Fundamental Rights Protected During National Emergency

During the proclamation of a National emergency in India, certain fundamental rights of citizens can be suspended. This is a significant aspect of the emergency provisions in the Indian Constitution, outlined primarily in Articles 358 and 359.

Understanding Suspension of Fundamental Rights

The Constitution provides for the suspension of fundamental rights during a National emergency. However, this power is not absolute. The suspension mechanism works differently for different rights:

• Article 358: This article deals with the suspension of rights guaranteed by Article 19. When a Proclamation of National Emergency is made based on war or external aggression, the rights guaranteed by Article 19 are automatically suspended. No separate order is required. However, if the emergency is proclaimed based on armed rebellion, Article 19 cannot be automatically suspended under Article 358.
• Article 359: This article empowers the President to suspend the right to move any court for the enforcement of such fundamental rights as are mentioned in the Presidential Order. This suspension is not automatic and requires a specific Presidential Order. The Order can extend to the entire country or a part of it, and it must be laid before each House of Parliament for approval. Importantly, the scope of Article 359 was limited by subsequent amendments.

The Exception: Articles That Cannot Be Suspended

Prior to the 44th Amendment Act of 1978, during a National emergency proclaimed under Article 352, all fundamental rights (except Articles 20 and 21 by interpretation, though not explicitly stated as immune from Presidential order under Article 359) could potentially be suspended via a Presidential Order under Article 359. The 44th Amendment Act, 1978, brought a crucial change.

The 44th Amendment Act, 1978, explicitly inserted a provision into Article 359 stating that the right to move the Court for the enforcement of rights conferred by Article 20 and Article 21 cannot be suspended by a Presidential Order during a National emergency.

• Article 20: Deals with protection in respect of conviction for offences. This includes protection against ex post facto law, double jeopardy, and self-incrimination. These fundamental protections for individuals accused of crimes remain in force even during an emergency.
• Article 21: Deals with protection of life and personal liberty. This means no person shall be deprived of his life or personal liberty except according to procedure established by law. The scope of Article 21 has been vastly expanded by the Supreme Court to include various aspects of a dignified life. These fundamental rights to life and personal liberty are considered so vital that they cannot be suspended during an emergency.

Therefore, even when a National emergency is in effect, the rights granted by Article 20 and Article 21 continue to be enforceable, and individuals can approach the courts for their protection.

Analyzing the Options

Let's look at the provided options based on this understanding:

• Option 1: Article 19 and 20. Article 19 is automatically suspended under Article 358 during an emergency based on war or external aggression. So, this option is incorrect as Article 19 can be suspended.
• Option 2: Article 20 and 21. As per the 44th Amendment Act, 1978, the enforcement of Articles 20 and 21 cannot be suspended during a National emergency. This option correctly identifies the two articles.
• Option 3: Article 14 and 15. Article 14 (Equality before law and equal protection of laws) and Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) are fundamental rights that can potentially be suspended by a Presidential Order under Article 359 during a National emergency, depending on the specifics of the Order. Therefore, this option is incorrect.
• Option 4: Article 30 and 32. Article 30 deals with the rights of minorities to establish and administer educational institutions. Article 32 is the right to constitutional remedies. The enforcement of Article 32 can be suspended by a Presidential Order under Article 359 (though the rights themselves are not suspended, only the right to move the court for their enforcement). Article 30 could potentially be included in a Presidential Order under Article 359, unlike Articles 20 and 21. Therefore, this option is incorrect.

Based on the constitutional provisions, specifically the effect of the 44th Amendment Act, 1978 on Article 359, the two articles that cannot be suspended during the proclamation of National emergency are Article 20 and Article 21.

Revision Table: National Emergency and Fundamental Rights

Additional Information on Emergency Provisions

India's Constitution provides for three types of emergencies:

• National Emergency (Article 352): Proclaimed when the security of India or a part thereof is threatened by war, external aggression, or armed rebellion.
• State Emergency (President's Rule) (Article 356): Proclaimed when the constitutional machinery in a state fails.
• Financial Emergency (Article 360): Proclaimed when the financial stability or credit of India is threatened.

The suspension of fundamental rights during an emergency primarily concerns the National Emergency (Article 352).

The 44th Amendment also changed the basis for National Emergency from 'internal disturbance' to 'armed rebellion' to prevent misuse, based on the experience of the 1975 Emergency.