Suspension of Fundamental Rights

From Advocatespedia, ASSN: 15107
Jump to navigation Jump to search

What are Fundamental rights?

Fundamental rights are inalienable rights of citizens of India. It is enshrined in the Part III of the Constitution of India. They are basic rights which are guaranteed to all the citizens of a country for ensuring their well being and to maintain social order. These are those rights which are considered to be an essential element for overall development of the personality of an individual as a citizen of the country. After the landmark judgement of the supreme court in Keshavananda Bharti v Union of India, the fundamental rights became a part of the basic structure of the constitution. In India, the Constitution framers have taken care of the interests of the citizens while drafting the Constitution. To ensure that every citizen of the country must live with dignity should be free from any kind of exploitation, they introduced the concept of Fundamental Rights into the Constitution. Fundamental rights were borrowed from the Bill of Rights- American Constitution and these fundamental rights are available to all irrespective of their caste, creed, colour, sex or religion etc. The Fundamental Rights are enshrined in the Part III of the Indian Constitution from Art. 12- 35.[1]

Basically, there are 6 fundamental rights guaranteed to the citizens of the Republic of India which are as follows-

I. Right to Equality (Art. 14-18).

II. Right to Freedom (Art. 19-22).

III. Right against Exploitation (Art. 23-24).

IV. Right to Freedom of Religion (Art. 25-28).

V. Cultural and Educational Rights (Art. 29-30).

VI. Right to Constitutional Rights (Art. 32-35).

Fundamental Rights were necessary to be provided to the citizens of India because we all know that during the Colonial rule in India, the people had no basic rights, they had no liberties so as to live their lives with dignity, they were exploited at peak by the British government on all the levels whether its- Social, Economic or Political level. 

So, to protect the interests of the citizens from being encroached by the government in the Independent India, the Constitution of independent India guaranteed the citizens with certain Fundamental Rights.

In the landmark judgment of Maneka Gandhi v/s. Union of India AIR 1978 SC 597[2], P.N. Bhagwati, J., made an observation that –

“These Fundamental Rights represent the basic values cherished by the people of this country since the Vedic times. They weave a ‘Pattern of guarantee’ on the basic structure of human rights and impose negative obligations on the State not to encroach on the individual liberty in various dimensions”.

The Fundamental Rights of the Indian Constitution are justiciable and are enforceable by the court of law, which means that any right violated by the government would be subjected to the judicial review by the court and any law infringing any of the fundamental rights would be declared as ultra vires i.e. the law inconsistent with the provisions of the Constitution would be declared as invalid/ unconstitutional and would be devoid of force. In simple terms, any law enacted by the Legislature needs to be within the Constitutional lines and should be consistent with the Part III of the Constitution i.e. the Fundamental Rights.

According to Dr. B.R. Ambedkar-The responsibility of Legislature is not just to provide Fundamental Rights but also and rather more importantly, to safeguard them”.

When the Fundamental Rights could be suspended?

As we discussed above, the Legislature cannot bring any law which abridges the Fundamental Rights contained in the Part III of the Constitution. But this doesn’t mean that the Fundamental Rights are absolute in nature. The Constitution framers have kept in their mind each and every aspect while inserting the feature of Fundamental Rights into the Constitution. If we have a brief glimpse on the Constitutional History of India, while the drafting of the Indian Constitution was in the process, India was suffering from a huge trauma, stress and pain due to the partition of the country into India and Pakistan, subsequently resulting into communal riots and other chaos which were prevalent at a huge scale during that time. So, to control such kind of things and prevent the History to repeat itself in the future again, the Central Government is equipped with the power to curtail or suspend the Fundamental Rights of the citizens in order to safeguard the sovereignty and integrity of India and also, to protect the public interest in certain cases. The Fundamental Rights could be suspended during the hour of emergency when the Sovereignty and integrity of the country is at stake.

The Constitution of India provides for the suspension of the Fundamental Rights in the following circumstances-

1. Art. 358[3][Suspension of Freedom Rights guaranteed under Art. 19 of the Constitution]-

When the Emergency is proclaimed by the President under Art. 352[4] of the Indian Constitution, the six freedoms guaranteed by Art. 19 [5] are automatically suspended i.e. the President doesn’t needs to suspend the freedoms under Art. 19 through a Presidential Order. Now, the suspension of this right means that while the emergency is in operation, the state could make a law even though it abridges the freedoms ensured under Art. 19 of the Constitution. Also, the things which were done or were omitted to be done during the emergency period, those acts of the government can’t be challenged in the court even when the emergency period is over.

Normally, the rights guaranteed under Article 19 cannot be taken away by any of the actions of the government, but the Art. 19 ceases to restrict the executive power of centre or state automatically, when the emergency is proclaimed by the President under Article 352 of the Constitution of India. As soon as the Emergency gets over, Art. 19 automatically gets revived in the same way as it was automatically suspended which means it again begins to operate.

The emergency under Art. 352 could be proclaimed on the following grounds-

i. War.

ii. External Aggression.

iii. Armed Rebellion. (The expression “Armed Rebellion” was substituted by the Constitution (44th Amendment) Act, 1978[6] for “Internal Disturbances”).

The Parliament of India felt a great need to substitute the expression “Internal Disturbances” with “Armed Rebellion” because the emergency declared by Indira Gandhi’s government in the year of 1975, was not justifiable. The emergency was proclaimed by the President Fakhruddin Ali overnight on the date of 25th June, 1975 on the advice of Prime Minister Indira Gandhi when the election of Prime Minister were set aside by the Allahabad High Court on the grounds of winning the elections through unconstitutional practices . The ground specified for such emergency was threat to the security of India i.e. “Internal Disturbances”. However, this ground was not appropriately justified by the government for proclaiming emergency.

The Historic case of Indira Nehru Gandhi Vs. Raj Narayan AIR 1975 SC 865[7]-

This was the case which actually lead to Emergency in India and this period was known as the Darkest hour of the democracy. This was the first time in the History of India that the election of a Prime Minister was set aside by the Judiciary. In this case, the election of the Prime Minister Indira Gandhi was challenged by his opposing candidate Raj Narayan in the Allahabad High Court contending that she has won the elections by infringing the code enshrined in the Representation of People Act, 1951[8] as her election campaigns were personally assisted by the government officials and has distributed the commodities like liquor, blankets etc. amongst the voters to gain the votes and the campaign expenses which were worth Rs. 35,000.

Hon’ble Justice Jagmohan Sinha of the Allahabad High Court declared the election of Prime Minister Indira Gandhi as void due to corrupt practices followed in the election campaigns. To challenge the decision of Allahabad High Court, Indira Gandhi made an appeal into the Supreme Court but at that time, the Court was on vacation so it ordered conditional stay.

After that, Indira Gandhi declared National Emergency throughout the territory of India as the consequences of which the government imposed all possible bans on media i.e. censorship on media, the fundamental rights were ferociously suspended, police became arbitrary and there was ruthless illegal arrest of many people, not because they have committed an offence but on the apprehension that they may commit an offence. Also, many opposition leaders like JP Narayan, Morarji Desai, AB Vajpayee, Lal Krishna Advani were detained under MISA.

So, the Legislature brought the 44th Constitutional Amendment, 1978 which substituted the word ‘Internal Disturbances’ with the expression ‘Armed Rebellion’ because the expression ‘Internal Disturbances’ was too wide, vague and was having ambiguities, so this substitution was done to prevent the emergency powers being misused by the government.

Changes made under Constitution (44th Amendment) Act, 1978 There were 3 significant changes which were made in Art. 358 under this amendment-

Firstly, the expression ‘Internal Disturbances’ was substituted with ‘Armed Rebellion’ to remove ambiguity.

Secondly, that the Art. 19 of the Constitution could be suspended only when the emergency is proclaimed under Art. 352 on the grounds of ‘War’ or ‘External Aggression’ only. It means that Art. 19 could not be suspended on the ground of ‘Armed Rebellion’.

Thirdly, this amendment inserted Clause (2) to the Art. 352 which means that it only protects those laws from being challenged into the court of law, which are related to Emergency. The other laws which are not related to the emergency could not seek immunity of this provision as they could be challenged in the court even during the emergency only if those laws are not related with the emergency.

Changes made under Constitution (59th Amendment) Act, 1988[9] The changes made under 44th Constitutional amendment were again amended through 59th Constitutional Amendment in which the scope of suspending Art. 19 was extended which was earlier limited in the 44th Amendment. This amendment stated that Art. 19 could be suspended, not only on the grounds of ‘War’ or ‘External Aggression’, but on the ground of ‘Armed Rebellion’ also. So, after this amendment came into picture, Art. 19 could be suspended on all the 3 grounds mentioned under Art. 352 of the Constitution.

2. Art. 359[10] [Suspension of the enforcement of Fundamental Rights guaranteed under Part III of the Constitution other than Art. 19]-

The President could, by order suspend the enforcement of Fundamental Rights contained in the Part III of the Constitution. It also empowers the President to suspend the right to move to the court for enforcement of such rights which are being suspended through the Presidential order till the proclamation of emergency is in operation.

Exception- The President has no power to suspend the enforcement of Rights contained under Art. 20 (Protection in respect of conviction of offences)[11] & Art. 21 (Protection of Life and Personal Liberty)[12] of the Indian Constitution even during the proclamation of emergency. It means that the executive has no power to suspend Art. 20 and 21 in any case. (The above exception was included in this Art. 359 by 44th Constitutional Amendment, 1978).

The Constitution (38th Amendment) Act, 1975[13] This amendment added a new Clause (1-A) into the Art. 359 of the Constitution which stated that when the Presidential order is made to suspend the enforcement of Fundamental Rights during the emergency period under the Clause (1), the provisions contained in the Part III of the Constitution would not affect or restrict the power of the State or executive to make any laws during the emergency. It means that any such provision of Part III will cease to have effect to the extent of such inconsistency to that of the law which is made during the emergency, till the emergency ceases to operate. So, by this way, the powers of the Legislature as well as the Executive to the extent of the emergency are made wider.

Position of Suspension of Fundamental Rights post Habeas Corpus Case

The ADM Jabalpur Case, popularly known as the Habeas Corpus Case [A.D.M. Jabalpur v/s. Shivkant Shukla AIR 1976 SC 1207][14] is considered to be as a great question mark on exercise of Executive power over the Right to Life and Personal Liberty of a citizen during the emergency period. This case is known to be as the black spot on the Indian Judiciary because this was the case in which the Hon’ble Supreme Court of India gave a very disappointing and dissatisfying judgment by allowing the authority of the Executive to abridge even a person’s Right to Life and Personal liberty during the hour of emergency.

Facts of the Case-

 The Prime Minister elections of Indira Gandhi were set aside by the Allahabad High Court on the ground of using wrongful practices to win the elections to the Lok Sabha and victory from the Constituency of Rae Bareli, Uttar Pradesh, by taking assistance of the government officials. The Court set aside those elections by declaring them as unconstitutional. Disappointed with the decision of Allahabad High Court, Indira Gandhi decided to challenge this decision of the High Court into the Hon’ble Supreme Court of India. But, by the time she was going to appeal into the Supreme Court, there were Summer vacations in the Court.

 To save her position as the Prime Minister and not willing to lose her power, Indira Gandhi declared emergency overnight through President Fakhruddin Ali on the date of 25th June, 1975 under Art. 359 (1) of the Constitution. The Presidential Order while imposing the state of national emergency suspended Art.14[15] , Art. 21[16] and Art. 22[17] of the Indian Constitution. As a result, there was press censorship, arbitrary rule of government, unlawful arrest and detention of people without any reasonable cause but just on an apprehension only.

 As a consequence of all these chaos happening into the country, many aggrieved people approached various High Courts under Art. 226 of the Constitution[18] for issuing the writ of Habeas Corpus to seek relief against the unlawful detention.

 Subsequently, in the ADM Jabalpur Case, the respondent was detained under the Sec. 3 of Maintenance of Internal Security Act (MISA) 1971[19] This MISA Act gave indefinite detention powers to Indira Gandhi government during the 1975 emergency in India.

 The High Courts held these detentions arbitrary and against the spirit of law and set all those detainers free by issuing Habeas Corpus, who were unlawfully detained.

 However, this was not the ending, the states didn’t liked the intervention of the High Courts during the emergency and moved to the Supreme Court for quashing of the orders of High Courts against the State.

 There were 2 main questions for consideration which were raised before the Supreme Court-

First, Whether any writ petition under Art. 226 for Habeas Corpus is maintainable in the High Court for enforcement of Right to Life and Personal Liberty of an individual who is detained under MISA, that the order is not consistent with the provisions of the said act, after the Presidential Order dated 25th June 1975 and 8th January 1976 was made under Art. 359 (1)? Second, If such petition is maintainable, then to what extent the security of judiciary could be provided to that individual for assuring his Right to Life and Personal Liberty?

Petitioner’s Contentions-

 The State contented that they have got special powers during the emergency and the state holds complete powers over the laws and rights of the citizens while the emergency is in operation. In the same way, the State also has the right of detention of the individuals until/ unless the advisory board approves that there is no appropriate reason for that person’s detention, that person can’t be released and the courts have no jurisdiction to issue writ of Habeas Corpus.

 The Constitution itself provides under Art. 359 Clause (1) that the President could suspend the enforcement of Fundamental Rights during the proclamation of emergency and contended that the consequential situation of the emergency would be the absence of Rule of Law for the time being.

 These rights are suspended to protect the security and integrity of the nation because the security of the country is of supreme priority and comes before everything.

 Thus, the respondents have no locus standi to file writ to the High Court under Art. 226 for release of the person who is detained.

Respondent’s Contentions-

 The respondents argued that the powers granted to the executive under Art. 359 are only to remove the hurdles of legislature of making laws to ensure the security of the country. However, the Constitution doesn’t provides to suspend the enforcement of Statutory laws. Hence, citizens are having the power to approach the courts for enforcement of their statutory rights against the unlawful detentions made under the MISA Act.

 The Presidential Order is infringing their statutory rights/ natural rights and it is against the principles of Natural Justice, against the Constitution and also is against the law. Rule of Law could only be suspended on the enforcement of Fundamental Rights and not on the enforcement of statutes. So, there is no absolute suspension of Rule of Law.

 Suspension of Art. 21 is not solely affecting their Right to Life and Personal Liberty, but the detentions which are being made unlawfully under MISA, are also affecting an individual’s right to life.

 It was also contended that the detentions being made should be within the ambit of the provisions of the given act and should not be inconsistent with the same.


The 5 judge bench by 4:1 majority (A.N. Ray, C.J., H.R. Khanna, J., M. Hadeemullah Beg, J., Y.V. Chandrachud, J., P.N. Bhagwati, J.) held the decision in the favour of the state, that in the view of Presidential order dated 25th June, 1975, the citizens have no right to approach the High Courts for issuing the writ of Habeas Corpus to release the detained persons. No person is having the locus standi to move to the court to seek any relief in case of emergency if it is suspended by the order of the President as all the proceedings of the courts would remain suspended till the emergency is in operation.

The only one judge who gave dissenting in this case was Justice H.R. Khanna. He stated that even if the fundamental rights are taken away during the emergency period, still the citizen is having the right to move to the court to seek relief if any of his statutory right is getting violated because the Constitution has not permitted the government to take away the statutory rights of the citizens as it is against the spirit of Constitution as well as the principles of Natural Justice. The observations made by him gave path for the development of law in future and also guided the legislature to further make laws in such a way as for the betterment and well being of the country’s citizens.

Afterwards, the Constitution (44th Amendment) Act, 1978 was passed which limited the power of executive to suspend the enforcement of Fundamental Rights. It stated that the President has no power to suspend the Fundamental Rights contained under the Articles 20 & 21 of the Indian Constitution even during the emergency. It also added that the laws which do not contain a declaration that these laws are related to the proclamation of emergency, could be challenged in the court of law even during the emergency. It means that any laws made during the emergency needs a specific recital/ announcement that they are made in the view of emergency and are related to the same. This amendment is considered to be as the sequel of the decision given by the Supreme Court in the Habeas Corpus Case.


The Government is empowered by the Constitution with some special provisions during the emergency as it is only proclaimed when the security of the country is threatened and the government is ought to act as it deems fit to them to safeguard the country. But this doesn’t means that the government could act arbitrary and could do anything as per their wish in the name of emergency as happened in the emergency of June 1975. Emergency is to be declared in the exceptional circumstances only and on the grounds which are being mentioned in the Constitution.

Before the 44th Constitutional Amendment Act, 1978 came into picture, the executive had wider power to suspend any of the Fundamental Rights through the Presidential order during the emergency. This right was being misused by the Indira Gandhi government during the 1975 emergency which resulted into the Habeas Corpus Case. So, to reform the emergency provisions, the Legislature came up with 44th Constitutional Amendment and by bringing this amendment, the Union Executive is restricted from suspending enforcement of the Fundamental Rights guaranteed under Art. 20 & 21 of the Indian Constitution in any situation. Also, the ground “Internal Disturbances” for emergency was substituted with “Armed Rebellion” in order to remove the vagueness of the expression “Internal Disturbances” to prevent the misuse of this provision by the future governments.

From analyzing all the facts and provisions pertaining to the emergency, we can conclude that whenever there has been misuse of the emergency powers by the governments, the reforms have been made from time to time according to the need of the hour. So, we can say that the situation of the Fundamental Rights during the emergency has been changed, interpreted vividly and is made more clear overtime.