Fundamental Rights

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FUNDAMENTAL RIGHTS India's constitutional framework, developed between 1947 and 1950, adapted the British Government of India Act of 1935 to the needs of the new Indian state. India's Constitution is essentially a Western constitution. The parliamentary system was a legacy of Britain; the federal system was adapted from the Canadian Constitution; the financial relationship between the central and state governments came from Australia; the concept of social policy objectives and directives embodied in the preamble came from Ireland; and the chapter on Fundamental Rights was drawn from the U.S. Constitution's Bill of Rights. Yet despite its Western structure, the style and process were essentially Indian, and the interpretation of fundamental rights in India has been different from that of the Western democracies. In the West, these rights are considered the inherent rights of the individual. In India, they tend to be perceived as derived from the state. The state grants them, and the state can take them away through constitutional procedures.

India's democratic Constitution places the well-being of society and the security of the state above the fundamental rights of the individual. Thus, in India, fundamental rights are not always guaranteed when they conflict with the interests of society and the preservation of the state. Democracy and fundamental rights may be suspended if warranted by external wars and internal conflicts, although the Constitution requires that such actions must be endorsed by Parliament every six months, up to a maximum of eighteen months. The determination of whether the suspension of democracy is warranted or not is to be made by Parliament. This essentially means that if the party holding the reins of government carries a two-thirds majority in Parliament, it may assume authoritarian powers through constitutional means.

The "Emergency" Articles

India's Constitution identifies three types of emergencies that may justify the suspension of fundamental rights. The first is a "National Security Emergency" (Article 352), under which the president, acting on the advice of the prime minister, may proclaim a state of emergency if the "security of India, or any part of its territory is threatened by war, external aggression or armed rebellion." When Article 352 is invoked, Articles 353 and 354 then go into operation. They allow the central government to suspend the federal provisions of the Constitution, thereby giving it direct control over the states and over all revenue. In effect, the central government may impose a unitary system of government. The second is a "Constitutional Emergency in the States" (Article 356) under which the president, acting on the advice of the governor of a state and the prime minister, may proclaim a state of emergency in that state if he is satisfied that the normal process of government cannot be carried out in accordance with the Constitution. The third type of emergency identified by the constitution is a "Financial Emergency" (Article 360), which may be declared by the president, acting on the the advice of the prime minister, if the financial or monetary stability or the credit of the country is threatened.

All of the above proclamations must be approved by Parliament. Article 352, on external threats to national security, was invoked by the Congress Party government of Indira Gandhi during the yearlong Bangladesh separatist movement in 1971, which culminated in the war with Pakistan in December of that year. The same article was invoked, in the name of threats to internal security, by the Indira Gandhi government when it declared a state of "National Emergency" throughout the country between June 1975 and March 1977. Article 356, "Emergency in the States," has been invoked on different occasions in various Indian states, including Kerala, Assam, Punjab, and Kashmir. Article 360, "Financial Emergency," has never been used, although drastic economic measures, such as the banning of all industrial strikes, were adopted during the National Emergency between 1975 and 1977.

The government of India under various prime ministers, from Jawaharlal Nehru to P. V. Narasimha Rao, have resorted to Article 356, "Emergency in the States." This article has frequently been invoked when the ruling government of a state was no longer able to muster the required parliamentary majority in the state legislature. This has led to "President's Rule," in which the state government is taken over directly by the central government until new elections can be held and a new state government put in place. More controversial, however, has been the resort to Article 356 in some Indian states where the state government is unable to cope with the crisis, irrespective of whether a parliamentary majority is retained by the state-based political party. This has been problematic in states such as Nagaland, Punjab, and Kashmir, where separatist movements, which have included armed insurgencies and acts of terrorism, have occurred. Similarly, widespread religious, linguistic, or ethnic rioting in a state has also led to the suspension of the state government, as has occurred in Assam. However, the suspension of the democratic process under conditions of internal security and instability has been ad hoc, regional, and temporary. After the crisis is over, the democratic process is restored.

The provisions of the Emergency Articles 352 and 356 are supplemented by the provisions of two other articles—Articles 358 and 359—which enable the president, acting on the advice of the prime minister, to suspend fundamental rights and protection clauses as guaranteed under Articles 13 to 32 of India's Constitution. Such suspensions must also be approved by Parliament within six months. The suspension of the rights and protection clauses, especially Article 19, which embodies the "Seven Freedoms," is accompanied by the right of the central government to resort to preventive detention, that is, to arrest and detain persons to prevent them from indulging in acts, as yet uncommitted, that may be detrimental to national security and to the maintenance of law and order. Under the subtitle "Right to Freedom," Article 19 of India's Constitution states: "Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations of unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; (f) to acquire, hold and dispose of territory; and (g) to practise any profession, or to carry on any occupation, trade or business." However, once the emergency is declared and approved by Parliament, the Constitution empowers the government to prevent citizens from appealing to the courts for the protection of their fundamental rights. Not even Article 32, which incorporates the "right to constitutional remedies" and the "writ of habeas corpus," can overcome central government powers, made possible under Articles 352 to 360, that relate to national emergency.

The imperial-type powers lodged in India's Constitution are a legacy of British rule, which, ironically, also provided India with the basic structure of a democratic system. The Indian president's ability to proclaim a state of emergency when the country's security is threatened was a power held by the British viceroy under the Government of India Act of 1935. The British had exercised these emergency powers between 1940 and 1945, when they were at war with Germany and Japan and simultaneously had to deal with the Indian struggle for independence and with Hindu-Muslim violence. Such viceregal powers were reinforced by the British through the Defence of India Act of 1939; under its terms the British Indian government could resort to "preventive" detention of those who were deemed threats to internal law and order for political reasons, even though they were not charged with committing illegal acts. The nature of these problems has not changed fundamentally since India obtained independence in 1947, nor have the far-reaching powers that were assumed by the newly independent Indian government.

Legislative Measures

During the 1962 Sino-Indian War, the Defence of India Rules (DIR) were introduced, which included the practice of "preventive detention." Communists in India who were felt to be a threat to the nation were detained without showing cause. During the 1965 Indo-Pakistan war, many Muslims were detained on the suspicion that they might resort to sabotage. All were immediately released on the cessation of hostilities. The DIR remained in force until 1968, six years after the 1962 Sino-Indian War and three years after the 1965 Indo-Pakistani War had ended. During the 1971 Indo-Pakistani crisis, the Maintenance of Internal Security Act was introduced, which provided far-reaching powers to detain citizens who might be a threat to the state. The provisions of this act were used to justify the detention of several opposition leaders in attempts to curb the violence in areas of ethnic strife, especially in the border regions.

Following the declaration of the "National Emergency" in June 1975 by Prime Minister Indira Gandhi and the passage of the 42nd Amendment in 1976, the fundamental rights embodied in the constitution were suspended, and the practice of preventive detention was expanded. This was the infamous legislation that introduced the mechanics of an authoritarian state in India. When the actions were challenged, the Supreme Court of India reversed its earlier judgments that fundamental rights were inherent and inviolable by the state, and favored the legislative powers of the state (provided proper procedures were followed) over the rights of the individual. It argued that fundamental rights were rights granted by the state to its citizens and could be suspended if national security and the survival of the state so warranted.

After Indira Gandhi's Congress Party lost to the Janata Party in 1977, the 42nd Amendment was abrogated by the 44th Amendment in 1978. The conditions for declaring an emergency were made much more stringent, and limitations were placed on the suspension of democratic rights. However, during the violent Sikh separatist movement in the 1980s, new legislation was introduced, including the 1980 National Security Act under Prime Minister Indira Gandhi, and the 1987 Terrorist and Disruptive Activities Preventive Act (TADA) under Prime Minister Rajiv Gandhi. Legislation that eroded the democratic process continued under the Congress government of Rajiv Gandhi. Under TADA, suspected terrorists could be detained for up to one year without trial, and court hearings and the testimony of witnesses could be conducted in secret.

The continuing deterioration of law and order in the 1980s led to the passage of the 59th Amendment in March 1988. The amendment nullified parts of the 44th Amendment by permitting the suspension of Article 21 in Punjab during an "Emergency," and sought to further amend Article 352—the National Emergency Article—of the Indian Constitution. The 42nd Amendment had substituted the words "internal disturbance" (a vague and loose show of cause) for the words "armed rebellion" (a more stringent show of cause). The 44th Amendment restored the original words, so that the justification for an internal emergency would only take place in the case of an "armed rebellion." However, the more restrictive term "armed rebellion" did not seem to apply to the intensifying Sikh terrorist campaign in Punjab. Although it did not call for the return of the milder term "internal disturbance" in order to invoke the far-reaching Article 352, the Rajiv Gandhi government felt that something less than the term "armed rebellion" had to be adopted in order to invoke the National Emergency clause of the Constitution. The 59th Amendment sought to apply the National Emergency provisions only to Punjab, but fears of misuse was expressed by several opposition members of both the Lok Sabha (the "House of the People," Parliament's lower house) and the Rajya Sabha (the "Council of States," Parliament's upper house).

Subsequently, the power to detain suspected terrorists without trial was further strengthened for the two regions where separatist violence was strongest, Punjab and Kashmir. This legislation was provided through the Armed Forces (Punjab and Chandigargh) Special Powers Act in the 1980s, the Jammu and Kashmir Public Safety Act in the 1990s, and the Armed Forces (Jammu and Kashmir) Special Powers Act in the 1990s. The Muslim revolt in Kashmir was accompanied by an increase in the frequency and magnitude of Hindu-Muslim violence in northern India, especially in the states of Gujarat, Uttar Pradesh, Bihar, and Maharashtra.

Allegations have been perennial in India that TADA has been widely misused throughout the country to address basic criminal and law and order cases that had little to do with terrorism. The act was considered to be a violation of the rule of law in a democracy. Periodic efforts have been made by members of the ruling and opposition parties to revoke TADA since its passage in 1987. But the Congress Party government's Home Minister, S. B. Chavan, declared in 1994 that TADA would not be repealed. He acknowledged that there had been widespread misuse of an act that had been intended to deal with terrorists, but stated that the chief ministers of the states had been warned not to misuse TADA. The government was endorsed by the Constitution Bench of the Supreme Court in September 1994 in the Sanjay Dutt case when it declared that "there is no reason, in law, to doubt its constitutionality or alter its proper construction" (Pioneer, New Delhi, 6 and 9 September 1994). In a fifty-eight-page judgment, the five members of the Constitution Bench, headed by Justice A. M. Ahmedi, affirmed the state's right to make special provisions for the prevention of, and for coping with, terrorist activities.

These powers continued to be used to deal with secessionist-related insurgencies and terrorism in Kashmir, Assam, and the tribal Northeast region. In the aftermath of the terrorist attack on the World Trade Center on 11 September 2001, and the terrorist attack on India's Parliament on 13 December 2001, a long-debated legislative proposal labeled the Prevention of Terrorist Ordinance was passed, which abridged the rights of the individual, legalizing detention on suspicion alone. The legislation resembles the Patriot Act in the United States passed later that year.

In sum, when the security and stability of the country are threatened, one set of articles permits the central government of India to qualify and suspend the democratic freedoms provided under another set of articles that supposedly guarantees those freedoms. India's democratic constitution in effect provides easy recourse for its own overthrow through constitutional means on the grounds of national security. No doubt, the suspension of the democratic constitution is intended to be temporary. But there is no guarantee that a prime minister who resorts to drastic constitutional methods will restore democracy. The liberal constitutional provisions in India are a would-be tyrant's dream. So far no prime minister has grossly misused the privilege, although Prime Minister Indira Gandhi came close to doing so between 1975 and 1977. In the end, even she restored democracy after twenty-two months of "Emergency" rule that had been declared in the interests of national security. After the passage of the 59th Amendment in March 1988—which sought to apply the national emergency provisions only to insurgency and terrorism in Punjab—several opposition members argued that the bill would be utilized eventually in other parts of India and thus would amount to a "declaration of war on the people" (Times of India, 24 March 1988).

Raju G. C. Thomas

See alsoAssam ; Gandhi, Indira ; Gandhi, Rajiv ; Government of India Act of 1935 ; Jammu and Kashmir ; Punjab


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