This article is written by Rachna Kumari. This article provides an in-depth analysis of the suspension of fundamental rights by revisiting the constitutional history of India and observing how the conundrum of individual rights and societal interests is balanced during an emergency. 

This article has been published by Shashwat Kaushik.

Introduction

“The liberties of the individual are not mere privileges, they are the essence of human dignity”     

                                                                                           – Justice V.R. Krishna Iyer

Fundamental rights are the cornerstone of any free and democratic society.  They are the essential freedoms that every human being deserves, regardless of their religion, caste, sex, etc. These rights promote individual liberty, dignity, well-being and ensure that the State does not misuse its power arbitrarily. Though fundamental rights are of utmost importance, a seemingly paradoxical dilemma arises in exceptional circumstances when it becomes a necessity to suspend these rights to safeguard public safety and national security for the greater good. 

The Constitution of India is considered as one of the most comprehensive constitutions around the world which encompasses a robust framework of fundamental rights. However, it also includes provisions for suspending these rights under extraordinary circumstances. These provisions enable the Central Government to meet any abnormal situation effectively. The rationale behind the incorporation of these provisions in the Constitution is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system, and the Constitution. Throughout its history, India has witnessed three instances of national emergency during the Indo-China War in 1962, Indo-Pakistan War in 1971 and Internal Emergency from 1975-77. 

All these emergencies led to suspension of certain fundamental rights and amendments in the current constitutional framework. During an emergency, the Central Government becomes all powerful and the states go into the direct control of the Centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution. Though the suspension of fundamental rights seems like a blow to the constitutional framework; however, in times of war, civil unrest, etc. restrictions on freedom of movement, assembly, and expression can help in controlling violence to protect citizens. 

To avoid misuse of the power, from time to time, the Hon’ble Supreme Court of India has played a crucial role in shaping the legal framework surrounding the suspension of fundamental rights. 

Historical context

Immediately after the end of World War I, Germany’s emperor, Kaiser, left Germany to be governed by what would later be known as the Weimar Republic. There were several contradictions that plagued this system until its end when Adolf Hitler rose to power. 

After facing defeat, a shattered economy, and a power vacuum that gave rise to political violence, framers of the Weimar Constitution and the leadership of the Weimar Republic found themselves in an incredibly difficult position. In 1918, the drafting of the founding document of the Weimar Republic began. The framers deemed it necessary to enshrine personal liberties like freedom of speech, equality before the law, etc, in the Constitution. 

Though the Weimar Constitution provided liberties to the citizens; Article 48 empowered the President to intervene when public security and order were seriously disturbed or endangered within the German Reich. It allowed the President to take the assistance of armed forces if needed. Further, it also allowed the President to suspend civil liberties guaranteed in the Weimar Constitution.  This was usually done when there was a threat to the safety and stability of the country. Under this Article, the President can declare a state of emergency in Germany in times of national danger and to rule as a dictator for a short period of time. The intent behind it was to offer an opportunity for a strong leader to make decisions in times of difficulty without getting involved in the long and slow legislative process. 

The provision for suspension of fundamental rights during an emergency is taken from the Weimar Constitution of Germany. Article 48 of the Weimar Constitution gave the President the powers to impose emergency which included the right to suspend civil rights and rule by decree. The key rationale behind suspension of fundamental rights during an emergency is to protect national security, prevent unnecessary chaos, espionage and other such activities that can jeopardise the stability of the country. Another important consideration is the preservation of public order and safety. Sometimes, the suspension of a few rights becomes important to avoid big disruptions to protect citizens, maintain law and order and ensure the smooth functioning of essential activities. 

India, being a socialist country has to strike a balance between addressing the emergency and safeguarding the individual as well as collective interests. Therefore, it becomes necessary to regulate the powers of the State. 

Since independence, India has faced challenges with regard to the extent of power of the State during an emergency as evidenced by a series of Supreme Court cases and constitutional amendments. Landmark cases of the Apex Court have, time and again, reiterated the importance of balance between safeguarding individual rights and powers of the State during an emergency. 

Similarly, through various constitutional amendments such as 38th Amendment Act, 1975, 42nd Amendment Act 1976; the State tried to maximise its power. 

Constitutional framework

The federal government, according to Bryce, means weak government because it involves a division of power. Every modern federation, however, has sought to avoid this weakness by providing for the assumption of larger powers by the federal government whenever unified action is needed because of emergent circumstances, internal or external. While in countries like the United States, the expansion of federal power took place through various judicial interpretations, the Constitution of India itself provides for conferring extraordinary powers upon the Union in case of different kinds of emergencies. 

India, that is, Bharat is its own kind of ‘federal republic’ as observed by Dr. BR Ambedkar in the Constituent Assembly where he stated, “ All federal systems including the American are placed in a tight mould of federalism. No matter what circumstances, it cannot change its form and shape. It can never be unitary, On the other hand, the Constitution of India can be both unitary as well as federal according to the requirements of time and circumstances. In normal times, it is framed to work as a federal system. But in times of war, it is so designed as to make it work as though it was a unitary system”. The emergency provisions under Part XVIII( Articles 352 to 360) of our Constitution enable the Union government to acquire the strength of a unitary system whenever any emergency arises. 

The Constitution of India provides for three different types of abnormal situations that call for a temporary suspension of the normal functioning set up by the Constitution– 

• Under Article 352, an emergency due to war, external aggression or armed rebellion. This is popularly known as ‘National Emergency’. 
• Under Article 356, an emergency due to the failure of constitutional machinery in the states. This is popularly known as ‘President’s Rule’, ‘State emergency’, or ‘Constitutional emergency’. Though, the Constitution doesn’t use the word ‘emergency’ for this situation. 
• Under Article 360, an emergency due to a threat to the financial stability or credit of India. It is known as a ‘Financial emergency’. 

The President can proclaim a national emergency if she is satisfied that the security of India or any part thereof is threatened by war, external aggression, or armed rebellion. During this, the President has the power to suspend all fundamental rights except those given under Article 20 and Article 21 of the Constitution. A proclamation of national emergency declared by the President must be approved by both the Houses of Parliament within a month. If approved, the emergency can be in force for a period of six months that can be extended with parliamentary approval. Parliamentary approval is significant to prevent the President from declaring an emergency on her whim and mandates an open parliamentary discussion and justification for such an extreme measure. Further, it mandates the government to explain its actions and obtain the consent of other elected representatives before suspending the fundamental rights. 

Article 355 of the Constitution imposes a duty on the Centre to ensure that the government of every State is working in accordance with the provisions of the Constitution. Under Article 356, in case of failure of the constitutional machinery of a State, it is the responsibility of the Centre to take over the government of a State. This is popularly known as ‘President’s Rule’. A proclamation imposing the President’s rule must be approved by both the Houses of Parliament within two months from the date of its issue. If approved by both the Houses of Parliament, the President’s rule continues for six months. It can be extended for a maximum period of three years with the approval of Parliament every six months. It is noteworthy that the 42nd Amendment Act, 1976 raised the period from six months to one year. Thus, once approved by the Parliament, the President’s rule could continue for one year. But, the 44th Amendment Act, 1978 restored the previous situation and reduced the period to six months. 

Under Article 360, the President can declare a financial emergency if a situation of unstable economy is encountered. A financial emergency has never been proclaimed in India.  

Situations in which fundamental rights can be suspended

The suspension of fundamental rights in India is a significant issue that demands delicate attention from all the pillars of democracy. It is often necessitated by extraordinary circumstances that pose a threat to the country’s security, stability and public order. There are some situations when fundamental rights are suspended. 

National Emergency

A situation where the President is satisfied that the security of India or any part thereof is threatened by war, external aggression, or armed rebellion. The suspension of fundamental rights during a national emergency is justified on the grounds that there is a need to address a grave and imminent threat to the sovereignty and integrity of the nation. 

For example, a National emergency was declared during the Sino-Indian War in 1962. The conflict arose due to territorial disputes in the Himalayan region between India and China. In October 1962, the Chinese forces launched simultaneous offensives in the Ladakh region and across the McMahon Line in the north-eastern region of India. Following the Chinese invasion of Indian territory, the Indian government declared a national emergency under Article 352 of the Constitution. The declaration of emergency led to suspension of some fundamental rights such as the right to freedom of movement, assembly, expression, and the right to protection against arrest and detention. Similarly, emergency was declared during the Indo-Pakistan War in 1971 which is also known as the Bangladesh Liberation War. The war began due to political and economic disparities between East and West Pakistan. In the 1970 elections, the Awami League led by Sheikh Mujibur Rahman won a majority in East Pakistan. However, the West Pakistani leadership refused to hand over power, sparking mass protests and civil disobedience in the East. East Pakistani nationalists formed the Mukti Bahini, an armed resistance movement, seeking independence. India provided support to Mukti Bahini. In December 1971, Pakistan launched a preemptive air strike on Indian airbases and started the war. In collaboration with Mukti Bahini, India launched a swift offensive in East Pakistan. Pakistan’s surrender in the East marked the end of the war and it led to the formation of Bangladesh. During this period, a national emergency was declared in India on the ground of ‘External aggression’. The declaration of emergency led to suspension of fundamental rights of individuals. Right to freedom of speech, assembly and movement were suspended. The press was also severely censored. Thousands of people were arrested without trial. 

State Emergency

President’s rule can be imposed in a State if the President is satisfied that the governance of a state is not carried out in accordance with the provisions of the Constitution. While the imposition of Presidential rule doesn’t automatically suspend fundamental rights, it does grant the Central Government to suspend state government provisions for restoring order and governance in the State. There have been several instances when a State emergency was declared in several States of India. 

A very recent example is of Jammy and Kashmir where President’s rule was imposed in 2019 owing to the revocation of the special status of Jammu and Kashmir under Article 370 of the Constitution. The President’s rule was imposed under Article 356 on the grounds of the failure of the constitutional machinery in  J&K. Freedom of speech and expression under Article 19 was suspended. Suspension of internet services for a prolonged period gave rise to the case of Anuradha Bhasin v. Union of India( 2020). The petitioners challenged the suspension of internet shutdown in J&K. The Hon’ble SC held that an indefinite suspension of internet services would be illegal under Indian law and that orders for internet shutdown must satisfy the tests of necessity and proportionality. Though the Court did not lift the internet restrictions, it directed the government to review the shutdown orders according to the tests outlined in the judgement. 

Civil Rebellion

When a national emergency is declared on the ground of ‘war’ or ‘external aggression’, it is known as ‘External emergency’ whereas when it is declared on the ground of ‘armed rebellion’, it is known as ‘Internal emergency’. A proclamation of emergency may be applicable to the entire country or a part of it. The 42nd Amendment Act, 1976 enabled the President to limit the operation of a National emergency to a specific part of India. The most notable instance of the suspension of fundamental rights due to civil rebellion occurred during the Emergency declared by Prime minister Indira Gandhi in 1975. This was prompted by what the government termed as an “internal disturbance,” primarily referring to the political unrest and civil disobedience movements led by opposition parties. 

Initially, the Constitution mentioned ‘internal disturbance’ as the third ground for the proclamation of a National Emergency, but this expression ‘internal disturbance’ was too vague and had a wider connotation. The term ‘internal disturbance’ lacked a clear definition and could be interpreted subjectively by the ruling government. This ambiguity allowed the government to justify the proclamation of emergency even in situations that might not constitute a genuine threat to national security or public order. Further, the broad scope of this term could be used by the government to misuse emergency powers for political gains or suppress opposition and curtain civil liberties. Due to the ambiguous nature of this term, the 44th Amendment Act, 1978 substituted the words ‘armed rebellion’ with ‘internal disturbance’. Hence, it is no longer possible to declare a National emergency on the ground of ‘internal disturbance’ as was done by the Congress government headed by Indira Gandhi in 1975. 

Health Emergency

Crises that are extraordinary in nature, at times, may necessitate the curtailment of a few rights such as the right to freedom of movement, right to speech and expression, etc. The restrictions on movement are generally done to stop a disease from spreading. Similarly, the right to speech and expression may be temporarily curtailed to stop the spread of information that may create unrest in the country. India observed such a situation in the year 2019-2020 when COVID-19 started to spread. The government enforced lockdowns and imposed quarantine measures to ensure public safety and health. 

Political instability/ Clashes among religious, ethnic groups, etc. 

Fundamental rights can be temporarily suspended in case of political instability, clashes between religious and ethnic groups, etc. The rationale behind the suspension is to prevent further escalation of the conflict and safeguard the overall public order of society. For instance, the Centre invoked Article 355 of the Constitution in Manipur in 2023 owing to the violence in the State due to clashes between Meitei and the Kuki-Zo tribal community.  Article 355 empowers the central government to take all necessary steps to protect a state against internal disturbance and external aggression. 

Similarly, mobile internet services were shut down temporarily in the Nuh district of Haryana after communal clashes between a group of men and the Vishwa Hindu Parishad( VHP) during the ‘Shobha Yatra’ procession. 

Article 352 : proclamation of emergency

Article 352 of the Constitution of India empowers the President to declare a National emergency if the country faces a threat to its security or unity due to reasons like war, external aggression, or armed rebellion. By proclamation, the President may make a declaration to that effect in respect of the whole of India or any such part of the territory as may be specified in the proclamation. 

The President may make a proclamation of emergency even before the actual occurrence of war or any such aggression or rebellion if she is satisfied that there is an imminent danger. 

To ensure that the President does not make such a decision arbitrarily, under clause 3 of Article 352, the President shall not issue a proclamation unless the decision of the Union Cabinet (which consists of the Prime Minister and other Ministers of the Cabinet) regarding such a Proclamation is communicated to her in writing. 

In 1975, the then Prime Minister, Smt. Indira Gandhi advised the President to proclaim an emergency without consulting the cabinet ministers. The Cabinet was intimated after the proclamation was made, as a fait accompli (something has already happened and cannot be reversed now). The 44th Amendment Act, 1978 introduced this safeguard to eliminate any possibility where the Prime Minister alone takes any decision in this regard. 

According to the 38th Amendment Act, 1975, the declaration of National Emergency was made immune to judicial review restricting the power of the judiciary. However, the 44th Amendment Act, 1978 deleted this provision. In the case of Minerva Mills v. Union of India(1980), the Hon’ble Supreme Court examined the validity of the 42nd Amendment that amended Article 368 stating that amendments made in the Constitution (including Part III) under this Article shall not be called into a dispute in any court for any reason. This Amendment gave immense power to the Parliament. After a thorough examination of the facts, issues and challenges, the Hon’ble SC categorically held that the proclamation of National emergency can be challenged in the Court on the ground of being malafide or that the declaration was made on superfluous and irrelevant facts. 

Approval of parliament and duration of the emergency

The proclamation of emergency must be approved by both the houses of Parliament within one month from the date of its issuance. However, if the proclamation is issued during the time when Lok Sabha is dissolved or the dissolution of Lok Sabha takes place during the period of one month without giving approval to the proclamation; in that case, the proclamation will survive till 30 days from the first sitting of Lok Sabha after its reconstitution. Provided that, in the meantime, the Rajya Sabha has approved the proclamation. 

If the proclamation of emergency is approved by both the houses, the Emergency can continue for six months and can be extended for an indefinite period of time subject to the approval of Parliament every six months. Every resolution regarding the approval of proclamation of emergency or its continuation must be passed by either House of Parliament by a special majority i.e. 2/3rd of members present and voting. 

The provision regarding periodical parliamentary approval was also added by the 44th Amendment Act, 1978. Prior to this, once an emergency is approved by the Parliament, it could remain in force as long as the cabinet desired. Additionally, the provision for a special majority regarding proclamation or continuation of emergency was also added by the 44th Amendment. Before that, such a resolution could be passed by a simple majority, i.e. 50% of the members present and voting. 

Revocation of the proclamation

The President may revoke the proclamation of emergency at any time by a subsequent proclamation. The revocation of proclamation does not require approval of the parliament. 

Further, the 44th Amendment added a safeguard that the President is bound to revoke the proclamation if the Lok Sabha passes a resolution disapproving its continuance. Before the Amendment, the proclamation could be revoked by the President on her own will and the Lok Sabha did not have control over it. 

Furthermore, the 44th Amendment provided that if one-tenth of the total members of the Lok Sabha give a notice in writing to the Speaker or to the President when the House is not in session; a special sitting shall be held within 14 days for consideration of the resolution disapproving the continuation of emergency. 

National Emergency has a significant effect on the relations between the Centre and State, life of the Lok Sabha and State assembly, etc. Other than that, national emergency has a substantial impact on the fundamental rights of individuals too as stated under Articles 358 and 359 of the Constitution. Article 358 deals with the suspension of rights guaranteed under Article 19 whereas Article 359 deals with the suspension of other fundamental rights. 

Article 358 : suspension of provisions of Article 19 of the Constitution

Article 358 provides for the automatic suspension of six fundamental rights guaranteed under Article 19 of the Constitution when a proclamation of emergency is made. A separate order of suspension of these rights is not required.

The six rights suspended under Article 358 are as follows: 

1. Freedom of speech and expression
2. Right to assemble peaceably and without arms
3. Right to form associations or unions
4. Right to move freely throughout the territory of India
5. Right to reside and settle in any part of the territory of India
6. Right to practise any profession, or to carry on any occupation, trade or business

When a proclamation of emergency is operating, the State is not bound by the restrictions imposed by Article 19. In simple words, the State is free to make any law or take any executive action taking away the rights mentioned in Article 19. Any law or order made by the State during the emergency cannot be challenged on the ground that they are restrictive of Article 19. Article 19 automatically revives on the expiration of emergency. 

The 44th Amendment restricted the scope of Article 358 by making the following provisions:-

1. Article 19 can only be suspended when the National Emergency is declared on the grounds of war or external aggression and not on the ground of armed rebellion
2. Only those laws which are related to the emergency are protected from being challenged. Other laws that do not have a connection with the emergency can be challenged. Similarly, the executive actions taken only under the laws related to the emergency are protected.  

Article 359 of the Constitution : suspension of Part III of the Constitution 

Article 359 of the Constitution authorises the President to suspend the right to move any court for the enforcement of fundamental rights during a National Emergency. This means that the fundamental rights per se are not suspended but only their enforcement is. The rights are theoretically alive but the right to seek remedy in case of their violation is suspended. The suspension of enforcement relates to only those fundamental rights that are specifically mentioned in the order of the President. Suspension could be for the period during the operation of emergency or for a period shorter than as mentioned in the order. The suspension may be extended to the whole of India or any part of it. While the aforementioned Presidential order suspending the specified fundamental right/s is in force, the State can make any law or take executive action abridging the specified fundamental rights. Any law or executive action that is inconsistent with the mentioned fundamental rights cannot be challenged. As soon as the President’s order ceases to operate, inconsistent laws also cease to exist. It is noteworthy that no remedy lies for anything done during the operation of the order. 

The 44th Amendment restricted the scope of Article 359 by making the following provisions:-

1. The President cannot suspend the right to move the Court for enforcement of fundamental rights guaranteed under Articles 20 and 21 of the Constitution. Hence, the right to protection in respect of the conviction for offences (Article 20) and right to life and personal liberty (Article 21) are enforceable even during an emergency. 
2. Only those laws which are related to the emergency are protected from being challenged. Other laws that are not connected to the emergency can be challenged. Likewise, the executive action taken only under the laws related to the emergency is protected. 

Distinction between Article 358 and 359 of the Constitution

Aspect	Article 358 of the Constitution	Article 359 of the Constitution
Basis of difference	It suspends the fundamental rights enshrined under Article 19 of the Constitution.	It empowers the President to suspend the enforcement of all or all fundamental rights(except Articles 20 & 21) during a national emergency.
Affected rights	Rights given under Article 19( Freedom of speech and expression, right to assemble, right to form associations or unions, to move freely throughout the territory of India, etc) are automatically suspended.	All fundamental rights(except Protection in respect of conviction for offences i.e. Article 20 and Protection of life and personal liberty i.e. Article 21) can be suspended with a separate Presidential order specifying the rights that can be suspended. Article 359 does not automatically suspend any Fundamental right. It only empowers the President to suspend the enforcement of specified fundamental rights.
Applicability	It applies only during a proclamation of External emergency (when emergency is declared on the grounds of war or external aggression) and not in case of armed rebellion.	It can be invoked during a proclamation of both Internal Emergency or threat of External Aggression (war).
President’s role	The President issues the proclamation of Emergency and Article 19 is suspended automatically. A separate order of suspension is not required.	The President issues the proclamation of Emergency.
Scope of suspension	It extends to the whole country.	It may extend to the whole country or any part of it.
Freedom of the State	The State can make any law or take any executive action that is not consistent with Article 19.	It enables the State to make any law or take any executive action that is inconsistent with only those fundamental rights whose enforcement is suspended by the President’s order.
Duration of suspension	It suspends Article 19 for the entire duration of the emergency.	It suspends the enforcement of fundamental rights for a period specified by the President which can be either the entire duration or a shorter time frame.

Indira Gandhi period

The Indira Gandhi period marks as a significant episode relating to the suspension of fundamental rights during an emergency. In 1975, facing legal and political challenges, the then Prime Minister recommended the imposition of emergency to President Fakhruddin Ali Ahmed on grounds of internal disturbance. The emergency was declared under Article 352 of the Constitution. With the declaration of Emergency, Indira Gandhi’s government invoked Article 359 which empowered the President to suspend the enforcement of fundamental rights. The imposition of emergency gave rise to the consolidation of power in the hands of the centre during which opposition leaders were arrested, censorship was imposed on media and civil liberties of individuals were curtailed. Many saw the suspension of fundamental rights during the emergency as an attempt to suppress political opposition, imposition of parliamentary supremacy over the basic and fundamental rights of the citizens and a blow to the constitutional set up of the country. The emergency was lifted in 1977 and India could finally return to a democratic form of government through a legitimate and proper electoral process. The Janata government came into power and appointed the Shah Commission to probe into the circumstances which led to the declaration of emergency in 1975. The commission in its report held that there was no evidence of any circumstances which could warrant the declaration of the emergency in 1975. There was no unusual event to justify the imposition of the emergency. The Janata government made 43rd and 44th constitutional amendments to prevent the misuse of emergency powers in the future. 

38th Amendment

The 38th Amendment Act, 1975 introduced a couple of changes with regard to emergency provisions and the power of the President in this regard. 

Firstly, the proclamation of emergency made by the President was made non-justiciable which meant that it could not be questioned in the Court. The President’s satisfaction regarding an ordinance was excluded from judicial review. 

Secondly, the ordinance couldn’t be challenged on the grounds of motives or non-application of mind. Any promulgation of ordinances by the President, governors and other executive bodies of Union territories was made non-justiciable. 

Thirdly, when the President had declared an emergency under Article 352, he couldn’t declare more than one proclamation when an emergency was functional. The 38th Amendment made provisions for different proclamations on different grounds during the time when the previous proclamation was in action. 

42nd Amendment Act, 1976

The 42nd Amendment Act, 1976 remains one of the most controversial amendments in the Constitutional History of India as it tried to alter the basic structure of the Constitution by limiting the powers of the court, giving primacy to Directive Principles of State policy over fundamental rights, etc. The preamble was amended and ‘Socialist’, ‘Secular’, ‘Republic’ were added. ‘Unity of the Nation’ was replaced with ‘Unity and Integrity of the Nation’. This amendment brought so many changes that it is also known as the ‘Mini Constitution’ of India. 

The major changes regarding emergency are as follows:-

1. It expanded the emergency powers of the State, extending the one time duration of the President’s rule from six months to one year. 
2. It broadened the scope of fundamental rights that could be suspended during an emergency. It included the suspension of Articles 20 and 21 with Presidential order. 
3. It tried to establish parliamentary supremacy over the Judiciary by empowering the Parliament to amend any part of the Constitution including the basic structure. Further, Article 368 was amended such that no constitutional amendment could be called into question in court on any ground. It restricted the scope of judicial review. 
4. The President’s decision was made immune from Judicial review granting immense powers to him. 

It is argued that the 42nd Amendment tried to undermine the democratic values of the country and concentrated the power in the hands of the government. Further, putting limitation of scope of judicial review was seen as a blow to the independence and accountability of the judiciary. 

In the case of Minerva Mills v. Union of India(1980), Section 55 of the 42nd Amendment was challenged. Section 55 stated that, “No amendment of the Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976) shall be called in question in any court on any ground”. Article 368 of the Constitution was amended and unfettered power to amend the Constitution was given to the Parliament. The Hon’ble SC held that amendments made in Article 368 were against the basic structure of the Constitution as it also hampered the review authority of the courts which was against the spirit of the Constitution. Further, the Court relied on the importance of the golden triangle which signifies the interconnectedness and interdependence of Articles 14, 19 and 21 on each other. 

Post-emergency reforms

After the expiration of emergency, re-elections and formation of a democratic government; the Janata Government came up with the 44th Amendment, 1978 which restored a few provisions, included and deleted some to ensure that the emergency powers are not misused by the government in future. 

44th Amendment Act, 1978

The 44th Amendment Act, 1978 is believed to be a corrective and restorative response to the 42nd Amendment. It aimed to address concerns about expansion of government’s power during an emergency, limited scope of judicial review, etc introduced by the 42nd amendment. The key changes are as follows:-

1. As the term ‘Internal disturbance’ was very broad and gave an expanded scope of interpretation including every major to minor disturbance in the country; it was replaced with ‘armed rebellion’ which limited the scope when an emergency could be proclaimed. 
2. The President was not empowered to issue a proclamation of emergency unless the cabinet had confirmed the same with a written notice to him.
3. The approval of both houses for the continuation of the emergency was made mandatory. 
4. The expanded emergency powers of the State extending the one time duration of President’s rule from six months to one year was restored from one year to six months. 
5. It was made obligatory for  the President to revoke the proclamation if the Lok Sabha passed a resolution disapproving its continuation. 
6. It provided that when one-tenth of the total members of Lok Sabha give a written notice to the Speaker or to the President when the House is not in session, a special sitting should be held within 14 days to consider a resolution regarding discontinuation of the proclamation. 
7. The enforcement of rights under Articles 20 and 21(because of their fundamental nature)  could not be suspended even during an emergency.
8. The right to life and personal liberty was strengthened with the provision that no one could be detained for more than two months unless an advisory board confirmed the necessity of the arrest due to unavoidable circumstances. 
9. The power of judicial review by the court was restored and the Court had the authority to look into the mala fide issuance of a proclamation or mala fide continuation of emergency. 

Due to the grave miscarriage of justice in the case of ADM Jabalpur v. Shivkant Shukla(1976), also known as the Habeas Corpus case; it was and still is heavily criticised. This judgement is viewed as the darkest chapter in the history of Indian Courts as it jeopardised the fundamental rights of the citizens by giving primacy to power of the government over fundamental rights enshrined under Part III of the Constitution. Basically in this case, Shivkant Shukla, a political activist, was arrested during the emergency and detained without a trial under the Maintenance of Internal Security Act, 1971( MISA). His wife filed a writ of habeas corpus. The main issue in this case was whether the courts had the power to inquire into the detention of Mr. Shivkant and whether the right to life and personal liberty could be suspended during an emergency. The SC held that Article 21 could be suspended and courts did not have the authority to interfere with the detention of individuals under MISA. 

This judgement was overruled by the Hon’ble SC in the case of Justice K.S. Puttaswamy(Retd) v. Union of India(2018) where it recognised the right to privacy as a fundamental right under the Constitution. 

Exceptions to suspension of fundamental rights

During an emergency, certain fundamental rights may be suspended or restricted to some extent. However, there are some rights that are so basic and fundamental that it is not possible to derogate them. Articles 20 and 21 of the Indian Constitution are non-derogable, hence, cannot be suspended even during an emergency. 

Article 20 discusses the right to protection in respect of conviction for offences. It states that, ‘No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence’. Further, a person cannot be subjected to a penalty greater than what would have been inflicted under the law in force at the time of the commission of the offence. 

Furthermore, no person can be prosecuted and punished for the same offence more than once and cannot be compelled to be a witness against himself. 

Article 21 discusses the protection of life and personal liberty and states that, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. Right to life and personal liberty cannot be suspended to prevent arbitrary actions or excessive usage of power by the State. 

By the virtue of the case of Maneka Gandhi v. Union of India(1978), the non-suspension of Article 21 was solidified by the Constitution of India. The Hon’ble Court struck down Section 10(3)(c) and 10(5) of the Passport Act, 1967 which was violative of Article 21 of the Constitution. This judgement paved the way for the Hon’ble SC to expand the ambit of Article 21 by including the right to clean water, right to clean air, right to clean environment, etc. The court overruled the case of A.K. Gopalan v. State of Madras(1950) and held that Articles 14, 19 and 21 are interconnected and any law must meet the standards laid down by these Articles. 

In the case of Justice K.S. Puttaswamy (Retd) v. Union of India(2018), the SC unanimously recognised the fundamental right to privacy, overruled the case of M.P. Sharma v. Satish Chandra(1954) and Kharak Singh v. State of Uttar Pradesh(1962). 

Role of judiciary in suspension of fundamental rights

The Judiciary has played a crucial role in upholding the fundamental rights and limiting the power of the government during emergency. The record of the Supreme Court in securing fundamental rights has been exceptional but not without controversies. Given below are some landmark judgements that shaped the jurisprudence around suspension of fundamental rights during emergency. 

Makhan Singh Case

Makhan Singh v. State of Punjab (1964) is a landmark case that dealt with the interplay between powers of the State during an emergency, impact of emergency on the writ of habeas corpus and other fundamental rights.  In this case, the SC differentiated between Articles 358 and 359 of the Constitution. The SC held that till the proclamation of emergency is in force; rights under Article 19 shall remain suspended. 

Facts

Due to Chinese aggression on September 8, 1962, the President declared a National emergency under Article 352 of the Constitution on October 26, 1962. The Defence of India Ordinance was also promulgated the same day. An ordinance promulgated on November 3, 1962 suspended the rights to move any court for the enforcement of rights enshrined under Articles 21 and 22 of the Constitution till the emergency is proclaimed. The appellants were detained under Rule 30(1)(b) of the Defence of India rules. The appellants were detenues who were detained by the Punjab and Maharashtra State governments under Rule 30(1)(b) of the Defence of India rules made by the Central Government by exercising its power conferred upon it by the Defence of India ordinance. The appellants had applied to the Punjab High Court and the Bombay High Court under section 491(1)(b) of the Code of Criminal Procedure( CrPC) alleging their arrest as illegal. Their contention was that Sections 3(2), 3(15)(i), 40 of the Defence of India Act, 1962 and rule 30(1)(b) under which they had been detained were constitutionally invalid as they violated the fundamental rights mentioned under Articles 14, 21, and 22.

Issue

1. What is the nature of proceedings that are barred by the presidential order issued under Article 359(1) of the Constitution?
2. Whether the bar created by the presidential order operates with respect to the writ of habeas corpus made by the arrested persons, not under Article 226 of the Constitution but under Section 491 of CrPC?

Judgement

The Hon’ble Supreme Court examined the scope and effect of the presidential order and pointed out the difference between the suspension of rights under Article 358 and Article 359. The Court held that, since the object of Article 359 is to suspend the rights of the citizens to move any court; it includes approaching the Supreme Court. Further, it was held that though the right to claim relief under CrPC was distinct and separate from that conferred by Articles 32 and 226 of the Constitution, however, the main point of examination was not the technicalities of procedure in which the action was taken and not whether the writ petition was filed under Articles 32 or 226 but rather that it was the “substance of the matter” which was decisive. 

Therefore, proceedings taken under Section 491 of CrPC would be on equal footing with the writ petitions under the Constitution. The most important proposition of law that was laid down in the case was that even though the order did not allow a challenge to an order of detention under the Articles specifically mentioned, it did not prevent a challenge on other grounds such as excessive delegation, improper application of law, etc. The arrest of the appellants was not declared illegal. 

Ghulam Sarwar case

Ghulam Sarwar v. Union of India( 1966) is a landmark judgement in Indian constitutional history, shaping debates around fundamental rights and their suspension during a national emergency. The court drew a distinction between the order per se and the effect of the presidential order. The Hon’ble SC held that if an order in itself is violative of Part III, then it would be considered void. 

Facts

In 1962, India declared a state of emergency during the war with Pakistan. The President invoked Article 359 of the Constitution and suspended specific fundamental rights through two orders which were subsequently amended. By one, as amended, the right  of  a foreigner to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution was suspended during the period of emergency.  By the  other order, as amended, the right of any person to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 was suspended during the emergency. 

In 1964, Ghulam Sarwar, a Pakistani national was arrested in New Delhi by the Customs authorities under Section 135 of the Indian Customs Act, 1962 for unlawfully entering India. On May 9, 1964, he was granted bail, but a year later, on May 18, 1965, as he was being released, the Central Government served him with a detention order under Section 3(2)(g) of the Foreigners Act,1946. This action was taken due to an ongoing police investigation regarding his alleged involvement in gold smuggling. He was convicted for an offence under the Customs Act and was sentenced to undergo rigorous imprisonment for a period of nine months and a fine of 2,000 rupees. The petitioner filed the writ of Habeas Corpus challenging his detention which was dismissed. The petitioner filed a fresh writ petition of Habeas Corpus challenging the provisions of the Foreigners Act and contended that the presidential order was violative of Article 14 of the Constitution. 

Issue

1. Whether Article 359(1) of the Constitution is valid or not?
2. Whether the presidential orders issued under Article 359 could be challenged based on violation of Article 14 of the Constitution or not?
3. Whether the detention of the petitioner under Section 3 of the Foreigners Act, 1946 valid or not?

Judgement 

The court dismissed the petition and held that the President’s orders issued under Article 359(1) are neither discriminatory nor violative of Article 14 of the Constitution and are based on reasonable classification. However, the court also held that if an order in itself violates Part III of the Constitution then it would be considered void and would not result in the suspension of the remedies in the articles mentioned. While this decision might be technically correct, if we look at this case practically, it defeats the purpose of the order issued under Article 359. Therefore, this case was overruled in Mohd. Yaqub v. The State Of Jammu & Kashmir(1967) where the court interpreted ‘law’ in Article 13(3)(a) to exclude a presidential order under Article 359. 

Kesavananda Bharati case

Kesavananda Bharati v. State of Kerala (1973) is one of the landmark judgements to understand the importance of fundamental rights. Though not directly related to the emergency, this case established the ‘basic structure doctrine’. The Court held that Parliament can amend the Constitution but cannot alter the basic structure of the Constitution. This doctrine played a pivotal role in limiting the amending powers of the Parliament and overreach during emergencies. 

Facts

Kesavananda Bharati( the petitioner) was the head priest of Edneer Mutt in Kerala. The petitioner had certain land areas of the sect registered under his name. The Kerala Land Reforms Act, 1969, aimed to redistribute landholdings. This Act empowered the State to acquire surplus land from religious institutions including the petitioner’s mutt. The petitioner approached the SC under Article 32 of the Constitution claiming violation of their fundamental rights under Article 14, i.e., right to equality, Article 19(1)(f) i.e. freedom to acquire property, Article 25, i.e., right to practise and propagate religion, Article 26 i.e. Right to manage religious affairs and Article 31, i.e., compulsory acquisition of property. 

As the court entertained the petition, the Kerala government introduced the Land Reforms Amendment Act, 1971.

The 24th Amendment Act, 1971 that gave Parliament the power to amend any provisions of the Constitution was challenged. Further, the 25th Amendment Act, 1972 which specified that the state government is not responsible for equally compensating the owner of the property if his private property is taken by the government, was also challenged. 

Issue

1. Whether the 24th Amendment is constitutionally valid or not?
2. Whether the 25th Amendment is constitutionally valid or not?
3. Whether Parliament can amend the Constitution or not?

Judgement

With a ratio of 7:6, the Hon’ble SC held that the Parliament can amend any provision of the Constitution, however, it cannot amend the Constitution in such a way that it alters the ‘Basic structure’ of the Constitution. Accordingly, the court upheld the constitutionality of the 24th Amendment Act. The court struck down the 2nd part of the 25th Amendment Act and declared it ultra vires, i.e., beyond the scope of legal authority. Further, the court rules that Parliament must respect the ‘Basic structure’ while amending any part of the Constitution. 

Raj Narain case

Indira Gandhi v. Raj Narain (1975) is a pivotal case in Indian legal and political history. In this case, the Supreme Court invalidated the provisions of the 39th Amendment Act that kept the election disputes involving the Prime Minister and Lok Sabha speaker outside the jurisdiction of all courts. As a response to the Kesavananda Bharati case the Parliament enacted the 42nd Amendment Act, 1976 and amended Article 368 declaring that no amendment (including in Part III of the Constitution) made under it can be questioned in any court. This was done to establish Parliamentary supremacy over the Judiciary. The Supreme Court reaffirmed the doctrine of Basic structure. 

Facts

In the 1971 Lok Sabha elections, Indira Gandhi was also a candidate in the Rae Bareli constituency of Uttar Pradesh. She was representing the Congress party and her opponent was Sh. Raj Narain. Indira Gandhi won the elections. Dissatisfied with the outcome Raj Narain filed a petition in the Allahabad High Court alleging violation of election rules outlined in the Representation of People’s Act, 1951( RP Act) and engagement of Indira Gandhi in other unfair practices during the electoral process. The accusations were also that Indira Gandhi misused government resources to gain unfair advantage during campaigns. The Allahabad HC held her guilty of these allegations under Section 123(7) of the RP Act, 1951. Indira Gandhi appealed the decision of Allahabad HC in the Supreme Court. While the proceedings were going on, President Fakhruddin Ali Ahmed declared a National emergency on the grounds of internal disturbance. During this period, the 39th Amendment Act introduced Article 329A which stated that the election of the Prime minister and speaker could not be challenged in any Indian court. 

Issue

1. Whether Article 329A(4) of the Constitution of India is valid or not?
2. Whether the Representation of People’s (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 are constitutionally valid or not?
3. Whether the election of Indira Gandhi is valid or not?

Judgement

In this landmark judgement, the SC relied heavily on the case of Kesavananda Bharati. The SC held that the amending power of the Parliament, under Article 368 of the Constitution, is limited and should be in such a way that it does not alter or undermine the basic structure. The court emphasised on the importance of free and fair elections and held Article 329(A) as violative of the Constitution.

Habeas Corpus case

A.D.M. Jabalpur v. Shiv Kant Shukla (1976): This case is seen as a black spot on the record of the Supreme Court regarding the protection of the fundamental rights of the citizens. In this case, the scope of preventive detention under the Maintenance of Internal Security Act( MISA) was questioned. 

Facts

This case arose from the Emergency declared in India in 1975. Many civil liberties and fundamental rights were suspended during this period. Shivkant Shukla, a political activist, was arrested during the emergency and detained without trial under the Maintenance of Internal Security Act. Shukla’s wife filed a writ of habeas corpus that mandates the detained person to be presented before the court. 

Issue

1. Whether Article 21 of the Constitution can be suspended during an emergency?

Judgement

The court upheld the validity of MISA and held that even Articles 20 and 21 can be suspended during an emergency. The decision in this case is highly criticised. Justice H.R. Khanna was the only judge in this case who gave a dissenting opinion and stated that Article 21 is the sole repository of one’s right to life and personal liberty. ‘The moment the right to move any court for enforcement of Article 21 is suspended, no one can complain to the court of deprivation of life and personal liberty for a redress sought from the court on that score would be enforcement of Article 21’. Justice Khanna lost his due post of Chief Justice of India due to his dissent in this case. This case was overruled in the case of KS Puttaswamy v. Union of India. 

International perspective on suspension of fundamental rights

In times of emergency, countries can be seen suspending some fundamental rights such as the right to movement, the right to free speech and expression, etc. The concept of suspension of fundamental rights during emergencies is not just limited to India but is relevant on the global level with each country trying to find a delicate balance between safeguarding public safety and preserving individual rights. Countries approach this issue based on their legal system, constitutional history and other relevant factors. Given below is a comparative analysis of the constitutional framework of the United States of America(USA), the United Kingdom(UK), Russia and Germany. 

USA

The Constitution of the USA does not mention any provision explicitly for suspending fundamental rights during an emergency. However, Section 9 of Article 1 provides for suspension of the writ of habeas corpus on occasions of rebellion, invasion, etc. It states that, ‘The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it’. 

The Courts have played a crucial role in upholding the fundamental rights. The power to suspend some fundamental rights has been implied through various judgements of the Supreme Court of the US. The power of judicial review plays an important role in upholding individual rights even during emergencies. Through its’ judgements the Supreme Court has held that the suspensions must be tailored to deal with the specific exigencies rather than putting blanket prohibitions on fundamental rights of citizens. In landmark judgements such as Rasul v. Bush( 2004), and Hamdi v. Rumsfeld(2003), the Supreme Court has upheld the right to due process, the right to file writs in federal courts for writs of habeas corpus to review the legality of detention of US citizens. 

United Kingdom

Since the UK does not have a written Constitution; the Parliament derives its power to suspend fundamental rights from the Human Rights Act, 1998 to enact emergency legislation suspending certain rights and the Civil Contingencies Act, 2004 that mentions the powers of the Parliament. The suspensions of rights need to be in consonance with the UK’s international human rights obligations and cannot affect the core fundamental rights such as the right to life, etc. 

Russia 

The Constitution of the Russian Federation allows for the declaration of a state of emergency where fundamental rights of citizens can be suspended. Article 56 of the Constitution states that, ‘In the conditions of a state of emergency, in order to ensure the safety of citizens and the protection of the constitutional order and in accordance with federal constitutional law, certain restrictions may be imposed on human rights and freedoms with an indication of their limits and the period for which they have effect.’ However, the Constitution also provides for protection of the right to life under Article 20, Protection of Human dignity under Article 21, etc. 

Germany

The Basic Law for the Federal Republic of Germany contains provisions for the restriction of fundamental rights during an emergency under Article 115. Germany’s Federal Constitutional Court plays a crucial role in safeguarding individual rights, independence of the judiciary and power of judicial review, even during emergencies. 

All the countries try to maintain a fine balance between balancing the interests of the State as well as the individual. 

Contemporary issues in suspension of fundamental rights

Till now, the national emergency has been imposed thrice. Since 1950, President’s rule has been imposed 134 times in India. The recent case with regard to the suspension of fundamental rights and imposition of the President’s rule is discussed in Anuradha Bhasin v. Union of India( 2020). The legality of the shutdown of the internet and restrictions on movement was challenged under Article 32 of the Constitution. The SC held that the freedom of speech and expression is an integral part of Article 19 of the Constitution. Further, the court held the right to internet is a fundamental right. In the era of rapidly evolving challenges and the need for a dynamic and robust legal system, it becomes necessary for countries to handle unprecedented threats like cyber attacks, health emergencies such as COVID-19, etc. As the world acknowledges that ‘Data is the new fuel’; data has the potential to grow or destroy a country’s GDP, businesses and economy. Considering the power of data in today’s world, cyber attacks, hacking the computer systems, and smart devices of a country sounds like an opportunity for the enemies. Though, India has shown great potential in technology and digitalisation, a testament to which is the fact that  it topped the world ranking in digital payments beating China by a huge margin; it is imperative that a time may come when emergencies would be declared because of cyber warfares. 

In terms of rights and liberties; the most affected individuals are the citizens themselves during an emergency. While emergency measures are often implemented to safeguard public safety and security, they significantly impact various rights and day to day aspects of citizens. Generally, the government restricts the free movement of citizens from one place to another, imposes curfews, limits the right to use the internet, etc. as measures of control. During emergencies like COVID-19, the government can direct closure of operation of certain non-essential industries that can impact the right to work of individuals working in those industries. Further, the government can make rules to limit large gatherings and public events that is a right under Article 19. During the Presidential rule in Kashmir, we witnessed several limitations imposed by the government to minimise the conflict and spread of misinformation in the valley. Curfews, suspension of internet services, restrictions on right to move the court during emergency, etc are all the measures adopted by the government where individuals get directly affected.

Furthermore, global pandemics like COVID-19 call for framing policies in such a manner that the balance between the protection of fundamental rights and the protection of National interest is maintained. In an interconnected world, the response to emergencies like cyber warfare, and global pandemics necessitates global collaboration. These issues are borderless and common to all which further calls for nations to coordinate amongst themselves and ensure a collective response safeguarding human rights. 

Conclusion

The emergency provisions have remained in debate since the inception of the Constitution. These provisions are important for maintaining law and order in the country, however, it is important to keep in mind that these provisions are not misused and not used as a weapon to curtain the fundamental rights of the citizens. While replying to the criticism of these provisions in the Constituent Assembly, Dr. B.R. Ambedkar hoped that the drastic power conferred by Article 356 would remain a ‘dead letter’ and would only be used as a measure of last resort. 

In the context of the proclamation of emergency in 1975, HV Kamath, a member of the Constituent Assembly commented that ‘Dr. Ambedkar is dead and the Articles are very much alive.’ He also observed that he fears that by the single chapter on emergency provisions, the assembly is seeking to lay the foundation of a totalitarian state, a police state, a state completely opposed to all the ideals and principles that were kept aloft. It will be a day of shame and sorrow when the President makes use of these powers that have no parallel in any Constitution of the democratic countries in the world. T.T. Krishnamachari feared that ‘by means of these provisions the President and the Executive would be exercising a form of constitutional dictatorship. There were many leaders who criticised the emergency provisions, however, there were also protagonists of the emergency provisions in the assembly. Sir Alladi Krishnaswami Ayyar labelled them as ‘the very life-breath’ of the Constitution. Mahabir Tyagi opined that these provisions would work as a ‘safety valve’ and would work towards maintaining the Constitutional setup of the country. 

While defending these provisions, Dr. B.R. Ambedkar did accept the possibility of their misuse and observed that he does not altogether deny the possibility of abuse of these articles for political purposes. 

With the 44th Amendment, ever evolving and expanding fundamental rights, advancement in the society where most of the people are aware of their rights and the proactive role of the Hon’ble Supreme Court, we can firmly say that the history of 1975 will not repeat itself! 

Frequently Asked Questions( FAQs) 

Which fundamental rights cannot be suspended even during an emergency?

The right to protection in respect of conviction for offences and protection of life and personal liberty under Articles 20 and 21 respectively cannot be suspended even during an emergency.

Why was ‘internal disturbance’ replaced with ‘armed rebellion’ in the 44th Amendment, 1976?

The Constitution of India originally mentioned ‘internal disturbance’ as one of the grounds for declaring an emergency, however, because of its wider scope it was misused. Therefore, through the 44th Amendment, 1976; the term ‘internal disturbance’ was replaced with ‘armed rebellion’ to limit its scope. 

Which Article of the Constitution discusses the procedure of declaring a National emergency? 

Under Article 352 of the Constitution, the president can declare a National emergency when the security of India or a part of it is threatened by war or external aggression or armed rebellion. 

References

• The Dark Side of Indian Democracy: Emergency, 1975–1977″ by Atul Kohli 
• “The Power of Judicial Review and the Right to Constitutional Remedies” by Justice D.Y. Chandrachud 
• “Fundamental Rights, Democracy, and Judicial Review” by Upendra Baxi 
• Indian Constitutional Law by MP Jain
• The Indian Constitution: Cornerstone of a Nation by Granville Austin
• Polity by M. Laxmikanth, 7th Edition
• https://www.constitutionofindia.net/constitution-assembly-debates/