Relationship between Fundamental Rights and Emergency Provisions

By | December 2, 2019
Relationship between Fundamental Rights and Emergency Provisions

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Fundamental Rights provided in Part III is an indispensable part of the Indian Constitution. They form a limitation to the powers of the Central and the State Government to not make laws that violate the fundamental rights of the citizens of India.

This limitation has been articulated under Article 13(2) which specifically provides that any law made in contravention to the rights of the citizens under Part III of the Constitution shall be declared to be void.[1]

However, the Constitution also provides for an exception to such limitations over the powers of the Central and the State Government during times of Emergency, when the national security is at stake due to war, external aggression or internal disturbance.

Since the past 73 years of Independence, India has witnessed the declaration of National Emergency thrice on account of the security of the country being threatened.

In 1962, the first National Emergency was declared on account of the Indo-China war and fear of external aggression and in the year 1965, on account of the Indo-Pakistan war, also due to the fear of external aggression.

The most prominent and prolonged National Emergency was declared on 26th June 1975 which continued up to 21st March 1977 on account of fear of internal disturbances due to the ongoing legal conflict between the then Prime Minister, Indira Gandhi and Raj Narain.

These three instances have witnessed the stripping of the basic rights of the citizens on account of preserving national security.

Relationship before 1978:

Fundamental rights are essential since they are basic to the development of the human personality.[2] Legal remedies are offered to persons whose rights have been violated. However, these basic rights are not absolute and can be stripped during times of Emergency.

As provided under Article 358, the rights provided under Article 19 would be suspended as soon as Emergency was declared under Article 352. Actions by the Central and State Government could not be put to question before any court of law even after the emergency was over.[3]

Similarly, Article 359 suspended the enforcement of the other Fundamental Rights except for Article 19. In the light of the emergencies of 1962 and 1965, various attempts were made to challenge the constitutionality of the Presidential Order regarding the suspension of the right to move any Court during the Emergency.

In the case of Mohd. Yakub v.  State of Jammu and Kashmir,[4] the Supreme Court held that the President was granted unlimited power under Article 359 to suspend Fundamental Rights.

The Emergency of 1975:

The Emergency of 1975 played a very crucial role in understanding the relationship between Fundamental Rights and the Emergency Provisions. The Emergency was declared as a result of the case State of Uttar Pradesh v. Raj Narain,[5] where a petition was filed by Raj Narain in the Allahabad High Court alleging that the then Prime Minister, Indira Gandhi, had defeated him in the Lok Sabha elections from the Rai Bareily constituency by using fraudulent methods.

The High Court declared Indira Gandhi to be guilty and thereafter, made her appointment void. The Supreme Court also upheld the judgement of the High Court on 24th June 1975. However, on 26th June 1975, the President declared an emergency under Article 352(1), suspending the enforcement of Article 14, 21 and 22 on the advice of the Prime Minister herself.

The question of whether Article 16 was also suspended along with Article 14 even if the Presidential Order mentioned only Article 14 was resolved by the Court in the case of Arjun Singh v. the State of Rajasthan.[6] The Court enumerated that only those rights which were specifically mentioned in the Order were suspended.

Relationship after 1978:

In the course of the emergency, many cases of preventive detention came into the picture in lieu of the Maintenance and Internal Security Act. However, in the case of ADM Jabalpur v. Shiv Kant Shukla,[7] the Supreme Court by a majority of 4:1 with only J., Khanna dissenting, held that no person had any locus standi to move the Court in order to question the legality of the preventive detentions made during the Emergency.

This meant that the detainee had no scope of legal remedy even if the detention was made illegally, without any reason or with mala fide intention. The judgement shook the basis of the Constitution itself which was predominantly based on Rule of Law.

All these incidences brought about the 44th Amendment which severely restricted the scope of Article 358 and 359. Also, the words “internal disturbance” was replaced with the words “armed rebellion” under Article 352.

Article 19 which was suspended under Article 358 during times of Emergency will not get suspended if the grounds for an emergency are merely armed rebellion and not war or external aggression. Under Article 358(2), it has been provided that any “action under a law” which will be ultra vires the Constitution shall be declared void.

The effect of Article 358 has been explained elaborately in the case of Attorney General of India v. Amratlal Prajivandas.[8] Article 359 provides that other Fundamental Rights can be suspended during an Emergency, except for Article 20 and 21.

Under Article 359, it has been enumerated that any other law passed for purposes other than the Emergency will also be declared void. Therefore, the rights under Article 20 and 21 can be enforced by a person even during times of Emergency by approaching the Court under Article 32 of the Constitution.


[1] Deep Chand v. State of U.P. AIR 1959 SC 648.

[2] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. (2017) 10 SCC 1.

[3] Makhan Singh v. State of Punjab AIR 1964 SC 381.

[4] AIR 1968 SC 765.

[5] AIR 1975 SC 865.

[6] AIR 1975 Raj 217.

[7] AIR 1976 SC 1207.

[8] AIR 1994 SC 2195.


  1. Meaning Of Law Under Article 13(Opens in a new browser tab)