This description is quite justified as in the absence of this right all other rights are of no consequence since they could not be enforced. But once this embargo lifted article 14 and 19 of the constitution, whose use was suspended, would strike down any legislation which would have been invalid. The Right to Equality means the following things: a Article 14 guarantees to all persons equality before the law and equal protection of laws within the territory of India. Not even during emergency, 44th Constitutional Amendment Act, passed unanimously, ensured it. Rule of Law, Therefore, has a built-in safeguard against arbitrary action. There is no direct provision for curtailment of these rights in view of emergency or state security.
The views expressed by the bench in the case are similar to the concern showed by the Sarkaria Commission. The apprehension that the president may act emergency provisions have been on the whole justified when viewed from the experience of the past. In the above Articles not only the rights have been defined elaborately but limitations have also been laid down. According to Article 356, clause 3 in case both Houses of Parliament disapprove or do not approve the Proclamation, the Proclamation lapses at the end of the two-month period, and in such a situation the gvernment which was dismissed revives. In addition, as a Proclamation of Emergency virtually has the effect of amending the Constitution, it is being provided that the Proclamation would have to be approved by the two Houses of Parliament by the same majority which is necessary to amend the Constitution and such approval would have to be given within a period of one month. It should also enable the production of detainees before the court, which will go a long away to prevent torture, degrading and inhuman treatment and other physical or psychological abuses to which detenus are usually subjected. These articles ensure, to every section of the citizens, the protection of their language, script or culture.
The Articles relating to the freedom of religion have helped to establish a Secular State in India with the State adopting an attitude of strict impartiality in matters of religion. Therefore, some emergency provisions were made in Constitution to safeguard and protect the security, integrity and stability of the country and effective functioning of State Governments. It says that while the proclamation pf emergency is in operation, the president may by order declare that the right to move to any court for the enforcement of such of the fundamental rights as may be mentioned in the order except article 20 and 21 44th amendment, and all proceeding pending in any court for the enforcement of such rights shall remain suspended for the period during the proclamation in force or such shorter period as may be specified in the order. They admit of a certain degree of fluidity. This includes making the information withheld by the government under art. Under our Constitution, the power is really that of the Union Council of Ministers with the Prime Minister at its head.
In case the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in session, it has to be approved by the Rajya Sabha within one month and later on by the Lok Sabha also within one month of the start of its next session. The 44th amendment made two significant changes in art. The Supreme Court has admitted that it had violated the fundamental rights of citizens during the , and in an unprecedented move commuted to life imprisonment the death sentence, earlier upheld by it, of a man who murdered four members of a family. For, where the executive is at liberty to act with impunity, abuse of power becomes to suffer, for, where the executive is at liberty to act with impunity, abuse of power becomes its natural concomitant. The right to liberty is further strengthened by the provision that a law for preventive detention cannot authorise, in any case. Draft Article 280 — corresponding to present Article 359 of the Indian Constitution — which empowers the President to issue an order suspending the enforcement of all or any of the fundamental rights, came in for severe criticism.
The courts rejected the plea after extensively examining the medical evidence which indicated that Chauhan was over 20 years of age and hence not entitled to immunity from death penalty available to a juvenile under the Juvenile Justice Act of 2000. The Proclamation would also cease to be in operation if a resolution disapproving the continuance of the Proclamation is passed by Lok Sabha. It is to be noted that unlike art. Emergency though suspend the fundamental rights excluding those conferred in art. Earlier, with 38th Amendment Act by the 44th Amendment Act, government had taken out the power of reviewability of the action of imposition of emergency under Article 356 1. Invasion of these rights is a very serious matter and it means treating a man as less than a man.
In the case of Minerva Mills ltd. Suspending or dissolving assemblies and not giving a chance to the other political parties to form governments in states has been due to partisan consideration of the Union Government, for which Article 356 has been clearly misused. Financial emergency Article 360 of the constitution of india Before moving to other points first we shall look into emergency provision and elaborate them. At times the situation really demanded it. But 44th amendment act restricted it to only war and external aggression. The dangers visualized of press freedom during emergency can be taken care of by imposition of restrictions, which during emergency may constitutionally be more stringent than in normal times. The satisfaction contemplated by the article is subjective in nature.
A Parliamentary resolution extends the state of emergency for up to six months, and it can be extended indefinitely by further resolutions in six-monthly increments. The authority of the Centre increases and the Parliament assumes the power to make laws for the entire country or any part thereof, even in respect of subjects mentioned in the State List. These rights help the individual to lead a life of welfare and dignity. The experience of this state of emergency exposed the weaknesses and inadequacies of safeguards on use of crisis power by the government. One of the suggestions representing the consensus of a group of Latin American constitutional scholars convened in San Jose, Costa Rica 22 to 27 August 1982, by the Inter American Institution of Human Rights was that, whatever other restrictions might be imposed on freedom of expression, it was essential to preserve the freedom to denounce human rights violations. By contrast, the Right to Life and Personal Liberty cannot be suspended according to the original Constitution.
Despite every high court ruling in favor of the detenus36. Indeed, they are so fundamental to the human personality that without them human life is either not possible e. Hence the government may limit rights if it believes that a competing right is more important. The Habeas Corpus Case The most controversial use of emergency power in the history of India has been between 1975 and 1977. Judicial review of imposition of Article 356 The remark of the Supreme Court that proclamation of emergency is not beyond judicial review is welcome step.
In 1986, emergency was imposed in Jammu and Kashmir due to terrorism and insurgency. During a national emergency, many can be suspended. The majority opinion was that in view of the Presidential order dated 27. The President can declare such an emergency only on the basis of a written request by the Cabinet headed by the. Such a proclamation must be approved by the Parliament within one month. Necessary amendments for this purpose are being made to article 19 and article 31 is being deleted.
The very essence of these rights is that they are guaranteed even if the majority would be worse off in doing so,that fundamental rights are necessary to protect the dignity of an individual. It also recognises and, Therefore, authorises, within circumscribed limits, the suspension of all or any of the fundamental rights. The relevance of judicial revew in matters invol ving Article 356 is also em phasized in the Supreme Court judgment in r e State of Madhya Pradesh v. This clause make it clear that art. It provides that while the right to move any court for the enforcement of such of the fundamental rights as may be mentioned in the order except Articles 20 and 21 and all proceedings pending in any court for the enforcement of such rights, shall remain suspended during the period of proclamation is in force or for such shorter period as may be specified in the order.