The Indian Constitution balances individual liberty with national security. While Fundamental Rights form the cornerstone of democracy, the Constitution also includes provisions that allow their suspension in times of grave crisis. The emergency provisions under Part XVIII empower the Union to act decisively during war, external aggression, or armed rebellion. Among these, the National Emergency under Article 352 has the greatest impact on Fundamental Rights.
India’s experience with the Emergency of 1975–77 highlighted both the dangers and necessity of these provisions. Over time, constitutional safeguards, especially the 44th Amendment of 1978, have ensured that individual rights are not completely extinguished, even in the darkest times.
How Do Emergency Provisions Affect Fundamental Rights?
When a National Emergency is declared, the operation of Fundamental Rights undergoes major restrictions. The most immediate impact falls on the six freedoms guaranteed under Article 19, which cover rights such as free speech, assembly, movement, and residence.
During an emergency, these freedoms stand automatically suspended. The state can pass laws or take executive actions that curtail these freedoms, and citizens cannot challenge them in court for the duration of the emergency. This automatic suspension flows from Article 358, which empowers the state to override Article 19 without requiring a separate proclamation.
However, after the 44th Amendment, Article 19 rights can be suspended only in cases of war or external aggression, not during armed rebellion. This change ensures that internal disturbances do not automatically erase core freedoms.
What Is the Role of Article 359 in Emergency?
While Article 358 suspends the operation of Article 19, Article 359 deals with the suspension of the right to move courts for enforcement of Fundamental Rights.
Under Article 359, the President can issue an order declaring that the right to approach courts for enforcement of specific Fundamental Rights will remain suspended. Unlike Article 358, which affects only Article 19, Article 359 can apply to a broader range of rights.
This distinction is crucial. The rights themselves may not be removed, but citizens cannot seek judicial remedy while Article 359 is in effect. Once the emergency ends, the right to move courts is restored, but actions taken during the emergency remain protected from retrospective challenge.
How Did the 44th Amendment Change the Law?
The 44th Amendment Act of 1978 was a turning point in the history of emergency powers. Passed after the Emergency of 1975–77, it sought to correct the misuse of constitutional provisions.
Before 1978, even Articles 20 and 21 could be suspended. This meant that the right against retrospective criminal laws, protection against double jeopardy, and the fundamental right to life and personal liberty could be taken away. During the Emergency declared by Indira Gandhi in 1975, preventive detention laws were abused, and citizens had no remedy in courts.
The 44th Amendment introduced strong safeguards. It declared that Articles 20 and 21 can never be suspended, even in times of emergency. This ensures that no citizen can be deprived of life or personal liberty without due process, and no retroactive criminal laws or unfair prosecutions can be justified.
The Amendment also narrowed the grounds for suspending Article 19. Now, only a declaration of emergency due to war or external aggression can suspend these freedoms, not an emergency based on armed rebellion.
What Happens After an Emergency Ends?
When an emergency ends, the suspended Fundamental Rights are automatically revived. Article 19 rights come back into operation, and citizens regain full constitutional protections. Laws made during the emergency that violate Article 19 cease to have effect after its withdrawal.
However, a critical rule remains: actions taken during the emergency cannot be challenged retroactively. For example, if the state curbed free speech under Article 19 during the emergency, those actions cannot be questioned once normalcy returns. This rule preserves legal continuity but also highlights the seriousness of suspending rights in the first place.
The restoration of judicial access under Article 359 ensures that citizens can again approach courts to enforce rights after the emergency lapses. This revival process underscores the temporary nature of restrictions imposed during emergencies.
How Did the 1975–77 Emergency Impact Fundamental Rights?
India’s darkest chapter in terms of Fundamental Rights came during the Emergency of 1975–77, declared by Prime Minister Indira Gandhi on grounds of internal disturbance. This emergency witnessed the suspension of civil liberties on an unprecedented scale.
The government used preventive detention laws to arrest political opponents, activists, and journalists without trial. Press censorship became widespread, silencing dissent and curbing free expression. Citizens were denied the right to challenge detentions in court because Article 359 had suspended enforcement of rights.
The Supreme Court’s infamous ruling in the ADM Jabalpur v. Shivkant Shukla (1976) case, also known as the Habeas Corpus case, further deepened the crisis. The Court held that during an emergency, even the right to life under Article 21 could not be enforced. This judgment has since been heavily criticized as a low point for judicial independence.
The excesses of the 1975–77 Emergency shaped constitutional reforms. The 44th Amendment was passed to prevent such abuse in the future, guaranteeing that rights under Articles 20 and 21 remain untouchable.
What Safeguards Exist Today?
Today, the impact of emergency provisions on Fundamental Rights is limited by multiple safeguards. First, Articles 20 and 21 are absolutely protected. Citizens cannot be deprived of life or liberty without due process, even in times of national crisis.
Second, the grounds for suspending Article 19 freedoms are narrower. Internal rebellion alone cannot justify the removal of basic freedoms like speech and assembly.
Third, the role of Parliament ensures democratic oversight. Any proclamation of emergency must be approved within one month by both Houses. This requirement reduces the scope for unilateral executive action.
Judicial review also acts as a strong check. Courts can examine whether the proclamation was based on valid grounds and strike it down if mala fide or irrelevant. After the S.R. Bommai judgment, even the President’s satisfaction is not beyond scrutiny.
Why Are Emergency Provisions Still Necessary?
Despite risks of misuse, emergency provisions remain an essential part of the Constitution. They provide a mechanism to safeguard national security during war, external aggression, or rebellion. Without these powers, the state could become helpless in the face of extraordinary threats.
At the same time, the history of the 1975–77 Emergency reminds India that unchecked emergency powers can lead to authoritarianism. This dual reality explains why constitutional framers created emergency provisions but also why later reforms restricted their scope.
Emergency provisions thus represent a balance between security and liberty. They ensure that the nation can act decisively in crises, but they also include safeguards to protect democracy.
How Do Emergency Provisions Compare Internationally?
Globally, many democracies allow suspension of rights during crises. The U.S. Constitution, for example, permits suspension of habeas corpus in cases of rebellion or invasion. Similarly, the German Basic Law allows restriction of rights during states of defense.
However, most modern democracies include non-derogable rights that cannot be suspended under any circumstances. India’s post-1978 protections of Articles 20 and 21 align with this global principle, ensuring that core human rights remain intact.
This international perspective highlights that while temporary restrictions may be necessary, permanent denial of basic human rights undermines democratic legitimacy.
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Conclusion
Emergency provisions in the Indian Constitution profoundly affect Fundamental Rights, particularly during a National Emergency. Article 19 freedoms can be suspended, and citizens may be barred from approaching courts under Article 359. Yet, safeguards introduced by the 44th Amendment ensure that the right to life and liberty under Articles 20 and 21 remain inviolable.
The experience of the 1975–77 Emergency serves as a stark reminder of how unchecked powers can erode democracy. Reforms since then have created a stronger framework that balances state security with individual liberty.
Emergency provisions remain necessary for extraordinary crises, but their use must always respect constitutional limits. India’s democracy rests on the principle that even in the most difficult times, fundamental human dignity cannot be compromised.
