Project Synopsis

Project Synopsis- Constitutional law III
By Rachit Raghuwanshi (2018BALLB27)
Suspension of Fundamental Rights during National Emergency
1. Introduction
There are times when a nation is unexpectedly and suddenly overtaken by events and
forces, which seriously endanger its security and the lives of its citizens. Such
situations may require that individual liberties of the citizens be temporarily
suspended in order to cope with the dangers confronting the nation. Emergency
situations place democratic governments in a real dilemma by bringing about a
conflict between its primary obligation to protect the integrity of the State and its
equally important obligation to protect the human rights of its citizens and other
persons within its jurisdiction. The State is forced into a choice between competing
values and the sacrifice of one to the other. That is the rationale of emergency
provisions, which find place in many national constitutions permitting the suspension
of guaranteed fundamental rights.
Article 352 of the Indian constitution provides for a declaration of emergency. Under
Article 358, on a declaration of emergency, the fundamental rights guaranteed by
Article 19 stand suspended. Furthermore Article 359 of the Constitution, as originally
enacted, provided that when a Proclamation of Emergency was in operation, the
enforcement of any fundamental right may be suspended by the issue of a
Presidential Order.
This trend is also seen in a number of regional and international human rights
instruments like the European Convention on Human Rights, the International
Covenant on Civil and Political Rights of 1966 (ICCPR) and the American
Convention on Human Rights, 1969 (ACHR).
While the makers of the Constitution ensured that this would not extend to certain
essential rights, the judiciary failed the citizens by failing to protect their most
cardinal rights in the face of the failure of the state’s constitutional machinery.
2. Hypothesis
The constitutional provisions pertaining to national emergencies in India before the
44th Amendment failed to provide any protection to the people’s fundamental rights
during national emergencies.
3. Objectives
a. To present a brief overview of the emergency provisions in the Indian
Constitution
b. To enlist the instances of the usage of the laws pertaining to national
emergencies in India
c. To understand the method of revocation of fundamental rights during national
emergencies
d. To use landmark cases to analyse the judiciary’s interpretations of the
abovementioned provisions
4. Research Methodology
The approach for study adopted by this project is doctrinal research methodology,
which is a logical, systematic and scientific method of research that involves a
thorough appraisal of statutes, case laws, codes and other legal literature to solve the
problem addressed.
5. Review of Literature
The Emergency provisions are contained in Part XVIII of the Constitution, from
Articles 352 to 360. These provisions enable the Central government to meet any
abnormal situation effectively. The rationality 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.
During an Emergency, the Central government becomes all powerful and the states go
into the total control of the Centre. It converts the federal structure into a unitary one
without a formal amendment of the Constitution. This kind of transformation of the
political system from federal during normal times to unitary during Emergency is a
unique feature of the Indian Constitution. The Constitution stipulates three types of
emergencies:
a. National Emergency
b. State Emergency
c. Financial Emergency
According to Article 358, when a proclamation of national emergency is made, the six
Fundamental Rights under Article 19 are automatically suspended. No separate order
for their suspension is required. However, the scope of this article was restricted by
the 44th amendment by reserving it for national emergency on the grounds of war or
external aggression and by confining it to laws related to the emergency.
Similarly, Article 359 authorises the president to suspend the right to move any court
for the enforcement of Fundamental Rights during a National Emergency.
6. Conclusion
The provisions in Part XVIII of the Indian Constitution, when applied, enable the
Union Government to assume greater powers and also encroach upon the fundamental
rights of the citizens in the event of a national emergency. However, before the 44th
Amendment, this power was unbridled and led to a large number of violations of
these rights by the state. The judiciary, too, failed to protect the rights of the citizens
in various cases, leading to the much-needed changes brought about by the 44th
Amendment.
7. Bibliography

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Project Synopsis- Constitutional law III

By Rachit Raghuwanshi (2018BALLB27)

Suspension of Fundamental Rights during National Emergency

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