National Emergency was imposed in India and operation of all the Fundamental Rights was suspended by a Presidential Order. Is such order and valid ? Explain with reasons.

Facts of the Case

1. A situation arose in India where the President, on being satisfied that a grave emergency existed threatening the security of India, proclaimed a National Emergency under Article 352 of the Constitution.
2. Following the declaration, the President issued another Presidential Order under Article 359, suspending the right to move any court for the enforcement of Fundamental Rights under Part III of the Constitution.
3. The Order stated that all Fundamental Rights would remain suspended for the duration of the Emergency.
4. Some citizens who were detained without trial and whose property was confiscated challenged this Presidential Order, contending that the complete suspension of all Fundamental Rights was unconstitutional and violative of the Basic Structure of the Constitution.
5. The question before the Court is whether such a Presidential Order suspending all Fundamental Rights is valid and constitutional.

Issues in the Case

1. Whether the President has the power under the Constitution to suspend all Fundamental Rights during the proclamation of a National Emergency.
2. Whether the suspension of the right to move any court for the enforcement of Fundamental Rights under Article 359 can amount to a total suspension of the rights themselves.
3. Whether such a Presidential Order is consistent with the Basic Structure Doctrine, particularly the principles of Rule of Law and Judicial Review.
4. Whether Articles 20 and 21 (Right to Life and Personal Liberty) can be suspended during a National Emergency.

Legal Principles Covered

A. Constitutional Provisions

1. Article 352 – Proclamation of Emergency
   • The President may declare an Emergency if he is satisfied that the security of India or any part thereof is threatened by war, external aggression, or armed rebellion.
2. Article 358 – Suspension of Provisions of Article 19
   • When a Proclamation of Emergency is made on the grounds of war or external aggression, the freedoms guaranteed under Article 19 are automatically suspended.
   • However, this suspension does not extend to other Fundamental Rights.
3. Article 359 – Suspension of the Right to Move Courts for Enforcement of Fundamental Rights
   • The President may, by order, suspend the right to move any court for the enforcement of certain specified Fundamental Rights (except Articles 20 and 21 after the 44th Amendment).
   • Importantly, the rights themselves are not suspended—only the right to seek judicial remedy is suspended.
4. 44th Constitutional Amendment Act, 1978
   • This amendment made significant changes to prevent abuse of Emergency powers, as seen during the 1975–77 Emergency.
   • It provided that Articles 20 and 21 (Right to Life and Personal Liberty) cannot be suspended, even during an Emergency.
   • It also limited the President’s powers to ensure checks and balances.

B. Judicial Precedents

1. A.D.M. Jabalpur v. Shivkant Shukla (1976 AIR 1207) – Habeas Corpus Case
   • During the 1975 Emergency, the Supreme Court held (by majority) that during Emergency, no person has the right to move any court for violation of Fundamental Rights, including Article 21.
   • This decision was widely criticized for undermining Rule of Law and Human Rights.
2. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
   • The Supreme Court established the Basic Structure Doctrine, holding that the Constitution’s core features, such as Rule of Law, Judicial Review, and Fundamental Rights, cannot be abrogated even by constitutional amendments.
3. Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
   • The Court reaffirmed that limited amending power is a basic feature of the Constitution and that Fundamental Rights form an essential part of that structure.
   • It held that even during an Emergency, the balance between Fundamental Rights and Directive Principles must be maintained.
4. Maneka Gandhi v. Union of India (1978 AIR 597)
   • The Court expanded the interpretation of Article 21, holding that procedure established by law must be fair, just, and reasonable, reinforcing the non-suspendable nature of personal liberty.

C. Principles Derived

1. The President cannot suspend all Fundamental Rights under Article 359; only the right to move the courts for specific rights can be suspended.
2. Even during an Emergency, Articles 20 and 21 remain operative after the 44th Amendment Act, 1978.
3. The Basic Structure Doctrine restricts the total abrogation of Fundamental Rights, as they are essential to the Rule of Law.
4. Any order that suspends all Fundamental Rights or denies the right to life and liberty is unconstitutional and void.
5. Judicial Review under Articles 32 and 226 forms part of the Basic Structure, and its complete suspension cannot be justified.

Possible Judgement

1. The Presidential Order suspending all Fundamental Rights is invalid and unconstitutional.
2. The Constitution, after the 44th Amendment, prohibits the suspension of Articles 20 and 21, even during a National Emergency.
3. The President may only suspend the right to move the courts for certain specified Fundamental Rights, not the rights themselves.
4. Any attempt to suspend all Fundamental Rights violates the Basic Structure of the Constitution, including the Rule of Law, Judicial Review, and Fundamental Liberties.
5. The Supreme Court would likely rely on Minerva Mills and Kesavananda Bharati to strike down such a Presidential Order as unconstitutional.
6. Hence, while Emergency powers under Articles 352, 358, and 359 are extraordinary, they are subject to constitutional limitations and cannot destroy the essence of Fundamental Rights.

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