Topic - “Effect of proclamation of emergency on Fundamental Rights”

Synopsis –

Introduction

Fundamental rights are enshrined in the part III of the Indian constitution. They are part of
those rights which are necessary for the survival of a human being with dignity. Fundamental
rights have been incorporated in the ‘fundamental law of the land’, i.e. the constitution of
India and one can approach courts in case of violation of these rights. These rights reflect a
desire of the founding fathers of Indian constitution to build a new social order. For example,
there are rights declaring practice of untouchability an offence or conferring certain culture
and educational rights on the minorities, both linguistic as well as religious. Moreover, the
given rights are not absolute but subject to certain reasonable restrictions. For example, the
right to freedom of speech and expression can be restricted on grounds of public order,
morality or decency and national security.1 The fundamental rights can be suspended during
national emergency (article 352), only exception being right to life Part XVIII of the
constitution permits the state to suspend various civil liberties and the application of certain
federal principles during presidential proclaimed states of emergency. The constitution
provides for three categories of emergencies: a threat by "war or external aggression" or by
"internal disturbances"; a "failure of constitutional machinery" in the country or in a state;
and a threat to the financial security or credit of the nation or a part of it. Under the first two
categories, the Fundamental Rights, with the exception of protection of life and personal
liberty, may be suspended, and federal principles may be rendered inoperative.

RESEARCH QUESTIONS

Q1. What are the various reasons for declaring emergency in India behind declaration of
emergency?

Q2. What is the impact of proclamation of emergency on Fundamental Rights?

1
Adam M. Smith, ‘Making itself at home –understanding foreign law in Domestic Jurisprudence
Q3. How is Article 32 relevant and useful in times of emergency?

Q4. What similarities can be found when comparing India and USA?

SCOPE AND OBJECTIVES

SCOPE:

The scope of this project is limited to the effect of proclamation of emergency on

Fundamental Rights of the people in India.

OBJECTIVES:

The objectives of this project are as follow:

 To study the various reasons for declaring emergency in India

 To analyze the effect of proclamation of emergency on Fundamental Rights

 To study about the relevance of Article 32 in times of emergency

 To make a comparison between India and USA

RESEARCH METHODOLOGY

In this project, researcher has adopted Doctrinal method of research. Doctrinal research is
essentially a library-based study, which means that the materials needed by a researcher
may be available in libraries, archives and other data-bases. Various books & websites
were used to get the adequate data relevant for this project.
 Index
Introduction....................................................................................................................
History of emergency provisions...................................................................................
Emergency provision under the Indian Constitution.....................................................

National emergency.......................................................................................................

The 44th Amendment Act-1978.....................................................................................

State emergency (article 356) ........................................................................................

Judicial review..............................................................................................................

Financial emergency under article 360.........................................................................

Suspension of right of enforcement of fundamental right............................................

Effect of emergency proclamation on Fundamental rights...........................................

Article 32 and the Remedy of Compensation in Case Of Emergencies.......................

Effect of Emergency on the Fundamental Rights in U.S..............................................

Comparison between India and U.S..............................................................................

Conclusion.....................................................................................................................

Review of Literature -

1. Constitution law of India- J N Pandey

It is a wonderfully written book, in a lucid and clear language to help understand the
Constitutional law. Basics of constitutional law given on the topic of emergency were
utilized by the researcher.

2. The Constitution of India- P M Bakshi

The Constitution of India outlines the form of government that is followed in the
nation, along with an expansive list of doctrines. It consists of 22 parts that provide
the structure which describes elemental political principles, protocols followed by
 government bodies and establishes the basic rights and duties of the citizens of the
nation. Each article has notes for the reader’s reference for the purpose of clarity
which were utilized in the project work.

3. Our Constitution- Subhash C. Kashyap

The book, 'Our Constitution’ by Subhash C. Kashyap is a book that gives the readers
an ideal introduction to the Indian Constitution. There is an exclusive section on the
fundamental rights which was useful in the research work.