Siddhartha Law College, Dehradun

Effect of proclamation of emergency on Fundamental Rights

Project submitted for the partial fulfilment for the degree of BBA L.L.B

Submitted to: -

Submitted by:-

Dr. Sharafat Ali

Shivangi Bhardwaj
BBA L.L.B (6th sem)

Constitution part- 2

Siddhartha Law College, Dehradun

(Affiliated to Uttarakhand Technical University, Dehradun)

ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher of Constitution of India,
Dr. Sharafat Ali , who gave me the golden opportunity to do this wonderful project on the
topic Effect of proclamation of emergency on fundamental rights , which also helped me in
doing a lot of research and I come to know about so many things.
I am making this project not only for marks but to also increase my knowledge.
Thank you.
Shivangi Bhardwaj
BBA LL.B (6th SEM)

Index
Contents
Introduction..........................................................................................................................4
History of emergency provisions.......................................................................................4-5
Emergency provision under the Indian Constitution...........................................................5
National emergency...........................................................................................................5-8
The 44th Amendment Act-1978......................................................................................8-10
State emergency (article 356).........................................................................................10-11
Judicial review................................................................................................................11-13
Financial emergency under article 360...........................................................................13-14
Suspension of right of enforcement of fundamental right.............................................14-15
Effect of emergency proclamation on Fundamental rights............................................15-16
Article 32 and the Remedy of Compensation In Case Of Emergencies........................16-17
Effect of Emergency on the Fundamental Rights in U.S..............................................17-18
Comparison between India and U.S...................................................................................18
Conclusion...........................................................................................................................19

Introduction
Fundamental rights are enshrined in the part III of the Indian constitution. They are part of
those rights which are necessary for the survival of a human being with dignity. Fundamental
rights have been incorporated in the fundamental law of the land, i.e. the constitution of
India and one can approach courts in case of violation of these rights. These rights reflect a
desire of the founding fathers of Indian constitution to build a new social order. For example,
there are rights declaring practice of untouchability an offence or conferring certain culture
and educational rights on the minorities, both linguistic as well as religious. Moreover, the
given rights are not absolute but subject to certain reasonable restrictions. For example, the
right to freedom of speech and expression can be restricted on grounds of public order,
morality or decency and national security.1 The fundamental rights can be suspended during
national emergency (act 352), only exception being right to life. Having discussed the basic
features of these fundamental rights, one can find that these rights have classified under six
heads in a logical manner depending upon their scope and nature. right to equality (art 14-18)
right to freedom (arts 19-22) right against exploitation (art 23-24) right to freedom of
religion (art 25-28) cultural and educational rights (art 29-30) right to constitutional
remedies (art 32) in 1978, right to property mentioned in art 31 was repealed by the 44th
amendment act as it was found contrary to other fundamental rights particularly the right to
equality. It, however, has been reallocated to art 300a of part xii as a legal right now.2

History of Emergency Provision

Emergency powers, even if parcelled out incrementally, have corrosive consequences.
Indeed, incremental measures attract less attention and render the extraordinary normal in the
public eye. Hence they may be more dangerous than sweeping seizures of emergency powers.
The US experience with emergency powers in the second half 20th century highlights this
risk, and casts into relief legislatures responsibility for the development of emergency
powers.
Like the USAs founding document, Indias constitution, drafted between December
1 Adam M. Smith, Making itself at home understanding foreign law in Domestic Jurisprudence
2 The Emergency lasted twenty-one months- from 25 june 1975 to 21 march 1977.

1946 and December 1949, was established in the rosy glow of independence from colonial
domination. Emergency protocols were debated until August 1949, and were so contentious
that at one point they had to be withdrawn for further attention from the drafting committee
The eventual provisions on emergencies, comprising nine articles in part XVIII of the
constitution, were partly inspired by the US habeas corpus suspension clause, and permitted a
president, for the purpose of removing any difficulties , to make such adaptations, whether
by way of modification, addition or omission, as he may deem to be necessary. Internal
disturbances, external aggression and threats to the fiscal credit or stability of the nation
could justify such action. Measures had to be set before Parliament, and would expire
automatically after two months unless they received a parliamentary seal of approval. For the
duration of an emergency, in addition, judicial enforcement of any right specifically named
by presidential order could be prohibited. Such an order could apply to all or part of the
country, and could last for all or part of an emergency.3

Emergency Provisions under the Indian Constitution:

Part XVIII of the constitution permits the state to suspend various civil liberties and the
application of certain federal principles during presidential proclaimed states of emergency.
The constitution provides for three categories of emergencies: a threat by "war or external
aggression" or by "internal disturbances"; a "failure of constitutional machinery" in the
country or in a state; and a threat to the financial security or credit of the nation or a part of it.
Under the first two categories, the Fundamental Rights, with the exception of protection of
life and personal liberty, may be suspended, and federal principles may be rendered
inoperative.

National Emergency (Article 352, 353, 354, 355 And 358):

National emergency is caused by war, external aggression or armed rebellion in the whole of
India or a part of its territory. Such an emergency was declared in India in 1962 (Indo-China
war), 1965 (Indo-Pakistan war), 1971 and 1975 (declared by Indira Gandhi to maintain law
and order in the country).4
3 Anthony Lester QC, The Overseas trade in the American bill of rights.
4 I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861); Minerva Mills Ltd. V. Union of India (AIR 1980 SC
1789).

The President can declare such an emergency only on the basis of a written request by the
Council of Ministers headed by the Prime Minister. Such a proclamation must be approved
by the Parliament within one month. Such an emergency can be imposed for six months. It
can be extended by six months by repeated parliamentary approval.
In such an emergency, Fundamental Rights of Indian citizens can be suspended. The six
freedoms under Right to Freedom are automatically suspended. However, the Right to Life
and Personal Liberty cannot be suspended. It modifies the federal system of government to a
unitary one. 5
The Parliament can make laws on the 66 subjects of the State List (which contains subjects
on which the state governments can make laws). Also, all money bills are referred to the
Parliament for its approval. The term of the Lok Sabha can be extended by a period of one
year but not more than six months from the date when the emergency has ceased to exist.
Effect of national emergency on the fundamental right:
These are some cases where the fundamental rights infringes during the national emergency
Makhan Singh Vs State Of Punjab : Emergency was declared on an earlier occasion during
the Indo-China war. At that time the right to move any court for the enforcement of Articles
14, 21 and 22 was suspended under Article 359 only for the persons detained under the
Defence of India Rules (DIR), the Preventive detention law at that time. It was a partial
suspension. Supreme Court interpreted it to mean that rights were suspended only for legally
detained persons. So if a person was illegally detained under DIR, he could maintain the
Habeas Corpus petition. It was for the first time during emergency imposed on 26th June
1975 that Articles 14, 19, 21 and 22 were suspended in their entirety, without any reference to
any law. This time when detenues filed Habeas Corpus petitions, a question was raised that
Article 21 being the sole repository of liberty has been suspended in its totality, no writ of
Habeas Corpus is maintainable. The Government also sought to distinguish the earlier case of
Makhan Singh on the different phraseology of the notification suspending the rights. Almost
all the High Courts decided this question against the Government. And on this issue the
matter was taken in appeal to the Supreme Court. 6
The Supreme Court held that it was impossible to accept that only right that can be suspended
by an order made under article 359(1) was the right guaranteed by article 32 (1) to move to
5 Ibid. para. 40.
6 http://lawprojectsforfree.blogspot.in/2010/08/constitution-of-india-fundamental.html?m=1
6

the Supreme Court for the enforcement of the fundamental rights and a citizen would be free
to seek relief from high court under art.226, article 32 (3) which enable parliament to
empower any other court to exercise all or any of the power exercisable by the Supreme
Court.7
The Supreme Court pointing out that a citizen would not be deprived of his right to move the
appropriate court for a writ of habeas corpus if his detention had been malafide.
In another case Maharashtra state v. Prabhakar8 the Supreme Court held that if a person was
deprived his personal liberty not under the Defence of India act, or any rule made there under
but the contravention thereof, his right to move the said court in that regard would not be
suspended. Similarly in Ram Manohor Lohia v. State of Bihar9 the Supreme Court held that
the order of the president did not form a bar to all applications for release from the detention
under the act or rule. Where a person was detained in violation of the mandatory provision of
the Defence of India act his right to move the court was not suspended.
In Mohd. Yaqub v. State of Jammu and Kashmir10 the Supreme Court held that an order by
the president under article 359(1) was not law within the meaning of article 13(2) and
therefore its validity cannot be challenged with reference to the provision of part III. Thus if
the order suspends the enforcement of article 14, if cannot be challenged on the ground that it
is discriminatory under article 14. The validity of the order cannot be tested under the very
fundamental rights, i.e. article 14, which it is suspended. Here the Supreme court overruled
its own decision in Ghulam Sarwar v. Union of India , wherein it had held that the
presidential order issued under article 359 (1) could not be challenged as being
discriminatory.
In the case of ADM Jabalpur Vs Shiv Kant Shukla :Article 21 of the Constitution guarantees
right to the life and liberty. Right to move to the court to enforce Article 21 was suspended
under Article 359 of the Constitution during internal emergency (1975-77). In this case the
Presidential Order referred to was the one issued during Emergency declaring that the right of
7 http://news.indlaw.com/actionaid/August_Discusstion.asp

8 Arvind Datar, Commentary on the Constitution of India (New Delhi: Lexis Nexis Butterworths
Wadhwa Nagpur, 2007), p. 64
9 AIR 1967 SC 1836.
10 2001): p.29.
7

any person to move any Court for any enforcement of the rights conferred by Articles 14, 21
and 22 of the Constitution and all proceedings pending in any Court for the enforcement of
the above mentioned rights shall remain suspended for the period during which the
Proclamation of Emergency are in force.

Judgment: - Marking the black day of Indian legal history, the Supreme Court rejected the
arguments of the Respondents and held that Article 21 of the Constitution was the sole
repository of right to life and liberty and therefore, the suspension of it implied that all the
remedies protecting this right under any other law shall also be suspended. The Court while
construing Article 21 as the sole repository of life and personal liberty denied all available
remedies to the detunes on any ground that any challenge to the detention order for the
enforcement of the right to personal liberty under Article 21 could not be so done on account
of the presidential order suspending it being in force.11 The majority further held that even the
order of detention could not be challenged even on any other ground, even if the detention
order was passed malafide, rendering the detune without any remedy even against an illegal
detention. Therefore, the Court declared, in view of the Presidential Order dated June 27th ,
1975 no person has any locus standi to move any writ petition under Article 226 before a
High Court for habeas corpus or any other writ or order or direction to challenge the legality
of an order of detention on the ground that the order is not under or in compliance with the
Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous
considerations, closing its doors to any sort of relief whatsoever to any person suffering
from illegal detention.
But now, after 44th constitutional amendment Article 21 of the Constitution; right to life and
liberty, now cannot be suspended. Not even during emergency, 44th Constitutional
Amendment Act, passed unanimously, ensured it. It is instructive to look back on the Habeas
Corpus case during internal emergency (1975-77), the reason for 44th Constitutional
Amendment Act and Leversidge Vs Anderson 12which played such an important role before
the Supreme Court.

The 44th Amendment act, 1978

11 Kharak Singh v. State of U.P. (AIR 1963 SC 1295); R.C. Cooper v. Union of India (AIR 1970 SC
1318).
12 Anthony Lester QC, The Overseas trade in the American bill of rights
8

It has made two important changes in article 358: first, article 19 will suspend only when a
proclamation of emergency is declared on the ground of war or external aggression and not
when the emergency declared on the ground of armed rebellion.13
Secondly: it has inserted a new clause (2) in article 358 which says that nothing in clause (1)
shall apply to- (a) any law which does not contain a recital to the effect that such a law is in
relation to the proclamation of emergency, or (b) to any executive action taken otherwise than
under a law containing such a rectal. This clause makes it clear that art. 358 will only protect
emergency laws from being challenged in court of law and not other laws which are not
related to the emergency. Prior to this, the validity of even other laws, which were not related
to emergency, could not be challenged under article 358.
The 59th amendment has amended art. 358 and has inserted the word or by armed rebellion,
or that the integrity of India is threatened by internal disturbance in the whole or any part of
the territory of Punjab after the words or by external aggression. This means that, in case
of Punjab, the right guaranteed by the art. 19 will be suspended also when emergency is
declared on the ground of armed rebellion or internal disturbance
The proclamation o emergency, however, does not invalidated a law which was valid before
the proclamation of emergency
In M. M. Pathak v. Union of India14 the supreme court had an occasion to consider the effect
of the expression the thing done or omitted to be done in article 358 after proclamation of
emergency ceases. In that case a settlement was arrived at between the LIC of India and its
employee in 1977 under which the LIC had agreed to pay in cash bonus to its employee. In
1977, however by the LIC (modification of settlement) act, 1976 passed by the parliament
during emergency the settlement was made ineffective and therefore the employee could not
demand their bonus while the emergency was in force. The employee of the LIC challenged
the constitutional validity of the above act. The Supreme Court held that the effect of
proclamation of emergency on fundamental right guaranteed by article 14 and 19 are not
suspended during emergency but their operation will suspended. This means that only
validity of an attack based on article 14 and 19 is suspended during emergency. But once this
embargo lifted article 14 and 19 of the constitution, whose use was suspended, would strike
down any legislation which would have been invalid. In other words, that the declaration of
13 Available at http://www.businessdictionary.com/definition/human-rights.html accessed on 25/02/09

14 AIR 1967 SC 1836.

9

validity is stayed during emergency. The expression the things done or omitted to be done
occurring in article 358 does not mean right conferred is washed off completely. The
expression interpreted very narrowly. Therefore, as soon as the emergency over, the
settlement would revive and what could not be demanded during the period of the emergency
would became payable even for the period of emergency for which payment was suspended.
In other words the enactment will have even after the emergency had ceased. The valid
claims cannot be washed off by the emergency per se. they can only be suspended by a law
passed during the operation of article 358 and article 359 (1).15
Suspension of fundamental rights, however even during a period of national emergency is an
utterly undemocratic practice whatever may be the case in its favour. Its immediate result is
that a sanctuary of human rights which has been a prohibited area for the executive is thrown
open for its unrestricted action. In the process, individual liberty is bound to suffer. For,
where the executive is at liberty to act with impunity, abuse of power becomes to suffer, for,
where the executive is at liberty to act with impunity, abuse of power becomes its natural
concomitant. Hence, there is great need for parliament to be extra vigilant and create, if
necessary, a suitable machinery which could review every case of curtailment of the
individual freedom. If emergency is used as a cover for political gain or vindictiveness by the
parity in power, it will amount to a fraud on the constitution.16
In contrast of the demands of national emergency declared under article 352, fundamental
rights were never suspended during any of the emergencies proclaimed in the states. That
remains a good precedent. Even during a national emergency, suspension of fundamental
rights should be restricted to the absolute minimum. There have been no instances so far of
the union executive ignoring parliament in ht name of emergency except perhaps during the
comparatively short period of internal emergency. The apprehension that the president may
act emergency provisions has been on the whole justified when viewed from the experience
of the past. As a dictator is not one of the acute discomforts of our political thinking? On the
Other hand the.
15 S.P. Sathe, judicial Activism: The Indian Experience, Washington University Journal of Law and
Policy, vol.
16 Arvind Datar, Commentary on the Constitution of India (New Delhi: Lexis Nexis Butterworths Wadhwa
Nagpur, 2007), p. 64.

10

State Emergency (Article 356):

Article 356 of Indian constitution define state emergency. The essence of the Article is that
upon the breach of certain defined state of affairs, as ascertained and reported by the
Governor of the State concerned (or otherwise), the President concludes that the
'constitutional machinery' in the State has failed.17 Thereupon the President makes a
'Proclamation of Emergency,' dismissing the State Legislature and Executive. During a state
of emergency, the President is vested with tremendous discretionary powers. Any legislation
or constitutional provision that abrogates any of the basic principles of democratic freedom is
anathema to most people and the more so to the people of the largest democracy in the world.
Having just gained independence after a long and continuous struggle, the people of India
would naturally have the greatest interest in preserving all the freedoms envisioned in a
democratic society.
This provision is misused by the political parties in power at the Centre to dismiss the
governments ruled by opposition parties in the states. This has been a threat to the concept of
Federalism in India. Now the Courts have started interfering and have held the actions of the
central government (in law issued by the President) as unconstitutional and have revived the
legislatures of the states which were dissolved by the proclamation under Art 356. 18

Judicial review
The susceptibility of a Proclamation under Article 356 to judicial review is beyond dispute,
because the power under Article 356(1) is a conditional power. In the exercise of the power of
judicial review, the court is entitled to examine whether the condition has been satisfied or
not. So the controversy actually revolves around the scope and reach of judicial review. From
the decisions in the case of State of Rajasthan v. Union of India and the Bommai case, it is
clear that there cannot be a uniform rule applicable to all cases it is bound to vary depending
upon the subject matter, nature of the right, and other factors. However, where it is possible
the existence of satisfaction can always be challenged on the ground that it is 'malafides or
based on wholly extraneous and irrelevant grounds. The relevance of judicial review in
17 Nariman, The Doctrine versus Majoritarianism, p. 94.
18 Vikram Rghavan, Navigating the Noteworthy and Nebulous in Naz Foundation, National University of
juridical Sciences Law Review, vol. 2 (2009): p. 397.

11

matters involving Article 356 is also emphasized in the Supreme Court judgment in re State
of Madhya Pradesh v. Bharat Singh , where the Supreme Court held that it was not precluded
from striking down a law passed prior to a Proclamation of Emergency, as ultra virus to the
Constitution, just because the Proclamation was in force at that time
Judicial review of the Proclamation under Article 356(1) was first tested in State of
Rajasthan v. Union of India 19., the state filed suit challenging the validity of the directives
issued by the home minister to the chief minister to dissolve their assembly and seek a fresh
mandate. The letter disclosed the sole ground for the proclamation under art. 356 and that
such a proclamation and dissolution of their legislative assembly upon the grounds given in
the letter was outside the scope of art. 356 of the Constitution. It was also contended that
condition precedent to the dissolution of the assemblies is a ratification by both the houses of
parliament and so that no dissolution can take place without ascertaining the wishes of the
both the houses of parliament. The petitioners prayed for a permanent injection restrain the
union of India from giving effect to the home minister directive. On behalf of the union of
India, it was contended that suit underart.131 was not maintainable because dispute of a
political character regarding the continuance e of a council of a minister. A seven members
constitution bench of the Supreme Court by an unanimous judgment rejected the petitioner
petition and upheld the centres action of dissolving three assemblies under art.356 as
constitutionally valid.20
The Supreme Court, being the ultimate interpreter of the Constitution, has the power of
judicial review on all actions emanating from or empowered by any constitutional provision.
Though the power of the President under Article 356 concerns his political judgment and the
courts usually avoid entering the political thicket, this power does not enjoy blanket
immunity from judicial review. It has to be determined in the individual cases on the basis of
justifiability, which is distinct from judicial review. But unless the malafides of the
Presidential Proclamation is shown, the Courts have been exhorted by the Supreme Court to
avoid delving into the President's satisfaction for want of judicially manageable standards.
This point is amply evident in the case of Minerva Mills and Others v. Union of India and
Others, where the Supreme Court dwelt extensively on its power to examine the validity of a
Proclamation of Emergency issued by the President. The Supreme Court in this matter
19 Nariman, The Doctrine versus Majoritarianism, p. 94.
20 Vikram Rghavan, Navigating the Noteworthy and Nebulous in Naz Foundation, National
University of juridical Sciences Law Review, vol. 2 (2009): p. 397
12

observed, inter alia, that it should not hesitate to perform its constitutional duty merely
because it involves considering political issues. At the same time, it should restrict itself to
examining whether the constitutional requirements of Article 352 have been observed in the
declaration of the Proclamation and it should not go into the sufficiency of the facts and
circumstances of the presidential satisfaction in the existence of a situation of emergency.
Thus we can safely conclude that, though limited, the Presidential Proclamation under Article
356 is subject to judicial review.21
The most recent case which decided the extent of judicial review of the Proclamation by the
President imposing Presidents Rule in the states and consolidated the legal position on the
subjective satisfaction of the President is SR Bommai v Union of India was a landmark in the
history of the Indian Constitution. It was in this case that the Supreme Court boldly marked
out the paradigm and limitations within which Article 356 was to function. In the words of
Soli Sorabjee, eminent jurist and former Solicitor-General of India, 'After the Supreme
Court's judgment in the S. R. Bommai case, it is well settled that Article 356 is an extreme
power and is to be used as a last resort in cases where it is manifest that there is an impasse
and the constitutional machinery in a State has collapsed.

Financial Emergency under Article 360

If the President is satisfied that there is an economic situation in which the financial stability
or credit of India is threatened, he or she can declare financial emergency. Such an emergency
must be approved by the Parliament within two months. It has never been declared. Such a
situation had arisen but was avoided by selling off of the gold assets of India
It remains enforced till the President revokes it .In case of a financial emergency, the
President can reduce the salaries of all government officials, including judges of the Supreme
Court and the High Court. All money bills passed by the State legislatures are submitted to
the President for his approval. He can direct the state to observe certain principles (economy
measures) relating to financial matters.22
21 www.legalserviceindia.com

22www.lawyersclubindia.com/articles/INHERENT-POWERS-OF-CIVIL-COURT-U-S-151-OF-CODE-OFCIVIL-PROC-3071.asp

13

The 44th amendment makes art. 360 self contained. It provides that the proclamation of
financial emergency shall cease to be in operation at the expiry of two month unless it has
been approved by both house of parliament. Such a proclamation may be revoked by the
president by subsequent proclamation. But if the Lok Shabha is dissolved during the period
of two month and resolution is approved by the Rajya Shabha, but not by the Lok Shabha the
proclamation shall cease to operate at the expiry of 30 days from the date on which the new
Lok Shabha sits unless before the expiry of 30 days a resolution approving proclamation is
passed by the Lok Shabha. 23
The phrase Emergency period used loosely, when referring to the political history of India,
often refers to the third and the most controversial of the three occasions.
The constitution of India is unique in respect that it contains a complete scheme for speedy
re-adjustment of the peace time governmental machinery in movement of national peril.
These provisions may appear to be particular in constitutions which profess to be built upon
an edifice of fundamental rights and democracy. But the provision must be studied in light of
Indias past history. India had her in glorious days whenever the central power grew weak. It
is far well that the constitution guards against the forces of disintegration. Even may take
place threatening the very existence of the state and if theyre safe guard against such
eventualities the state together with all that is desired to remain basic and immutable, will
swept away 24

Suspension of Right of Enforcement of Fundamental Rights (Art. 359):

Article 359 empowers the president to suspend the right to enforce fundamental rights
guaranteed by part III of the constitution. It says that while the proclamation of emergency is
in operation, the president may by order declare that the right to move to any court for the
enforcement of such of the fundamental rights as may be mentioned in the order (except
article 20 and 21)44th amendment, and all proceeding pending in any court for the
enforcement of such rights shall remain suspended for the period during the proclamation in
force or such shorter period as may be specified in the order. An order suspending the
enforcement of fundamental rights may extend to the whole or any part of the territory of
23 www.helpinelaw.com

24 The enumerated rights are for illustration and are by no means exhaustive.
14

India. An order made under clause (1) shall, as soon as possible, be laid before each houses of
parliament.25
The constitution (38th amendment) act 1975, added a new clause (1-A) in art. 359 which
provides that while an order under clause (1) is in operation, nothing in part III shall restrict
the power of the state to make any law or to take any executive action. Any such law shall
cease to have effect to the extent of the incompetence, as soon as the order cease to operate
except as respect thing done or omitted to be done before the law so cease to have to effect.
The 44th amendment made two significant changes in art. 35926: First, it provides that under
article 359 does not have the power to suspend the enforcement of the fundamental rights
guaranteed in Art.20 and 21 of constitution. Secondly it provides that suspension of any
fundamental rights under article 359 will not apply in relation to any law which does not
contain declaration such a law is in relation to the proclamation of emergency in operation
when it is made or to any executive action taken otherwise than under a law containing such
retail. Thus law not related to emergency can be challenged in the court of law even during
emergency. This amendment was sequel to the decision of the Supreme Court in the habeas
corpus case. The amendment is intended to remove the recurrence of such a situation in
future.
It is to be noted that unlike art.358 under art. 359 the suspension of right to move any court
for the enforcement of fundamental rights is not automatic. It can be only be brought about
by a presidential order.27
In September 1962 china attacked India. On 26th October 1962, the president of India issued
a proclamation of emergency under article 352(1) declaring that a grave emergency exits
whereby the security of India is threatened by external aggression
On 3rd November 1962 the president issued an order under article 359(1) which ran thus:
in exercise of the power conferred by clause (1) of article 359 of the constitution, the
president hereby declare that the right of any person to move any court for the enforcement of
the rights conferring by art. 14,21,and22 of the constitution shall remained suspended for the
25 Prem Shankar Shukla v. Delhi Administration (AIR 1980 SC 1535).

26 Godavarnam Thirumalpad v. Union of India (AIR 2003 SC 724).

27 Khosla, Addressing Judicial Activism in the Indian Supreme Court, p. 55.

15

period during which the emergency issued under article 352(1) on 26th October, 1962 was in
force, if such person has been deprived of any rights under the Defence of the India act, 1962
or any rule order made there under . But now it is changed after the 44th constitutional
amendment. 28

Effects of Emergencies Proclamation on the Fundamental Rights

Federal laws will overrule state legislation, and the Union is empowered to govern areas (eg.
Policing) that are normally devolved to the states.
The Union is also empowered to take over and completely control the taxation and budgetary
revenue processes. Under financial emergency, the Union is empowered to have the final say
in the promulgation of financial acts approved by the state legislature.
The Union may decide to suspend some or all of the fundamental rights guaranteed by Part
III (Articles 12 through 35) of the constitution - which include:
freedom of equality before law
freedom of speech and expression
freedom to assemble peacefully
freedom for movement across Indian Territory
freedom to practice any profession, occupation, trade or business.
Freedom to practice or propagate religion.
Further, the right to challenge the suspension of the above mentioned rights (the right to
constitutional remedies) may also be suspended. However, this provision will not cover the
suspension of articles 20 and 21 which govern rights to personal liberty, Right to silence,
freedom from double jeopardy and freedom from unlawful arrest and detention. Any
individual who deems that his rights under these categories have been suspended unlawfully,
can challenge the suspensions under a court of law.
The Union may decide to dismiss the legislative functions of a state legislature and impose
federal law for a period of six months. This state of suspension may be renewed at the end of
this period under the vote of Parliament (indefinite number of times) until such a time when
28 N.D. Jayal v. Union of India (AIR 2004 SC 867).

16

the Election Commission of India can certify the feasibility of holding free and fair elections
in the state to reconstitute the legislature.
Any order to the above effects however, should be passed by the House of Parliament "as
soon may be after it is made"

Article 32 and the Remedy of Compensation In Case Of Emergencies

Compensation to victims is a recognised principle of law being enforced through the ordinary
civil courts. Under the law of torts the victims can claim compensation for the injury to the
person or property suffered by them. It is taking decades for the victims to get a decree for
damages or compensation through civil courts, which is resulting in so much hardship to
them.
Article 32(1) provides for the right to move the Supreme Court by appropriate proceedings
for the enforcement of the fundamental rights. The Supreme Court under Article 32(2) is free
to devise any procedure for the enforcement of fundamental right and it has the power to
issue any process necessary in a given case. In view of this constitutional provision, the
Supreme Court may even give remedial assistance, which may include compensation in
"appropriate cases ".
Article 32(3) parliament may empower any other court by law within the local limit of its
jurisdiction all or of the power exercisable by the Supreme Court under cl. (2)
Article (4) says that right guaranteed by article 32 shall not suspend except as otherwise
provided for the constitution.
So as mentioned article 32 (4) that right of the constitutional remedies may be suspended,
during certain circumstances. These circumstances are the emergencies as discussed earlier
like, during external aggression, internal disturbance and break down of constitutional
machinery, by order declared by the President, to move any court for enforcement any
fundamental rights shall remain suspended (art. 359).But in case of enforcement of article 20
and 21 can be enforced during the emergency under article 32.

Effect of Emergency on the Fundamental Rights in U.S.

The United States of America is a federal republic comprising 50 states, together with a
number of other territories. The federal Constitution establishes a democratic system of
governance at the federal level and guarantees a republican system at the state and local
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levels. The executive branch of the federal government is headed by the President who is also
commander-in-chief of the armed forces. Article 6 of the Constitution stipulates that the
Constitution is the "supreme Law of the Land ". This provision is construed to mean that
when state constitutions, state laws or federal laws are found to conflict with the
Constitution,they have no force or effect.
In the US constitution, the fundamental rights were added by the first ten amendments - the
Bill of Rights- in 1791. There is no direct provision for curtailment of these rights in view of
emergency or state security. However, the restrictions on these rights appeared by providing
for judicial supremacy where it is left to the courts to determine the validity of a law. The
Supreme Court, in interpreting the Constitution, under the due process of law invented the
doctrine of police power of the state and the doctrine of "clear and present danger" that
could be invoked to justify "reasonable restriction" on the clauses in the Bill of Rights. It
gave the opinion: "[the police power of the state] is the government power of self-protection
and permits reasonable regulation of rights and property essential to the preservation of the
community from injury ". In other words, conceptually, the supremacy rests with the
Executive.
Neither the Constitution nor the laws of the United States provides for the declaration of a
general state of emergency entailing suspension of normal government operations or the
derogations from fundamental rights. On the contrary, the basic requirement for a republican
form of government, the general functions of the three branches of the federal Government,
and most of the fundamental civil and political rights enjoyed by individuals are all enshrined
in the Constitution and thus remain in effect at all times, even during crisis situations.
The one exception to this is the privilege of the writ of habeas corpus. Article I, 9, cl. 2 of
the Constitution states that this privilege shall not be suspended "unless when in cases of
rebellion or invasion the public safety may require it". Congress is considered to have
authority to suspend the privilege. President Lincoln suspended it during the Civil War but
sought congressional authorization for his actions. The privilege has been suspended on only
three other occasions, each time pursuant to an act of Congress.29

Comparison between India and U.S.

29 Attorney general of India v. Lachma Devi (AIR 1986 SC 378).

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Now if compare the effect of emergencies on the fundamental rights, in India part III of the
Constitution describes the fundamental rights art. (14-35) these rights are absolute.
Fundamental rights have been incorporated in the fundamental law of the land, i.e. the
constitution of India and one can approach courts in case of violation of these rights. In the
US constitution, the fundamental rights were added by the first ten amendments - the Bill of
Rights- in 1791.30
In India there is provision of suspension of fundamental rights during emergencies as
mentioned in the article 358 and 359. President may by issued an order declare the
emergency and prevent any person to move any court for the enforcement of rights
guaranteed by the part III (except art.20 and 21). While in U.S. constitution there is no direct
provision to suspend the fundamental rights during the emergency or state security. However
the restriction on these rights depends on discretion o the judiciary. The Supreme Court while
interpreting the constitution can give the doctrine of police power that could invoke the
reasonable restriction on the fundamental rights. As per the Indian constitution there is no
provision to suspend the fundamental right in the U.S. constitution but there may be restrain
the fundamental rights on discretion of the executive and judiciary

Conclusion
Fundamental Rights are those rights which are considered necessary for the development of
the personality of an Individual. They are included in the constitution so that every citizen
can enjoy them and no one is able to encroach upon them. Only when an emergency is
declared, these rights can be suspended by the central government. but they are suspended
only so far the emergency is proclaimed.
These rights reflect a desire of the founding fathers of Indian constitution to build a new
social order. So one can move any court for the enforcement of these rights under article 32.
But when the emergencies come into effect these fundamental rights also came to end only
for the time of enforcing the emergency, because It is the opinion that the government power
of self-protection and permits reasonable regulation of rights and property essential to the
preservation of the community from injury" . First thing to be done during emergency is to
protect the society from external aggression, or maintain the decorum of the state during
internal disturbance.
30 The enumerated rights are for illustration and are by no means exhaustive.

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But even the period of emergency, person have retained the two fundamental rights: right to
life and right to personal liberty as amended in 44th constitutional amendment, 1978. No one
can deprive from the right to life and personal liberty and it can be enforceable even during
the emergency under article 32.

References
Books referredConstitution law of India- J N Pandey
The Constitution of India- P M Bakshi
Our Constitution- Subhash C. Kashyap
Websites referredSen.wikipedia.org/wiki/constitution
http://news.indlaw.com/actionaid/August_Discusstion.asp
http://ruraluniv.ac.in/gruHRC/FAQ files/FAQ1.htm
http://www.beyondintractability.org/essay/constitutions/
http://www.businessdictionary.com/definition/fundamental rights.html
http://www.demotemp360.nic.in/news.asp?ID=1222
http://www.hindujobs.com/thehindu/mag/2002/12/15/stories/2002121500210500.htm
http://www.hinduonnet.com/fline/fl2003/stories/20030214005312100.htm
http://www.ncdhr.org/ncdhr/general-info-misc-pages/oodhrs
http://www.satp.org/satporgtp/countries/india/document/papers/mha07-08/chapter5-07.pdf

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