fit, with any such order required to be laid before both Houses of Parliament. This allows the Union to unilaterally reallocate financial resources during the Emergency in a manner departing from the ordinarily fixed constitutional scheme of revenue-sharing.

Effects on the Tenure of Legislative Bodies: Articles 83 and 172

Article 83(2) permits Parliament, by law, to extend the normal five-year term of the Lok Sabha by periods not exceeding one year at a time while the Proclamation is in operation, though such extension cannot continue beyond six months after the Proclamation ceases to operate. Article 172(1) contains a parallel provision permitting similar extension of the tenure of State Legislative Assemblies, allowing elections to be deferred where their conduct would be impractical or dangerous during the continuance of the Emergency.

Effects on Fundamental Rights: Articles 358 and 359

Article 358(1), as it stands after the Forty-Fourth Amendment, provides that while a Proclamation of Emergency declaring that the security of India is threatened by war or external aggression is in operation, nothing in Article 19 shall restrict the power of the State to make any law or take any executive action it would otherwise be competent to make or take, this automatic suspension being confined only to Emergencies proclaimed on the ground of war or external aggression, and expressly excluding Emergencies proclaimed on the ground of armed rebellion, a deliberate narrowing meant to prevent domestic civil liberties from being swept aside during internally directed Emergencies. Article 359(1) further empowers the President, by order, to declare that the right to move any court for the enforcement of specified fundamental rights under Part III, other than Articles 20 and 21, shall remain suspended for the period the Proclamation is in force, this power applying to any Proclamation regardless of the ground on which it was issued, but with Articles 20 and 21 permanently placed beyond its reach following the Forty-Fourth Amendment.

The Cautionary Precedent: ADM Jabalpur v. Shivakant Shukla

The gravest illustration of how these fundamental rights effects could be misused arose during the 1975 Emergency, when a Presidential Order under the then-unamended Article 359 suspended the right to move courts for enforcement of fundamental rights including Article 21, leading to widespread preventive detention without judicial recourse. In ADM Jabalpur v. Shivakant Shukla, the Supreme Court held by majority that during the operation of such an Order, no person could approach any court to enforce even the right to personal liberty under Article 21, since the Order had suspended access to judicial remedy for its enforcement altogether. This decision, now regarded as one of the gravest failures of judicial protection of individual liberty in independent India's history, directly prompted the Forty-Fourth Amendment's insertion of the permanent exclusion of Articles 20 and 21 from the scope of any Presidential Order under Article 359.

Illustration

Suppose the Union Cabinet, upon receiving credible intelligence of a coordinated armed insurgency threatening the security of several States, formally records a written decision recommending Proclamation of Emergency on the ground of armed rebellion, which the President then issues under Article 352(1). Following this Proclamation, the Union could direct the affected States on the exercise of their executive power under Article 353(a), Parliament could legislate on State List subjects such as public order under Article 250, and the tenure of the Lok Sabha and any affected State Assemblies could be extended under Articles 83 and 172 if elections become impractical. However, since this Proclamation rests on the ground of armed rebellion rather than war or external aggression, Article 19 would not be automatically suspended under Article 358, and any restriction on speech or movement would still require independent justification under the ordinary reasonable-restriction standard of Article 19 itself. Even if the President separately issues an order under Article 359 suspending access to courts for enforcing certain other fundamental rights, any person detained during this period would still retain full access to courts to enforce Article 21, since the Forty-Fourth Amendment's permanent exclusion of Articles 20 and 21 would foreclose any repetition of the outcome reached in ADM Jabalpur v. Shivakant Shukla.

The power to proclaim a National Emergency, therefore, rests formally with the President but is substantively controlled by the collective, written recommendation of the Union Cabinet under Article 352(3), a safeguard introduced specifically in response to the events of 1975, and once proclaimed, the Emergency's effects, spanning Articles 353, 250, 354, 83, 172, 358, and 359, temporarily convert India's federal constitutional structure into a considerably more centralised arrangement, a transformation whose potential for abuse the Supreme Court's troubling decision in ADM Jabalpur v. Shivakant Shukla starkly exposed, and which the Forty-Fourth Amendment has since sought to permanently guard against by narrowing the grounds for automatic rights suspension and placing Articles 20 and 21 forever beyond the reach of any Emergency-related restriction.