The Constitution of India guarantees Fundamental Rights to the peoples. Part III of the Indian Constitution contains Fundamental Rights. The Fundamental Rights in the Indian Constitution has been borrowed from the United States of America. It is given from Article 12 to Article 35 of the Indian Constitution. The Indian Constitution guarantees six Fundamental Rights to the Indian citizens which are Right to Equality (Art.14-18), Right to Freedom (Art.19-22), Right against Exploitation (Art.23-24), Right to Freedom of Religion (Art.25-28), Cultural and Educational Rights (Art.29-30) and Right to Constitutional Remedies (Art.32-35).
Fundamental Rights were deemed essential to protect the rights and liberties of the people against the encroachment of the powers delegated by them to their govt. As in the historic judgement of Meneka Gandhi v. Union of India, Bhagwati, J., observed: “These Fundamental Rights represent the basic values cherished by the people of the this country since the Vedic times…. The weave a ‘pattern of guarantee’ on the basic structure of human rights and impose negative obligations on the State not to encroach on individual liberty in various dimensions”. These rights are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral and spiritual status. But even though, these fundamental rights are not absolute rights and having certain restrictions. The fundamental rights can be suspended during the proclamation of the emergency (Art. 352) declared by the President of India at the recommendation of the Union Cabinet.
Part VIII of the Indian Constitution talks about the emergency (Article 352-Article 360). The Constitution envisages three types of emergencies which are National Emergency, Failure of constitutional machinery in a state and Financial Emergency
President can impose National Emergency (Art.352) if he is satisfied that a grave situation exists or is likely to arise due to war, external aggression or armed rebellion (earlier it was internal disturbance). However his powers are subject to the recommendation of the Cabinet. The proclamation must also be laid before the House of Parliament which may approve it by passing a resolution, take no action or disapprove it within one month. Such a proclamation is notified by publication in official gazette but this is not obligatory. So far National Emergency has been declared three times in the country, first being in 1962-1968 when China attacked Indian borders, second in 1971-1977 during Second World War and the third was imposed in 1975 on grounds of internal disturbances.
Failure of constitutional machinery in States – Article 356 of the Constitution empowers the President to issue a proclamation on receipt of a report from the Governor of a State, or otherwise too, if he is satisfied that the government of the State cannot be carried on in accordance with the provisions of the Constitution.
Financial Emergency (Article 360) – If the President is satisfied that a situation has arisen whereby the financial stability or credit of India, or of any part thereof is threatened, he may by proclamation make a declaration to that effect.
The first proclamation of emergency under Article 353 by the President of India after the inauguration of the constitution was in 1962 as a result of the Chinese attack on Indian territories during the November that year. The second and third proclamation of emergency under Article 352 were made 1965 and 1971 respectively on both occasions it was Pakistani aggression that compelled on the President to proclaim emergency. The fourth time proclamation emergency was declared in India was between 26th June 1975 to 21st March, 1977 as the security of India was threatened by internal disturbances. In the case State of Uttar Pradesh v. Raj Narain, Indira Gandhi defeated Raj Narain in the Lok Sabha election from the Rai Bareily constituency. Raj Narain had filed a petition in the Allahabad High Court stating that Indira Gandhi has used fraudulent means to win the election. Allahabad High Court found her guilty and declared her election void and disqualified her from contesting in any election for six years. She challenged the decision of the Allahabad High Court in the Supreme Court on 24th June, 1975 where the Supreme Court Upheld the judgement of the High Court and ordered that all the privileges that she used to get as MP should be taken away but she was allowed to continue as Prime Minister. On 26th June, 1975, President Fakhruddin Ali Ahmed proclaimed an emergency under Article 352 (1), Constitution of India on the advice of Prime Minister, Indira Gandhi.
A notable feature the Indian Constitution is the way in which the normal peace time federalism can be adapted to an emergency situation. The framers of the constitution felt that in an emergency the center should have the overriding power to control and direct all aspects of administration and legislation throughout the country. The Constitution envisages three types of emergencies which are, Emergency arising from a threat to the security of India, breakdown of constitutional machinery in States and Financial emergency.
Proclamation of an emergency is a very serious matter as it disturbs the normal fabric of the constitution and adversely affects the rights of the people. Such a proclamation should therefore be issued only in a exceptional circumstances and not merely to keep and unpopular government in office as happened in June 1975, when an emergency was declared on ground of internal disturbance without there being adequate justification for the same.
Under Article 352 (1), if the President is ‘satisfied’ that a grave emergency exists whereby the security of India or any Part thereof is threatened, whether by War, or External aggression, or Armed rebellion, or He may by proclamation, make a declaration to that effect. Such a proclamation may be made in respect of whole of India, or such part of the Indian Territory as may be specified in the proclamation. The President shall not issue a proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet that such a Proclamation may be issued has been communicated to him in writing. The ‘satisfaction’ that the security of India is threatened or there is an imminent danger of being threatened by war or internal aggression or armed rebellion is the “subjective satisfaction” of the President.
Article 352 (1) means the proclamation needs not to be extent to the whole of India. It may be restricted to a part of the Indian Territory. A proclamation of emergency under Article 352 (1) may be made before the actual occurrence of war, external aggression, or armed rebellion. Before 1978, an emergency could be declared because of war, external aggression, or ‘internal disturbance’. The expression ‘internal disturbance’ was too vague and broad. The 44th Constitutional Amendment substituted the words ‘armed rebellion’ for ‘internal disturbance’ with a view to exclude the possibility of an emergency being proclaimed on the ground of ‘internal disturbance’ only not involving armed rebellion, as happened in 1975. This change has somewhat restricted the scope of what may be called as internal emergency.
The Proclamation of Emergency must be laid before each house of Parliament and it shall cease to operate at the expiry of one month unless it has been approved by the resolutions of both the Houses of Parliament. If the Proclamation of Emergency is issued at a time when the lok sabha has been dissolved during the period of one month, without approving the proclamation but the Proclamation has been approved by the Rajya Sabha, the Proclamation shall cease to operate at the expiration of 30 days from the date on which the Lok Sabha sits first after first election, unless before the expiry of the above period of thirty days a resolution , approving the Proclamation must be passed by the special majority of not less than 2/3 of the members present and voting in each House. Prior to 44th Amendment, such resolution could be passed by Parliament by a simple majority.
Fundamental Rights are enshrined in Part III from Article 12 to 35 of the Indian Constitution. At the time when the constitution was being prepared by the constituent assembly they in order to save the interest of the citizen to live with dignity and independently have inserted these rights and named it fundamental right .They are fundamental because they are necessary for the well being and protection of the people of India. These rights are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral and spiritual status. But even though, these fundamental rights are not absolute rights and having certain restrictions. The fundamental rights can be suspended during the proclamation of the emergency. As Article 358 provides that when the proclamation of emergency is made by the President under Art.352 the freedom guaranteed by Art.19 are automatically suspended and would continue to be so for the period of the emergency. The suspension of rights guaranteed by Art.19 thus removes restriction on the Legislative and Executive powers of the State imposed by the Constitution. Any law, executive order made by the State during this period cannot be challenged on the ground that they are inconsistent with the rights guaranteed by Art.19. Such laws shall, however, cease to have effect as soon as proclamation ceases and then Art.19 is automatically revived and begins to operate. Art. 358, however, makes it clear that things done or omitted to be done during the emergency cannot be challenged even after the emergency is over. Art.359 further empowers the President to suspend the right to move any court for the enforcement of the fundamental rights can be done by an order of the President. He may mention in his order the right whose enforcement is to be suspended. The order of the President may extend to the whole or any part of the territory of India. It is to be noted that while under Art. 358 of the right conferred by Art.19 are automatically suspended; the suspension under Art.359 can only by an order of the President.
Article 358 does not operate to validate a legislative provision which was invalid before the proclamation of emergency. All executive actions which operate to the prejudice of any person must have the authority of law and the terms of Art. 358 do not detract from the rule. Art.358 merely provides that so long as the proclamation of the emergency subsists, law must be enacted and executive action may be taken in pursuance of lawful authority, which, if the provision of the Art.19 were operative, would have been invalid. A proclamation of emergency would not authorize the taking of detrimental executive action during that period, affecting Article 19 without any legislative authority, or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted.
The 44th Amendment has made two significant changes in Article 359: firstly, it provides that under Art.359 the President does not have the power to suspend the enforcement of Fundamental Rights guaranteed in Articles 20 and 21 of the Constitution. Secondly it provides that suspension of any Fundamental Right under Art.359 will not apply in relation to any such law which does not contain a declaration that such a law is in relation to the Proclamation of Emergency in operation when it is made or to any executive action taken outside than under a law containing such a recital.
Thus laws not related to the emergency can be challenged in a court of law even during the emergency. This amendment was a sequel to the decision of the Supreme Court in the Habeas Corpus case.
CONCLUSION:
Proclamation of emergency is a very serious matter as it disturbs the normal fabric of the constitution and affects the rights of the people. Such a proclamation should, therefore, be issued only in exceptional circumstances and not merely to keep an unpopular government in office as happened in June 1975 when an emergency was declared on the ground of internal disturbance without there being justification for the During the period of Emergency as declared the state is empowered to suspend fundamental rights (which is given to every citizen) guaranteed under Art.19 of the Constitution. The term State is used here in the same sense in which it has been used in the Part III of the constitution i.e., Fundamental Rights. The power to suspend the operation of these fundamental rights is vested not only in Parliament but also in the Union Executive and subordinate authority. Further the Constitution empowers the President. to suspend the right to move any court of law for the enforcement of any of the fundamental rights except those under Article 20 and Article 21. It means that virtually the whole chapter on fundamental rights except Articles 20 & 21 can be suspended during the operation of emergency.
