Fundamental rights in India are enshrined in Part III of the Constitution, providing citizens with a set of basic liberties and protections. However, during times of national emergency, the Constitution allows for the suspension or restriction of certain fundamental rights to address the threat to the security of the nation. The relevant provisions pertaining to fundamental rights during a national emergency are outlined in Articles 352, 358, and 359 of the Indian Constitution:
- Article 352 – Proclamation of Emergency:
- Article 352 empowers the President to proclaim a state of emergency if he/she is satisfied that a grave emergency exists, threatening the security of India by war, external aggression, or armed rebellion. This proclamation must be laid before each House of Parliament and is subject to approval within one month. The declaration of emergency under Article 352 can lead to the suspension or restriction of fundamental rights.
- Article 358 – Suspension of provisions of Article 19 during emergencies:
- Article 358 comes into play when a proclamation of emergency is made under Article 352. It stipulates that while the proclamation is in operation, the State has the power to suspend the operation of the fundamental rights guaranteed by Article 19. Article 19 includes rights such as freedom of speech and expression, the right to assemble peacefully, the right to form associations or unions, and the right to move freely throughout the territory of India.
- Article 359 – Suspension of the enforcement of the rights conferred by Part III during emergencies:
- Article 359 allows the President, by order, to suspend the enforcement of certain fundamental rights during an emergency. This provision is more expansive than Article 358 and allows for the suspension of any or all of the fundamental rights guaranteed by Part III of the Constitution. However, Article 359 has certain limitations, and certain rights, such as those related to life and personal liberty (Article 21) and the right to constitutional remedies (Article 32), cannot be suspended even during an emergency.
- Judicial Review:
- The Constitution recognizes the importance of judicial review even during a national emergency. While the President has the power to proclaim an emergency and suspend certain rights, the courts have the authority to examine the validity of such proclamations. The Supreme Court, in particular, plays a crucial role in ensuring that the provisions of the Constitution are not unduly subverted and that any suspension or restriction of fundamental rights is within the constitutional framework.
- Duration and Revocation:
- The Constitution places restrictions on the duration of a proclamation of emergency. It must be approved by Parliament within one month, and it can only be in operation for six months unless extended with periodic parliamentary approval. Once the emergency is revoked, normalcy is expected to be restored, and the suspended or restricted fundamental rights should be reinstated.
The temporary suspension or restriction of fundamental rights during a national emergency is seen as an exceptional measure to address a severe crisis threatening the security of the nation. The framers of the Constitution, while allowing for these provisions, emphasized that such actions should be subject to careful scrutiny, ensuring that they are reasonable, proportionate, and in line with the principles of constitutionalism and the rule of law.
