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DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

Should restrictions be imposed upon fundamental rights

during an emergency?

Submitted to: - Submitted By: -

Mr.C.M. Jariwala Amit Rathi Gujjar

3rd Semester

ACKNOWLEGDEMENT


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A research project of such great scope and precision could never have been possible without

great co-operation from all sides. Contributions of various people have resulted in this effort.

Firstly, I would like to thank God for the knowledge he has bestowed upon me.

I would also like to take this opportunity to thank Mr C.M. Jariwala without whose valuable

support and guidance, this project would have been impossible. I would like to thank the

library staff for having put up with my persistent queries and having helped me out with the

voluminous materials needed for this project. I would also like to thank my seniors for having

guided me and culminate this acknowledgement by thanking my friends for having kept the

flame of competition burning, which spurred me on through the days.

And finally my parents who have been a support to me throughout my life and have helped

me , guided me to perform my best in all interests of my life , my grandparents who have

always inculcated the best of their qualities in me.

AMIT RATHI

TABLE OF CONTENTS


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1) Introduction2) Fundamental rights as trumps A Dworkinian Perspective3) Brief History of Emergency in India4) Constitutional provisions regarding emergency and its effects 5) State of Emergency- The Rights v Security debate6) Judicial Review of the emergency declared7) The Indian Experience8) The Haebus Corpus Case: An Analysis9) International view in Emergency10)International Case laws regarding Emergency11)Conclusion

Introduction


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We, by virtue of taking birth in this world as human beings, have been bestowed with some

rights which are natural in sense of their existence. These rights include various right ranging

from right to speak to right to live and in between these two words i.e., speak and live, lies

the whole set of rights which make a persons life worth living.

Our Constitution recognizes some rights as fundamental rights which means basic right that

now cannot be taken away even by Parliament.

But in light of darkest period of Indian democracy that we have through during 1975-1977,

the above meaning of fundamental rights seems to be shaking.

These fundamental rights are indispensable in order to protect the dignity of individual, i.e..,

to treat a man no less than a man. But emergency provisions appear to be against this notion

which through the petty politics and the use and abuse of power restricts these rights. The

government becomes the absolute ruler and act according to its whims and fancies.

In this project work I have tried to discuss the various aspects of restriction on fundamental

rights by way of Constitution itself.

The infamous case of ADM Jabalpur v Shivkant Shukla has been discussed in detail in

relation to rights v security debate.

The Former Secretary General of UN Mr Kofi Annan in its report in In Larger Freedom:

Towards Development, Security and Human Rights for All1 said that the -it would be a

mistake to treat human rights as though there were a trade-off to be made between human

rights and goals such a security and development. . . .

Strategies based on the protection of human rights are vital both for our moral standing and

the practical effectiveness of our actions

Fundamental rights as trumps A Dworkinian

perspective

1, p. 140, delivered to the

General Assembly, U.N. Doc. A/59/2005 (21 March 2005). Kent Roach, Must WeTrade Rights For Security?, 27 Cardozo L. Rev. 2151.


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The language of rights dominates political debate around the world. This debate is not so

much concerned with whether citizens have some moral rights against the government, as it

does about the nature of such rights, whether these rights are absolute or may be derogated

from. Fundamental rights are moral rights which have been made legal by the Constitution.These constitutional rights which are fundamental in character represent according to

Ronald Dworkin, rights in the strong sense. They are distinct from ordinary legal and

constitutional rights because they may not be restricted on ground of general utility. The very

essence of these rights is that they are guaranteed even if the majority would be worse off in

doing so. Dworkin argues that fundamental rights are necessary to protect the dignity of an

individual. Invasion of these rights is a very serious matter and it means treating a man as less

than a man. This is grave injustice and it is worth paying the incremental cost in social policy

or efficiency that is necessary to prevent it.

However this does not mean that fundamental rights are absolute. The government may

impose restrictions on three grounds. The government might show that the values protected

by the original right are not really at stake in the marginal case or at stake only in some

attenuated form. Alternatively if it may show that if the right is defined to include the

marginal case, then some competing right, in the strong sense, would be abridged. This is the

principle of competing rights of other members of society as individuals. Making this rights

choice and protecting the more important at the cost of the less important, does not weaken

the notion of rights. Hence the government may limit rights if it believes that a competing

right is more important. The third possibility is if it may show that if the right were so

defined then the cost to society would not be simply incremental but would be of a degree far

beyond the cost paid to grant the original right, a degree great enough to justify whatever

assault on dignity of the individual it may result in.

Brief history of emergency in India


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The Emergency in India is typically referred to the 18-month period between 1975 and 1977,

when the then President of India Fakhruddin Ali Ahmed, upon advice by the then Prime

Minister Indira Gandhi, declared a state of emergency under Article 352 of the Constitution

of India, effectively making Indira Gandhi, a dictator, suspending elections and civil liberties

in India. It is one of the most shameful periods in the history of independent India during

which the press was censored, people were forced to undergo vasectomies, and power of the

Government was rampantly abused by the members of the Congress Party.

The political unrest to declare the Emergency had stemmed from the case of State of Uttar

Pradesh v. Raj Narain 1975

Raj Narain, who had been defeated in parliamentary election by Indira Gandhi, lodged cases

of election fraud and use of state machinery for election purposes against Mrs. Indira Gandhi

in the Allahabad High Court. On June 12, 1975, Justice Jagmohanlal Sinha of the Allahabad

High Court found the Prime Minister guilty on the charge of misuse of government

machinery for her election campaign. The court declared her election null and void and

unseated her from her seat in the Lok Sabha. The court also banned her from contesting any

election for an additional six years. Ironically some serious charges such as bribing voters

and election malpractices were dropped and she was held responsible for misusing the

government machinery, and found guilty on charges such as using the state police to build a

dais, availing the services of a government officer, Yashpal Kapoor, during the elections

before he had resigned from his position, and use of electricity from the state electricity

department. Because the court unseated her on comparatively frivolous charges, while she

was acquitted on more serious charges,The Times described it as 'firing the Prime Minister for

a traffic ticket'. However, strikes in labor and trade unions, student unions and government

unions swept across the country. Protests led by J.P.Narayan, Raj Narain and Morarji

Desai flooded the streets of Delhi close to the Parliament building and the PM's residence.

The persistent efforts of Raj Narain, was praised worldwide as it took over 4 years for Justice

Jagmohan Lal Sinha to finally pass judgement against Indira Gandhi. The ruling later becamethe primary reason for the imposition of emergency by Indira Gandhi. It also encouraged

greater belief in the judiciary and democracy in India.

Constitutional provisions regarding emergency and

its effects


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Proclamation of National Emergency (Article 352)

The Constitution of India has provided for imposition of emergency caused by war, external

aggression or internal rebellion. This is described as the National Emergency. This type of

emergency can be declared by the President of India if he is satisfied that the situation is

very grave and the security of India or any part thereof is threatened or is likely to be

threatened either (i) by war or external aggression or (ii) by armed rebellion within the

country. The President can issue such a proclamation even on the ground of threat of war

or aggression. According to the 44th Amendment of the Constitution, the President can

declare such an emergency only if the Cabinet recommends in writing to do so.

Effects of National Emergency

The declaration of National Emergency has far-reaching effects both on the rights of

individuals and the autonomy of the states in the following manner :

(i) The most significant effect is that the federal form of the Constitution changes into

unitary. The authority of the Centre increases and the Parliament assumes the power

to make laws for the entire country or any part thereof, even in respect of subjects

mentioned in the State List.

(ii) The President of India can issue directions to the states as to the manner in which

the executive power of the states is to be exercised.

(iii) During this period, the Lok Sabha can extend its tenure by a period of one year at a

time. But the same cannot be extended beyond six months after the proclamation

ceases to operate. The tenure of State Assemblies can also be extended in the same

manner.

(iv) During emergency, the President is empowered to modify the provisions regarding

distribution of revenues between the Union and the States.

(v) The Fundamental Rights under Article 19 about which you have already learnt are

automatically suspended and this suspension continues till the end of the emergency.

But according to the 44th Amendment, Freedoms listed in Article 19 can be suspended

only in case of proclamation on the ground of war or external aggression.

Right to life and liberty (article 21) and protection against double jeopardy , ex post facto

laws and forced testimony against self (article 20) have been protected even during the


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emergency. This protection on which was earlier not available has been now provided by the

44th

amendment of the Constitution.

Right to life has been considerably extended by the Supreme Court in its various landmark

judgements. These rights now include the right to life with dignity, freedom from torture and

arrest etc. The Supreme Court in the case ofFrancis Coralie v Mullen V Union Territory of

Delhiinterpreted the expression of right to life as the right to live with dignity and all that

goes with it, viz, bare necessaties of life such as food, clothing and shelter over the head. The

state according to the court cannot deprive a person of right to live with basic dignity. hence

torture, cruel and inhuman treatment which trenches on human dignity would not be

permissible under article 21 of the constitution of india. Article 7 of the International

Covenant on Civil and Political Rights is thus woven into Constitutional Jurisprudence of the

Country.

State of emergency - The RIGHTS v SECURITY Debate

Central to the idea of rule of law is that government may not arbitrarily deprive

persons of their fundamental rights. This principle has been recognized in national

constitutions and several human rights treaties and declarations. However, thesetreaties recognise a state of exception, to strike a balance between national interests

and rights of individuals.

. The most guidance that the Constitution may provide is to indicate who may act in such a

case10. It however argued by others that there is a need for new constitutional concepts to

protect civil liberties, rescuing the concept of emergency powers from fascist thinkers like

Carl Schmitt, who used it as a battering ram against liberal democracy. This dichotomy

of views is representative of the debate between rights and security during times of

emergency.

Most of debates on the issue assume a necessary trade off between rights and security.

Restrictions on rights on ground of security are not justifiedperse. This may be because the

trade off is unnecessary where the government may pass effective laws which do not violate

rights or when harsh laws restricting rights will not yield results. However tensions do arise.

If the security strategy genuinely implicates rights, then it may be justified and must be


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Judicial review of the emergency declared

In Liversidge v Anderson5

The House of Lords held that in an emergency legislation there was no scope for judicial

review. The court had no jurisdiction to enquire into the reasonableness of an emergency

power which was conferred by Parliament upon a minister who was responsible to it. But th

court had power whenever there was an allegation of malafides, to find out if acted in good

faith. Lord Atkin in his dissenting opinion in the case expressed the view that the law of

interpretation of statutes does not differ in time of war.

In India the question of justiciability of proclamation of emergency has been agitated before

the Supreme Court in a number of cases. The issue has been further complicated by

intervening amendments of the Constitution. It remains yet to be finally settled in India. The

Supreme Court in the case ofADM Jabalpur v/s Shivkant Shukla6

held that when

proclamation of emergency was subsequently followed by an order under article 359(1), it

totally barred the jurisdiction of the courts. So an order depriving a person of fundamental

rights even on the grounds of malafides cannot be challenged. In the case of the State of

Rajasthan v Union of India7

the majority opinion was that the proclamation of emergency

under article 356, though based on the subjective satisfaction of the executive , can be

challenged on the grounds that the proclamation was made on a consideration which is

irrelevant to the purpose for which power has been granted in the article 356 that is to break

down the constitutional machinery of the State.

The Indian experience

Under conditions of normalcy, part III serves as an important limitation on the power of the

state. However during emergency in order to equip the state to deal with the situation, it is

necessary to impose restrictions imposed on state power by part III to a limited extent. India

has experienced three emergencies in 1962, 1971 and 1975 on grounds of the Chinese

invasion, conflict with Pakistan and on account of internal disturbance respectively.

5(1942) AC 206

61976 SC 12077AIR 1977 SC 136


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The Habeas Corpus Case8: An analysis

The most controversial use of emergency power in the history of India has been between

1975 and 1977. The experience of this state of emergency exposed starkly the weaknesses

and inadequacies of safeguards on use of crisis power by the government. Though restrictions

were imposed on various rights in this period, the most serious infringement was of personal

liberty, which is the focus below.

The President issued orders under the Constitution of India, art. 359(1) suspending the right

of any person to move any court for enforcement of fundamental rights under arts. 14, 21 and

22 and 19 for the duration of the emergency. Following this declaration hundreds of persons

were arrested and detained all over the country under the swoop of theMaintenance of

Internal Security Act, 1971.

Various persons detained under Maintenance of Internal Security Act, 1971, s. 3(1)

filed petitions in different high courts for the issue of the writ of habeas corpus. The high

courts broadly took the view that the detention may be challenged on the grounds of ultra

vires, rejecting the preliminary objection of the government. Aggrieved by this the

government filed appeals, some under certificates granted by high courts and some under

special leave granted by the Supreme Court. Despite every high court ruling in favor of the

detenus the Supreme Court ruled in favour the government (4:1), in effect accepting the

contention of the Attorney General, Niren De, who contended, even if life was taken away

illegally, courts are helpless. The majority of the court held that in times of emergency, the

liberty and security of the individual must give way to the interests of the state, as liberty is a

gift of the law (per Ray, J.) and is not absolute. They observed that decisions on what

restraints must be put on persons during an emergency are a matter of policy which lies

outside the sphere of judicial determination.

The court thus excluded judicial balancing, thereby paying no heed to the principle

of proportionality. The rationale of the court was flawed. It reasoned that since the validity of

the declaration of emergency may not and has never been challenged by virtue of art. 352(5)

therefore the restrictions that are imposed under such an emergency also may not be

8A.D.M. Jabalpurvs. Shivkant Shukla, AIR 1976 SC 1207.


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challenged. Khanna, J. registered his dissent saying that judicial review of is not ant-ethical to

the power of the state to detain a person under preventive detention as the court would simply

determine the legality of such detention.

The majority held that art. 21 was the sole repository of fundamental rights. Ray, J. held that

fundamental rights in our Constitution are interpreted to be what is commonly said to be

natural rights. The purpose of declaring some rights to be fundamental was to exclude other

sources and hence art. 21 has no source in natural or common law. The writ of habeas corpus

lies only against legally enforceable rights.

What the court except for Khanna, J. failed to realise is that the right to personal to

life and liberty are human rights and is not a gift of the Constitution. International Covenant

on Civil and Political Rights (ICCPR), art. 4 recognises the right to life and personal liberty

to be a non- derogable right even during times of emergency.The majority defended its

position by stating that Part XVIII is the rule of law during an emergency. There may not be a

pre or post constitutional rule of law which nullifies the constitutional provisions during the

time of emergency. There is no violation of separation of powers by placing preventive

detention exclusively within the control of the executive. Rule of law after the Constitution

ceased to exist in the realm of unwritten law but existed only in the form of specific

provisions.

It is humbly submitted that the court erred in its understanding as the rule of law

exists independent of its recognition in the Constitution. Furthermore rule of law is

antithetical to arbitrariness. Hence any law which gives sweeping powers to the executive

may not be termed as rule of law. The court also held that executive orders which are not

made under

Maintenance of Internal Security Act, 1971 would not rob the protective umbrella (per Ray,

C.J.) of art. 359.What the Presidential Order affected was the locus standi of the person

detained, hence even if he contended that the executive action was ultra vires, it would be

futile.

The Court on this point distinguishedMakhan Singh9

on two grounds.

Firstly, that the reference to this aspect in the case was part of the orbiter.

9Makhan Singh vs. State of Punjab, AIR 1964 SC 381


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Secondly, that the order of 1962 inMakhan Singh was a conditional unlike in the present

case. However it was correctly decided by Khanna, J. that the right to life in art. 21 includes

both procedural (law must prescribe the procedure to deprive a person of his liberty) and

substantive (that power must be conferred by law upon such authority to deprive a person of

his liberty) aspects. Suspension of the right to move any court impinges upon the procedural

requirement alone. It may not affect the substantive requirement, which is a cardinal principle

of the rule of law.

A challenge on other grounds was also precluded by virtue of s. 16A (9) of

Maintenance of Internal Security Act, 1971, which made information regarding the grounds

of detention, confidential matter. The majority refused to even read down this section on

grounds that it affected the powers of the high court underart. 226. The result of this

provision was that it created a presumption of correctness of an order under s. 3. The court

must presume that executive authorities are acting in conformity with both the spirit and the

substance of law. Asking executive authorities to show the strict legality would nullify the

effect of suspension of enforceability of the right of personal liberty making the Presidential

Order ineffective.

The Supreme Court in this case seems to have taken an idealist position, placing too much

reliance on the bona fide intentions of the executive. The courts seems to willingly ignore the

potential abuse of such unfettered powers with the executive. The series of custodial deaths

and human rights violations that came to light following the emergency is indicative of the

misplaced trust of the court.

The court said that there were still some remedies open to the detenu. On the

expiration of the emergency, the illegality of suspension may be challenged. The Presidential

Order does not have the effect of making the unlawful actions of the executive lawful; it

merely suspends the right of a person to move any court for redress during the time of

emergency. Furthermore the absence of judicial review, was in the view of the court

adequately substituted by s. 16A (4) which entrusts this task to the government. In case of

mistaken identity or malicious reposts means of redress are still open to a detenu by

approaching executive authorities.

It is difficult to comprehend how the Apex Court may have been so nave to believe

that the executive will be the judge in its own cause, by allowing review powers to it.


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International view on Emergency

Article 4 of theInternational Covenant on Civil and Political Rights (1966) lays

down, In times of Public emergency which threatens the life of the nation and the existence

of which is officially proclaimed, the state parties to the present covenant may take measures

derogating from their obligation under the present covenant to the extent strictly required by

the exigencies of the situation, provided such measures are not inconsistent with their other

obligation under the International Law and do not involve discrimination solely on the

grounds of race, color, sex, language , religion and social origin.

The European Convention on Human Rights, 1950 made only four such rights

nonsuspendable. The International Covenant on Civil and Political Rights raised the number

to seven, namely

(1)Right to Life .i.e., article 5

(2)Prohibition of Torture .i.e., article 7

(3)prohibition of Slavery or servitude,

(4)prohibition of imprisonment for breach of contractual obligations .i.e., article 11

(5)prohibition of retroactive criminal law .i.e., article 15

(6)Freedom of thought, conscience and religion .i.e., article 18

(7)Recognition as a person before the law (article 16). The fact that these non-derogable

rights cannot be suspended even in times of public emergency for the asserted

objective of safeguarding the life of nation is of great significance.

Moreover the American Convention on Human Rights 1969 has increased the number to

Eleven and includes:

(8)Rights of the Family ( ACHR article 17)

(9)Rights of the Child (ACHR article 19)

(10)

Rights to nationality (ACHR article 20)(11)Rights to participate in the government.

The minimum standards of human right norms in a state of exception formulated by the

human rights committee of theInternationalLaw Association known as Paris Minimum


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Standards list 16 non suspendable rights. The category of non suspendable rights stems from

the concept that some rights are inalienable so that they could not be taken away even when

the existence of the state is at stake.

There are certain basic requirements that State of Emergency must meet in order to avoid

adoption of measures that will have a negative impact on human rights. The International

Law Association has highlighted some democratic control parameters of an emergency

situation

a) First, The state of Emergency must be Officially proclaimed. This implies that people

must be informed that State of emergency has been proclaimed and must also be made

aware of the types of limitations that have been imposed on their rights. This

obligation of officially declaring a State of emergency including obligation to fully

inform the citizens is designed to avoid de facto State of Emergency.

b)

The second condition is the principle of legality. This principle demands that the State

of emergency be declared and applied according to national and international rules

that regulate it. It means that State of emergency should be applied, according to

Constitutional Law and Jurisprudence of the Country as well as the treaties and

covenants that protect human rights. It is also necessary that the crisis should be so

grave as to pose a genuine threat to the structure and life of a society.

c) Next comes the principle of temporality. It means that there should be specific time

limit regarding the duration of the emergency.Without this rule, the State of

Emergency will continue indefinitely and limitation on peoples human rights will

acquire a permanent character. There are instances of perpetuation of the State of

Emergency. This kind of violation could be noticed in Latin America during 1970-

1980. The most illustrative is the example of Paraguay which was under a state of

emergency without interruption from 1954 till 1988.

d) Then there is a principle of proportionality which establishes that a relationship must

exist between gravity of crisis and the type of measures adopted to resolve it.

Restrictions on peoples rights must be proportionate to the circumstance of the

situation.Without this principle, there will be excesses on part of authorities.


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International Case laws regarding emergency

In the Case ofR v Halliday the House of Lords referred to the principle Salus Populiest

Suprema lex ( safety of the people is the Supreme Law) . This is the state necessity which

implies that an act would be otherwise illegal becomes legal, if it is done bona fide under the

stress of necessity.

In Ireland in the Lawless case, the European Court of Human Rights observed that

emergency cannot be declared if an armed insurrection or disturbance is confined in a local

area and has not spread over the rest of the country.


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Conclusion

We see that how the Indira Gandhi government has misused the power and declared

Emergency t remain intact at her seat. The case of ADM Jabalpur was highly critised even by

the judges who has delivered the judgment. But that was the time when constitutional

amendment 44th

was not there and the Courts felt helpless. But due to various international

commitments and the power of judicial review the basic rights are protected and the courts

try to look in to the legality of emergency and the rights derogated in proportion to the

necessity of the Country.

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