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HUMAN RIGHTS IN TIMES OF EMERGENCY – AN OVERVIEW FOR INDIAN SCENARIO

Author: Jeeva Thomas Mannanal, IV year of B.B.A.,LL.B from Christ University.


INTRODUCTION

Fundamental Rights, as the name suggests are foundational and rudimentary rights that the Constitution of India provides to its citizens. Ironically, ‘Emergency’ is a situation when people are deprived of these so- called constitutionally guaranteed basic rights. Article 352 of the Constitution defines emergency. Three types of emergencies exist in our country: National, State and Financial, under Articles 352, 356 & 360. From the enactment of the National Emergencies Act in 1976 until January 20, 2021, 70 emergencies have been declared; 36 have lapsed and another 34 are at present basically, each having been restored yearly by the president. War, external aggression, armed rebellion are situations that pressurize the President to declare a National Emergency. State Emergency is declared when the Governor is dissatisfied with the functioning of the State and the President becomes the executive head of the state. When the country faces a financial crisis, the President of the country can adopt the method of emergency to deal with the situation. The paper discusses the effects of emergency declaration upon the lives of common man. Emergency was declared on 26th October 1962 for the very first time in our nation when China assaulted our lines which kept going till 10th January 1968.The fundamental requirement for an emergency happens at whatever point there is irregularity inside the country, regardless of whether completely or part of the way. State Emergency was declared in Punjab for the first time in 1951. India has never witnessed a Financial Emergency. In any case, Article 20 and Article 21 cannot be suspended. None of us are aware about emergencies being declared in various parts or pockets of the country and how it is linked with our fundamental rights. This research paper throws light on the suspension of fundamental rights and various instances when the nation went through the suspension of fundamental rights.


The President of India has the power to announce three forms of emergencies under the Indian Constitution which is national, state, and financial emergencies. Under Article 352, if the president determines that a grave situation exists, in which the country's security is compromised due to wars, foreign aggression, or armed insurrection, he will declare a national emergency. State governments are not dismantled; they continue to function, but they are placed under the effective supervision of the central government, which assumes the authority to issue orders to state governments. According to Article 355, it is the Union's responsibility to defend each state from foreign invasion and internal strife, as well as to ensure that each state's government operates in compliance with the provisions of this Constitution. If the president is convinced, based on the governor's report or otherwise, that there is a great emergency under which the state's administration cannot be maintained in compliance with the constitution's provisions, he may declare State Emergency (President's Rule) by invoking Article 355.


If the President believes that a condition has arisen that hinders India's financial stability or credit, he may issue a proclamation to that effect under Article 360. In India, this kind of emergency has never been declared.


EMERGENCY- INDIAN SCENARIO

Just three National Emergencies have been proclaimed under Article 352 so far: in 1962, 1971, and 1975. The three emergencies for which a decree was made are as follows: National Emergency was declared for the first time in 1962 in response to Chinese violence in NEFA (which is now Arunachal Pradesh), and it lasted until 1968. As a result, when the country went to war with Pakistan in 1965 and so no new declaration was needed. In 1971, in reaction to a Pakistani attack, the second declaration of National Emergency was issued. Also, as this emergency was in effect, in June 1975, a third declaration of national emergency was issued. In March 1977, both the second and third proclamations were withdrawn. On the basis of internal disturbance, the third emergency was declared in 1975. The Janata Party won the Lok Sabha elections after the emergency was lifted in 1977. The Shah Commission was established by this government to look into the circumstances that led to the declaration of an emergency in 1975. The state of emergency was not justified by the Commission. As a result, in 1978, the 44th Constitutional Amendment Act was passed to add a series of protections against the abuse of emergency powers. State Emergency was declared in Punjab for the first time in 1951. No Financial Emergency has been declared in the country till date.


Fundamental Rights serves as a backbone of human dignity. Fundamental rights are those that the Indian constitution grants to its citizens because they are the foundation for the growth of human character. The Constitution guarantees these rights to Indian citizens, and no one can intrude on them or violate on a constitutional right.


The President's Rule has been imposed on our country several times since 1950. The Governor has no authority to advise the Cabinet of Ministers when preparing and submitting the report to the president, which is one of the significant reasons for the misuse of President's Rule in India. During Morarji Desai's two-year tenure from 1977 to 1979, the clause was enforced sixteen times. When Congress took over in 1980, it did the same thing. As a result, Article 356 has been violated several times. Former Prime Minister Indira Gandhi used Article 356, for a number of 27 times to depose majority governments based on political stability, lack of a strong mandate, or loss of funding.  The Supreme Court issued guidance in S.R. Bommai v Union of India to prohibit the abuse of Article 356 of the Constitution. The Centre should issue a notice to the state and give it a week to respond, according to the study. Only where there is a collapse in constitutional machinery, not governmental machinery, is Article 356 justified.


HUMAN RIGHTS V. ARTICLE 352

Individuals have the freedom to a collection of basic human liberties known as human rights. No restrictions apply to these protections. The state of emergency is allowed under Article 352 of our constitution. The constitutional rights secured by Article 19 are revoked by Article 358 in the event of a state of emergency. Furthermore, when a Proclamation of Emergency was in effect, Article 359 of the Constitution established that the enforcement of any constitutional right could be halted by issuing a Presidential Order. In times of emergency that affects the nation's life, Article 4 of the 1966 International Covenant on Civil and Political Rights (ICCPR) allows for the revocation of human rights protected by the government. In the American Convention on Human Rights, 1969 (ACHR), there is a similar clause, Article 27, that allows for the suspension of human rights provided by the Convention in times of conflict, public risk, or other emergency that compromises with the State Party's freedom or safety. Many Indian citizens' Fundamental Rights may be revoked during a national emergency. The right to freedom's six protections becomes permanently revoked. The right to life and personal liberty, on the other hand, cannot be revoked under the original Constitution.


In ADM Jabalpur case, Justice H R Khanna came with a dissenting judgement quoting that “even if a person’s fundamental rights are taken away, he/she could move to the court as they have the right to know why they are being detained. This was because Article 21 was not the only place for life and liberty, and even if suspended, they were the basic hallmarks of a society”.


CONCLUSION

During the time of emergency, the State has the right to suspend the Fundamental Rights ensured under Article 19 of the Constitution. Further, the Constitution enables the President to suspend the option to move any official courtroom for the authorization of any of the Fundamental Rights. It implies that practically the entire Chapter on Fundamental Rights can be suspended during the activity of the emergency. Nonetheless, such requests are to be put before Parliament as quickly as time permits for its endorsement. When the nation or state faces any threat or risk, emergencies can be declared accordingly. But the aftermath of the same is a big question. Declaration of emergencies has a lot to do with the lives of citizens. Federal govt. changes into unitary form, once the emergency is declared. The President has the right to decide the way in which the revenues are being distributed between Union and States. Fundamental rights under Article 19 are suspended for the whole period of emergency. The Union can also decide to suspend some fundamental rights like the right to assemble peacefully, right of speech and expression, freedom of equality before law etc. All of this are being done as a result of the uncertainty and the risk factor involved behind the conflict or aggression. But the question as to whether the emergencies are being misused for Governmental purpose is still pending.


END NOTES

GENERAL KNOWLEDGE CHRONICLE, https://gkchronicle.com/polity/Emergency-provisions-in-Indian-constitution.php (last visited Apr. 12. 2021)

2 S.R. Bommai v. Union of India AIR 1994 SC 1918

3 JAGRANJOSH, https://www.jagranjosh.com/general-knowledge/article-356-of-the-indian-constitution-1609148321-1 (last visited Apr. 10, 2021)

4 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171 https://www.refworld.org/docid/3ae6b3aa0.html [accessed 14 April 2021]

5 Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969, https://www.refworld.org/docid/3ae6b36510.html [accessed 14 April 2021]

6 Soli J Sorabjee, Human Rights during Emergency, HIGH COURT OF JUDICATURE AT ALLAHABAD (Apr. 13, 2021, 10:30 PM), http://www.allahabadhighcourt.in/event/humanrightsduringemergency.html