This article is written by Yash Sharma, from Vivekananda Institute of Professional Studies, Indraprastha University, New Delhi. This article deals with the provisions of state emergency mentioned in the Constitution of India, along with its application, development and its effects on the fundamental rights of the citizens of India.

Introduction

An emergency is an extraordinary situation in which the ordinary course of action of the State gets disrupted. An emergency calls for special provisions or executive policy often of extra-constitutional nature. In the Indian context, a state of emergency is referred to a period in which the governance system is changed according to an altered constitutional setup. This is done under a proclamation of emergency via an Order from the President of India. The criticism of the emergency provisions came on the grounds that this suspends the fundamental rights given in the Constitution of India. Fundamental Rights are part of the basic structure of the Constitution of India. It cannot be abridged in any case. The emergency provisions are also stated in the Constitution by the forefathers with a view to safeguarding the sovereignty, security and integrity of the nation. This also puts a dilemma on the Government whether to preserve the security of the State or safeguard the Fundamental Rights of the citizens.

Furthermore, the article deals with how an emergency affects an individual. It deals with all the fundamental rights and other legal rights that get suspended during an emergency. These provisions have been explained along with the judicial scrutiny given by the Supreme court and various High Courts over time. Lastly, due to certain events in the past, there have been amendments in the provisions of emergency and related Articles. Those amendments along with their reasons have also been specified in the Article. Lastly, like any other law or order, a set of procedures is laid out. Similarly, even for the proclamation of emergency, there is a set procedure which has to be followed. Not following that procedure can render the proclamation invalid. Also, the provision and procedure itself make it clear that proclamation of emergency shall not be the primary way of handling the issues. All the actors involved in the procedure have their duty prior to the proclamation of emergency which has to be discharged. Not discharging that liability can also invite judicial review of the emergency.

Definition

An emergency is a situation in which the government can exercise its emergency power. Emergency power includes the power to perform actions or execute policies which they would not be empowered to enforce in a state of normalcy. An emergency could also be understood as a situation in which the government machinery fails and needs immediate government control to normalize the situation and counter the problems. In the Indian theory of emergency as propounded by the Indian Constitution, it means any situation that could not be handled by the Government and State machinery without the implementation of such special provisions.

Under these conditions, some fundamental rights given under the third part of the Constitution are suspended.  The suspension is necessary for the overall well-being of society. Without the suspension, the government cannot stabilize the situations. For example, if there broke out an armed rebellion the Government will be required to suspend your freedom of liberty. Under Article 19 of the Indian Constitution clause 2 says that the Government can enact laws to impose such reasonable restrictions on the grounds of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or concerning contempt of court, defamation or incitement to an offence.

International law on this subject also allows the suspension of such rights. The International Covenant for Civil and Political Rights distinguishes rights of a person into two types namely: Non-Derogable and Derogable rights. Article 4 of the ICCPR states all the non-derogable rights which cannot be suspended.

Emergency Provisions

Emergency Provisions are mentioned under part 18 of the Indian Constitution ranging from Article 352 to Article 360. This part has laid down provisions of emergency in 3 ways. First, the National Emergency which is imposed in the whole of India. The enforcement of national Emergency is subject to provisions mentioned under Article 352, 353, 354, 358 and 359 in the Indian Constitution. Second, in this form of emergency, the President’s rule is imposed in a state under certain conditions and the state government gets suspended if any. The enforcement of president rule under this form of emergency is subject to provisions mentioned under Article 355, 356 and 357 of the Indian Constitution. Third, the financial emergency is imposed in case of a grave financial instability. The enforcement of financial emergency is subject to provisions mentioned under Article 360 of the Indian Constitution.

Reason for National Emergency

Under Article 352 the President of India has the power to proclaim a national emergency. There are 3 grounds under which the emergency can be enforced. But only if the President is satisfied that the reason for emergency falls under those grounds and there indeed is a national security issue. The three grounds are:

1. War
2. External Aggression
3. Armed Rebellion (substituted with “Internal Disturbances” by forty-fourth Amendment Constitution Amendment Act, 1978).

Reasons for President Rule or State Emergency

Under Article 356 the President has the power to proclaim state emergency on receiving a request or report from the Governor of that particular state stating the situation of that state is such that it is impossible to discharge constitutional liabilities of the State Government. For that purpose, the State Government is suspended and the President’s rule is imposed.

Reasons for Financial Emergency

Under Article 360 the President can impose a financial emergency if he is satisfied that the situation is causing a financial threat to India or any part of it. Financial emergency has never been imposed in India under any circumstances in its history since the adoption of the Indian Constitution.

State Emergency

The concept of state emergency is built under an amalgamation of Article 355, 356 and 357. Article 355 puts a responsibility on the Central Government to protect a state from external aggression, internal instability and assuring that they abide by the provisions of the Constitutions. So, the President can also judge the situation with a perspective of what is mentioned under Article 355 and not only Article 356.

Historical Background

During the British rule before independence Indian society was governed by the Government of India Act of 1935 and other legislations. In the Government of India Act of 1935, Section 93 mentioned provisions similar to that of Article 356 in the Indian Constitution. Section 93 provided that if a situation arises when the Governor of a province believes that the Government cannot carry on with its responsibilities. By proclamation of emergency under the Government of India Act, the Governor assumes to himself all the powers of a government. The only power the Governor cannot assume is that of the High Court of that state. The reason for such provision was that in the Act of 1935 for the first time the power was delegated to the ministries formed by the government under the Act. The Colonial Administration was not willing to trust these ministries and for that fact, they kept this emergency power as an ultimate tool of control. The difference between Article 356 and Section 93 of the Government of India Act is that instead of Governor the President assumes the power and was done to ensure security and security of the Indian Republic.

The framers of the Constitution realised that the nation would eventually face issues and for that purpose, it is essential to have this provision in the book. Even though in India we had democracy but Indian democracy should be taken as inclusive of all the diversity. In India the society is divided into so many sections based on religion, caste, language, culture and many more it is only natural to presume that there might be conflicts in the future. Although a lot of criticism came on this point and many believed that Article 356 would reincarnate the imperial spirit in the Constitution and could be used as an abuse of power. It was defended by Dr B R Ambedkar on the point that all the provisions laid in the Constitution can be abused but that could not be a ground for not incorporating the provision.

The British Colonizers enforced Section 93 in the Act to restrict the democracy allowed in the Act. But the same could not be said about Article 356. The reason could be derived from the Constituent Assembly Debate while the drafting of Article 355 & 356. It was debated that the particular provision was inserted in the constitution for the sole purpose of handling the situation of grave danger to the integrity and sovereignty of the Indian State.

Procedural Aspect of Article 356

It has already been said that the emergency could be proclaimed by the President by receiving a report from the Governor of a state reporting inability of state government machinery to handle the situation. Clause 2 of Article 356 says that such proclamation can be revoked by a subsequent proclamation. As for the validity and enforcement of proclamation of emergency, such proclamation under Clause 3 of the Article has to be produced before both the houses of the Parliament. The proclamation will cease to exist after two months of proclamation unless it is approved and passed by both the houses of the Parliament.

It is possible that the Lok Sabha or the House of People is not in order or is dissolved at the time of proclamation or the dissolution takes place during the two months. For that situation clause 3 lays down the procedure if the approval from the House of People is not received. It states that if the Council of States approved the proclamation, but the same is not approved by the Lok Sabha before the expiration of 2 months period, the Proclamation shall cease to exist after 30 days from the date the house of People is reconstituted. But only if it is not approved by the Council of People within those 30 days.

Clause 4 of Article 356 states that even if the proclamation is approved by both the houses of parliament it shall automatically cease to operate on the expiration of a period of six months from the date of proclamation of such emergency. Its further states if the proclamation is to be continued after 6 months, approval from both the houses has to be gained approving the continuance of proclamation.

Judicial Interpretation of Emergency Provisions

When we talk about Article 356 although it is essentially about a state emergency. It must be remembered that this article is a part of all the provisions dealing with Emergency. This whole part was kept in the constitution with hope by Dr Ambedkar, that they would not be used and will continue to stay as dead letters. It is only logical as the application of these provisions means the failure of the constitutional mechanism which could not be assumed. These provisions have gone through judicial scrutiny majorly in two cases, namely, State of Rajasthan v. UOI (AIR 1977 SC 1361) and S.R. Bommai v. UOI. In the first-mentioned case, a constitutional bench of 7 judges ruled upon the matter. In the case of S.R. Bommai constitutional bench of 9 judges ruled upon the case. To understand the judicial interpretation of emergency provisions ruling of S.R. Bommai case is sufficient as on some points Bommai case departs from the State of Rajasthan case. The bench ruled in its ruling emphasised upon certain aspects of Article 356. Those elements of Article 356 are: –

1. President’s Satisfaction of Failure of State Mechanism

The court reviewed Clause 1 of Article 356 that talked about satisfaction of the President upon receiving the report from the governor reporting inability of the State Government to carry out its constitutional responsibilities. The court said that the President must be satisfied with such an emergent situation from the report of the Governor nor otherwise that the situation is grave and need emergent actions. The Court termed that satisfaction must be based on ‘objective material’. For that purpose, objective material includes the report from the Governor or the situation evident. Also, the objective material shall result in the inability of the State Government to work in that state which the President has to be satisfied before the proclamation of emergency. If the objective material is present then the proclamation can be lawfully executed but if such material does not exist the proclamation can be subjected to challenge in court. Application of these conditions indicates the extent and limitation of judicial review on such proclamation.

2. The obligation of the President to proclaim Emergency

Although the term used in Clause 1 is “if the president is…. satisfied”, the court reviewed this autonomy of the President to be subjective on this matter of proclamation. Clause 1 of Article 74 makes it compulsory for the President to abide by the advice of the Council of Ministers headed by the Prime Minister. This was the President following the will of the Council of Minister and has little say of his own. Also, clause 1 of Article 356 states a situation in which the State Government cannot abide by the Constitutional provisions on that point question raises whether incompetency to follow any provision of the Constitution would mean the failure of State Government. Answering this question, the court stated that it is not possible to devise a tool to check the graveness of the situation. But we have no choice to believe that the Governor when in their Oath promised to preserve, protect and defend the constitution to the best of his abilities.

Dissolution of Legislative Assembly

Article 356 explicitly does not say anywhere that the Legislative Assembly of that state has to be dissolved. The Majority in S.R. Bommai case held that following the practice since independence the President can use the power to dissolve the Legislative Assembly. But this power could be exercised only if both the houses of the Parliament approved the proclamation under Clause 3 of Article 356. It was held that the President has the power to suspend the Assembly. But if both the houses disapprove of such proclamation then the Legislative assembly shall be reconstituted without any impact from the emergency proclamation. If the proclamation is held invalid the even if it gains approval from both the houses the court can restore the status quo ante. Hence, can restore the assembly, government and ministry. Also, if the challenge is made in the court regarding the validity of the proclamation. The court can issue an interim order to restrain the holding of a fresh election until the case is disposed

In case if the court holds the proclamation invalid. The Court still has the power to declare actions taken by the President until such a declaration to be valid. It is also open to the State Legislation and Parliament to validate the actions of the President. For the protection of federalism in the Indian polity, Clause 3 of Article 356 works as a safety mechanism. If both the houses do not approve the proclamation within 2 months the acts done, laws passed and orders made after the lapse of the approval period does not automatically become void or illegal. All such acts or orders get subjected to review by the Legislative Assembly.

Amendments to these Provisions

Amendment to the emergency provision under Article 356 Clause 5 was brought via the Constitution (Forty-eighth Amendment) Act, 1984. The amendment inserted a provision in Clause 5 stating that a proclamation issued on the 6th of October, 1983 concerning the State of Punjab would not expire after one year of proclamation. In its place, the added provision stated for that proclamation as an exception to be continued until expiration of 2 years due to special circumstances in the State of Punjab.

The reasoning given for the amendment act stated that the Proclamation issued by the President under article 356 of the Constitution on the 6th day of October 1983 concerning the State of Punjab cannot be continued in force for more than one year unless the special conditions mentioned in clause (5) of Article 356 of the Constitution are satisfied. Although the Legislative Assembly is in suspended animation and a popular government can be installed, having regard to the prevailing situation in the State, the continuance of the Proclamation beyond 5th October 1984 may be necessary. To facilitate the adoption of a resolution by the two Houses of Parliament approving the continuance in force of the Proclamation beyond 5th October 1984, it is necessary to amend article 356 of the Constitution. It is therefore proposed to amend clause (5) of Article 356 to make the conditions mentioned therein inapplicable for the continuance in force of the said Proclamation up to two years from the date of its issue.

Sarkaria Committee

Sarkaria Commission in chapter six of its report analysed the issues related to Article 356. It stated that the article 356 which was supposed to remain a dead letter has been used in many instances. The use of the Article has increased considerably. Committee expressed its opinion of Article 356 as power or responsibility of the centre to restore the representative government in states backed by public support. Despite many precautionary measures laid down in Article 356, the article was used for the President’s Rule proclamation several times. Sarkaria Commission was formed in 1983 and spent four years coming up with reforms to improve Centre-State relations.

The Sarkaria Committee in its report recommended that Article 356 shall be used in extremely rare cases. They upheld the vision of framers that Article 356 shall be an exception to the rule. They in reference to Article 355 mentioned that the Central Government has to protect the States security and well-being. The report also observed that “…each and every breach of a constitutional provision, irrespective of its significance, extent and effect, cannot be treated as constituting a failure of constitutional machinery”. After reviewing suggestions from various individuals, organisations and groups the committee commented on the use of Article 356. The committee stated that when all available measures and resources fail to rectify the constitutional machinery in the state then only Article 356 shall be used.

Governor’s Obligations

Certain obligations of the Governor enjoying support from the majority in the Legislative Assembly was recommended in the report. The governor in the emergent situation, first of all, shall explore all the possible solutions to the problem. Before proclaiming an emergency, if the government cannot be installed, but, a fresh election could be held then it should be done without delay.

The governor or the President cannot dissolve the State Government unless the procedure under Article 356(1) is followed and the proclamation is considered by both the houses of the Parliament. The report from the commission also recommended an amendment to Article 356(1) to make it mandatory to mention grounds for the proclamation of emergency. Inclusion of grounds will make the remedy of judicial review to be more efficient against mala fide proclamation of emergency. The Governor’s Report, a prerequisite for the President’s Proclamation under Art.356, should be a ‘speaking document, which should contain an explicit and clear statement of all material facts and grounds based on which the President may satisfy himself or otherwise of the emergency contemplated in Art.356’. The Commission’s report also recommends giving wide publicity in all media to the Governor’s Report.

Previous State Emergencies

In response to the RTI filed regarding the proclamations of President rule under Article 356 it presented a statistic. The first-ever imposition of Article 356 was done in 1951 in the state of Punjab. Since then till 2017 it was further used for a total of 115 times. The record of the maximum number of proclamations in a single year was recorded in 1977 after the Janta Alliance came in power. In that year emergency was proclaimed in 12 states which is the highest till today. Second highest is of the year 1980 when Indira Gandhi came back in power. In that year emergency was proclaimed in 9 different states. Other Instances when this provision was used extensively includes the year of 1992 when it was used in 9 different states and 1971 when it was used in 7 states including thrice in the state of Orissa.

Ever since independence, this Article has been imposed in each decade with variations. In the first two decades of independent India from 1950 to 1970 emergency was proclaimed 20 times. For the next two decades from 1971 to 1990, it was used 63 times with an average of 3 times a year. Within that period from 1971 to 1980 alone it was used 49 times. This repetitive usage of these provisions highlights the polarized political atmosphere. Article 356 became a political tool used by the Governments during that period.

In terms of states, the emergency is proclaimed for the maximum times in the state of Uttar Pradesh. But for the longest duration, it was imposed in the state of Punjab for nearly 10 years.

Emergency enforced longer the Constitutional Limitation

Exactly, for 3510 the emergency was imposed in the state of Punjab, calculated to almost complete 10 years. The reason for such proclamation was militancy activity in Punjab during the 1980s. Punjab was under president control for a continuous span of 5 years from 1872 to 1992. After the murder of Indira Gandhi and the 1984 Sikh massacre the situation was extreme and called for such proclamation.

Other than Punjab emergency exceeded constitutionally allowed maximum of 3 years period only in the erstwhile State of Jammu and Kashmir. The emergency in Jammu and Kashmir was proclaimed for a continuous stretch of 2061 days around 6 years. Proclamation of emergency continued from 1990 to 1996.

Fundamental Rights in Emergency

In a democracy, emergency disrupts the basic principles on which state machinery works. Most importantly, it disrupts the rights fundamentally available to a citizen of that state. In India, the proclamation of an emergency drastically affects the fundamental rights of the people. At the same time, it is not correct that this provision is unconstitutional. Both fundamental rights and emergencies are part of the same document. Sometimes, in case of extreme situations fundamental rights are suspended under Article 359. It was foreseen by the framers of the constitution that in future the national security may get endangered due to the rise of certain events or forces. Such a situation may render it necessary for the State to suspend the liberties of individuals for the sake of national security.

Emergency conditions put the democratically stated Government in the dilemma of protecting its primary obligation of national security and equally important obligation of protecting the human rights of its citizens. This dilemma and choice of prioritizing one obligation over another have been taken as the main reason for the inclusion of Article 359 and Article 358. Article 359 suspends all the fundamental rights available to a citizen post issuing a presidential order. After the forty-fourth amendment, it was made clear that Article 20 and Article 21 will not be suspended under the purview of the presidential order.

Suspension of Rights under Article 359

Article 359 provides for the President to suspend fundamental rights under Part III of the Constitution. It states that if the emergency is enforced then the President may by order declare the suspension of one’s power to move to court for enforcement of such rights. Article 20 and Article 21 are exclusive of suspension of those rights. All the proceedings pending in the court for enforcement of such rights shall also be suspended until the emergency is lifted. This particular Article can be enforced in whole or any part of India that is in case of State Emergencies unlike Article 258. Also, any order made under Clause 1 of Article 359 shall be presented before both the houses as soon as possible.

38th Constitutional Amendment Act, 1975 inserted Clause 1(A) in Article 359. The newly inserted Clause provided that while an order under Clause 1 is an order, nothing in Part III of the Constitution shall limit the State to make law or Executive to take steps for countering the crisis. Any such law will cease to work as soon as the order ceases to operate except act done or omitted to be done before the law ceases to affect.

44th Amendment Act’s effects

Changes brought under the 44th Amendment Act can be divided into two parts. First, this changed the scope of the power of the President to suspend Fundamental Rights. It stated that the President cannot suspend Article 20 and Article 21 even through enforcing of an order under Clause 1 of Article 359. Second, the power of the State to enact laws unrestricted cannot be enacted without explicitly mentioning that such law is enacted concerning the proclamation of emergency. Any law enacted by the Parliament or step taken by the Executive without such declaration of its relation to the emergency cannot be enforced.

Also, any such law without such a declaration can be challenged in the court of law even while the proclamation of emergency is in effect. In the case of ADM Jabalpur v. S. Shukla majority, the Supreme Court bench decided one cannot move to court for violation of the right to life. The judgement was perceived to be anti-people as in this judgement the Supreme Court shut its door to anyone who is deprived of their most fundamental right to life or personal liberty. To prevent something like this to repeat the Amendment Act made it sure that Article 20 and Article 21 shall not be violated in most extreme situations. Even if a person is deprived of his right to life or personal liberty, he is entitled to approach the court of law for the enforcement of his rights. In other words, the court will have the power to declare any law or executive action to be void if it is violative of Article 20 or Article 21.

Right to Judicial Remedy

It is important to remember that the right to move to a court under Article does not get suspended automatically like Article 358. It comes in order only after a presidential order that right to move to a court gets suspended. During the 1962 Indo-China war on 3rd November 1962, a presidential order was released under Clause 1 of Article 259. The order stated that In exercise of the powers conferred by clause (1) of Article 359 of the constitution, the president hereby declares that the right of any person to move any court for the enforcement of the rights guaranteed by Articles 14, 21 and 22 of the Constitution shall remain suspended for the period during which the emergency is enforced.

In the case of Makhan Singh v. State of Punjab, Makhan Singh was detained along with others under the Defense of India Act, 1962. They approached the High Court challenging their detention under the Defence of India Act, 1962. They alleged that their detention was improper and illegal because the rules and laws made under the Defence of India Act are violative of their fundamental rights under Article 14, 20 and 21. The Petition was dismissed by the High Court on the grounds that the Presidential Order bars the High Court from entertaining such petitions. An Appeal was made in the Supreme Court. In the appeal, the Supreme Court examined the scope and effect of the Presidential Order made under Article 359.

The Supreme Court in its observation stated that Article 359 does not suspend one’s fundamental rights but only suspends one’s right to move to court for enforcement of such fundamental rights. In a way, it is said that those rights are theoretically alive. Only right that is suspended is the right to seek remedy for infringement of one’s fundamental right. The scope of Article 359 to suspend one’s right to move to court in case of a fundamental right violation is not limited to the Supreme Court. The phrase “any court” means any court of competent jurisdiction including any High Court under Article 226. Also, Article 32(3) which empowers the Parliament to empower other courts cannot give the same status as that of the Supreme Court. Therefore, the phrase “any court” means the Supreme Court and the High Court of the respective state in which the petition can be filed.

Malafide Detention

The Supreme Court has made it clear that the nature of detention whether mala fide or bonafide is important in any case. If a person’s fundamental right is abridged from their detention, then he can move to court praying for obtaining a writ of habeas corpus if such detention has been ordered malafide. Also, any infringement of a right which has not been suspended under the order made by the President can be challenged in the court of law. Similarly, if a person is detained and files a plea that Defence of India, Act and ordinance under which that person has been detained suffers from the excessive delegation of power. Such Plea cannot be barred due to the Presidential Order as such plea is not related to the fundamental rights mentioned in the order.

Landmark Cases

• In the case of State of Maharashtra v. Prabhakar the Supreme Court in 1966, ruled upon the right of a person to move to a court. The Supreme Court held if a right of a person is abridged not under the Defence of India Act or any law made under the Presidential Order, he has the right to approach the Court of law for a remedy.
• In a similar case of Ram Manohar Lohia v. State of Bihar, the court held the detention under the Defence of India rules to be invalid as the detention order was inconsistent with the conditions laid down in the rules. In this case, Dr. Ram Manohar Lohia was detained by an order made by the District Magistrate. The power was delegated to the District Magistrate by the Government under Defence of India Act, 1962. The Order stated that to prevent the detainee from violating the security and law & order in society. It was necessary to detain him.

The court held that the Presidential Order does not bar a person from applying for release post detention. If a person is detained under the Defence of India Act, he can still move to court as his fundamental right. The petition was heard. The court was satisfied with the contention that detention was not justified under the Defence of India Act or Rules made under the Order. Court held that the order under which the detention was done can be challenged unless the order, as a rule, comes under the expression “law and order”. The significance and gravity of the threat to public order from the expression “maintenance of law and order” cannot be deducted.

• In Mohd. Yaqub v. State of Jammu and Kashmir, the Supreme Court held that any Order made under Article 359(1) is not a ‘law’ as defined under Article 13(2) of the Constitution of India. Therefore, the validity of such an order cannot be challenged if it is violative of Fundamental Rights guaranteed under part III of the Constitution. The Court also stated that if an Order suspends the enforcement of article 14 it cannot be held invalid because it is violative of Article 14. The legality of the Order cannot be judged as violative which the Order has itself suspended. The Supreme Court also overruled its very own judgement in the case of Ghulam Sarvar v. Union of India.
• In A.D.M. Jabalpur v. S. Shukla case the Supreme Court responded to the appeal made by the respondent challenging the proclamation of emergency by the President under Article 352. The Respondents in this appeal to the Supreme Court were detained under the Maintenance of Internal Security Act (MISA). The Court in response to the issue whether one can challenge detention under an order made by the President under Article 359 held that no person has locus standi to move to a court for a writ of Habeas Corpus under Article 226. A challenge to the order cannot be made on the grounds that the order was not in compliance with the Act or was illegal, or was infested with malafide intention or has been based on extraneous considerations.

In the same case, a contention was presented in the Supreme Court by the respondents. It was contended that Article 359(1) only bars a person from moving to the Supreme Court for enforcement of one’s fundamental right via Article 32 of the Constitution. It was also contended that this order does not affect the manner of enforcement of common law and statutory right to personal liberty and its enforcement under Article 226 before the High Court. In short, the contention was that Article 21 was the only source of the right to life and personal liberty of an individual and a person can move to court for enforcement of such right even if it is suspended.

This contention was rejected by the Supreme Court. It was rejected on the grounds that Article 21 is the sole repository of the right of an individual to life and personal liberty. Once the right to judicial remedy for violation of Article 21 is suspended, that person cannot go to court for any other form of remedy. Similarly, an order made under Article 359(1) does not only suspend the right of a person to move to the Supreme Court under Article 32 but also the right to move to a court under Article 226 for enforcement of rights referred to in Part III of the Constitution.

This Judgement was criticised because it stripped all the protection provided in the Constitution. This case suspended one’s right to life and personal liberty along with the right to protection against the conviction of offences. The 44th amendment was brought to counter the judgement. It was inserted that article 20 and Article 21 cannot be suspended through a presidential order under Article 359(1). This way another incident of clear human rights violation would not be repeated without any repercussions to the Executive Agencies.

Conclusion

The provisions of emergency were added in the constitution for the sake of national security and countering extraordinary issues. Even the forefathers of the Constitution figured that in the future such situations may occur which would require special powers, for the State to respond and handle the situation. The emergency provisions since independence have been used multiple times. For a significant period, the use of these by the State was not ethical and was used as a political tool to continue their political control. The procedure laid down for the proclamation of emergency by the President was not followed and was misused. The limitation of maximum time till when an emergency can continue as set by the Constitution was breached in the State of Punjab and Jammu & Kashmir as well.

Due to these incidents of misuse, some amendments were introduced to these provisions in the 44th Amendment Act. Meanwhile, the Indian Judiciary to an extent closed its doors to any sort of human rights violation. In many judgements of the Supreme Court, the power of a person to approach the court of law in case their Fundamental Rights violation was discussed. After the 44th Amendment Act, it was agreed by the Court that in any case no person can be stripped of his right to life and personal liberty. Article 20 and 21 could not be suspended even in case of an emergency. The Supreme Court also made it clear that all the fundamental rights remain in order for itsṣ only power to move to court for their enforcement is suspended. Hence, once an emergency any person stripped of his fundamental right can move to court for remedy.

References

1. http://www.legalserviceindia.com/legal/article-1187-national-emergency.html
2. https://blog.ipleaders.in/emergency-provisions-india/#Emergency_meaning_in_Hindi
3. http://www.legalserviceindia.com/legal/article-1175-state-emergency-article-356-indian-constitution.html
4. https://www.constitutionofindia.net/constitution_of_india/emergency_provisions/articles/Article%20356
5. http://www.advancedjournal.com/archives/2018/vol3/issue2/3-2-233
6. https://factly.in/how-many-times-presidents-rule-imposed-so-far-india/
7. https://factly.in/state-presidents-rule-number-times/
8. https://shodhganga.inflibnet.ac.in/bitstream/10603/118690/13/13_chapter%206.pdf

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