In Emergency Fundamental Rights .To be Suspended or To be Violated?

Fundamental Rights are not something which anyone can give. But it is something which no one can take away from you. -Anonymous If we take this hypothesis as a dogma than in no case fundamental rights can be suspended but fundamental rights can be suspended in emergency under the constitution of India. It is based on the principle of non- absoluteness (nothing is absolute). The basic legal question of this article is that, during emergency is there suspension of fundamental rights or violation of fundamental rights? This article is in quest of the nature of fundamental rights during the emergency in India. In India during the period of national emergency, there was gross violation of fundamental rights of the people. The increased central authority over the states ended the bargaining federalism of the Nehru years, and the federal structure of the congress party disappeared as many ministers became New Delhis instruments and P.M gained control of Congress party machinery.1 The executive branch came to dominate Parliament to such a degree that Parliament lost any effective identity of its own. And, authority within the executive became concentrated in the P.Ms office and then was exercised from Mrs. Indira Gandhis residence, to the exclusion of all but a few and the two branches, the judiciary, intending to end its function as a co-equal branch of government. During 1975 emergency question arose as to whether there was a right to challenge the detention order independently of art. 21, which was suspended by an order under art. 359. In ADM Jabalpur v. Shiv Kant Shukla2, the Supreme Court by 4:1 decided that while the proclamation of emergency is in force, and a Presidential order under art. 359 in operation, the Court could not examine action, even on the ground that it was ultra vires the enabling statute or malafide.3 The principle that an individuals liberty could not be taken away except be authority of law existed in India well before the constitution came into force.4 It continued by virtue of art. 372 of the constitution 5. The court could have permitted limited judicial review under administrative law. Chandrachud J. expressed hope that the power reposed by art. 359 in the executive government would not be abused.6 This judicial pronouncement was made on a mere hope which is neither the basic pillars of judiciary nor the aims or goals for which judiciary is made. Ray CJ. Characterized arguments about the possible abuse of power
1

Granville Austin, Working a democratic constitution, a history of the Indian experience, oxford

university press, New Delhi, 1999, p. 173.

2 3

AIR 1976 SC 1207. Seervai H.M, The Emergency, Future Safeguards and the Habeas Corpus Case: A Criticism, N.M

Tripathi, Bombay, 1978.

4 5

Eshugbayi v. Govt. of Nigeria 1931 LR 640 (CA); 1931 All ER 44. Sathe SP, India: Positivism v. Structuralism, Interpreting Constitutionalism,2008 ed, Oxford

University Press, New Delhi at p. 227.

6

AIR 1976 SC 1207 at p. 1349.

by the government as diabolic distortion and mendaciously malignant. 7 A.N. Ray, C.J. held that liberty is itself the gift of the law and may by the law be forfeited. It was held that suspension of the fundamental right under Article 21 implied the suspension of the right to file a habeas corpus petition and the detainee has no right to move any court for his release, the result of the majority view was that even if a wrong person was detained or if a person was detained for malafide or irrelevant reasons that the detainee had no right to release from the courts. Unlike the reasoning in Gopalan case8, this was neither the legal positivism nor the interpretation of constitution in a prudent manner. It is better described as escapism, helplessness, and even timidity9. Ray CJ had superseded three senior most judges. Two other members of the majority went on to become Chief Justices in order of their seniority, while the third member, Beg J. superseded Khanna J, who wrote dissenting judgment. Khanna Js dissenting judgment was reminiscent of Lord Atkins dissent in Liversidge v. Anderson.10 In answer to the query from Khanna, J. if a person had any remedy if he was summarily to be imprisonment or even executed, the Attorney General stated regrettably he would have to say that he had none as a right to personal freedom had been suspended. This recalls similar queerly by Lord Shaw who dissented in R. Haliday ex Parte Zadig11 to the Attorney General if a regulation could be validly enacted putting a man to death, to be told that the grave result seen perfectly logical.12 Khanna, J. alone stoutly held that Article 21 was not the sole repository of the right to life and personal liberty and the courts retained the power to examine the legality of orders of detention. Khanna, J.s outspoken dissent incurred the displeasure of the Government which superseded him in the next vacancy n the position of the chief justice and appointed a judge who was his junior as the Chief justice who had formed part of the majority. To avoid such situations to occur again it is important that there must be rule of law. During the reign of Hitler, Germany was also ruled by law, but it was not rule of law but rule by law. It is important that there must be checks and balance amongst the three organs of the government, so that there is rule of law and not dictatorship. In India, the act of executive violating fundamental rights of people is challenged before the judiciary. It is so because in India, judiciary is the protector of the fundamental rights of the people. It is the role of judiciary to protect the constitution and to vigil on the act of executive. But, sometimes, Indian judiciary succumbs to the pressure of executive. In Fundamental right case (ADM Jabalpur v. Shiv Kant Sukhla13) the judgment given by
7 8 9

Ibid 1223. A.K Gopalan v. State 1950 SCR 88 at p. 90. Sathe SP, India: Positivism v. Structuralism, Interpreting Constitutionalism,2008 ed, Oxford

University Press, New Delhi at p. 250.

10 11 12

1942 AC 206. 1917 AC 260 R. Haliday ex parte Zadig, 1917 AC 260, reported by David Foxton in 2003 119 Law Quaterly

Review 455-83.
13

AIR 1976 SC 1207.

Indian judiciary was highly criticised. When the power of judiciary is unregulated it becomes whimsical. The Israeli Supreme Court has faced this problem in several difficult cases. In Public Commission Against Torture v. Govt. of Israel14, the Supreme Court has held that violent interrogation of a suspect terrorist not lawful even if doing so may save life by preventing impending terrorist acts- the overpowering argument of the ticking bomb situation. President Aharaon Barak of Israeli Supreme Court said: Preserving the rule of law and recognisation of individual liberty constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties. The judgment given in A.K Gopalan case (7 bench decision) was criticized in Bank Nationalisation case (11 bench decision). However, it is submitted that the decision of Bank Nationalisation case, as far as co-relation of art. 19 and art. 20 of the Indian constitution is concerned is wrongly decided. I have also come to a conclusion that art. 21 and art. 19 are not linked. Therefore, the interpretation of personal liberty by the court during the time of emergency must be confined one and cannot be extended to include the freedoms enshrined in art. 19(1) of the constitution. Thus if the court interpret art. 21 as distinct from art. 19, there will arise no problem as to the interpretation of constitution during the time of emergency. Art. 358 provides that the rights mentioned under art. 19 will automatically be suspended during the time of emergency15. So, the question which now arises is, if art. 19 is suspended and art. 21 cannot be suspended than how will the court interpret art. 21 during the time of proclamation of emergency. Supreme Court right since R.C Cooper case16 to the present time has considered that at. 21 and art. 19 are co related and violation of art. 21 will automatically violate art. 19 of the constitution. But, it is humbly submitted that art. 19 and art. 21 are not co- related. Once, this is established, there will arise no problem as to the interpretation of art.21 during the time of emergency. Seervai in his book had commented on the role of judges in interpreting constitution, he said Aristotle went to the root of the matter when he said: Plato is dear to me, but the dearer is the truth. Adapting his words a judge should say to himself: Fundamental rights are dearer to me, but dearer still is truth, and justice founded on truth, and they must prevail in a court of justice.17 H.M Seervai stated:
14

53 (4) PD 817. 358. (1) While a Proclamation of Emergency declaring that the security of India or any part of

15

the territory thereof is threatened by war or by external aggression is in operation], nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetence, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
16 17

R.C Cooper v. UOI Seervai H.M, Constitutional Law of India, 3 rd ed, vol- 1, Tripathi Pvt. Ltd., 1983, Bombay, at p.

732.

well established rules of interpretation requires that the meaning and the intention of the framers of a constitution be it a Parliament or a constituent Assembly must be ascertained from the language of the constitution itself; with the motives of those framed it, the Court has no concern.18 Interpretation of constitution becomes important during the time of emergency. The court restrict the interpretation of constitution during the time of emergency and gives a wide discretion to the executive to perform its act. Absence of this checks and balances creates a situation of lawlessness where there is no rule of law but rule by law. In the United States the case of Korematsu v. United States19 is a notorious example of the Supreme Court submitting to national pressure during war times. The court held legal a military order under which more than 112000 residents western states all of Japanese descent and of which more than two out of three were natural- born US citizens were removed from their homes and herded into temporary camps and later into relocation centers in several states. Korematsu, a native American born of Japanese ancestry was convicted of disobeying the exclusion order . Black, J. delivering the opinion of the court said: Korematsu was not excluded from the Military area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West coast and felt constrained to take proper security measure, because they decided that the military urgency of the situation demanded that all situation of Japanese ancestry be segregated from the west Coast temporarily, and finally, because of Congress, reposing its confidence in this time of war in our military leaders----as inevitably it must- determined that they should have the power to do just this.20 In his dissenting opinion Roberts, J. spoke of the disproportion and lack of reasonable relationship of the exclusion even if military necessity demanded it. .the exclusion either temporarily or permanently, of all persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order must necessarily rely for its reasonableness on the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy, in other ways. It is difficult to believe that reason, logic or experience could be marshaled in support of such an assumption.21 Jackson, J. also dissented from the majority of words which must caution Judges who succumb to giving a convenient interpretation of the Constitution in times of national crisis. He said .a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the [military] order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency..once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, rather rationalizes the constitution to show that the constitution sanctions such an order, the court for all times has validated the principle of racial discrimination in
18 19 20 21

Supra n. 24 at p.172, ] 89 L ED 194; 323 US 214 (1944) IBID at P. 223. IBID at P. 235.

criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.22 Korematsu case23 had an interesting sequel. The uncritical acceptance of the opinion of the military which saw a danger from every person of Japanese origin was later exposed by Korematsu. Long after his conviction in 1942, in 1984 korematsu petitioned the United States District Court, N.D. California, for a writ of Coram Nobis to vacate his conviction on the grounds of governmental misconduct. The court granted korematsu relief of Coram nobis (Korematsu v, United States). During the hearing of the case before the District Court Judge Patel, some horrific facts were brought out. It was established that the Government knowingly withheld and distorted information from the court when they were considering the critical question of military necessity and also provided misleading information to the Court. Judge Patel observed The judicial process is seriously impaired when the Governments law enforcement officers violate their ethical obligation to the Court. Judge Patel memorably concluded: Korematsu .. stands as a constant caution that in times of war or declared military necessity, our institutions must be vigilant in protecting constitutional guarantees. It stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability. It stands as a caution that in times of international hostility and antagonisms our institutions, legislative, executive and judicial, must be prepared to exercise their authority to protect all citizens from the petty fears and prejudices that are so easily aroused. Congress then passed a law acknowledging the fundamental injustice of the evacuation, relocation and internment and apologizing on behalf of the people of USA. Reparations were approved and each living survivor of the internment was compensated in an amount approximating to 20,000.24 In Pakistan Judges including the restored Chief Justice Iftikhar Mohammed Chaudhery have upheld Military Rule and Marital Law by three military rulers. They have relied on the doctrine of State necessity propounded by jurist Kelson- a theory formulated years before the concepts of human rights and the rule of law had developed. Such cases of judicial deference and timidity in times of war and national crisis have fortunately not been repeated in recent times. The dissents of Judges like Lord Atkin in UK, Justice Roberts and Jackson in USA and Justice Khanna in India have been in the words of Chief Justice Huge of US, an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly conceal the error which the dissent /Judge believes the court to have betrayed. It is heartening to note recent assertions of judicial assertiveness over Governments claim to national security in decisions of the US Supreme Court in the cases of the
22 23 24

IBID at P. 245-46. IBID Congressional Editions of US Constitution, 2004 at P. 465.

Guantanamo detainees and that of the House of lords in the case of non-UK citizens detainees under the UK Anti-Terrorism Act. The US Supreme Courts decisions in the trail of detainees at the US Naval Base at Gunantanamo Bay in Cuba are remarkable perseverance judicial control over anti terrorism measures adopted by the US government following the 9/11 attack by terrorist in Bush administrations war against terror The US government had made a number of orders with the approval of Congress denying Habeas Corpus to detainees at Guantanamo in the usual Court of law. Three US Supreme Courts Decisions in Rasul v. Bush25, Hamdi v. Rumsfeld26 and Hamdan v. Rumsfeld27 had ordered the detainee access to the courts within the United States but after each judicial mandate, Congress responded with legislation aimed at thwarting the courts decisions. Meanwhile detainees continues to languish at Guantanmo for more than six years with most of them having never been charged with any criminal offences. Finally on 12-6-2008 in Boumediene v. Bush28, the U.S Supreme Court in a 5:4 decisions held ouster of habeas corpus rights of these detainees under the Military Commission Act, 2006 to be unconstitutional, and the alternative e process contained in the Detainee Treatment Act 2005, for the security of the designation of the detainee as enemy combatant did not provide adequate substitute for the writ of Habeas Corpus. The Boumediene29 decisions is a sharp rebuke for the excessive of the Bush Government over the 9/11 attack of the rule of law, fair trails and ouster of traditional remedy of Habeas Corpus. In a memorable part of the judgment, refuting the govt. claims form immunity from judicial control over Guantanamo naval base in Cuba because it was claimed that US has dejure sovereignty over Cuban Territory, Kennedy, J. held that the governments claim means that it would govern without legal restraint. He said our basic charter cannot be contracted away like this.. to suggest that political branches have the power to switch the constitution on or off at will, would permit a striking anomaly in our tripartite system of govt. leading to a regime in which Congress and the President and not this court would say what the law is. Following upon attacks in US on 11-9-2001, the Anti Terrorism Crime and Security Act 2001, S. 23 granted the Home Secretary the power to detainee indefinitely any foreign (non UK) national whose presence in the UK he reasonably believes to be a risk to the national security, whom he reasonably suspect to be international terrorist, and whom he cannot deport. In A. Secy. Of State for the Home Department 30 in one of the strongest assertion of the judicial power in the English judicial history given by an unprecedented strength of 9 of 12 Law Lords, the House of Lords held that the power to detain was a disproportionate and discriminatory response to the international terrorist threat presented to the UK. It was international terrorist threat presented to the UK. It was therefore incompatible with Articles
25 26 27 28 29 30

159 L Ed 2d 548 159 L Ed 2d 578 165 L Ed 2d 723. 553 US 2008 Boumendiene v. Bush 553 US 2008. 2005 2 AC 68.

5(1) and 14 of the European Conventions on Human Rights, 1950, by virtue of sec 4 and sec. 16 of the Human Rights Act, 1998 and a declaration to that effect was made. Their lordship described the Home Secretarys power of indefinite detention without charge, in breach of Convention right, as anathema in any country which observes the rule of law (Lord Nicholls), the real threat to the life of the nation (Lord Hoffmann) and the stuff of nightmares (Lord Scott). The House of Lords (Lords Hoffmann dissenting) upheld the decision of the Special Immigrations Appeal Commission and the Court of Appeal that the Home Secretary was entitled to conclude on the available evidence that a public emergency threatening the life of the nation required for derogation from section 4 and 6 of human right act, 1998 did exist. Nevertheless they held the section 23 of anti-terrorism crime and security act, 2001 was a disproportionate and discriminatory response to the public emergency. It was disproportionate because there was no rational connection between the measure and objective, and the measure went beyond what was necessary to achieve the objective. In particular, section 23 allowed certified suspected international terrorist who had been detained to choose to leave the United Kingdom at any time, and there was no evident justification for detaining foreign nationals but not UK nationals. It was discriminatory because its restriction on the enjoyment of article 5(1) of the Convention applied to foreign nationals but not UK nationals. A quashing order was made under section 6 of the human right act, 1988 in respect of designated derogation order, because of in compatibility with article 15(1). A declaration was also made under section 4 of the same Act that Section 23 of the Anti-terrorism, crime and security act, 2001 is incompatible with Article 14 of the Convention and, in the absence of designated derogation order with Article5(1). On 11-3-2005 the British parliament passed the Prevention of Terrorism Act, 2005 which replaced part 4 of 2001 Act, three days before it was due to expire. The 2005 Act appears to take account of the House of Lords decision in A v. Secy. Of State for Home Department No. 131. It provides for a range of control orders, which allow for a proportionate response to a terrorist threat and which do not discriminate against non- UK nationals. In A v. Secy. Of State for Home Department No. 232 the house of lords held that the special Immigration Appeals Commission(SIAC) under the UK terrorism Act when hearing an appeal by a detainee could not receive evidence obtain by the use of torture even though such evidence was obtained by any foreign official without the complicity of British authorities. The two House of Lords decisions in A v. Home Secy33. Is the beginning in the UK of a much belated awakening to the fact that even in the context of national security the courts have a responsibility that the rule of law is respected. No doubt the Guantanamo decisions of the Supreme Court of the USA and the House of Lords decisions under the UK Terrorism Act were not delivered amidst the clash of the
31 32 33

2005 2 AC 68. 2006 2 ac 221. Supra n. 51.

arms as the Lord Atkin had said in Liversidge case34 but in the penumbra of two to four years of the 9/11 terrorist attacks. In that sense the pressure on these Judges were not that intense as it was on the Judges who decided Liversidge35 and Korematsu36 in the midst of the World War II. Nevertheless, the approach of the judges in the US ands UK in Guantanamo and in the UK Terrorism Act cases is vastly different from that in the past, being more conscious of human rights and the dispensable requirement of judicial review. An independent judiciary which is obliged to uphold human rights has an unenviable task in times of combating terrorist who themselves have no regard for human rights. This is the agonizing dilemma of the judges in a democracy committed to the rule of law. The Indian Supreme Court has radically changed its interpretative philosophy. It was so because after Shiv Kant Shukla case the Supreme Court was losing its credibility before the people. From positivism it has shifted to liberal interpretation. But whatever be the mode of interpretation there must be checks and balance amongst the various organs of the government. It can take place only when there rule of law prevails. The contrast between the rule of men and the rule of law is first found in Plato's Statesman and Laws and subsequently in Aristotle's Politics, where the rule of law implies both obedience to positive law and formal checks and balances on rulers and magistrates. Dicey identified three principles which together establish the rule of law37: (1) the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power; (2) equality before the law or the equal subjection of all classes to the ordinary law of the land administered by the ordinary courts; and (3) the law of the constitution is a consequence of the rights of individuals as defined and enforced by the courts."38 Rule of law is frequently opposed by authoritarian and totalitarian states. The explicit policy of such governments, as evidenced in the Night and Fog decrees of Nazi Germany, is that the government possesses the inherent authority to act purely on its own volition and without being subject to any checks or limitations. Dictatorships generally establish secret police forces, which are not accountable to established laws, which can suppress threats to state authority. But it the Constitution which is supreme and so the Supreme Court which the sole responsibility to interpret the constitution has to interpret it in such a manner that the executive wings must not become over powerful and dominate the other three organs of the government. There is a popular saying that no matter what their stated interpretation philosophy, judges somehow mange to find ways of adjusting their constitutions to the felt necessities of the time.39 Two issues must be distinguished. The first is the extent to which law remains stubbornly inseminate, whatever interpretive methodology is employed, thereby requiring judges to exercise discretion on moral or policy ground. The second is the extent to which

34 35 36 37

1942 A 206 ibid Korematsu v. US, 89 L Ed 194 Law of the Constitution (10th Ed., 1959), pp. 187, et seq., Halsbury's Laws of England, Vol: Constitutional Law and Human Rights, paragraph 6, footnote 1 A phrase famously used by OW Holmes Jr in The Common Law (little Brown, Boston, 1881) at p.1.

38
39

judges are willing to misapply or to abandon, their orthodox methodology in order to reach to desired conclusion.40 It is submitted that the fundamentals rights enshrined in the constitution are not a water tight compartment and they are over lapping and thus can be suspended it is most humbly submitted that suspension of fundamental rights can be and being done at several instances in all over the world. The central critical question was whether it is suspension or violation.. Over this final conclusion is that this suspension is meant for the violation.

40

Goldsworth Jeffrey, Interpreting Constitution a comparative study, oxford university press,

2008 ed, New Delhi at p. 1. p. 343.