Non-absoluteness of Fundamental  Rights – Suspension During Emergency

Non-absoluteness of Fundamental Rights – Suspension During Emergency

By Ashlesha Suryawanshi (MNLU Mumbai)

Democracy is a way of life , it is a form of constitution and state system. It is one of the few of the ideologies and practices that evolve from the necessities of social life to the necessities of living. The provision of rights is essential in a democratic system of governance. Also, fundamental rights play a major role in the overall development of citizens and in restricting arbitrary rule of law. It also requires fundamental rights to strengthen democracy.

The foundations of many democracies were laid by fundamental rights. According to international standard human rights are come with being born human being .so every person born as a human being gets this right by breaking all the differences based on our caste, gender and religion. It cannot be taken away from that person. Human rights include the protection of human dignity and self respect.   For the physical and moral protection of the individual fundamental rights provide provisions. Fundamental rights are great protectors of freedom and they guarantee dignity and respect. Not only that, they are instrumental in establishing the rule of law in the country. Under democratic rule every person is entitled to full autonomy on practical and spiritual level and the rights which protect this autonomy are fundamental rights. Every citizen has been guaranteed rights and freedoms as long as any existing laws are not violated. For the well functioning of democracy fundamental rights play vital role fundamental rights create perfection in the life of an individual and it is essential for the development of personality of every individual. Also they help to curb authoritarian or arbitrary rule that is essential element in democratic nation.

The basic premise behind the concept of fundamental rights is to create condition complement the overall development of individual in modern society. They are universal in nature. Their provision is essential in democratic form of government.  So in the case of violation of any of the fundamental rights, every individual can approach the Supreme court under Article 32 and in the high court under Article 226.

The Constitution of India, limits to amends the basic structure of the constitution so in the landmark judgement of Golak Nath v. the State of Punjab, the Supreme Court held that constitution can be amended without changing its basic structure. Minerva mills is the case in which  the court held that fundamental rights under Article14 & Article 21 are the basic structure of constitution.  Though Fundamental Rights acts as a limitation to the power of the state, basically these rights are not absolute and the state can intervene and put restrictions on them.  The provision under Article 32 acts as a check on both state intervention and action of any private individual, In the case of violation of Fundamental Rights. However, these rights are not absolute in nature. Absolute rights are those on which the state cannot impose a reasonable restriction on its implementation on any ground possible. Fundamental rights are not unconditional in nature, the constitution itself restrict this rights for balancing individual freedom and social welfare and peace. Though, we have the liberty of thoughts and have fundamental rights such as freedom of speech and expression, freedom to travel, freedom to do what occupation we want but also while we exercising our freedom it is our duty not to offend any others right. as we are rational being we can decide our choices in a Democratic country but maybe our choices sometimes an obstacle for society, so the proper exercise of liberty taken in conjunction with the need for maintaining public order, national security, moral values for example in the case of freedom of religion government can be restricted to extend that if any religious practice threats to public health, order and morality. Again, if we have the right to information as our fundamental right then we are not supposed to ask for any information which has a nefarious effect or which is secret information about the state and its security. In all these matters our fundamental rights are not absolute and the state can take reasonable restrictions over them.

When there is a period of stress and pain, fear about security and integrity of the state, overall if there is an unstable position in the country, then the imposition of emergency provision was made by the Constitution to protect the security and stability. India acquires a unitary system during an emergency because when constitutional machinery fails the system, the system converts itself into a unitary feature. It is a period of governance that can be proclaimed by the president of India during a crisis. Emergencies in India are imposed by the president after the resolution of the proclamation of emergency passed by both houses of parliament. The emergency provision is contained in part XVIII of the Indian Constitution under Article 352 to 360.

There are 3 types of emergencies:

1. National emergency -A national emergency declared by President when there are some war and external aggression situation and a threat to national security 

2. State emergency (Article 356) – When there is the failure of constitutional machinery of the state, then the governor sends a report to the president and then president impose emergency.

3. Financial Emergency Article 360 empowers the president to proclaim a financial emergency in case it is economic instability, the financial crisis in India.

The president has the power to suspend all fundamental rights and the right to move any court for enforcement of Fundamental Rights during an emergency situation, under article 359 of the constitution. The remedial measures are suspended and not Fundamental rights. The 44th Amendment act mandates that the right to move to the court for the enforcement of Fundamental rights guaranteed by article 20 and 21 can not be suspended by the president. The fundamental rights under article 19 are automatically suspended during an emergency.

The imposition of emergency is important if there is an imbalance within a country the ultimate goal behind this is to secure a public entity and save the lives of people, it is a policy of the welfare state. Fundamental rights are individual rights and they provide liberty to each individual but the social interest is always upper than individual interest and so sometimes in a critical situation like war, constitutional break down, internal imbalance, suspension of fundamental rights for maintaining stability in the state is more important. During the emergencies situation, fundamental rights remained suspended and any proceeding related to the enforceability of these rights also suspended. If anyone tries to cause threat to politics was arrested under ‘The maintenance of Internal security act 1971’.


Individual fundamental rights protect the individual but in the case of the majority, this protection is wrong and thus undermines social policy. The Fundamental rights are moral rights and protect the dignity of an individual but since they are not absolute in nature , the government can put a reasonable restriction on them. Government believe that if the right is defined to include the marginal case then some competing rights would be abridged and for government competing rights are more important because they take care about society as a whole and not the only individual hence government limits the fundamental rights.

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