Conditions under which a person’s Fundamental rights are suspended
Written By:- Sudeep M.
Introduction
As we know fundamental rights is a basic necessity, basic rights of every citizen of the country it is provided and given to ensure personal safety, fearlessness to all the citizens, like the right to equality, right to freedom of speech, right to life, etc
It aims to abolish untouchability, inequality and prohibits discrimination irrespective of caste, creed, color, etc, but in some situations, it becomes necessary to suspend fundamental rights in emergency situations. So in what all situations it is taken away ( the fundamental rights ), important cases, why these fundamental rights are taken away will be discussed on further pages.
What are fundamental rights?
Fundamental rights are our basic life rights, which are enforced on every citizen of the country through which they can lead a life with courage, and fearlessness.
Fundamental rights are a group of rights that have been controlled by the higher power of constitutions and these rights are always protected, .fundamental rights are sections of the constitution of India that prescribe the fundamental obligations of the states to its citizens and the duties and rights of the citizen to the state. these sections are considered vital elements of the constitutions, which were developed between 1947 and 1949 by the constituent assembly of India.
The fundamental rights are defined in part III of the constitution from articles 12 and 35 and applied irrespective of race, place of birth, religion, caste, creed, gender, and equality of opportunity in matters of employment.
Justice Bhagwati observed “These fundamental rights represent the basic value cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of individuals and create conditions in which every human being can develop his personality to the fullest extent. They 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 its various dimensions”
They are enforceable by the courts, subject to specific restrictions.
Basic fundamental rights are;-
Right to Equality (Articles 14 – 18)
This right explains that every individual of a county should be treated equally irrespective of caste, creed, or any other background.it abolishes discrimination
Right to Freedom (Articles 19 – 22)
Just by one word, we can understand that freedom is mandatory to every individual so our constitution provided freedom on the following grounds with some restrictions.
- Freedom of speech
- Freedom of expression
- Freedom of assembly without arms
- Freedom of association
- Freedom to practice any profession, to follow their passion
- Freedom to reside in any part of the country, to travel, or to live a life in any part of the country which they wish.
Right against Exploitation (Articles 23 – 24), no citizen of a country shouldn’t face any exploitation.
This right implies the prohibition of traffic in human beings, beggars, and other forms of forced labor. It also implies the prohibition of children in factories, etc. The Constitution prohibits the employment of children under 14 years in hazardous conditions.
Freedom of conscience means the Right to Freedom of Religion (Articles 25 – 28)
This means our country is sovereign no religion is primary, people in a country have complete freedom to practice any religion that they believe, based on their faith.
Cultural and Educational Rights (Articles 29 – 30)
These rights protect the rights of religious, cultural, and linguistic minorities, by facilitating them to preserve their heritage and culture. Educational rights are for ensuring education for everyone without any discrimination.
Right to Constitutional Remedies (32 – 35) people can seek justice through any court with these rights.
This is one of the best fundamental rights because this right says that any citizens if any fundamental rights are violated, which affect their life, can directly approach any court, even the supreme court for the solution.
Fundamental rights are very important because they are the backbone of safety to every citizen, They are essential for safeguarding the people’s interests.
Basics about this topic
So we have read the fundamental rights, but sometimes these fundamental rights are taken away how ?? Let’s discuss in further!
Sometimes a situation arises, in which the government fails to control, so to solve the problems and to normalize the situation, the president issues emergency at this time, and fundamental rights are taken away, In the Indian theory of emergency as propounded by the Indian constitution if the state of a nation is completely out of control, means even government fails to control that situation, it becomes mandatory to implement the special provisions. At the time of these situations or conditions, some fundamental rights given under the third part of the constitution are taken away. This suspension is necessary for the overall safety of society, without these suspensions, it’s impossible to control that situation.
Part 18 of our Indian constitution from article 352 to 360 .this part has laid down the provisions of emergency in 3 ways,
Article 352 is discussed national emergency,
Article 356 talks about state emergencies.
Article 360 is about financial emergencies.
When this emergency is imposed it directly affects the fundamental rights of every individual.
An emergency can only impose from the cabinet (council ministers or prime ministers) if the cabinet is satisfied with grounds of 352, that emergency should exist, then they pass written advice to President to issue an emergency, if the President is satisfied with this written advice, then the president proclaim an emergency. And Then it comes to the decision of parliament under Rajya Sabha and Lok Sabha, if both houses with a majority approve the emergency, then next six months the emergency will be valid. If a situation needs more than six months, again procedures start from parliament and again on next six months, emergency will be valid.
But if both houses don’t approve, only one month will be valid.
Article 356 states that if a state couldn’t handle able function according to the constitutional provision, the union government can take straight control and can handle the state machinery.
Article 352 declares that, if War, External aggression, Armed rebellion, on these grounds if the president feels or satisfied that, The Indian security or any part of the Indian security is in danger, at that situation, the President can proclaim an emergency. There is no format, the president can declare any type of emergency.
Article 353 states that on the time of national emergency center or state for the governance of any other things can give directions, and can impose the law.
Article 353(b) says that union parliament for all the state list can formulate laws, so we can understand by article 353 on the national emergency states power shifts on Centre and center becomes more powerful!
The purpose of fundamental rights is to conserve individual independence and democratic principles based on the equality of all the people in the country. ,
Dr. B R Ambedkar said that the responsibility of the legislature is not just to provide fundamental rights but also and rather, more importantly, to safeguard them. By this point, we can easily say that based on articles 352, 356, 360, it is important to suspend emergency situations in safeguarding the people.
Condition on when it is taken away or denied
In simple words, government controls the state, but in the time of emergency president controls the state in four conditions fundamental rights can be suspended,
a) Relating to persons of defense services article 33 part III says that the parliament can limit or abridge the fundamental rights of defense employees, on the defense forces our three defense forces are, army, navy, air force .even investigated agencies the reason behind this rule is to encourage them to work efficiently in the discipline.
b) While martial law in force in any area;-by article 34 states;-notwithstanding with anything in the foregoing provisions of this part, parliament may by law indemnify any person in the service of the union or of a state or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India. it was adopted in 1972 and amended in 2014,
c) By constitutional amendment,
d) By declaration of Emergency, article 352-360 which is explained further. so on these four conditions fundamental rights can be suspended.
Our country provides fundamental rights for the freedom and liberty for each individual in the nation, thus in the above page, the basic fundamental rights that are in part III(article 12 to 35) on every Indian citizen is discussed,
The important point is fundamental rights are not absolute, some limitations are imposed on it for the public good, social safety, social reforms, also morality, the state itself amend the constitution, also the Restriction on some fundamental rights is justiciable .on the time of the proclamation of national emergency is issued the six fundamental rights in article 19 are automatically suspended, according to article358.
When the proclamation of national emergency is issued it becomes necessary to take away that fundamental rights from the citizens.
Article 358:-declares that when a National emergency occurs article 19, six fundamental rights are automatically suspended. But only on war, external aggression. Only on these grounds.
Suspension of the right of enforcement of fundamental rights (Article 359): Article 359 empowers the president to suspend the right to enforce fundamental rights guaranteed by Part-Ill of the constitution.
Article 359;- declares that the president has the power to suspend the remaining fundamental rights from article 12 -35) on the time of emergency.
In a few examples, let us learn bout these emergency situations. But on the basis of the 44th amendment articles, 20 and 21 cannot be suspended.
The 1st proclamation of emergency took place when China attacked India (October 1962 -January 1968), hence the first emergency was announced, the honorable president announced an emergency on the ground of external aggression.
By using article 352, Also announced article 359;- suspension of fundamental rights including 21 and 22, and declared that they cannot enforce their fundamental rights through any courts. After the emergency, leaders of supposition, members of various parties on the basis of these more than two hundred were arrested, on the ground that their activity is against National interest.
On 21st October 1962 China war was ended, But the emergency didn’t stop, it was continued.
In April 1965, India and Pakistan, arms conflict happened, then September 1965 war took place, after that, both countries signed the declaration called the Tashkent agreement, even though war completely stopped the emergency still continued, and due to misuse of that emergency, public campaigns, appeals, and international forces supports to revoke emergency, on these appeals government removed the first emergency on January 1968.
Related cases.
This is landmark case ,land mark judgement given by honourable judge of supreme court of India ,on 28th April ,1976,it is also known as most infamous judgement in the history of India as it narrowed down individuals personal liberties at greatest extent during the time of emergency ADM, Jabalpur vs Shiv Kant Shukla ,the story started when judgement delivered by Allahabad high court on 12th June 1975 by justice Jag Mon Lal Sinha in the case of state of Uttar Pradesh vs Raj Narayan ,in this case a petitioner challenged the conviction of former prime minister Mrs Indira Gandhi to the Lok Sabha on, 12th June she was convicted by justice Sinha of having indulge in wrong practices and therefore he declared her election void, (to stop her from election ) she cannot contest or participate in any election and she should not hold any office for the period of next six years ,so after this she appealed to the supreme court ,however the apex court only granted her a contingent state, also the apex court made her dis functional on the matter related to vote in Lok Sabha ,therefore to clasp on to the chair of prime minister ,she declared an emergency under article 352 of Indian constitution and hence because of this ,article 19 was automatically suspended ,on 25th June 1975 ,the emergency was declared ,on 27th June 1975 ,the president by using power by article 359 (1) declared that right conferred by article 14 ,21 and 22 of the constitution shall remain suspended ,during the period of proclamation of emergency ,after this proclamation of emergency ,the people who were considered political threat to authorities or anyone who could raise his/her political opinion freely who talks and express their opinion freely were taken into custody without any trial under prevention detention laws ,so this emergency led to arrest of many leaders from opposition such as Atal Bihari Vajpayee, Morarji Desai ,Prakash Narayan ,Lal Krishna Advani ,under MISA (maintenance of internal security act) because all these leaders were proving to be a political threat to the Indira Gandhi ,based on this event many filed petition on various high courts of country challenging the detainment of political leaders ,to free them and luckily most of the judgements was in the favour of those petitions ,one of them was Madhya Pradesh high court and the case was Jabalpur vs Shiv Kant Shukla it is also called as habeas corpus ,these case forced the Indira Gandhi government to approach the supreme court of India .and took up
Issues of law involved in this case
Whether a person can move any writ petition under article 226 before a high court to challenge the legality of an order of detention during a national emergency?
Whether the maintenance of the internal security act (MISA) is constitutionally valid?
Whether the right to move to the court for enforcement of fundamental rights conferred under part 3rd of the constitution is suspended during emergency under article 359 (1), and whether it is constitutionally valid?
Judgment and reasoning given by the court
In this judgment giving a majority of opinion with a 4:1 ratio, the supreme court held that based on the situation of the country, the emergency, and insight of the presidential order dated 27th June 1975, no person has any locus standi (the right or capacity to bring an action or to appear in court )to move any writ petition under article 226 before the high court for habeas corpus or any other writ order to challenge the legality of the order of the detention. secondly, it upheld the constitutional validity of the maintenance of internal security act(MISA) and lastly, the supreme court held that when a proclamation of emergency is in function, the president may issue the right to move to any court for the enforcement of the fundamental rights under part III may be suspended and therefore writ of habeas corpus is not at all preservable in case of the proclamation of emergency under article 359(1)
Conclusion
By reading these cases we get to know that provisions and conditions are getting better, we can say that this Suspension of fundamental rights is one of the best articles to control and stabilize the country to work in peace, our constitution is well established through these types of decisions also the point to be noted is that fundamental rights are not suspended in their entirety, but only temporarily (shorter period of time) after the situations become normal, citizens can enjoy their fundamental rights .this type of provisions is important for the preservations of citizens from any harm.
References
https://www.drishtiias.com/to-the-points/Paper2/emergency-provisions
https://lawcorner.in/when-fundamental-right-is-suspended/
https://prepp.in/news/e-492-suspension-of-fundamental-rights-during-emergency-indian-polity-notes
https://blog.ipleaders.in/state-emergencies-fundamental-rights/
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