Impact of Fundamental Rights on Proclamation of Emergency



Fundamental Rights have been the most important rights given to all the citizens of India and the Constitution of India guarantees these rights. Part III of the Constitution of India deals with the same and there are various kinds of the FR’s like the Right to Freedom, Right against exploitation and more. 

The beauty of the constitution lies in the fact that it does not only grant these rights to the citizens but also places reasonable restrictions on them to make sure one’s rights don’t take away others rights. It also makes sure that there are solutions available to people who were denied their Fundamental Rights by the way of Writs. 

Dr B R Ambedkar stated that the FR’s are the most essential Article of the Indian Constitution. These rights are included in the constitution because they are the basic rights of a person that we’ve been following since the Vedic period and their presence in indian constitution will protect an individual’s dignity and act as a basic structure of Human Rights. It makes sure that the State does not encroach on people’s rights and treat them properly. These rights have been borrowed from the US Constitution. The rights given to them are for a person’s growth in all the aspects and these rights are not absolute. 

But these rights can be suspended in a situation of EMERGENCY, and the Central Government has the power to do so. Part XVIII of the Indian Constitution deals with the matter of Emergency and there are three kinds of Emergency mentioned in the Constitution namely, National Emergency, State Emergency and Financial Emergency which have been dealt with in various Articles of the Constitution. 

The President of India has the rights given to him to declare Emergency in certain circumstances like war, external aggression or armed rebellion, failure of constitutional machinery in a state or financial emergency. 


Ajit Prasad Jain was one of those people who was active during the discussion regarding various Fundamental Rights. When the debate was going on about the Proclamation of Emergency and it was proposed in the assembly that the President be given the rights to declare Emergency, he was strictly against it. 

He stated that the assembly cannot go forward with this idea because they cannot grant the Executive with a power that has the rights to curb the most important and essential rights of a person i.e the Fundamental Rights. He said the Fundamental Rights are the basic rights and they cannot be given to the Executive rather could be given to the Legislature. He was also against the Fundamental Rights being curbed by the Central Government during the Emergency. But somehow it was not accepted by everyone in the Assembly. 


The topic of National Emergency is dealt with in Article 352,  If the President is satisfied that a grave emergency exists whereby the security of India or of any Article of the territory thereof is threatened, whether by war or external aggression or armed rebellion, he may, by Proclamation, made a declaration to that effect in respect of the whole of India or of such Article of the territory thereof as may be specified in the Proclamation.

The emergency is declared by the President when he gets a letter of approval from the Council of Ministers headed by the Prime Minister of India and also the Proclamation of Emergency is solely not in the hands of the President, it needs the approval of both the houses i.e Lok Sabha and the Rajya Sabha with two-thirds of majority within one month and the emergency period can last for six months. The emergency can even be extended after six months by getting constant approval from the two houses. 

In the history of Independent India the National Emergency was declared thrice, once during the period when China attacked India in 1962 and the Emergency was declared under Article 353, then during the Pakistani aggression periods in 1965 and 1971 and the fourth one during an internal tension in the country where the security of the nation was under a threat.

One of those notable features in the Indian Constitution is that during the time of Emergency declared in the country the Centre is given an overriding power since it was felt by the framers of the Constitution that a power like this to the Centre is needed during an emergency so that they can take administrative and legislative decisions in all aspects in the country.

Article 352 (1) means the proclamation needs not to be extended to the whole of India. It may be restricted to an Article of the Indian Territory. A proclamation of emergency under Article 352 (1) may be made before the actual occurrence of war, external aggression, or armed rebellion. Before 1978, an emergency could be declared because of war, external aggression, or ‘internal disturbance’. The expression ‘internal disturbance’ was too vague and broad. The 44th Constitutional Amendment substituted the words ‘armed rebellion’ for ‘internal disturbance’ with a view to exclude the possibility of an emergency being proclaimed on the ground of ‘internal disturbance’ only not involving armed rebellion, as happened in 1975. This change has somewhat restricted the scope of what may be called as internal emergency


Article 356 gives the rights to the President to declare Emergency in the State/ State Emergency when the President feels that the Governor of the State is not in a condition or unable to act according to the Constitution then, the President can assume any or all the powers of the State. 

The President can assume all the powers except for the Legislature, it is the power given to the Parliament.

Even in this case just like the case of National Emergency, Article 356 can be implemented only after the approval of both the houses within two months. If the Rajya Sabha agrees to the emergency declaration in the state but the Lok Sabha is not in session or dissolved, then the approval of the Lok Sabha can be taken within 30 days of the next session being held. 

According to the Constitution the Emergency can be declared in a state for a period of six months, but can be extended again for a period of six months but not one year. The maximum period when an emergency can be declared in a state is three years. After this period is lapsed then they should try to find a solution and ensure constitutional stability in the State. 

Though the emergency can be only extended by six months, there is an exception to it. There are two cases where the emergency can be extended by one year. The first being a situation of National Emergency and the second being a situation when the Election Commission states that an election cannot be held. 


Under Article 360, if the President is satisfied with the fact that the country’s financial situation is threatened then he/she can declare a Financial Emergency in the country. This decision can be made only by the approval of both the houses within two months. The time when the emergency is declared then the legislative and executive powers of the state are automatically taken by the Centre. During the period of Financial Emergency the President can give a lesser amount of salaries to all the government employees, including the judges of the Supreme court and High court. The fundamental rights of a citizen cannot be taken away when a Financial Emergency is declared.

India has never declared a financial emergency till date. There was a situation which would have led to India declaring Financial Emergency but that situation was smAritclely tackled by putting the gold assets of the country as collateral for acquiring foreign credits. 


Fundamental Rights are revered in Article III from Article 12 to 35 of the Indian Constitution. When the constitution was being set up by the constituent assembly, to save the interest of the resident to live with nobility and freely have embedded these rights and named it fundamental right .They are fundamental since they are vital for the prosperity and assurance of individuals of India. 

These rights are viewed as fundamental since they are generally fundamental for the accomplishment by the individual or his full intelligent, good and profound status. Yet, despite the fact that, these fundamental rights are not supreme rights and have certain limitations. The fundamental rights can be suspended during the decree of the emergency. 

As Article 358 gives that when the announcement of emergency is made by the President under Article 352 the opportunities ensured by Article 19 are consequently suspended and would keep on being so for the time of the emergency. The suspension of rights ensured by Article 19 subsequently eliminates limitations on the Legislative and Executive forces of the State forced by the Constitution. Any law, leader request made by the State during this period can’t be tested on the ground that they are conflicting with the rights ensured by Article 19. Such laws will, as it may, stop to have impact when announcement stops and afterward Article.19 is naturally restored and Articles to work. Workmanship. 358, nonetheless, clarifies that things done or overlooked to be finished during the emergency can’t be tested even after the emergency is finished. 

Article 359 further engages the President to suspend the option to move any court for the requirement of the fundamental rights should be possible by a request for the President. He may specify in his request the correct whose implementation is to be suspended. The request for the President may reach out to the entire or any piece of the domain of India. It is to be noticed that while under Article 358 of the privileges presented by Article 19 are consequently suspended; the suspension under Article 359 can simply be a request for the President.

Article 358 only gives that inasmuch as the decree of the emergency remains alive, law should be authorized and leader move might be made in compatibility of legal power, which, if the arrangement of the Article 19 were usable, would have been invalid. A declaration of emergency would not approve the making of an impending chief move during that period, influencing Article 19 with no administrative position, or in indicated exercise of force presented by any pre-emergency law which was invalid when instituted.

The 44th Amendment has rolled out two huge improvements in Article 359: initially, it gives that under Article 359 the President doesn’t have the ability to suspend the implementation of Fundamental Rights ensured in Articles 20 and 21 of the Constitution. Besides it gives that suspension of any Fundamental Right under Article 359 won’t make a difference according to any such law which doesn’t contain an announcement that such a law is corresponding to the Proclamation of Emergency in activity when it is made or to any leader activity taken outside than under a law containing such a presentation.

In the case Ghulam Sarwar v. Union of India it was held that the President’s order which has been issued under Art. 359 (1) of the Constitution of India cannot be challenged as being discriminatory.

In the case Ram Manohor Lohia v. State of Bihar the Supreme Court said that the right of a person to move a court is not suspended when he has been detained in violation of the mandatory provision of the Defence of India act. The order of the president did not form a bar to all applications for the release for the detention under the action.

The Supreme Court held that the rights guaranteed to the citizens under Art 14 to 19 of the Constitution of India are not suspended during emergency but their operation is suspended. As soon as the emergency is over, the rights can be enforced. (M M Pathak vs Union of India). The laws not related to the emergency can be challenged in a court of law even during the emergency. This amendment was a sequel to the decision of the Supreme Court in the Habeas Corpus case (Makhan Singh v. State of Punjab).


The fundamental rights which have prime importance in an individual’s life which were guaranteed with a view that the State cannot infringe these rights and have even guaranteed remedy for the same. But there are definitely few limitations where these rights can be curbed in a situation when an emergency is declared. 

While these rights can be curbed, there are two rights that cannot be taken away from an individual, Article 20 and 21. In any situation, even during the emergency, if it is felt by the citizen that these two rights have been taken away from that person they can go to the court and get a remedy by way of a writ petition. And the rights should be curbed to an extent required for the situation of emergency and as given in the President’s order. 

Author: Charisma Guggilam,
Damodaram Sanjivayya National Law University, First Year

Leave a Comment