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Emergency and Fundamental Rights

Part XVIII of the Constitution deals with emergency provisions including national emergency, emergency in a state, and financial emergency. It outlines the process for the President to proclaim a national emergency if the security of India is threatened by war, external aggression, or armed rebellion. During a national emergency, certain fundamental rights are suspended including rights under Article 19.

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31 views2 pages

Emergency and Fundamental Rights

Part XVIII of the Constitution deals with emergency provisions including national emergency, emergency in a state, and financial emergency. It outlines the process for the President to proclaim a national emergency if the security of India is threatened by war, external aggression, or armed rebellion. During a national emergency, certain fundamental rights are suspended including rights under Article 19.

Uploaded by

Divyanshu Bishnoi
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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EMERGENCY

Part XVIII of the Constitution deals with the emergency provisions. The Constitution refers to
three kinds of emergencies, viz. emergency arising out of war or external aggression or armed
rebellion; the breakdown of the constitutional machinery in a State or States; and Financial
emergency.

Artcile 352: Proclamation of Emergency


 The President can proclaim emergency under Article 352 only if he is satisfied that the
security of India or any part thereof is threatened either by war or external aggression or
armed rebellion.( This term ‘armed rebellion’ is inserted from the 44 amendment.
Before this term it was known as internal disturbance.)
 The proclamation of emergency may be enforced throughout India or a particular State
or a number of States.
 By way of explanation, it is clarified that the President of India can proclaim emergency
even before the actual occurrence of war or any such aggression or rebellion, if he is
satisfied that there is imminent danger to security of India or any part thereof.
 The word “satisfaction” in Article 352 does not mean the personal satisfaction of the
President but that of the Cabinet. The President can declare an emergency only on the
advice of the Council of Ministers.
Points to be Noted
 The 38 Amendment Act of 1975 made the declaration of National Emergency immune
to judicial review. But, this provision was subsequently deleted by the 44 Amendment
Act of 1978.
 In Minerva Mills v. UOI (1980), the Supreme Court held that National Emergency can
be challenged in the court on the ground of malafide or that the declaration was based on
wholly extraneous and irrelevant facts.

Suspension of Fundamental rights under Article 19:


 According to Article 358, when a proclamation of National Emergency is made, the
six fundamental rights under article 19 are automatically suspended.
 Article 19 is automatically revived after the expiry of the emergency.
 The 44 Amendment Act laid out that Article 19 can only be suspended when the
National Emergency is laid on the grounds of war or external aggression and not in
the case of armed rebellion.

Suspension of other Fundamental Rights:


 Under Article 359, the President is authorised to suspend, by order, the right to move
any court for the enforcement of Fundamental Rights during a National Emergency.
Thus, remedial measures are suspended and not the Fundamental Rights.
 The suspension of enforcement relates to only those Fundamental Rights that are
specified in the Presidential Order.
 The suspension could be for the period during the operation of emergency or for a
shorter period.
 The Order should be laid before each House of Parliament for approval.
 Prior to the 44th Amendment, constitutionally the State was not barred from
suspending even the right to life and personal liberty during an emergency. Although
in Makhan Singh Tarsikka v. State of Punjab, the Supreme Court had left a small
window open for the petitioners to challenge the validity of the law depriving life and
personal liberty on the grounds not covered by Article 358.The said view was
overruled by the Supreme Court itself in ADM, Jabalpur v. Shivakant Shukla,
wherein the majority dismissed the petition for lack of locus standi of the petitioner
due to the presidential order. However, in his dissenting judgment, H.R. Khanna J
held that Article 21 is not the sole repository of the right to life and personal liberty.
Even in the absence of Article 21, the State has no power to deprive a person of his
life and liberty without the authority of law.
 With the 44th Amendment, Parliament nullified the Shukla case by amending Article
359 so as to disable Parliament and the President to suspend Articles 20 and 21 even
during an emergency.

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