HoP = House of People or Lok Sabha
CoS = Council of State of Rajya Sabha
CoM = Council of Mnister
The term Emergency is not described in constitution or any statue but the proclaimation of emergency has been provided under the Constitution of India.
Proclamation, continuation, discontinuation
- President and cabinet provisions: (a) Art 352 emergency can be proclaimed even before the actual occurrence of any such disturbance. (b) It has to be conveyed in writing by the cabinet to the president.
- Parliamentary provisions: (a) It has to be laid down in the parliament and has to be approved within one month of the proclamation by both the houses with a special majority. If the HoP is dissolved when the proclamation was issued then the proclamation may survive for one month after the reconstitution of the house provided it has been approved by the CoS within one month of the issue of proclamation. After the approval it will get a fresh lease of 6 months. (b) It can be continued only by a resolution passed by special majority in each of the houses after the expiry of 6 months. (c) It can be discontinued by a resolution passed by a simple majority in HoP. For the purpose of convening such a special sitting of HoP, ≤ 10% of members of the house may give a notice to the speaker (when the house is in sitting) or the president (when the house is not in sitting). Such a sitting shall be convened within 14 days.
- Judiciary provisions: Proclamation of emergency is subject to judicial review on ground of malafides.
- As soon as emergency under Art 352 is proclaimed on any grounds, the right to move to the courts for enforcement of any right under Art 19 is suspended. (Art 359)
- If the emergency under Art 352 is on grounds of war or external aggression only (and not internal armed rebellion), the freedoms under Art 19 shall be suspended or cease to exist. (Art 358)
- So as soon as emergency is proclaimed (under external aggression or war) the state shall be freed from limitations imposed by Art 19. So citizens will have no protection against violation of Art 19 either during the emergency or after the emergency for excesses committed during emergency under external aggression or war. But if the emergency is under internal armed rebellion then after it is revoked citizens can move to the courts for cases of violation during the emergency.It reinstates as soon as emergency is revoked.
- Art 358 comes into operation automatically to suspend Art 19 under external aggression or war. But Art 359 has to be explicitly invoked in the presidential order.
- Art 358 also relates to suspension of other FRs (except Art 20 and 21) under war or external aggression. But the list of other FRs to be suspended should be present in the presidential order.
- Art 20 and 21 can’t be suspended under any case. And any person can move to a court at any time for enforcement of Art 20 and 21.
- Neither Art 358 or 359 shall have any effect if the law used against the citizens to punish them doesn’t refer to such provisions which are effective under the times of emergency.