DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

Constitutional Law-I
TOPIC- Fundamental Rights during Emergency.

Submitted To: Submitted By:

Ms. Ankita Yadav Shubhangi Agarwal
Assistant Professor Roll No. 139
National Law University, Lucknow IIIrd Semester
Section B

1
 Acknowledgment

Writing a project is one of the most significant academic challenges. Though this project has
been presented by me, but there are many people who remained in veil, who gave their support
and helped me to complete this project.

First of all I am very grateful to my subject teacher Ms. Ankita Yadav, without the kind support
of whom the completion of the project would have been a herculean task. He donated his
valuable time from his busy schedule and helped us from the very beginning.

I am very thankful to the librarian who provided us several books regarding the topic which
proved beneficial to us.

I acknowledge my friends who gave their valuable and meticulous advice which was very useful
and could not be ignored in writing the project. I want to convey my sincere thanks to all the
people who have helped me directly or indirectly throughout the project.

Thanking You

-Shubhangi Agarwal

2
 Table of Contents

INTRODUCTION..............................................................................4
The Need for Suspension of Fundamental Rights During Emergency..............5
National Emergency.........................................................................5
State Emergency.............................................................................. 6
Financial Emergency......................................................................... 6
PAST INSTANCES OF SUSPENSION OF FUNDAMENTAL RIGHTS...........8
CASES.......................................................................................... 10
CONCLUSION...............................................................................14
Bibliography................................................................................... 15

3
 INTRODUCTION

The Constitution of India guarantees fundamental rights to the citizen if India. They are part of
those rights which are necessary for the survival of a human being with dignity. Fundamental
rights have been incorporated in the fundamental law of the land, i.e. the constitution of India
and one can approach courts in case of violation of these rights. These rights reflect a desire of
the founding fathers of Indian constitution to build a new social order. Moreover, the given rights
are not absolute but subject to certain reasonable restrictions. For example, the right to freedom
of speech and expression can be restricted on grounds of public order, morality or decency and
national security. The fundamental rights can be suspended during national emergency (act 352),
only exception being right to life. Part III of the Constitution of India contains the fundamental
rights. The rights which the constitution guarantees to the citizen of India are called fundamental
because they are the basic to the development of human personality. Fundamental rights in the
constitution has been borrowed from the United States of America. There are six categories of
fundamental rights mentioned in the Constitution of India. These are:

I. Right to equality (Art. 14-18)

II. Right to freedom (Art. 19-22)
III. Right against exploitation (Art. 23-24)
IV. Right to freedom of religion (Art. 25-28)
V. Cultural and educational rights (Art. 29-30)
VI. Right to constitutional remedies (Art. 32-35)

These fundamental rights given by the Constitution of India to the citizen of India have certain
restriction and are not absolute. The fundamental rights can be suspended during emergency by
the Central Government. Part XVIII of the Constitution of India talks about the emergency
provisions (Art. 352-360 of the Constitution of India). There are three kinds of emergencies:

I. National Emergency (Art. 352)

II. State Emergency (Art. 356)
III. Financial Emergency (Art. 360)

4
The Need for Suspension of Fundamental Rights During Emergency

There are times when a nation is unexpectedly and suddenly overtaken by events and forces,
which seriously endanger its security and the lives of its citizens. Such situations may require
that individual liberties of the citizens be temporarily suspended in order to cope with the
dangers confronting the nation. Emergency situations place democratic governments in a real
dilemma by bringing about a conflict between its primary obligation to protect the integrity of
the State and its equally important obligation to protect the human rights of its citizens and other
persons within its jurisdiction. The State is forced into a choice between competing values and
the sacrifice of one to the other. That is the rationale of emergency provisions, which find place
in many national constitutions permitting the suspension of guaranteed fundamental rights.

Article 352 of our constitution provides for a declaration of emergency. Under Article 358, on a
declaration of emergency, the fundamental rights guaranteed by Article 19 stand suspended.
Furthermore Article 359 of the Constitution, as originally enacted, provided that when a
Proclamation of Emergency was in operation, the enforcement of any fundamental right may be
suspended by the issue of a Presidential Order.1

National Emergency

The President under Article 352 can declare emergency in a country when there is a war, external
aggression or armed rebellion. During the time of emergency, the central have the right to take
full legislative and executive control of any state and can also suspend the fundamental rights of
the citizen. The President can declare such an emergency when he gets a written request from the
Council of ministers headed by the Prime Minister. The proclamation must be approved by both
the houses of the Parliament with an absolute majority of total members of the houses and there
has to be 2/3rd majority of the members present and voting within one month and emergency can
be imposed for six months. The emergency can be extended by six months by repeated
parliamentary approval.

1 'Human Rights During Emergency' (Allahabadhighcourt.in, 2016)

<http://www.allahabadhighcourt.in/event/humanrightsduringemergency.html> accessed 14 October 2016.

5
State Emergency

Article 356 of the Constitution of India expressly states that if, the President is satisfied by the
report of the Governor of a state that the state is unable to function according to the constitution,
then the President can assume to himself all or any of the powers and functions vested in the
government of the state or any authority of the state except the legislature of the state. The power
of the legislature of the state is given to the Parliament. The proclamation must be presented to
both the houses and it must be approved by both the houses within two months to bring state
emergency into force. During the time of consideration of proclamation by the houses, if the
Rajya Sabha have approved the proclamation but the Lok Sabha is unable to do so due to not
being in session or it being dissolved, the proclamation has to be passed within thirty days of the
Lok Sabha coming into session. If the parliament approves it then the emergency can be imposed
for six months. State emergency can be extended for another six months but not for one year.
State emergency can be extended for 1 year on two grounds which are when there is a national
emergency already in operation and when the Election Commission says that the election of the
State Assembly cannot be held. The maximum period for the existence of Presidents rule in a
state is three years, beyond which the time period cannot be extended by the parliament or by the
President and efforts must be made to restore the constitutional machinery in the state.

Financial Emergency

Article 360 of the Constitution of India says that if the president is satisfied that there is a
situation in India where the financial security has been threatened, he may call for a financial
emergency. During financial emergency the executive and legislative powers will go in the hands
of the centre. Financial emergency must be approved by the Parliament within two months.
Financial emergency has never been declared in India but once a situation has arisen which could
have led to financial emergency but it was avoided by putting the gold assets of the country as
collateral to get foreign credits. During financial emergency, the President can reduce the salaries
of all government officials, including judges of the Supreme Court and High Court. All money
bills passed by the State legislatures are submitted to the President for his approval. He can direct

6
the state to observe certain principles relating to financial matters but fundamental rights cannot
be suspended during financial emergency.

7
 PAST INSTANCES OF SUSPENSION OF FUNDAMENTAL
RIGHTS

In the history of independent India, there have been three times when state of emergency was
declared. During the Indo-China war in the year 1962, emergency was declared as the security of
India was threatened by external aggression. During the Indo-Pakistan war, emergency was
declared in the year 1965 as the security of India was threatened by external aggression. The
third time emergency was declared in India was between 26th June 1975 to 21st March, 1977 as
the security of India was threatened by internal disturbances. In the case State of Uttar Pradesh
v. Raj Narain2. Indira Gandhi defeated Raj Narain in the Lok Sabha election from the Rai
Bareily constituency. Raj Narain had filed a petition in the Allahabad High Court stating that
Indira Gandhi have used fraudulent means to win the election. Allahabad High Court found her
guilty and declared her election void and disqualified her from contesting in any election for six
years. She challenged the decision of the Allahabad High Court in the Supreme Court on 24th
June, 1975 where the Supreme Court Upheld the judgment of the High Court and ordered that all
the privileges that she used to get as MP should be taken away but she was allowed to continue
as Prime Minister. On 26th June, 1975, President Fakhruddin Ali Ahmed proclaimed an
emergency under Art. 352 (1) of the Constitution of India on the advice of Prime Minister Indira
Gandhi.

Some of the Instances of Abuse of Executive Power during National Emergency included:-

Wrongful arrests: Invoking article 352 of the Indian Constitution, Mrs. Gandhi granted
herself extraordinary powers and launched a massive crackdown on civil liberties
and political opposition. The Government used police forces across the country to place
thousands of protestors and strike leaders under preventive detention. Critics were
detained by police without charge or notification to families and they were abused and
tortured in custody.

2 1975 AIR 865

8
 Family Planning and Forced Sterilizations: Sanjay Gandhi initiated a birth
control program, chiefly employing sterilization, primarily vasectomies. Quotas were set
up and the program counted as many as 8.3 million forceful sterilizations, up from 2.7
million the previous year.
Use of public and private media institutions, like the national television network
Doordarshan, for government and party propaganda.
Destruction of the slum and low-income housing in the Turkmen Gate and Jama Masjid
area of old Delhi.

9
 CASES

There are some cases on infringement upon fundamental rights during emergency.

1. In the case Makhan Singh v. State of Punjab3 emergency was declared on an earlier
occasion during Indo-China war. The persons who has been detained under the Defence of
India rules had no right to move the court for the enforcement of Art 14, 21 and 22 of the
Constitution of India and the right was suspended under Art 359 of the Constitution of India.
The suspension was partial. The rights were suspended for legally detained person and not
for the persons who have been detained illegally. It was for the first time during emergency
imposed on 26th June, 1975 that Article 14, 19, 21 and 22 of the Constitution of India were
suspended without any reference to any law. The Supreme Court said that a citizen would not
be deprived to move the court for a writ of habeas corpus of the detention is mala fide. The
court has reiterated this position in Attorney General v. Amratlal Prajivandas4.

2. In the case Maharastra State v. Prabhakar5, Supreme Court said that if a person's personal
liberty has not been deprived under the Defence of India act, or any rule made there under,
then his right to move the court will not be suspended.

3. In the case of Mohan Chowdhary v. Chief Commr. Tripura6 the Defense of India Ordinance
and the rules made there under were challenged. On a preliminary objection being taken that
in view of the President's Order made under Article 359, the petitioner was not entitled to
move the court or the enforcement of his fundamental rights, the petitioner contended that as
Article 32 itself conferred a fundamental right and as the President's Order had not suspended
that rights, the petitioner was entitled to move the court under Article 32.

3 1964 AIR 381

4 1994 SC 2179

5 1966 AIR 424

6 1964 AIR 442

10
 The Supreme Court held that the right to move that court under Article 32 was subject to
Article 32(4) under which the right could be suspended in accordance with the provisions of
the Constitution. Article 359 enabled the President to suspend the right to move any court for
the enforcement of the fundamental rights which may be named by the President. The
President's Order did not suspend all rights vested in a citizen to move the Supreme Court but
only his right to enforce the provisions of Articles 21and 22 in respect of anything done
under the Defense of India Act:
"As a result of the President's Order, the petitioner's right to move this court, but not this
court's power under Article 32 has been suspended during the operation of the emergency
with the result that the petitioner has no locus standi to enforce his right, if any, during
the emergency."
Thus, the validity of the statutory provisions authorizing the detention could not be
challenged in view of the Presidential Order. The Court, however, held that the pleas which
were open to a detenu were that the mandatory provisions of the Defense of India Act
and rules had not been observed and the plea not merely alleged but proved that the detention
was mala fide.

4. In the case Ram Manohor Lohia v. State of Bihar7 the Supreme Court said that the right of a
person to move a court is not suspended when he has been detained in violation of the
mandatory provision of the Defence of India act. The order of the president did not form a
bar to all applications for the release for the detention under the act.

5. In the case Arjun Singh v. State of Rajasthan8, the question arose whether Art. 16 of the
Constitution of India is also suspended if it is not mentioned in the President's order. Court
said that Art. 16 of the Constitution of India remained operative even though Art. 14 of the
Constitution of India was suspended. The court said that enforcement of Fundamental Rights
was suspended which were specifically mentioned in the Presidents order.

7 AIR 1966 SC 740

8 AIR 1975 Raj 217

11
6. In Ghulam Sarwar v. Union of India 9Subba Rao C.J. delivering the majority judgment held
that an order passed by the President suspending the right to move the court for the
enforcement of rights under Article 14 was itself subject to a challenge that it violated Article
14.In this, the court made a distinction between the order made by the President and the
effect of the order. Only a valid order could take away the rights under Article 14 therefore if
the President's
Order violated Article 14, the order would be void from its inception.

7. In the case of M M Pathak vs Union of India 10 a settlement between LIC and its employees
was made to pay cash bonus to the employees. But during 1977 the LIC Act, 1976 passed by
the parliament during emergency has made the settlement ineffective. The employees who
could not get their cash bonuses challenged the validity of the act. The Supreme Court held
that the rights guaranteed to the citizens under Art 14 to 19 of the Constitution of India are
not suspended during emergency but their operation is suspended. As soon as the emergency
is over, the rights can be enforced. The employees will get their bonuses when the emergency
will get over and their rights can be enforced. The law which is not related to emergency can
be challenged in the court during emergency.

8. The ADM Jabalpur vs. Shivkant Shukla11, famously known as the Habeas Corpus Case.

The appeals decide by the Supreme Court in the Habeas Corpus case arose out of habeas corpus
applications filed by several detunes who prayed for their release from illegal preventive
detention. A preliminary objection was raised by the Union that in view of the President's Order
under Article 359 suspending the right of any person (including a foreigner) to move any court
for the enforcement of his fundamental rights under Articles 14, 19, 21 and 22, the petitioners
had no locus standi to maintain the petition, because, in substance, the detunes were seeking to

9 AIR 1967 SCR 271

10 1978 AIR 803

11 1976 AIR 1207

12
enforce their fundamental right under Article 21, namely, that they should not be deprived of
their personal liberty except by procedure established by law. The High Court of Allahabad
,Andhra Pradesh, Bombay, Delhi, Karnataka, Madras, Madhya Pradesh, Punjab and Haryana and
Rajasthan, rejected this contention and held that though the petitioners could not move the court
to enforce their fundamental right under Article 21, they were entitled to show that the order of
detention was not under or in compliance with the law or was mala fide. However, the Supreme
Court held that:

In view of the Presidential Order dated 27th June 1975, no person has any locus standi to
move the High Court for habeas corpus or any other writ order or direction to challenge the
legality of an order of detention on the ground that the order is not under or in compliance with
the Act(Maintenance of Internal Security Act, 1971) or is illegal or is vitiated by mala fides
factual or legal or is based on extraneous consideration.

The Order was passed as the result of four majority judgments delivered by Ray C.J., Beg,
Chandrachud and Bhagwati JJ. Justice Khanna gave dissenting judgment but he signed the
Court's order. The Supreme Court inflicted a deep wound on itself when four judges passed this
misleading order which barred and bolted the prison doors behind which helpless and
innocent persons were illegally detained and ill treated.

Dissenting judgment of Justice Khanna in Habeas Corpus case:

Justice Khanna dissented as in his opinion it takes us back to the pre constitutional
British period. The most salient feature of Justice Khanna's decision was that Article 21 could not
be viewed as the sole repository of the right to life and personal liberty, and that therefore its
suspension did not give executive officers of the government carte blanche powers to
detain persons without the authority of law. For him, this right was not the gift of the
Constitution; it had existed long before the Constitution came into force. Merely because
an aspect of the right was incorporated in the fundamental rights chapter did not mean that its
independent identity had been exterminated. In effect Article 21 required a proper procedure
under a valid law before a person could be deprived of his or her right. So at the most, its
suspension meant the deprivation of the right to a procedure, and not the denial of the right in the
absence of authority of law.

13
 CONCLUSION

Fundamental rights which the constitution guarantees to the citizen of India are called
fundamental because they are the basic to the development of human personality. These rights
are guaranteed to the citizen of India by the Constitution and no one can encroach upon them and
infringe the right of a citizen. Our legal system also provides remedies to those citizens whose
fundamental rights have been violated. But only when an emergency is declared in the country,
these rights can be suspended by the Central Government. These rights of the citizens can be
suspended only up to the law which is related to the emergency and is mentioned in the
Presidents order. But even during the period of emergency there are two rights which cannot be
suspended are right to life and personal liberty under Art 20 and 21 of the Constitution of India.
These rights can be enforced during the period of emergency by moving the court under Art. 32
of the Constitution of India. So, it is the duty of the citizens of India to protect the country from
any kind of war, external aggression, armed rebellion or internal disturbances. The citizens
should take initiatives for the development of the country and protect the country from every
harm.

14
 Bibliography
Websites:

'Human Rights During Emergency' (Allahabadhighcourt.in, 2016)

<http://www.allahabadhighcourt.in/event/humanrightsduringemergency.html
>
http://www.academia.edu/9440306/Suppression_of_Fundamental_Rights_During_Emerg
ency_-_Judicial_and_Legislative_Response

Cases Referred:

State of Uttar Pradesh v. Raj Narain

Makhan Singh v. State of Punjab
Attorney General v. Amratlal Prajivandas
Maharastra State v. Prabhakar
Mohan Chowdhary v. Chief Commr. Tripura
Ram Manohor Lohia v. State of Bihar
Arjun Singh v. State of Rajasthan
Ghulam Sarwar v. Union of India
M M Pathak vs Union of India
ADM Jabalpur vs. Shivkant Shukla

15