Position of Fundamental Rights during Emergency
INTRODUCTION
- Emergency is an extreme situation where the government comes to that level where they fail to control the situation in the entire or any part of the nation or there is severe threat on the nation or any part of the nation.
- It is the situation where president of India feels that the situation in the nation or any part of the nation is very serious and the security of India or any part therefore threatened or is likely to be threatened. Emergency can be declared by the president only.
- To declare an emergency the president has to take written consent from his cabinet members. After the recommendation of national emergency from the cabinet members it has to be approved by both the houses of parliament by absolute majority of the total member of the house as well as 2/3 majority of members present and voting within one month, otherwise the proclamation ceases to operation.
- Emergency was a 21 month period in India from 1975 to 1977
- Prime Minister Indira Gandhi had declared it across the Nation.
- Due to the prevailing internal disturbances it was officially issued by President Fakhrudin Ali Ahmed.
- It was issued under article 352 of the Indian Constitution.
- The emergency remained in effect from 25th June 1975 to 21st March 1977.
- The Indian Constitution has given President the authority to declare three types of emergencies: Article 352- National emergency Article 356–Emergency in state(president’s rule) Article 360- Financial emergency
- Emergency provisions in India are taken from Weimar Constitution of Germany.
WHAT IS THE SITUATION OF FUNDAMENTAL RIGHTS DURING NATIONAL EMERGENCY?
- All the fundamental rights (RIGHT TO EQUALITY, RIGHT TO FREEDOM, RIGHT AGAINST EXPLOITATION, RIGHT TO FREEDOM OF RELIGION, CULTURAL AND EDUCATIONAL RIGHT, and RIGHT TO CONSTITUTIONAL REMEDY) are revoked during the time of national emergency, only the right to lively hood and right against prisoners are not suspended.
- The fundamental rights automatically get suspended and this suspension continues till the end of the emergency. But, according to the 44th amendment article 19 can be suspended only in case of emergency on the grounds of war or on external aggression. Other fundamental rights also get suspended except article 20 and 21.
- Centre can direct any state regarding the manner in which its executive power is to be exercised.
- The parliament becomes empowered to make laws on any subject mentioned on their list.
- The president is empowered to modify the provision related to distribution of revenue between the union and the states.
- During an Emergency 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.
- National emergency is caused by war, external aggression or armed rebellion in the whole of India or a part of its territory. Only the president can declare emergency on the basis of written request by the council of ministers. Such proclamation must be approved by the parliament within one month. Such an emergency can be imposed for six months. It can be extended beyond six months by repeated parliamentary approval.
HOW MANY TIMES HAS NATIONAL EMERGENCY BEEN DECLARED?
Three times national emergency has been declared:
- The first emergency was declared on 26th October 1962 after China attacked the Indian borders in north east. The national emergency lasted till 10th January 1968.
- The second national emergency was declared on December 3, 1971 in the wake of second India Pakistan war which was revoked on march 21 1977
- The third national emergency is called internal emergency and was imposed on 25th June 1975. This emergency was declared on the grounds of internal disturbance.
WHAT IS THE NEED TO SUSPEND ALL THE FUNDAMENTAL RIGHTS DURING EMERGENCY?
It is important to revoke the fundamental rights during national emergency because it is a time to control all the things in an autocratic manner. At this time the power is in the hands of president and he/she has to control the situation the way he/she likes to. At these times if fundamental rights are available to the people it will became very complicated for the president to take decisions because every time he/she thinks to take action, some or the other fundamental right will come in the way of efficient and effective decision making.
PROS AND CONS OF SUSPENDING FUNDAMENTAL RIGHTS DURING NATIONAL EMERGENCY
It will be beneficial for the president to suspend the fundamental rights during national emergency because if he/she does so he/she can easily make efficient decisions regarding whatever he/she thinks is essential to control and management of the situation. There will be less chances of delay in decision making and the required actions will be taken on time.
It can be worse for the general public if the fundamental right of ‘right against exploitation’ is suspended during the time of national emergency because if the people will not have right against exploitation a person with authority can easily exploit or misuse them, public will be helpless and do whatever the authority asks them to and would not even be able to seek help of the judiciary. The person with higher authority can misuse his authority and can exploit the general public.
Author: Khushi Maheshwari Maheshwari,
College: Fairfield Institute pf Management and Technology