MPSC 2021 Prelims Paper-I · Question 76 of 100

Correct — option (1), the 44th Constitution Amendment Act. Article 352 as it was originally enacted allowed the President to proclaim a national emergency if he was satisfied that the security of India or of any part of it was threatened by war, by external aggression or by internal disturbance. It was on the third of those grounds, internal disturbance, that the emergency of June 1975 was proclaimed, and the twenty-one months that followed — with elections postponed, opposition leaders detained, the press censored and Fundamental Rights suspended — produced a settled conviction that the ground was too vague to be safe. When the Janata government came to power it enacted the Constitution (Forty-fourth Amendment) Act, 1978, and the substitution of 'armed rebellion' for 'internal disturbance' in Article 352 is that Act's best-known single change; the amendments to Article 352 took effect on 20 June 1979. The point of the change is the narrowing. 'Internal disturbance' could be read to cover any serious breakdown of public order, or indeed a political agitation, whereas 'armed rebellion' requires an actual armed uprising against the authority of the State, a far higher and more objective threshold. The same amendment surrounded the power with several further safeguards, and they belong together in a candidate's memory. A Proclamation may now be issued only on the written recommendation of the Cabinet, so that it can no longer rest on the Prime Minister's advice alone. It must be approved by both Houses of Parliament within one month instead of the two months formerly allowed, and by a special majority — a majority of the total membership of each House and not less than two-thirds of the members present and voting. Once approved it continues for six months at a time and needs fresh approval to be extended. The Lok Sabha was given the power to require the revocation of a Proclamation by passing a resolution to that effect by a simple majority, and if one-tenth of its members give notice a special sitting must be held within fourteen days to consider such a resolution. Article 358, which suspends the freedoms of Article 19 during an emergency, was confined to emergencies proclaimed on the ground of war or external aggression, and Article 359 was amended so that the right to move a court for the enforcement of Articles 20 and 21 can never be suspended. The Forty-fourth Amendment also deleted a clause inserted by an earlier amendment that had made the President's satisfaction final and beyond challenge in any court, and it removed the right to property from the Fundamental Rights, placing it in Article 300A. Only three national emergencies have ever been proclaimed — in 1962 during the Chinese aggression, in 1971 during the war with Pakistan, and in 1975 — and the third is the reason the wording in this question was changed.

• (2)By 42nd Constitution Amendment Act — The Constitution (Forty-second Amendment) Act, 1976 is the amendment candidates reach for whenever emergency provisions are mentioned, because it was passed during the emergency and is the most far-reaching amendment ever made — so extensive that it is often called a mini-Constitution. But it moved in the opposite direction from this question's change. It added the words socialist, secular and integrity to the Preamble, inserted the Fundamental Duties as Article 51A, extended the maximum period of President's rule under Article 356 from six months to one year, gave Directive Principles precedence over certain Fundamental Rights, curtailed the power of the courts, and permitted a Proclamation of Emergency to be issued for a part of the territory of India rather than the whole. It expanded the emergency power and restricted the judiciary; it did not narrow the ground for proclaiming an emergency. Much of what it did was undone by the Forty-fourth Amendment two years later, and knowing which of the two amendments moved in which direction resolves a whole family of questions.
• (3)By 40th Constitution Amendment Act — The Constitution (Fortieth Amendment) Act, 1976 has nothing to do with the emergency provisions of Article 352. It belongs to the series of amendments concerned with the Ninth Schedule, the schedule created by the First Amendment of 1951 to protect land reform and certain other laws from challenge on the ground that they violate Fundamental Rights; the Fortieth Amendment added a further batch of statutes to it. The Ninth Schedule is worth knowing in its own right, because the Supreme Court held in 2007 that laws placed in it after the Kesavananda Bharati judgment of 24 April 1973 remain open to challenge if they damage the basic structure of the Constitution, so the schedule is no longer the absolute shelter it was designed to be. An option of this kind is included to catch a candidate who recognises that the amendment belongs to the emergency years and assumes that it must therefore concern the emergency.
• (4)By 38th Constitution Amendment Act — The Constitution (Thirty-eighth Amendment) Act, 1975 is the most dangerous of the three wrong options, because it genuinely concerns Article 352 — but it did the reverse of what this question describes. Passed in the first months of the emergency, it made the President's satisfaction in proclaiming an emergency final and conclusive and beyond challenge in any court, and it enabled different Proclamations to be issued on different grounds at the same time. It did not touch the words 'internal disturbance'. Both of those changes were themselves undone by the Forty-fourth Amendment Act of 1978, which omitted the clause excluding judicial review. The pattern is worth carrying: the amendments of 1975 and 1976 strengthened the emergency power and shielded it from the courts, and the amendment of 1978 narrowed the ground, tightened the procedure and restored judicial scrutiny.

The Constitution provides for three kinds of emergency. A National Emergency under Article 352 may be proclaimed when the security of India or of any part of it is threatened by war, external aggression or armed rebellion — the last of those expressions having replaced 'internal disturbance' by the Forty-fourth Amendment Act of 1978. President's rule under Article 356 follows a failure of the constitutional machinery in a State, and a Financial Emergency under Article 360 may be declared if the financial stability or credit of India is threatened. Under Article 352 the Proclamation requires the written recommendation of the Cabinet, must be approved by both Houses within one month by a special majority, continues six months at a time, and may be revoked by the President at any time or on a simple-majority resolution of the Lok Sabha. Its effects are far-reaching: the Centre may give executive directions to any State and Parliament may legislate on State subjects, the term of the Lok Sabha may be extended by one year at a time, the financial arrangements between Centre and States may be altered, and Fundamental Rights may be affected. Article 358 automatically suspends the six freedoms of Article 19, but only where the emergency is proclaimed on the ground of war or external aggression; Article 359 empowers the President to suspend the right to move the courts for the enforcement of specified Fundamental Rights, but never those in Articles 20 and 21. Three national emergencies have been proclaimed, in 1962, in 1971 and in 1975, and the experience of the third produced the safeguards now in force.

The emergency provisions are examined every year in some form, and the Commission's favourite construction is the one used here: a change is described and the candidate is asked which amendment made it. The topic rewards a candidate who has organised the amendments by direction rather than by number — the Thirty-eighth and Forty-second Amendments of 1975 and 1976 enlarging the emergency power and curbing the courts, the Forty-fourth Amendment of 1978 reversing much of that work — because the options in such questions are always drawn from the same small set of amendments and can be sorted by that single test. The second thing this question rewards is knowing the reason behind the change. 'Armed rebellion' replaced 'internal disturbance' because the 1975 proclamation had rested on the vaguer phrase, and a candidate who knows that history will not confuse the amendment that made the change with the amendments passed during the emergency itself. For MPSC in particular, the emergency provisions also connect to the frequently asked topic of Centre-State relations, since a national emergency converts the federal structure into a practically unitary one for its duration.

• The Constitution (Forty-fourth Amendment) Act, 1978 substituted the words 'armed rebellion' for 'internal disturbance' in Article 352 as a ground for proclaiming a National Emergency; the amendments to Article 352 took effect on 20 June 1979.
• The same amendment required the written recommendation of the Cabinet before a Proclamation may be issued, reduced the period for parliamentary approval from two months to one, required a special majority in both Houses, and provided for approval every six months thereafter.
• It also allowed the Lok Sabha to require revocation of a Proclamation by a simple-majority resolution, with a special sitting within fourteen days on the notice of one-tenth of its members, and confined the automatic suspension of Article 19 under Article 358 to emergencies proclaimed on the ground of war or external aggression.
• Under Article 359 as amended, the right to move a court for the enforcement of Articles 20 and 21 can never be suspended during an emergency.
• National emergencies have been proclaimed three times — in 1962 during the Chinese aggression, in 1971 during the war with Pakistan, and in 1975 on the ground of internal disturbance — and it was the experience of the third that produced the Forty-fourth Amendment's safeguards.

• Attributing the narrowing of the ground for a National Emergency to the 42nd Amendment, which was passed during the emergency and moved in the opposite direction by enlarging the power
• Confusing the 38th Amendment, which placed the President's satisfaction beyond judicial review in 1975, with the 44th Amendment, which removed that immunity in 1978
• Assuming that any amendment of the emergency years must have concerned the emergency, when the 40th Amendment was about additions to the Ninth Schedule
• Forgetting that Article 358 now applies only to an emergency proclaimed on the ground of war or external aggression, and not to one proclaimed on the ground of armed rebellion

MPSC asks the emergency provisions as amendment questions of the kind set here, as questions on the majority and the time limits required for parliamentary approval, as questions on which rights survive an emergency, and as comparisons among the three kinds of emergency. Article 356 attracts particular attention because of its political history and because of the Bommai judgment, and Article 360 is asked as the emergency that has never been proclaimed. The Commission also uses statement lists in which one clause has been altered — the approval period changed from one month to two, or the special majority replaced by a simple one — so the numerical details of the Forty-fourth Amendment are worth learning exactly. Preparing the Forty-second and Forty-fourth Amendments as a matched pair, one expanding and the other restoring, is the most efficient way to cover this whole area.

No directly related past PYQ was found.

• practice — not a real PYQ

  Under Article 352 as amended by the 44th Amendment Act, a Proclamation of Emergency must be approved by both Houses of Parliament within

  • (a)two months, by a simple majority
  • (b)one month, by a special majority
  • (c)six months, by a simple majority
  • (d)fourteen days, by a special majority

  Answer(b) One month, by a special majority — the Forty-fourth Amendment Act of 1978 reduced the period for parliamentary approval from two months to one and required approval by a majority of the total membership of each House together with not less than two-thirds of the members present and voting. Once approved, the Proclamation continues for six months at a time and needs fresh approval by the same majority to be extended. The fourteen-day period belongs to a different provision of the same amendment: it is the time within which a special sitting of the Lok Sabha must be held to consider a resolution for revocation, when one-tenth of the members give notice.

• practice — not a real PYQ

  During a National Emergency, the right to move a court for the enforcement of which of the following Articles can never be suspended ?

  • (a)Articles 14 and 19
  • (b)Articles 20 and 21
  • (c)Articles 25 and 26
  • (d)Articles 29 and 30

  Answer(b) Articles 20 and 21 — the Forty-fourth Amendment Act of 1978 amended Article 359 so that the President's power to suspend the right to move the courts for the enforcement of Fundamental Rights during an emergency does not extend to Article 20, which protects against conviction for offences, or to Article 21, which protects life and personal liberty. The change was a direct response to the detentions of 1975 and to the Supreme Court's decision in the habeas corpus case. The six freedoms of Article 19 are suspended automatically under Article 358, but only when the emergency has been proclaimed on the ground of war or external aggression.