Protection Of Human Rights During National Emergency

The journey of democratic transformation of European autocracies has hinged upon the successful assertion of three important components of human freedom:

Freedom of expression;

Freedom from arbitrary imprisonment;

Freedom from custodial violence.

The legitimisation of these freedoms as an inalienable civil and political right of citizens against the state constitutes a historical landmark as regards the evolution of liberal democracies. Initially in Europe, the Magna Carta (1215) followed by the Petition of Rights (1627), and the Bill of Rights (1688) in England, and the Declaration of the Rights of Man and Citizens (1791) adopted by the French National Assembly in 1789 after the French Revolution are now part of the universal human heritage of the struggle against oppression, in its various forms. [1] Other democratic projects have drawn inspiration from these tested sources of experience in humane governance. However even before that, the Philadelphia Constitutional Convention (1787) in the US adopted the first ten amendments of its own constitution as the citizens’ Bill of Rights. These civil and political rights constitute the sources of the first generation of the modem concept of human rights; human, because they are part of the universal human heritage and, also because they distinguish the essence of human existence from all other forms of life in the planet. [2] 

The most obvious discrepancy in the journey of the origin of political democracy in India, and the western industrial societies, has been in the nature of their respective concern for the rights of their citizens as individuals. This asymmetry has shaped the operational content of the citizens’ rights in India. [3] The political democracy in India implemented by its republican constitution, enshrining the fundamental rights of citizens, and universal adult franchise, took its birth from the experience of national liberation against colonial rule rather than the assertion of the rights of citizens against an entrenched indigenous ancient regime. [4] This is absolutely different to the origin of liberal democracy as experienced in the western autocracies with their central focus around individual liberty.

The concern for ‘group rights’, in western liberal democracy is of relatively recent origin, long after individual rights, as the essence of democratic governance, have been legitimised. The insufficient amount of concern for the rights of individuals has expressed itself by way of the liberation struggle. The Congress Party, however through its Karachi session in 1931, passed the first resolution whereby it demanded civil liberties and equal rights for all citizens. The State of Civil Liberties under provincial autonomy, after the elections of 1937, have been cogently described by the erstwhile secretary of Indian Civil Liberties Union as “the relative inadequacy of experience and concern, around the struggle for individual liberty against an entrenched ancient regime also manifested itself in the post-colonial constitution- making process within the constituent assembly of India, whose members were elected on the basis of property as a qualification." [5] 

Chapter1: National Emergency and its effect on the evolution of Human Rights

There are times when a nation is by virtue of certain unavoidable circumstances cascaded into a state of chaos, mostly through events and forces, which result in jeopardising the lives of citizens and the entire security of the nation. As a result however such situations require that certain individual liberties of the citizens be restrained for the period of such emergency in order to facilitate a more efficacious procedure of bringing about control within the nation. [6] Emergency situations result in placing democratic governments in a difficult situation by causing an apparent conflict between its primary purpose of protecting the Security of the State and its subsequent obligation to guarantee the human rights of its citizens. The Government is thus faced with the dilemma of either having to sacrifice of one of its obligations to the interest of the other. [7] This is the concept behind the implementation of emergency provisions, which facilitate many nation states to permit the temporary deference of certain laws in furtherance of human rights. [8] 

The Constitution of India vide Article 352 provides for a declaration of emergency and by way of Article 358 the rights which are envisaged by way of Article 19 remain deferred. It is also provided by way of Article 359 of the constitution and an order made by the president to the same effect, that when an Emergency is proclaimed, the suspension of any fundamental right cannot be appealed against in a court of law. [9] It is evident from the functioning of the Regional and International instruments of human rights that they are following the same trend. It is evident by way of the European Convention on Human Rights, which through Art 15 allows the States contracting to it to take any action irrespective of whether it is in derogation of their obligations under the Convention to safeguard its own interest. [10] 

The ICCPR of 1966 by way of Art 4 is recommendatory to the extent that it mandates that all legislations in furtherance of Human Rights passed by the Government should ideally during a period of public emergency be deferred to ensure a smooth functioning of the state provided the nature of the emergency is such as to threaten the life of the nation. There is also a similar provision contained in Article 27, of the American Convention on Human Rights, 1969 which mandates suspension of human rights guaranteed by the Convention in time of war, public danger or other emergency that threatens the independence or security of the State. [11] It must be accepted however that irrespective of the situation that may be plaguing a Nation State there still exist certain human rights, which are so basic and imperative in nature that cannot be suspended as an excuse for dealing with any trouble that a state might be inflicted by.

These basic and essential human rights are so imperative for preserving humanity that to suspend them would destroy the very essence of a Humane State and be nothing but a mockery to the notion of the rule of law. These rights in question are infact so fundamental to the functioning of the human personality that in their absence, the sustenance of human life is impossible or the capability to lead a civilised life becomes a fantasy. These rights are symbolic of essential human values and should not be done away with.

Another important point to be noted is the fact that certain rights have no plausible connection with the inception of the emergency and as a result their suspension does not further advance or benefit the purpose behind declaring an emergency and thus their suspension is unnecessary. It had not from the very inception of the Constitution of India been opined that the basic most imperative human rights should not under any circumstance be suspended. [12] In spite of such a shortsighted beginning however some individuals realized the need for safeguarding human rights and this can be studied from the debates in the Constituent Assembly with regard to the emergency provisions.

H.V. Kamath, opined that certain laws which are in furtherance off fundamental rights should not be suspended under any circumstance, not even in case of the gravest emergency. Mr.Kamath was convinced that fundamental rights which safeguard basic human rights cannot under any circumstance be suspended. Shibban Lal Saxena vigorously supported this point of view wherein he stated that there are some articles within the Constitution that have nothing to do with emergency and thus it is unnecessary and inefficient for such provisions to be suspended and he feared with the coming into operation of the article discrimination could also have been practiced resulting in activity going against the very spirit of the Fundamental Rights. [13] 

These farsighted attempts however it must be noted did not succeed as is evident from the arguments of Alladi Krishnaswami Ayyar, who supported the emergency provisions and agreed to the fact that there are rights that should not be suspended during the period of war. [14] Mr. Ayyar was of the opinion that instead of focusing on any of the particular clauses the task of safeguarding had been entrusted to the President, and he was mistaken in believing that the president would have acted in a reasonable manner as opposed to the contemptuous way he behaved against the fundamental rights guaranteed to the citizen in the Constitution. [15] Subsequent instances have however have dampened the hopes and assurances of Mr.Ayyar and other intellectuals who were in support of the emergency provisions. The repeated warnings which these individuals spoke about were painfully realized when the National Emergency of 26th June, 1975 was declared. [16] 

The Supreme Court however took its toughest stance by way of its decision in A.D.M. Jabalpur V. Shivkant Shukla [17] wherein by a majority of 4 to 1, Justice Khanna dissenting, ruled that in the instance of there being a Presidential Order under which entailed the suspension of the enforceability of fundamental rights to the life and liberty of citizens. [18] The Supreme Court by way of its stance taken in Union of India V. Bhanudas, [19] went even further and to the extent wherein they opined that any Presidential Order which suspends the enforcement of fundamental rights results in the imposition of a blanket ban on every judicial enquiry and the compulsory investigation of the validity of an order , thus cheating an individual of his personal liberty and compelling the Courts was from granting relief even in the form of giving facilities to a detainee to be transferred from his place of detention to his home or to an examination hall or for special medical treatment under a doctor of his choice or for any other facility because that would entail the enforcing of fundamental rights with the assistance of the Court. [20] 

As a result of these two short sighted judgments on the part of the Supreme Court , the writ of habeas corpus was in substance suspended and the Rule of Law was displaced. Arbitrary detentions increased as a result of these two decisions and the conditions and treatment of detainees in jails worsened and the executive in many cases became a law unto itself. [21] In the light of the bitter experience of the June 1975 emergency the Constitution (Forty Fourth Amendment) Act, 1978 was passed. Several imperative changes were made in the emergency provisions and the most significant of the changes was the amendment made to Article 359 which ensured that fundamental rights guaranteed by Articles 20 and 21 [22] of the Constitution could not be suspended during emergency by a Presidential Order under Article 359.

The State of Emergency and the Impact it has on Human Rights

India is a party to ICCPR to which it ratified in July 1979. Article 4 (2) of the covenant lists seven provisions from which no derogation is permitted [23] . These are: Article 6 which provides for the right to life, Article 7 which prohibits torture of any sort, Article 8, paragraphs 1 and 2 wherein slavery and servitude are prohibited, Article 11 which mandates the prohibition of imprisonment for non-fulfillment of contractual obligations, Article 11 which prohibits retroactive criminal laws and penalties and Article 16 which guarantees the right to be recognized as a person in front of the law Article 18 which allows for freedom of thought, conscience and religion.

Under the ICCPR it is obligatory for a State which is party to the convention to bring the law of its land within the conformity of the provisions of the Covenant. It is evident that in the matter of non-suspension of human rights during emergency, all rights which cannot be derogated from under ICCPR have not been protected from being suspended within the Constitution of India. It is also to be noted, that the then Attorney General of India, Mr.G.Ramaswami, asserted wrongly before the Human Rights Committee that the Constitution of India is in complete conformity with the norms of the ICCPR . [24] 

Presently there are eleven rights which have been decided as non-derogable, within the ambit of regional or international human rights instruments. [25] 

Right to life ICCPR: Art.6; ECHR Art.2; ACHR Art.4

Prohibition of torture ICCPR, Art.7, ECHR, Art.3; ACHR,

Prohibition of slavery or servitude; ICCPR Art.8; ECHR, Art.4, ACHR,

Prohibition of retroactive criminal laws; ICCPR, Art. 15; ECHR, Art. 7; ACHR

Right to recognition of legal personality; ICCPR, Art. 16; ACHR, Art. 3

Freedom of conscience and religion; ICCPR, Art. 18; ACHR, Art. 12

Prohibition of imprisonment for breach of contractual obligation: ICCPR,

Rights of the family: ACHR,

Rights of the child: ACHR,

Right to a nationality: ACHR, Art. 20

Right to participation in government: ACHR, Art. 23

The matter of discrimination within the instruments in question have been expressly prohibited by the exact same provisions which expressly permit the suspension of human rights, such as Article 4 (1) within the International Covenant on Civil and Political Rights and Article 27 (1) of the American Convention of Human Rights.

Rights devoid of remedies serve no purpose and it is of paramount importance that the right to judicial remedies must be guaranteed with specific importance to the writ of habeas corpus within the Constitution but should also be made immune to the problem of suspension during emergencies. The importance of the writ of habeas corpus, is imperative and its suspension cannot be contemplated at any point of time and its availability during an emergency is imperative. This is done with the objective of protecting the effective supervisory jurisdiction of a court of law to determine whether detention is legally valid. [26] It has been done also to enable the production of detainees before the court, in an effort to prevent torture and negate the derogatory and inhuman treatment including physical or psychological abuses to which detainees are usually subjected to.

The American Convention of Human Rights amongst the human rights instruments, is unique in this respect because it is the first to propose among the rights that may not be suspended as well as judicial guarantees essential for the protection of non-suspendable rights. Article 7 (1) of the ACHR guarantees to every person the right to personal liberty and security. Article 7 (6) provides that any individual who is deprived of his liberty shall be entitled to have recourse to a competent court in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. [27] Article 7 is not included in the list of non-suspendable rights mentioned in Article 27 (2) which is as follows Article 3m which promotes the right to juridical personality, Article 4 which guarantees the right to life, Article 5 which ensures the right to be treated as a human Article 6 which provides for the freedom from slavery, Article 9 which mandates freedom from ex post facto laws Article 12 which promotes the freedom of conscience and religion, Article 17 which deals with the rights of the family, Article 18 which ensures an individuals right to a name, Article 19 Speaks about the rights of the child) Article 20 which provides a right to a nationality; and Article 23 which provides the right to participate in Government, or of the judicial guarantees essential for the protection of such rights. [28] 


The evolution of the international protection of human rights has been moulded by the phenomenon of multiplication and co-existence of instruments of a distinct legal nature and effects both at the global and regional levels. Various means of protections are accompanied by their overriding identity of purpose and the broad conceptual unity of human rights. These mechanisms of human rights protection should be looked at as mutually complementing rather than competing with each other. As a result of the desire for avoiding conflict between international and national jurisdictions a number of coexisting human rights procedures have been conceived and are practiced to reinforce each other at international level. In the event of any violations of any right which take place the only place to redress the grievance is in a court of law of the State concerned. However, States differ in their levels of integrity and independence which they accord their judicial system. Whether independence of judiciary remains intact even during emergency is very controversy in many nation states and it is evident that the role of the national judiciary in protecting human rights in such situations is often marginal. [29] 

It is essential to remember that the purpose for declaring an emergency in a State is so as to facilitate the preservance of vital values of the society withing the nation state which is subjected to a temporary threat by virtue of an unexpected situation of a grave nature. An Emergency is not declared for the purpose of making a mockery of the basis of democracy since it does away with the Rule of Law it is obvious that lawlessness would prevail, especially government lawlessness, which would be brought about by the lack of a questioning authority. No matter how serious an emergency in a state is should always be remembered that the bond between legality and democratic institutions is a very firm one which when severed, will destroy all semblance of a decent and civilised life.