The Indian Constitution, the supreme regulatory document in the country, provides its citizens with fundamental rights under Part III. Fundamental rights are a set of basic human rights that are essential for a person to live his/her life with dignity. While the constitution provides the citizens with these rights it also has made certain provisions under which these rights could be suspended. Under Part XVIII of the constitution laid out are the emergency provisions which give the executive the power to suspend several fundamental rights during states of emergency.

In this article we’re going to focus on Article 19, which is of paramount significance under our constitutional scheme^[i] and the implications of national emergency on the enforcement of the above-mentioned article. Article 19 guarantees six freedoms, including the right to freedom of speech and expression, assembly, and movement, which are fundamental to a democratic society. But during periods of emergency these are often the first rights which are suspended. This was prominently seen under the emergency during 1975-77 where there were wide media censorships imposed and freedom of speech was made an imaginary concept.

This article aims to critically analyze the implications of national emergency on Article 19 under which we are going to see the historical context, legal developments and the importance of balance between security of the state and fundamental rights of individuals with special emphasis on freedom of speech and expression.

Constitutional Grounds For National Emergency & Impact On Fundamental Rights

The Indian Constitution under Part XVIII (Articles 352-360) provides us with emergency provisions. The constitutions segregates emergencies on the basis of three kinds:

• National Emergency– Article 352
• State Emergency – Article 356
• Financial Emergency – Article 360

All these emergencies are different in nature and have different reasons for being imposed.^[ii] This research focuses on national emergency given the topic of the article.

Procedure Of Proclamation Of National Emergency

The President of India can declare national emergency on grounds of war, external aggression and “armed rebellion”. To impose a national emergency the president needs to take the recommendations of the cabinet ministers in writing. After endorsements from cabinet ministers, it needs to be passed by both the upper and lower house of the parliament within a month with special majority. Special majority means that it should be approved by at least 50% of the house and minimum 2/3 of the members should be present and voting.^[iii] An emergency could be imposed for an indefinite amount of time but has to be approved by the parliament every 6 months.^[iv]

Position of Fundamental Rights

Fundamental Rights in the Indian constitution span from Article 12 to 35 under Part III and can be largely classified into 6 broad rights: “right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies.”^[v]

When a national emergency is proclaimed, following is impact on the fundamental rights as mentioned under Part XVIII of the Indian constitution:

• Article 19 is the first fundamental right to be suspended, as soon as a national emergency is imposed all the rights under Article 19 are automatically suspended.^[vi]
• The automatic suspension of Article 19 can only happen if the ground for imposing national emergency is war or external aggression.^[vii]
• Other articles under Part III can be suspended by the president by issuing a written proclamation, except Article 20 and 21.^[viii]

A lot of the above are a result of modifications made by the 44^th constitutional amendment, which soughtto provide greater protections to fundamental rights. They were very different and hostile pre- 44^th amendment which is going to be explored in depth in the section of the article dedicated to analyzing the 44^th amendment.

The Emergency Of 1975: Historical Impact

Since independence, a total of 3 national emergencies have been imposed in India. They are as follow:

• 1962: Sino-Indian War
• 1971: Indo-Pak War
• 1975-77: Internal Emergency

The most infamous one of these is the emergency of 1975 which was declared by then prime minister Indira Gandhi. This is widely known as one of the darkest periods in Indian Constitutional history. The emergency was imposed on the grounds of “internal disturbances” but the reality is much different. In reality, it was imposed as a result of a judgement^[ix] made by the Allahabad high court in the case Raj Narain v. Indira Gandhi (1975)^[x] which found Indira Gandhi guilty of electoral malpractices barring her from contesting in elections for 6 years and mandated her to step down as prime minister. The Supreme court had risen for summer vacation so the vacation judge, Krishna Iyer granted a temporary stay on the Allahabad high court order. The very next day after the order of temporary stay, Indira Gandhi sent a proclamation to then president Fakhruddin Ali Ahmed. The key thing to note here is that no cabinet meeting was called to discuss the matter, much less any approval of the cabinet was sought after. The president also did not seek a cabinet meeting and signed the proclamation. So now the country was supposedly under a “double emergency” since the emergency of 1971 still was under effect. It is an irony of the utmost nature that the order of the court that was keen on preserving the rule of law provided an excuse for the suspension of the same.^[xi]

The emergency period can be best described as a continuous enforcement of draconian measures by Indira Gandhi’s government to suppress and curtail civil liberties.^[xii] Fundamental rights were suspended and extensive changes were made to the constitution through amendments which gave the government extensive powers and control. Article 19 was obviously suspended and nationwide extensive censorship was applied. Newspapers were censored and anything that was to be published had to be first approved by the government. Traditional media was not the only victim as the government had taken control over the radio, broadcasts and every other major source of mass media. The extensive censorship played a major role during the time of emergency as it helped the government maintain a good public image, biased storyline and justify every action since they had the control over flow of information. The impact of the above was not just immediate but played a major role in the formation of public memory. This led to a skewed view of the socio-political landscape, undermining the democratic fabric which the nation previously so dearly upheld.^[xiii]

Another major highlight of the emergency was the extensive use of draconian laws and acts like “Maintenance of Internal Security Act” (MISA).^[xiv]The act which was introduced originally in the emergency of 1971 was excessively amended, giving the state the power to unfairly detain anyone for up to two years. Moreover, the amended “MISA” gave the government power to keep the reason for detention confidential and the right of the detainee to appeal to the courts was taken away. Hundreds of prominent politicians were arrested and thousands of people were unfairly detained. Anyone against the government was arrested including opposition leaders. Major portion of the common mass remained unaware due to the strategic media censorship by the state.^[xv]

Even though the right of detainees to appeal unfair detentions to the courts was taken away, several of them still filed habeas corpus petitions. Initially, they were entertained by some high courts and detainees did get relief. Unhappy with the same, the center filed an appeal in the Supreme Court which led to the landmark judgement of A.D.M. Jabalpur v. Shivkant Shukla.^[xvi]  

The judgement given in a 4:1 majority decision sided with the state and stated that no individual had any right to file a writ petition under Article 226 for fundamental rights which had been suspended by the state during the emergency. All the petitions recently entertained were also revoked. The validity of “MISA” was also upheld. Justice H.R. Khanna, in his dissenting opinion, stated that while Article 359(1) may suspend an individual’s right to approach the Court for enforcing fundamental rights, it does not affect their statutory or common law rights. He further argued that although Article 21 may lose its procedural safeguards during an emergency, its substantive essence remains intact. Justice Khanna’s dissent has been widely lauded for its courage and legal acumen in defending citizens’ rights. However, the judgment as a whole has faced prolonged criticism, being regarded as a blemish on the history of Indian judiciary.      Critics argue that, rather than safeguarding citizens’ rights, the Court chose to prioritize the interests of the central government.[xvii] The judgement has since been overturned in the landmark case of Justice K.S. Puttaswamy (Retd.) v. Union of India^[xviii] where Justice D.Y. Chandrachud in para 119 while criticizing the ADM Jabalpur case stated that the judgements rendered by the majority were seriously flawed, emphasizing that rights such as right to life and liberty were rights vested in natural law, enshrined at birth itself.

The dark period of emergency during 1975-77 showed the sheer misuse of emergency provisions by the state which led to the 44^th amendment regarding which we will discuss in the next section.

Evaluating The 44th Amendment: A Reflex To Perils Of Emergency

The 44^th amendment was introduced post the dark age of emergency of 1975-77 by a newly elected government in an attempt to revive the constitution from the attacks it faced during the emergency. The main aim was to remove the unjust provisions inserted during emergency and further add safeguards so that such events do not occur again in the future. Following were the major changes made by the 44^th amendment with respect to national emergencies:

• Prior to the amendment, the grounds on which emergency could be imposed were war, aggression and “internal disturbances”. The amendment replaced the word internal disturbances with “armed rebellion” which removed to some extent the ambiguity behind the reason for imposing emergency which was unfairly used by the prior government to impose an internal emergency.
• Secondly, the amendment introduced that a proclamation can’t be issued until the President receives the endorsement of the Union Cabinet/Council of Ministers in writing. It also gave the President the power so as to s/he can ask the Cabinet to reconsider its advice once, if s/he feels so. This change was brought to probably give some independent authority to the president and prevented him/her from becoming a mere rubber stamp.
•  It also made it necessary for the proclamation to be passed in both houses of the parliament with special majority and the proclamation to be passed every six months for its extension. This was done to make it a bit harder to impose an emergency than earlier
• It also made it so that Article 19 will only be automatically suspended if the grounds for imposing emergency are war or external aggression.
• The 44th Amendment also reduced the exploitation of Emergency provisions as it made Article 20 & 21 immune from suspension even during emergency, reinforcing the right to personal liberty and life.^[xix]

Even though the above amendment was introduced to safeguard the rights of citizens but it still left Article 19 unprotected from exploitation to a large extent. The point being that Article 19 can still be automatically suspended in case of emergency imposed due to war or external aggression.^[xx]  It is true that during times of war, fake news and misinformation are at an all-time high, posing serious threats to national security and can lead to creation of situations of panic among the masses. Total censorship often isn’t the right call as freedom of speech should be still allowed under justified limitations, since it is essential for upholding the fabric of democracy and people rely on timely information at times of conflict for their well-being.^[xxi] Role of judicial oversight becomes even more important at such times because historically judiciary has been hesitant in interfering at times of emergency, as seen in the habeas corpus case, but judiciary needs to be proactive in moderating restrictions on free speech and protecting citizens from any draconian law that completely deprives them of their rights. Therefore, complete censorship shouldn’t be the go-to practice at times of national emergencies and reasonable flow of free speech and expression should be allowed at all costs.

Conclusion

The provisions for national emergency, while designed to protect the sovereignty of the state during times of crisis, have often fallen short of their intended purpose and historically have been used as a tool for violation of fundamental rights which are the key principles that the constitution was designed to protect and safeguard. A good example of the same can be found in history, the internal emergency imposed during 1975-77. This emergency provided us with key insights on how easily the provisions in the constitution could be manipulated during the time of emergency and how a completely democratic state could transform into a totalitarian one with an unjustified proclamation.

The 44^th amendment was introduced to reverse the damage done during the internal emergency period and to safeguard the rights of the citizens from any such exploitation in the future. To an extent the 44^th amendment did mitigate the chances of such occurrence from repeating but it still left room for exploitation of key rights especially Article 19. Freedom of expression, even in times of crisis, must be preserved, as it forms the basis of a functioning democracy. The judiciary’s role as a guardian of rights becomes even more important during such times, and its willingness and proactiveness to step in and moderate the excesses of executive power will determine the strength and quality of constitutional democracy in India.

Therefore, while the legal framework for emergencies is required, it must be exercised with utmost commitment to protecting the fundamental rights of the citizens, ensuring that democracy lives on even when faced by challenging situations.

Endnotes

[i] 2015 AIR SC 1523, para 8.

[ii] Simran Shadija, “Analysing the Position of Fundamental Rights During Emergency in India: Issues and Challenges” 1.4 Jus Corpus Law Journal 917 (2021).

[iii] ibid.

[iv] DD Basu, Commentary on the Constitution of India, Volume 14, Articles 311 (contd.)-369 (LexisNexis India, 9^th edition, 2018).

[v] Fundamental Rights, available at: https://knowindia.india.gov.in/profile/fundamental-rights.php#:~:text=Article%2012%20to%2035%20contained,opportunity%20in%20matters%20of%20employment (last visited October 13, 2024).

[vi] The Constitution of India, art. 358.

[vii] ibid.

[viii] The Constitution of India, art. 359.

[ix] “How Allahabad High Court’s Verdict Against Indira Gandhi 50 Years Ago Resulted in Emergency,” Firstpost, available at: https://www.firstpost.com/explainers/allahabad-high-court-verdict-indira-gandhi-50-years-ago-emergency-13896488.html (last visited on June 27, 2025).

[x] 1975 AIR 865.

[xi] Ashok H. Desai, “1975-1977 Emergency — Some Legal Recollections” 2 SCC J-31 (2017).

[xii] “On Its 49th Anniversary, Revisiting Emergency and Its Aftermath in India,” Business Standard, available at: https://www.business-standard.com/politics/on-its-49th-anniversary-revisiting-emergency-and-its-aftermath-in-india-124062500748_1.html (last visited on June 27, 2025).

[xiii] Ariana Agarwal, “Democracy Under Duress: Examining the Emergency Period in India and the Legacy of Constitutional Changes” 8 International Journal of Novel Research and Development 355 (2023).

[xiv] Maintenance of Internal Security Act, 1971 (Act 26 of 1971).

[xv] Violet Hazarika, “RIGHTS OF THE PEOPLE AND NATIONAL EMERGENCY (1975-77): A CRITICAL ANALYSIS OF A DEBATABLE ERA OF INDIAN POLITICS” 11(11) International Journal of Management 1212 (2020).

[xvi] AIR 1976 SC 1207.

[xvii] The Habeas Corpus Dilemma: Dissecting A.D.M. Jabalpur v. Shivkant Shukla (1976),” Legal Service India, available at: https://www.legalserviceindia.com/legal/article-15691-the-habeas-corpus-dilemma-dissecting-a-d-m-jabalpur-v-shivkant-shukla-1976-.html (last visited on July 2, 2025).

[xviii] AIR 2018 SC Supp 1841.

[xix] MP Jain, Outlines of Indian Legal and Constitutional History 29.15 (LexisNexis India,8^th edition, 2022).

[xx] The Constitution of India, art. 358.

[xxi] “The Survival Right: Freedom of Expression in Armed Conflicts,” Article 19, available at: https://www.article19.org/resources/the-survival-right-freedom-of-expression-in-armed-conflicts/ (last visited on October 14, 2024).