Updated: May 28
In this blog, the author, has provided an in-depth analysis as to the balance of fundamental rights and national welfare. To what extent the fundamental rights of the citizens can be suspended and where to draw the line, are the highlights of this blog. The author is one of the brilliant interns contributing to AmicusX.
The Boiling point of Fundamental Rights : Analyzing the legality of suspension of FRs in an emergency and lockdown
India witnessed its first lockdown on March 24,[i] when Prime Minister Modi ordered a three week lockdown to curb the pandemic from taking its toll. The lockdown was imposed by invoking section 6 of the Disaster Management Act by the Ministry of Home Affairs followed by release of guidelines,[ii] pertinent to the same. Thereafter, several restrictions have ensued from the lockdown including, but not limited to, a restriction on freedom of movement, restriction on public gathering and restriction on carrying out trade and business except for essential services. But these restrictions being imposed in absence of a declaration of an emergency have raised several concerns about their legality. Also, an important question, as summed up by Shri Kapil Sibal, is whether the government can do acts which it can not under Article 352, otherwise ? [iii]
The President can impose a national emergency under Article 352 of the constitution, only if he is satisfied that grave danger is posed to the security of the country due to an armed rebellion, external aggression or by a war. Whereas, the lockdown has been imposed by a series of executive orders issued by the Centre by invoking its powers under section 6 and section 10 of the National Disaster Management Act (NDMA). But, to what extent can the fundamental rights be curbed in an emergency or in a lockdown ?
Emergency and Fundamental Rights
India witnessed its first emergency in 1961, in the wake of Chinese invasion. The second emergency came in 1971, following the Bangladesh liberation war and the third was the infamous emergency of 1975, which was imposed two days after a conditional stay was granted by the Apex Court in the case of Raj Narain vs State of Uttar Pradesh,[iv] which held Smt. Gandhi guilty for use of state machinery in conduct of elections.[v]
But before analyzing the effect of emergency or lockdown on fundamental rights one needs to know that the Article 358 facilitates curbing or suspension of Article 19 during emergency and the President can further release an order under Article 359(1) of the Indian Constitution , barring any fundamental right present under Part III of the constitution, if he feels satisfied.
Now, coming back to the topic and addressing the elephant in the room. In the emergency of 1975, the then president Fakruddin Ali Ahmed had exercised his powers under Article 359(1) of the constitution and released a presidential order which not only set an emergency in motion but also suspended the functioning of Article 14,20 and 22. Subsequently, the case ADM Jabalpur vs Shivkant Shukla,[vi] quashed a petition of habeas corpus, filed by several persons who had been taken in custody during the emergency era of 1975 under the MISA (Maintenance of Internal Security Act) legislation. The Apex court in this case held that ‘in the view of the presidential order dated June 27th, 1975 no person has any locus standi to move any writ petition under article 226 before a high court for habeas corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance with the Act or is illegal or vitiated by malafides factual or legal or is based on extraneous considerations’.
But the judgment was soon affected by the 44th amendment to the constitution. This amendment brought in 1978 by the Janta Party government, replaced the term ‘internal disturbance’ by ‘armed rebellion’ under Article 352 and also removed the Article 20 and 21 from the ambit of Article 359 of the constitution.
Thus, it can be construed that in an emergency, the President can, if he is satisfied, curb any of the fundamental rights present in Part III except Articles 20 and 21. So, if an emergency was to be imposed today, it can not obstruct Article 20 and 21 but the rest can be curbed by the president, only if he is satisfied.
But can fundamental rights be curbed or suspended in a lockdown ?
It all depends on the statute under which a lockdown is being imposed. In the current case, only a close perusal of the NDMA can solve our query.
The ministry of home affairs has exercised its power under section 10(2)(l) of the NDMA and released guidelines which call for closure of schools, adoption of social distancing, closure of all private establishments except essential services, directive to quarantine the people who have entered the country after 15th of February, 2020 and those who have been advised by healthcare personnel and any failure to comply with the provisions which they will be liable under sections 51 to 60 of NDMA and Section 188 of the IPC.[vii] Several state governments have also invoked Section 144 of the Criminal Procedure Code (CrPC, 1973) which prohibits assembly of more than 5 people at a place.
Thus, an overview tell us that prominently articles 19(1)(b) to assemble peaceably and without arms , 19(1)(d) : to move freely throughout the territory of India & 19(1)(g) : to practice any profession, or to carry on any occupation, trade or business have been affected by these guidelines. However, section 19(2) lays down that these rights can be subjected to reasonable restrictions.
But, the central or state governments can not simple hide behind the garb of article 19(2). Any restriction on fundamental rights, taken in ‘public interest’, needs to comply with the proportionality doctrine, as expounded by the Apex Court in the case of Modern Dental College vs State of Madhya Pradesh.[viii] This test lays down four grounds to which every restriction imposed must comply : (i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
Clearly so, the restriction on freedom to move throughout the country, carrying out business and freedom to assemble at a place are in complete compliance with the proportionality test as they are implemented for a proper purpose, are not arbitrary, are not very extreme and share a reasonable nexus with the prevention of pandemic and are thus legally sound and valid.
Any order imposing a restriction on any fundamental right, in a lockdown, needs to comply with the proportionality test i.e. they should not be outright arbitrary in their essence. But, in an emergency, the constitution confers absolute powers on the government wherein courts can only interfere to safeguard infringement of Article 21 and Article 22.
Further, a harmonious reading of the 44th amendment act with the doctrine of inter-relationship of fundamental rights, propounded by the Apex Court in the case of R.C. Cooper vs Union of India,[ix] tells us that any restriction on a fundamental right, be it in a lockdown or emergency, can be challenged if it is co-terminus with Article 21 or Article 20. In simpler words, because all fundamental rights are mutually inclusive and interlinked,[x] a restriction on ‘right to freedom of speech on social media’, which targets only Article 19 can be challenged in a court of law for being violative of ‘right to internet’ recognized under Article 21, although it doesn’t seek to restrict it.
Thus, the government, although is the supreme decision making body , but it can not arbitrarily suspend fundamental in any given situation. Further, all the restrictions have to be subjected to a proportionality test and should not affect the mutual overlapping of fundamental rights. One can therefore say that the recent jurisprudence surrounding Article 21 and FRs has indeed increased the boiling temperature of Fundamental as well as human rights.
Footnotes [i] Jeffrey Gettleman and Kai Schultz, Modi Orders 3-Week Total Lockdown for All 1.3 Billion Indians, available at https://www.nytimes.com/2020/03/24/world/asia/india-coronavirus-lockdown.html (last accessed on 26th April 26, 2020 at 9:55 PM). [ii] Available at https://www.mohfw.gov.in/pdf/Annexure_MHA.pdf (last accessed on 26th April 26, 2020 at 9:59 PM). [iii] Samanwaya Rautray, No emergency, yet fundamental rights abrogated: Ghulam Nabi Azad in SC,available at https://economictimes.indiatimes.com/news/politics-and-nation/no-emergency-yet-fundamental-rights-abrogated-ghulam-nabi-azad-in-sc/articleshow/71948494.cms (last accessed on 27th April, 2020 at 1:00 PM) [iv] 1975 AIR 865 [v] Hemant Varshney, Indira Nehru Gandhi Vs. Raj Narain – Case Summary, available at http://lawtimesjournal.in/indira-nehru-gandhi-v-raj-narain/ (Last Accessed on 28th April, 2020 at 6:00 PM). [vi] 1976 AIR 1207 [vii] Consolidated Guidelines on the measures to be taken by Ministries/ Departments of Government of India, State/Union Territory Governments and State/ Union Territory Authorities for containment of COVID-19 Epidemic in the Country, available at https://www.mha.gov.in/sites/default/files/PR_ConsolidatedGuidelinesofMHA_28032020_0.pdf (last accessed on 29th April at 8:23 PM) [viii] (2016) 7 SCC 353 [ix] (1970) 1 SCC 248 [x] R.C.Cooper vs Union of India , re-iterated in Maneka Gandhi vs Union of India References a) Justice Satya Poot Mehrotra, HABEAS CORPUS CASE AND ITS CULMINATION, available at http://www.allahabadhighcourt.in/event/habeascorpus_17-12-2018.pdf (Last accessed on 29th April at 11:55 PM) b) Shukr Usgaokar, Covid-19 lockdown: Protecting constitutional rights during a crisis, available at https://legaldesire.com/covid-19-lockdown-protecting-constitutional-rights-during-a-crisis/ (Last Accessed on 29th April 2020 at 11:55 PM)
Maharashtra National Law University, Nagpur.
(Image used for representational purpose only.)