Under Article 352, the President can declare a national emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. It may be noted that the president can declare a national emergency even before the actual occurrence of war or external aggression or armed rebellion, if he is satisfied that there is an imminent danger.
The President can also issue different proclamations on grounds of war, external aggression, armed rebellion, or imminent danger thereof, whether or not there is a proclamation already issued by him and such proclamation is in operation. This provision was added by the 38th Amendment Act of 1975.
When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External Emergency’. On the other hand, when it is declared on the ground of ‘armed rebellion’, it is known as ‘Internal Emergency’.
A proclamation of national emergency may be applicable to the entire country or only a part of it. The 42nd Amendment Act of 1976 enabled the president to limit the operation of a National Emergency to a specified part of India.
Originally, the Constitution mentioned ‘internal disturbance’ as the third ground for the proclamation of a National Emergency, but the expression was too vague and had a wider connotation. Hence, the 44th Amendment Act of 1978 substituted the words ‘armed rebellion’ for ‘internal disturbance’. Thus, it is no longer possible to declare a National Emergency on the ground of ‘internal disturbance’ as was done in 1975 by the Congress government headed by Indira Gandhi.
The President, however, can proclaim a national emergency only after receiving a written recommendation from the cabinet. This means that the emergency can be declared only on the concurrence of the cabinet and not merely on the advice of the prime minister. In 1975, the then Prime Minister, Indira Gandhi advised the president to proclaim emergency without consulting her cabinet. The cabinet was informed of the proclamation after it was made, as a fait accompli. The 44th Amendment Act of 1978 introduced this safeguard to eliminate any possibility of the prime minister alone taking a decision in this regard.
The 38th Amendment Act of 1975 made the declaration of a National Emergency immune from the judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of 1978. Further, in the Minerva Mills case, (1980), the Supreme Court held that the proclamation of a national emergency can be challenged in a court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts or is absurd or perverse.
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