What is Article 352 and how can it be applied today?

Can a repeat of the 1975 Emergency declaration take place today?

File-photo-indira-gandhi File photo of Indira Gandhi

On June 25, 1975, Prime Minister Indira Gandhi proclaimed a state of nationwide emergency, effectively suspending basic fundamental rights. Indian leaders marked the 44th anniversary of the Emergency by taking to Twitter to remind people of the excesses committed by the government in 1975.

Article 352 states that the President can proclaim Emergency if he/she believes that a “grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion”.

The article in its current form came into existence by the 44th Constitutional Amendment Act in 1978. The act was introduced by the Janata Party government under the leadership of Morarji Desai and was aimed at ensuring that in the future, Emergency could never be proclaimed on dubious grounds.

Before the amendment, instead of the term ‘armed rebellion’, the Article stated ‘internal disturbances’ as one of the valid grounds for declaring Emergency. This loose and vague wording was exploited by Indira Gandhi when she declared the emergency on June 25, 1975, effectively suspending fundamental rights and division of powers.

Several constitutional amendments were made during the era of Emergency. The 42nd amendment, sometimes called the ‘mini constitution’ due to its wide range of changes, amended 41 articles, added 11 new ones and also amended Schedule 7 which deals with allocation of powers between the centre and the states. In addition to this, the amendment changed the term of legislatures in the country from five to six years. The Emergency also gave power to postpone elections by one year, so technically, after 1971 elections would only have to be held in 1978 instead of 1976.

The most prominent part of the 42nd Amendment Act was the addition of the words ‘Socialist’ and ‘Secular’ to the Preamble of the Indian constitution which now read as “WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC…”

The Janata Party government, which had promised during its campaign to revert the constitution to its pre-Emergency form, later accepted that the amendment had both good and bad parts and decided to leave some parts including the Preamble unchanged.

The Janata Party did however include a provision stating that the cabinet ministers must give, in writing, the advice to the president to declare Emergency. The amendments post-Emergency have ensured that Emergency can no longer be imposed on dubious ground in a nonchalant manner. The awakening of the Indian judiciary post-emergency to its role as the sole protector of fundamental rights will also ensure that such a situation does not occur again.