This article has been written by Ms. Vaaghdevi, a student studying B.A.LLB from Damodaram Sanjivayya National Law University, Visakhapatnam. The author is a 1st-year law student.
Introduction:
Fundamental rights:
The basic requirements that are necessary for a citizen’s well-being are known as fundamental rights. Before India gained its freedom, there was no idea of fundamental rights. We took this idea from the Bill of Rights in the United States.
The Fundamental Rights are covered in Articles 12 to 35 of the Indian Constitution. The following fundamental rights were provided by the constitution. They are
- Right to Equality.
- Right to freedom.
- Right against Exploitation.
- Right to freedom of religion.
- Cultural and educational rights
- Right to constitutional remedies.
The Fundamental Rights are not absolute. In the sake of the state’s security, public order, cordial relations with other countries, and to uphold morality or decency, they may be subject to reasonable restrictions. According to Article 359, the President of India may suspend certain Fundamental Rights in times of emergency. In the event that fundamental rights are violated, we, as citizens, are entitled to legal help under Article 32 and Article 336 of the Indian Constitution. A person may appeal to the Supreme Court for the implementation of these rights under Article 32 of the Constitution. Similar to this, under Article 226, an individual may approach the High Courts to have these rights within their territorial authority enforced. These rights are a reflection of the Indian Constitution’s founding fathers’ ambition to create a new social structure.
Emergency provisions:
To ensure the safety, integrity, and stability of the nation as well as the efficient operation of State Governments, certain emergency provisions were subsequently added to the Constitution.
Constitution writers included three different types of emergency. Emergency provisions are found in PART-XVIII of the Indian Constitution, from Article 352 to Article 360.
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)
1. National Emergency:
Art 352 of the constitution of India defines National Emergency. It states that ‘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’.
If the Indian president believes that the situation is serious and that war, external aggression, or internal armed revolt pose a threat to national security in India or any portion of it, he may declare a state of emergency. However, under the 44th Constitutional Amendment, the president may only declare this an emergency after receiving a written recommendation from the cabinet. In order to remain in effect, a declaration of emergency must be ratified by both Houses of Parliament with an absolute majority of the entire membership of each House as well as a 2/3 majority of the members present and voting within one month. The President of India may issue another proclamation revoking the emergency if the situation improves.
When there is war, external aggression, or armed rebellion, a national emergency might be declared. However, before 44th Amendment, the definition of a national emergency didn’t include the term “armed rebellion.” War, external aggression, and internal disturbance were all included in Art. 352 of the Constitution prior to the 44th Amendment. Because the term “internal disturbance” is vague, and in order to confine the use of Art 352 to serious situations, the term “armed revolt” was substituted.
2. State Emergency:
Art 356 of the constitution of India defines State Emergency .Art. 356 reads that-
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 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.
Similar to a National Emergency, such a declaration needs to be approved by both Houses of Parliament. If clearance is not provided in this situation within two months, the proclamation will no longer be valid. The proclamation has a six-month lifespan if it is accepted by the Parliament. It may be prolonged for an additional six months, but not for more than a year. A future Proclamation may revoke any such Proclamation.
3. Financial Emergency:
Art 360 of the constitution of India defines Financial Emergency.Art. 360 reads that-
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 a Proclamation make a declaration to that effect.
In addition, the Parliament must ratify it. Within two months, it must be approved by both Houses of Parliament. Financial Emergency may remain in effect for whatever long the circumstances require and may be canceled by another proclamation.
Position of fundamental rights during emergency:
The State is authorized to suspend the Fundamental Rights protected by Article 19 of the Constitution during the period of National emergency and State emergency. In this context, the term “State” has the same meaning as it had in the chapter on fundamental rights. This means that in addition to Parliament, the Union Executive and even subordinate authority have the competence to suspend the application of these Fundamental Rights. The Constitution also gives the President the authority to revoke the right to petition any court to have any of the Fundamental Rights enforced. It implies that the execution of the emergency can essentially suspend the entirety of the Fundamental Rights Chapter. However, such orders must be presented to Parliament for approval as quickly as feasible. The fundamental rights listed in Article 19 are immediately suspended and remain so until the emergency is over. However, the 44th Amendment states that suspension of the freedoms stated in Article 19 is only permitted in cases of declarations of war or external aggression. But in any event, Articles 20 and 21 cannot be suspended.
National emergency converts the federal government system into a unitary one. The State List, which comprises the issues that state governments may legislate on, contains 66 subjects on which the Parliament may pass legislation. All currency banknotes are also recommended for approval to the Parliament. After the emergency has ended, the Lok Sabha’s tenure may be prolonged for a maximum of six months, but no more than one year.
Article 359 empowers the president to suspend the right to enforce fundamental rights guaranteed by part III of the constitution. It says that while the proclamation of emergency is in operation, the president may by order declare that the right to move to any court for the enforcement of such of the fundamental rights as may be mentioned in the order (except article 20 and 21)44th amendment, and all proceeding pending in any court for the enforcement of such rights shall remain suspended for the period during the proclamation in force or such shorter period as may be specified in the order. An order suspending the enforcement of fundamental rights may extend to the whole or any part of the territory of India. An order made under clause (1) shall, as soon as possible, be laid before each houses of parliament. The constitution (38th amendment) act 1975, added a new clause (1-A) in art. 359 which provides that while an order under clause (1) is in operation, nothing in part III shall restrict the power of the state to make any law or to take any executive action. Any such law shall cease to have effect to the extent of the incompetence, as soon as the order cease to operate except as respect thing done or omitted to be done before the law so cease to have to effect. The 44th amendment made two significant changes in Art. 359: First, it provides that under Article 359 does not have the power to suspend the enforcement of the fundamental rights guaranteed in Art.20 and 21 of constitution. Secondly it provides that suspension of any fundamental rights under article 359 will not apply in relation to any law which does not contain declaration 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 retail. Thus law not related to emergency can be challenged in the court of law even during emergency.
Conclusion:
“Fundamental Rights are those that are seen to be important for an Individual’s personality development. Protecting society from external attack or upholding governmental etiquette during internal unrest should be done first in an emergency. However, even under a state of emergency, individuals still have access to their two fundamental rights, as revised by the 44th constitutional amendment in 1978: the right to life and the right to personal liberty. Under article 32, no one has the authority to take away someone else’s life or their ability to exercise their personal freedom.
References:
1. Islam, M. (2020) Position of Fundamental Rights during emergency in India, SSRN. Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3710703 (Accessed: January 10, 2023).
2. Publication, I.A.E.M.E. (2020) Position of Fundamental Rights during emergency in India, International Journal of Management. Available at: https://www.academia.edu/44340978/POSITION_OF_FUNDAMENTAL_RIGHTS_DURING_EMERGENCY_IN_INDIA (Accessed: January 10, 2023).
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