WHEN FUNDAMENTAL RIGHT IS SUSPENDED

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An Article by Miss. Anita Verma, Advocate, BA, LLM

High Court of Himachal Pradesh at Shimla

Email: anitallb91@gmail.com

Mob: 8894932747

       

The Constitution of India guarantees fundamental rights to the citizen of India. Some of these can be claimed only by a citizen of India while others can be claimed by non citizen and groups also. The rights enshrined in part III of the Indian constitution. Fundamental rights    secure to the people of India, certain basic, natural and absolute rights. These rights have been declared essential rights in order that “human liberty may be preserved human personality developed and an effective social and democratic life promoted”. A law which violates any of the fundamental rights is void. The fundamental rights are binding on the legislature as well as the executive. A fundamental right cannot be taken away even by a constitutional amendment if it forms the basic structure of the constitution. The declaration of fundamental rights in the constitutional documents is necessary for the welfare of the people.

Justice Bhagwati defined the importance of the fundamental rights in the case of Maneka Gandhi V. Union of India observed:-

These fundamental rights represents the basic value cherished by the people of this country (India) 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. 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.” 

The fundamental of the Indian Constitution are contained in its preamble which secures to its citizens, Justice, Social, economic and political; liberty of the thought, expression, belief, faith and worship; Equality and status and opportunity; and to promote among them all fraternity assuring the dignity of the individuals and the unity of the nation.

Fundamental rights are very important to every individual for their human existence, however, these rights are not absolute right, and there are certain restrictions for the practice    as of these rights. Constitution of India, therefore, has provide curtailment or suspension of these right s in certain circumstances. In the constitution Article 352 to 358 defined the emergency. There are three type of emergency National emergency who arises from a threat to the security of India. State emergency where constitutional machinery failed in a state and financial emergency defined that if a President is satisfied that a situation has arisen whereby the financial stability or credit of India or any part of its territory is threatened, he may by a proclamation make a declaration to that effect. Article 358 provides that when proclamation of emergency was under Article 358 the operation of Article 19 got suspended.

During the emergency state is empowered to suspend the fundamental rights guaranteed under Article 19 of the Constitution. The power to suspend the operation of theses fundamental rights is vested not only on parliament but also in the Union Executive and even in subordinate authority.  Under section 358 defined that Article 19 will be suspended only in case a proclamation of emergency is made on ground of “War” or “external aggression”. During the operation of a proclamation of emergency, the fundamental right guaranteed by Article 14 and 19 were not suspended, but their operation was only suspended. It means that only the validity of an attack based on Article 14 and 19 was suspended during the Emergency. But once this restriction was lifted, Article 14 and 19, whose use was suspended, would strike down any legislation which would have been bad. Further the Constitution empowers the President to suspend the right to move any court of law for the enforcement of any of the Fundamental Rights. But Art. 20 and 21 cannot be suspended in any case. The suspension of the right to move to any court for the enforcement of fundamental right can only be done by the order of the President of India. The order of the President of India may extent to the whole or any part of the territory of India. Article 359 will not protect any law, violative of any fundamental right, the operation of which is suspended under the Presidential Order which does not contain a performance to the effect that such law is in relation to the proclamation of emergency in operation when it is made. There is a difference between both the articles Article 357 and 359 of the Constitution of India. Article 19 gets suspended automatically as soon as the proclamation of emergency is issued. Under Article 359 does not profess expressly to suspend 

Lastly it should be noted that the fundamental rights under Article 19 are automatically suspended and this suspension continues till the end of the emergency. But according to the 44th Amendment, Freedom listed in Article 19 can be suspended only in case of proclamation on the ground of war or external aggression. The fundamental rights provided in Article 20 and 21 shall not be suspended.

The author of this article Miss. Anita Verma is a practicing advocate at HP High Court at Shimla.  Besides doing practice, she is very keen in teaching and writing legal articles.

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