What makes Part III of the Constitution... indispensable to the... Constitution? Examine the relationship between Fundamental Rights and Emergency Provisions.....

Question: What makes Part III of the Constitution of India indispensable to the Indian Constitution? Examine the relationship between Fundamental Rights and Emergency Provisions under the Constitution of India.

Find the answer to the mains question of Constitutional Law only on Legal Bites. [What makes Part III of the Constitution of India indispensable to the Indian Constitution? Examine the relationship between Fundamental Rights and Emergency Provisions under the Constitution of India.]

Answer

Part III (Articles 12 to 35) of the Constitution contains fundamental rights. This Chapter of the Constitution of India has very well been described as the Magna Carta of India. These fundamental rights substantially cover all the traditional civil and political rights enumerated in the Universal Declaration of Human Rights.

Dr Ambedkar described them as “the most criticized part” of the Constitution. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, Bhagwati, J., observed:

“These Fundamental Rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent."

In M. Nagraj v. Union of India, (2006) 8 SCC 212, the Supreme Court speaks about the importance of fundamental rights - the fundamental rights are not gifts from the State to citizens.

Individuals possess basic human rights independently of any Constitution because of the basic fact that they are the human race.

Suspension of Fundamental Rights

Fundamental Rights provided in Part III is an indispensable part of the Indian Constitution. They form a limit to the powers of the Central and the State governments to not make laws that violate the fundamental rights of the citizens of India.

This limitation has been articulated under Article 13(2) which specifically provides that any law made in contravention to the rights of the citizens under Part III of the Constitution shall be declared to be void.

However, the Constitution also provides for an exception to such limitations over the powers of the Central and the State Government during times of Emergency, when national security is at stake due to war, external aggression or internal disturbance.

The emergency provisions are contained in Part XVIII of the Constitution of India, from Articles 352 to 360. These provisions enable the Central government to meet any abnormal situation effectively.

The rationality behind the incorporation is to safeguard the sovereignty, unity, integrity and security of the country, the democratic political system and the Constitution.

Relationship Between Fundamental Rights and Emergency Provisions

Suspension of Fundamental Rights under Article 19 (Right to freedom of speech and expression): According to Article 358, when a proclamation of National Emergency is made, the six fundamental rights under Article 19 are automatically suspended. Article 19 is automatically revived after the expiry of the emergency.

The 44th Amendment Act laid out that Article 19 can only be suspended when the National Emergency is laid on the grounds of war or external aggression and not in the case of armed rebellion.

Suspension of other Fundamental Rights: Under Article 359, the President is authorised to suspend, by order, the right to move any court for the enforcement of Fundamental Rights during a National Emergency. Thus, remedial measures are suspended and not Fundamental Rights.  The suspension of enforcement relates to only those Fundamental Rights that are specified in the Presidential Order.

The suspension could be for the period during the operation of an emergency or a shorter period. The Order should be laid before each House of Parliament for approval. The 44 Amendment Act mandates that the President cannot suspend the right to move the court for the enforcement of Fundamental Rights guaranteed by Articles 20 and 21.

The Emergency of 1975

The Emergency of 1975 played a very crucial role in understanding the relationship between Fundamental Rights and the Emergency Provisions. The Emergency was declared as a result of the case State of Uttar Pradesh v. Raj Narain, (1975 AIR 865, 1975 SCR (3) 333).

On 26th June 1975, the President declared an emergency under Article 352(1), suspending the enforcement of Articles 14, 21 and 22 on the advice of the Prime Minister herself.

Conclusion

In the course of the emergency, many cases of preventive detention came into the picture in lieu of the Maintenance and Internal Security Act. However, in the case of ADM Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207, the Supreme Court by a majority of 4:1 with only J., Khanna dissenting, held that no person had any locus standi to move the Court to question the legality of the preventive detentions made during the Emergency.

Such incidences of preventive detention brought about the 44th Amendment which severely restricted the scope of Articles 358 and 359. Also, the words “internal disturbance” were replaced with the words “armed rebellion” under Article 352.

Article 19 which was suspended under Article 358 during times of Emergency will not get suspended if the grounds for an emergency are merely armed rebellion and not war or external aggression.

Under Article 358(2), it has been provided that any “action under a law” which will be ultra vires the Constitution shall be declared void.

The effect of Article 358 has been explained elaborately in the case of Attorney General of India v. Amratlal Prajivandas, 1994 AIR 2179. Article 359 provides that other Fundamental Rights can be suspended during an Emergency, except for Articles 20 and 21.

Under Article 359, it has been enumerated that any other law passed for purposes other than the Emergency will also be declared void. Therefore, the rights under Articles 20 and 21 can be enforced by a person even during times of Emergency by approaching the Court under Article 32 of the Constitution.