The emergency provisions are contained in Part XVIII of the Constitution of India, from Article 352 to 360. These provisions enable the Central government to meet any abnormal situation effectively.

Constitution provides for three different kinds of abnormal situations which call for a departure from the normal governmental machinery setup by the Constitution:

1. National emergency (Article 352 of the Constitution of India)
2. State emergency (Article 356 of the Constitution of India)
3. Financial emergency (Article 360 of the Constitution of India)

As it is very clear from the opening words of the above stated heading,national emergency deals with constitutional provisions to be applied,whenever there are inbalance in the society in the whole country and not in a particular or specific region or state.

Article 352 reads that-

• Proclamation of Emergency: (1) If the President is satisfied 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, he may, by Proclamation, make a declaration to that effect in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.

Explanation: A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.

Provisions have been made in the Constitution for dealing with extraordinary situations that may threaten the peace, security, stability and governance of the country or a part thereof.

The Constitution of India has provided for imposition of emergency caused by war, external aggression or internal rebellion. This is described as the National Emergency. This type of emergency can be declared by the President of India if he is satisfied that the situation is very grave and the security of India or any part thereof is threatened or is likely to be threatened either, by war or external aggression by armed rebellion within the country. The President can issue such a proclamation even on the ground of threat of war or aggression. According to the 44th Amendment of the Constitution, the President can declare such an emergency only if the Cabinet recommends in writing to do so.

Title of the topic basically talks about two main and important factors of Indian Constitution of India i.e. “Emergency provision & fundamental rights”

When the Constitution of India was being drafted, India was passing through a period of Stress and strain. Partition of the country, communal riots and the problem concerning the Merger of princely states including Kashmir. Thus, the Constitution-makers thought to Equip the Central Government with the necessary authority, so that, in the hour of emergency, When the security and stability of the country is threatened by internal and external threats. Therefore, some emergency provisions were made in Constitution to safeguard and protect the security, integrity and stability of the country and effective functioning of State Governments.

Emergency provision is a unique feature of Indian Constitution. It allows the Centre to assume wide powers so as to handle special situations. In emergency, the Centre takes full legislative and executive control of any state. Emergency provision allows the Centre to curtail or suspend freedom of the citizens. Existence of emergency provision in the Constitution is a big reason why academicians are hesitant to call Indian Constitution as fully federal. The proclamation of emergency is a very serious matter. It disturbs the normal fabric of the Constitution. It adversely affects the rights of the people.

Article 358 enables the State to make any law or take any executive action inconsistent with Fundamental Rights under Article 19. Article 359 enables the State to make any law or take any executive action inconsistent with those Fundamental Rights whose enforcement is suspended by the Presidential Order.

Article 359 authorizes the president to suspend the right to move any court for the enforcement of Fundamental Rights during a National Emergency. Under Article 359, the Fundamental Rights as such are not suspended. Their enforcement is suspended.

There is similarity between Article 358 and Article 359. Both provide immunity from challenge to only those laws which are related with the Emergency and not other laws. The executive action taken only under such a law is protected by both.

The differences between Articles 358 and 359 can be summarised as follows:

1. Article 358 is confined to Fundamental Rights under Article 19 only. Article 359 extends to all those Fundamental Rights whose enforcement is suspended by the Presidential Order.
2. Article 358 automatically suspends the fundamental rights under Article 19 as soon as the emergency is declared. hand, Article 359 does not automatically suspend any Fundamental Right. It only empowers the president to suspend the enforcement of the specified Fundamental Rights.
3. Article 358 operates only in case of External Emergency (that is, when the emergency is declared on the grounds of war or external aggression) and not in the case of Internal Emergency (ie, when the Emergency is declared on the ground of armed rebellion). Article 359 operates in case of both External Emergency as well as Internal Emergency.
4. Article 358 suspends Fundamental Rights under Article 19 for the entire duration of Emergency. Article 359 suspends the enforcement of Fundamental Rights for a period specified by the president. It may either be the entire duration of Emergency or a shorter period.
5. Article 358 extends to the entire country. Article 359 may extend to the entire country or a part of it.
6. Article 358 suspends Article 19 completely. Article 359 does not empower the suspension of the enforcement of Articles 20 and 21.
7. Article 358 enables the State to make any law or take any executive action inconsistent with Fundamental Rights under Article 19.
8. Article 359 enables the State to make any law or take any executive action inconsistent with those Fundamental Rights whose enforcement is suspended by the Presidential Order.

There is similarity between Article 358 and Article 359. Both provide immunity from challenge to only those laws which are related with the Emergency and not other laws. The executive action taken only under such a law is protected by both.

The 38th Amendment Act of 1975 made the declaration of National Emergency immune to judicial review. But, this provision was subsequently deleted by the 44th Amendment Act of 1978.

In Minerva Mills case (1980), the Supreme Court held that National Emergency can be challenged in the court on the ground of malafide or that the declaration was based on wholly extraneous and irrelevant facts.