The fundamental rights provided under part III of the Indian Constitution are the most crucial
feature and form the basic structure of the constitution. The emergency provisions provided under Part XVIII of the constitution affect the fundamental rights. The effect of emergency provisions on fundamental rights can be classified into two phases. Phase 1 : prior to 44th Amendment Act, 1978 and Phase 2 : after 44th Amendment Act, 1978. this amendment brought significant changes in the emergency provisions regarding the suspension of fundamental rights such as -suspension of article 19 only on grounds of war or external aggression and not on internal disturbance, insertion of clause (2) to article 358 and exemption of article 20 and 21
from suspension of fundamental rights during operation of emergency.
The term emergency connotes a sudden, urgent, usually unforeseen event or situation, which requires an immediate action, often, without having time for prior reflection and consideration. Different terms have been used under different systems in the world to express the crises situation which justify resort to extraordinary measures i.e. state of emergency, state of civil emergency, state of siege, stat of war, state of internal disturbance, state of exception, state of alarm, state of urgency, state of national defence, state of national necessity, state of
special powers state of suspension of guarantees, general or partial mobilization, military regime
and martial law.
The Indian Constitution provides for three types of emergencies under Part XVIII, namely, national emergency under Article 352, President’s rule under Article 356 and financial
emergency under Article 360. National emergency has been proclaimed thrice since the independence : In Oct 1962 on the account of Chinese aggression in the NEFA(North-East Frontier Agency – now Arunachal Pradesh) and was in force till Jan 1968 , in Dec 1971 in the wake of Pakistan attack and was in force till March 1977,and in Jun 1975 on the ground of internal disturbance i.e., certain persons have been inciting police & armed forces against the discharge of their duties and their normal functioning and was in force till March 1977. President’s rule has been imposed many times since independence. Every state except Chhattisgarh and Telangana has been under President’s Rule at some point of time or the other. Financial emergency has never been proclaimed in India.
Fundamental rights are the basic rights given to an individual which cannot be infringed except when limited reasonably. Part III of the Indian Constitution consists of the fundamental rights. These rights can be classified under six heads : right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies. The operation of emergency also affects the position of fundamental rights as provided under article 358 and 359 of the constitution.
Emergency Provisions- The constitution of India provides for three kinds of emergencies, namely, national emergency under Article 352, President’s rule under Article 356 and financial emergency under Article 360.
Following are the relevant provisions in regard to proclamation of these emergencies :-
352(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.
As evident, this article provides for national emergency which can be proclaimed by the president on three grounds – war, external aggression and armed rebellion.
Before 1978 an emergency could be declared because of war, external aggression or internal disturbance. The expression ‘internal disturbance’ was too vague and broad. The 44th Amendment Act, 1978 substituted the words ‘armed rebellion’ for ‘internal disturbance’ with view to exclude the possibility of an emergency being proclaimed on the vague and ambiguous grounds. This change, restricted the scope of what may be called as internal emergency.
356(1) If the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in
accordance with the provisions of this Constitution, the President may by Proclamation – (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State;
(b)declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State:
Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
As evident, this article talks about proclamation by the president for imposing emergency in a state on receipt of report from the governor when the government of the state cannot be carried on in accordance with the provisions of the constitution. Apart from state emergency, it is also known as president’s rule.
360(1) If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by Proclamation
make a declaration to that effect.
As evident, this article provides for financial emergency which can be proclaimed when financial stability of the country is threatened.
Fundamental rights represent the basic values cherished by the people of this country since Vedic times and they are calculated to protect the dignity of the individual and create conditions in which human being can develop his personality to the fullest extent. They develop a pattern of
guarantee on the basic structure of human rights and impose negative obligation on the state not to encroach on individual liberty in its various dimensions.
Part III of the Indian Constitution consists of the fundamental rights. These rights can be classified under six heads :-
Right to equality – Article 14 to article 18 talks about right to equality. Article 14 provides for equality before law, article 15 provides for Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth, article 16 provides for equality of opportunity in matters of public employment, article 17 provides for abolition of untouchability and article 18 provides for abolition of titles.
Right to freedom – Article 19 to article 22 talks about right to freedom. article 19 provides for protection of certain rights regarding freedom of speech, etc. , article 20 provides for
protection in respect of conviction for offences, article 21 provides for protection of life and personal liberty, article 21A provides for right to education and article 22 provides
for protection against arrest and detention in certain cases.
Right against exploitation – Article 23 and 24 deal with right against exploitation. The former provides for prohibition in traffic in human beings and forced labour while the latter provides for Prohibition of employment of children in factories, etc.
Right to freedom of religion – Article 25 to 28 deals with right to freedom of religion. Article 25 provides for freedom of conscience and free profession, practice and propagation of religion, article 26 provides for freedom to manage religious affairs,
article 27 provides for freedom as to payment of taxes for promotion of any particular religion and article 28 provides for freedom as to attendance at religious instruction or religious worship in certain educational institutions.
Cultural and educational rights – Article 29 and 30 deal with cultural and educational rights. The former provides for protection of interests of minorities while the latter provides for right of minorities to establish and administer educational institutions.
Right to constitutional remedies – Article 32 provides for remedies for enforcement of rights conferred by part III of the constitution.
Effect of Emergency on Fundamental Rights-
Following are the relevant provisions which deal with the suspension of fundamental rights during the proclamation of emergency:-
Article358 Suspension of provisions of article 19 during emergencies –
(1) While 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 is in operation, nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any
executive action which the State would but for the provision contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
Provided that where such Proclamation of Emergency is in operation only in any part of the
territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
(2) Nothing in clause (1) shall apply
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital. 359. Suspension of the enforcement of the rights conferred by Part III during emergencies –
(1) Where a Proclamation of Emergency is in operation, the President may by order declare that
the right to move any court for the enforcement of such of the rights conferred by Part III (except articles 20 and 21as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
(1A) While an order made under clause (1) mentioning any of the rights conferred by Part III (except articles 20 and 21) is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.
(1B) Nothing in clause (1A) shall apply—
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital. (2) An order made as aforesaid may extend to the whole or any part of the territory of India:
Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the
Proclamation of Emergency is in operation, considers such extension to be necessary.
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
It is evident that during the emergency State is empowered to suspend fundamental rights
guaranteed under article 19 of the constitution. The term ‘State’ has the same meaning as provided in article 12 which implies that the power to suspend fundamental rights is vested not only in the Parliament but also in the Union Executive and even subordinate authorities. Further,
the constitution empowers the President to suspend the right to move to any court for the enforcement of fundamental rights but it does not apply in case of article 20 and 21 as provided by the 44th Amendment Act 1978. Therefore, it can be said that virtually whole chapter of fundamental rights can be suspended during operation of emergency. However, such orders are to be placed before Parliament as soon as possible.
Judicial Interpretation of Validity of Suspension of Fundamental Rights during the Operation of Emergency
Before 44th Amendment Act, 1978
Makhan Singh Tarsikka v. State of Punjab- The Supreme Court observed that the continuation of a proclamation of emergency and the imposition of restrictions of fundamental rights during the emergency are matters which are best left to the executive, which would be able to assess the extent of the crisis in a given situation. The argument that during such emergency, the executive may abuse its power and the citizens would be left without a remedy was repelled by the court as being a political argument with only and indirect impact on the constitutional question.
Mohd. Yakub v. State of Jammu and Kashmir – In this case, a number of habeas corpus petitions
were filed to test the validity of arrest made under Defence of India Rules, 1962 and the President’s Order issued under article 359 suspending the enforcement of fundamental rights
under article 14, 21 and 22 during the period of emergency. Among other grounds it was contended that- the President being an authority under article 12, the order passed by him under article 359 is a law within the meaning of article 13(2) and is, therefore, liable to be tested under
the anvil of the fundamental rights ; the enforcement of only such fundamental rights can be suspended which have nexus with the reasons, which have led to the proclamation of
The supreme court rejected both the contentions because article 13 (2) and article 359, being parts of the same constitution, stand on an equal footing and the two provisions have to be read harmoniously in order that the intention behind article 359 is carried out and it is not destroyed altogether. Also the enforcement of a particular fundamental right is, for the sake of
security of India, for which the subjective determination of the President is involved and he cannot be called to justify his action in a court of law.
ADM Jabalpur v Shivkant Shukla (Habeas Corpus case) – In 1975, the President on the advice of the Prime Minister declared emergency under article 352 on ground that the security of India was threatened by internal disturbance and also issued and order under article 359 suspending the right of access to the courts for the enforcement of fundamental rights enshrined in articles 21, 22 and 14 of the constitution. Parliament thereafter amended the Maintenance of Internal Security Act (MISA), 1971 and conferred extra ordinary powers on the government to detain a
person without a trial.
A question arose whether the writ of habeas corpus under article 226 can be issued to release the detenue on the ground that his detention was inconsistent with the provision of the MISA or mala fide. The Supreme Court with the dissent of Khanna J, legitimised the suspension of the writ of habeas corpus during the period of emergency on the basis of higher claims of national security.
After 44th Amendment Act, 1978
The 44th Amendment Act, 1978, has made two important changes in Article 358 – firstly, article 19 will be suspended only when a proclamation of emergency is declared on the ground of war or external aggression and not when emergency is declared on the ground of armed rebellion.
Secondly, it has inserted a new clause (2) in Article 358 which makes it clear that Articles 358 will only protect emergency laws from being challenged in a court of law and not other laws, which are not related to the emergency. Prior to this, the validity of even other laws, which are
not related to the emergency, could not be challenged under Article 358.
It also made two significant changes in Article 359. Firstly. it provides that under Article 359 the President does not have the power to suspend the enforcement of the fundamental rights guaranteed on article 20 and 21 of the constitution. Secondly, it provides that suspension of any
fundamental right under Article 359 will not apply in relation to any law which does not contain a declaration that such a law is in relation to the proclamation of emergency in operation when it is made or to any executive action taken otherwise than under a law containing such a recital. M.M. Pathak v. Union of India – The Supreme Court held that the effect of proclamation of emergency on fundamental rights is that the rights guaranteed by article 14 and 19 are notsuspended during the emergency but only their operation is suspended. This means that only the validity of an attack based on article 14 and 19 is suspended during the emergency. But once this embargo is lifted article 14 and 19 of the constitution, whose use was suspended, would strike down any legislation, which would have been invalid.
Minerva Mills Ltd. v. Union of India- It was held that subjective satisfaction of President is not open to scrutiny but if it is malafide or based on extraneous grounds the courts have power of judicial review. Merely because a question has a political complexion, it is no ground why the
court should shrink from performing its duty under the constitution if it raises an issue of constitutional determination.
The original position of emergency provisions in regard to suspension of fundamental rights was not reasonable. the landmark habeas corpus case is the authority which reflects the misuse of powers conferred under article 358 and 359 (original). The said case has been the most controversial case of emergency period. It led to the introduction of 44th Amendment Act, 1978 which provided that article 20 and 21 cannot be suspended during the operation of emergency. This was the much needed amendment after witnessing the unreasonable detentions under habeas corpus case. Now, the emergency provisions under article 358 and 359 stand satisfactorily in
regard to suspension of fundamental rights during operation of emergencies.
Constitution of India, bare act, Lexis Nexis (Haryana)
Mamta Rao, Constitutional Law (EBC Publisher Pvt. Ltd., Lucknow, 1st Edition 2013)
J.N. Pandey, Constitutional Law of India (Central Law Agency, Allahabad, 33rd Edition) WEB REFRENCES
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