Suspension of Fundamental Rights During Emergency – Article 19

 

                One of the chief-characteristics of the Indian Constitution is the way in which the normal federal Constitution can be adapted to emergency situations. A merit of our Constitution is that it visualizes the circumstances in which the strict application of the federal principles could destroy its basic assumptions.

WHAT IS EMERGENCY?

                  When the normal course of action of the government is disrupted by extraordinary circumstances or unexpected occurrence which requires immediate action, it is considered as Emergency. A state of emergency requires special provisions or executive policies, often extra constitutional in nature. During a state of emergency, the Indian government adjusts its constitutional arrangements to change the governance system. Emergency is proclaimed by the President of India through an order. Emergency is of three types:

  1. National Emergency – Due to war, external aggression or armed rebellion (Art.352) 
  2. State Emergency – Due to failure of constitutional machinery in States (Art.356)
  3. Financial Emergency – Due to any financial stability (Art.360)

            In this article we look into Suspension of Fundamental Rights Guaranteed by Art.19 during an Emergency. Art.358 of the Indian Constitution provides for suspension of the six freedoms guaranteed to the citizens by Art.19 of the Constitution. It says that while a Proclamation of Emergency is in operation nothing in Art.19 shall restrict the power of the State to make any law or to take any executive action abridging or taking away the rights guaranteed by Art.19 of the Constitution. It means that as soon as the Proclamation of Emergency is made the freedoms guaranteed  by Art.19 will automatically be suspended. It is not necessary that a separate order for suspension should be issued. The article deals with the only suspension of fundamental rights under art.19. Art.359 deals with the suspension of the right of enforcement of fundamental rights. It includes other fundamental rights also.

Article 358

                This was added by the 44th amendment in 1978. It made two important changes in the article 358. a) Article 19 can only suspend during the emergency when the emergency is declared on the ground of war or external aggression and cannot suspend when it is declared on the ground of armed rebellion. b) It inserted a new clause(2) in Art.358 . This clause makes it clear that Art.358 will only protect emergency laws from being challenged in a court of law and not other laws, which were not related to emergency. Before this, the validity of even other laws, which were not related to emergency, could not be challenged under Art.358. 

                    Normally, the fundamental rights guaranteed under Art.19 cannot be taken away or cut down by law of Parliament or State Legislature. Article 19, however, does not limit the executive or legislative powers of the center or the states during an emergency, and any law passed by the legislature or any action taken by the executive cannot be contested because it violates the rights guaranteed by the constitution. During an emergency, art.19 remains suspended, but automatically comes into force when the proclamation ceases to operate, and any law inconsistent with it becomes active as soon as the proclamation ceases to operate. Any law made during an emergency ceases to have effect to the extent of the inconsistency, except in relation to things done before the law ceases to have effect. No action would be taken against anything done during the emergency even after the emergency is over. 

                         After the 44th amendment, the 59th amendment act amended and inserted some words to the art.358. In addition to “or by external aggression” it added “or by armed rebellion ,or that the integrity of India is threatened by internal disturbance in the whole or any part of the territory of Punjab”. From this onwards, the rights guaranteed under Art.19 would be suspended also when the emergency was on the ground of “armed rebellion or internal disturbance”. The intention of substituting the words internal disturbance by ‘armed rebellion’ is to limit the enforcement of Art.352 only to more serious situations where there is a threat to the security of the country. However, the emergency does not make any law invalid which was valid before the proclamation of emergency. 

                 In the case M.M Pathak v. Union of India, the Supreme court  had to consider the effect of the expression “the things done or omitted to be done” in art.358 after the proclamation of emergency terminates. In this case, a settlement was reached between the LIC of India and its employees in 1971 in which the LIC had agreed to pay in cash bonus to its employees. In 1977, however, by the LIC act,1976 passed by Parliament during the emergency the settlement was made ineffective and therefore the employees could not demand their bonus while the emergency was in force. The employees of the LIC challenged the constitutional validity of the act. The Supreme court held that the effect of proclamation of emergency on fundamental rights is that the rights guaranteed by articles 14 and 19 are not suspended during emergency but only their operation is suspended. This means that only the validity of an attack based on articles 14 and 19 is suspended during the emergency. Nevertheless, once this injunction has been lifted, articles 14 and 19 of the Constitution, whose use was suspended, will be able to strike down any law that was deemed invalidunder these two articles.

References:

  • Constitution of India
  • Emergency provisions 
  • Drishtiias.com
  • Mathan Mohan Pathak v.Union of India and others etc.

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