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When Fundamental Rights can be suspended?

10 min read

By Neha Choudhary

Introduction 

Every individual is provided with certain rights that he is entitled to as a citizen of the country. These rights are not just benefits provided in general but are the fundamental rights explicitly identified by the Constitution of the country.

The Constitution of India guarantees every citizen the right to protect life and liberty to preserve the public and private rights against the intrusion of the power delegated by them to their government. The fundamental rights have been provided under Part III of the Constitution of India.

These rights are provided to every citizen of India irrespective of race, caste, sex, place of birth, or religion.

Every citizen has the right to exercise these principle and human rights and in case these rights are taken away from any individual, this would amount to violation and the offenders would be punished for such violation and under Article 32 of the Constitution as the Supreme Court of India can directly be approached for ultimate justice.

However, under certain exceptions, the fundamental rights that shall be provided to each citizen of the country can be violated

In the landmark case of Meneka Gandhi Vs. Union of India[1], it was observed that:

These Fundamental Rights represent the basic values cherished by the people of the country since the Vedic times. They weave a ‘pattern of guarantee’ on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in various dimensions”. 

The six fundamental rights provided under part III of the Constitution are as follows:

  • Article 14 – 18: Right to equality
  • Article 19 – 22: Right to Freedom
  • Article 23, 24: Right Against Exploitation
  • Article 25 – 28: Right to Freedom of Religion
  • Article 29, 30: Cultural and Educational Rights
  • Article 32: Right to Constitutional Remedies

Why are Fundamental Rights important?

Every individual of the country is designated to exercise some of the fundamental rights while the rest are for all persons whether a citizen of India or foreigners.

Fundamental rights provided to each citizen are not absolute as it comes with reasonable restrictions which are subject to public morality, security, decency, and friendly relations with other countries.

The Fundamental Rights of the Constitution can subject to the amendment only when they do not alter the basic structure of the Constitution.

Fundamental rights can be restricted under absolutely uncommon circumstances but the rights guaranteed under Article 20 i.e. protection in respect of conviction for offenses and Article 21 i.e. the right to life cannot be violated.

What is the history of Fundamental Rights?

The fundamental rights that are enshrined under part III of the Constitution have originally been drafted to curb social inequalities that have been practiced since pre-independence.

The human rights formerly came into force for the abolishment of the social evils like untouchability and thus concerned Article has been included under the Constitution that completely prohibits discrimination on the grounds of religion, gender, caste, birthplace, etc. other laws regarding the education or culture are also provided under the Constitution.

However, the right to property which was earlier a fundamental right changed to a legal right. These Rights have their origins from many sources i.e. England’s Bill of Rights, the United States Bill of Rights, and France’s Declaration of the Rights of Man.

However, these rights are subject to exceptional situations as well.

In the history of India, there have been many ups and down and thus there were numerous times when there was a period of stress and strain and it was necessary to safeguard the integrity and security of the country.

When the Constitution was being drafted, India was going through a rough patch, where there were riots, partition was taking place and other problems related to Kashmir were also at their peak.

At that time, it was important for the makers of the Constitution to ensure stability and security of the country at the time of crises and thus the thought to administer the concerned authorities with necessary powers for them to function effectively in a crucial situation or an emergency where the country’s integrity and safety are at stake.

The concept of emergency in the stricter sense can be seen as a restriction of certain human rights at the time when the country is in a state of war or there is a threat to the country’s interest. Risk to a country’s integrity, safety, and security can lead to curtailment of all the fundamental rights of the citizens except the right to life guaranteed under Article 21 of the Constitution.

The emergency can be imposed for a minimum duration of 6 months and can be revoked anytime by the President after adhering to the complete security of the country.

The certain provisions regarding the emergencies that were added under part XVIII of the Constitution of India under Article 352 to Article 360 are:

  • Article 352: National emergency
  • Article 356: State emergency
  • Article 360: Financial emergency

What is a National Emergency?

Article 352 states:

“If the President is satisfied that a grave emergency exists whereby the security of India or any part of the territory thereof is threatened, whether, by war or external aggression or armed rebellion, he may, by Proclamation, made 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” 

This Article provides the provisions that can be applied during the time of emergency or instability in the country that would prove to be catastrophic for the entire nation and thus the provisions are required for maintaining peace and safeguarding the governance of the country.

The grave grounds to declare a national emergency is a war, external or internal aggression, and ‘armed rebellion’ which has been substituted for ‘internal disturbance’ in the 44th amendment of the Constitution for being too vague.

The national emergency in the country can be imposed subject to the aforementioned grounds by the President after the composed solicitation with the cabinet of ministers headed by the prime minister.

The proclamation of emergency has to be approved by both the Houses of Parliament by an absolute majority of the total members of the Houses along with 2/3 majority of members present and voting within one month, otherwise, the proclamation ceases to operate.

In case the Lok Sabha is not in session at the time of pronouncement, the Rajya Sabha has to approve it within one month followed by the Lok Sabha.

When the decision is approved by the Parliament, the emergency remains in force for six months and in case such emergency needs to be continued for an extended time then a prior approval has to be taken by the Parliament.

According to Article 358 of the Indian Constitution:

“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 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 affect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to affect”

Thus, as per the Article, the President can make the publication of such order at the time of emergency and can suspend the freedom guaranteed under Article 19, provided that during the period the emergency was imposed, no individual can challenge the infringement of certain rights to any court as it would automatically revitalize after the emergency order terminates.

The emergencies imposed on the country change the federal dorm of government into unitary. The national emergencies have been declared thrice in India:

  • The first Emergency was declared from 26th October 1962 to 10th January 1968 by President Sarvepalli Radhakrishnan due to external aggression and war during the Indo-China war.
  • The second Emergency was announced from 3rd December 1971 to 21st March 1977 by President V. Giri during the Indo-Pakistan war for the same reasons.
  • The third emergency was imposed by President Fakhruddin Ali Ahmad under Article 352 on the advice of the former Prime Minister Indira Gandhi due to the internal disturbance and clash among the Judiciary system and Legislative assembly of India from 25 Jun 1975 to 21 Mar 1977. The principle that the rights like the right to life cannot be suspended even during the time of an emergency was revoked as Indira Gandhi’s government suspended all fundamental rights including the right to life.[2]

If the situation of emergency improves, the emergency imposed on the country can be revoked by another proclamation by the President of India. According to the 44th Constitution Amendment, during the meeting of Lok Sabha, 10% or more members of it can revoke or denounce the emergency by a simple majority.

What is meant by State Emergency or President’s Rule?

Article 358 states that:

If the President, on receipt of the report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on by the provisions of this Constitution, the President may be 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 anybody 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 anybody or authority in the State 

Provided that nothing in this clause shall authorize 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”

Thus, according to this Article, the President may impose an emergency in the state when he is satisfied that the functioning of the state government is not running according to the constitutional provisions.

It is commonly known as President’s Rule when a proclamation is issued by the President in a situation of the breakdown of the constitutional machinery.

Parliament must approve the proclamation of the state emergency within 2 months. There have been state emergencies imposed on every state at some point except Chhattisgarh and Telangana.

The President’s rule may effect in a manner that the President may vest all or any of the functions with the Governor or any other executive authority; he may dissolve or suspend the State Legislative Assembly or may authorize the Parliament to make laws on behalf of the State Legislature.

The President can make provisions that are necessary to give effect to the object of proclamation.

Before the emergency has been declared, it needs to be approved by the Houses of Parliament within 2 months. If the proclamation is recognized by the Parliament it remains valid for six months and can extend for another six months but not beyond one year.

However, the state emergency can be extended beyond one year when either the National Emergency has already been imposed or the Election Commission certifies that the election to the State Assembly cannot be held.

Initially, the President’s rule is imposed for a period of six months and could extend up to two years with repeated approval from the parliament every six months. However, the duration of the President’s Rule from 6 months to 1 year was amended in the 42nd amendment act of 1976.

Originally, the duration of the period of President’s Rule was 3 years which was divided into 1 year of ordinary period and 2 years of an extraordinary period.

Therefore, in a case, if the emergency needs to be extended for more than 3 years, it needs to be inculcated via constitutional amendments, the history of which is evident from that of Punjab, Jammu, and Kashmir

What is a Financial Emergency?

Article 360 states that:

“If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect”

Thus, the President can declare the financial emergency with the advice of the council of ministers and after it is approved by both the Houses of Parliament within two months and continues indefinitely till it is revoked. Though, the President can revoke the proclamation of financial emergency anytime without the approval of the parliament.

There have been no financial emergencies declared in India even after financial crises in 1991 and recent crises due to Covid-19.

Conclusion

Every citizen of the country is entitled to exercise the rights enshrined under part III of the Indian Constitution under all circumstances and irrespective of the caste, gender, race, religion, or place of birth with subject to these human rights.

The basic rights provided by the Constitution, however, can be violated under certainly exceptional cases provided under the Constitution. These can be suspended at the time of emergency caused due to war, external or internal aggression, or armed rebellion.

Thus, the President is at the ultimate power to suspend the rights of the citizens during a national emergency, state emergency, or financial emergency.

Though every citizen has a right to exercise fundamental rights, the rights can be violated for maintaining the safety, security, and integrity of the country, and thus the matter cannot be brought to the court for such violation during the emergency.

References

  1. Maneka Gandhi Vs. Union of India, AIR 1978 SC 597
  2. Chetan M, “Why did the National Emergency in India take place between 1962-1977?” available at: .jaborejob.com (last visited on June 20, 2021)