Quick answer
No. Under Article 359(1) of the Constitution, while a Proclamation of Emergency is in operation, the President may by order suspend the right to move any court to enforce the Fundamental Rights named in the order. Since the 44th Amendment (1978, in force from 20 June 1979), that power cannot extend to Articles 20 and 21. International law sets a similar limit: Article 4 of the International Covenant on Civil and Political Rights (ICCPR) allows only measures strictly required during an officially proclaimed emergency, and certain rights, such as freedom from torture, can never be suspended.
The international rule: Article 4 ICCPR
Article 4(1) lets a State take measures derogating from (temporarily setting aside) its Covenant obligations only if:
- there is a public emergency that threatens the life of the nation;
- the emergency is officially proclaimed;
- the measures go only as far as strictly required by the situation;
- they are consistent with the State's other duties under international law and do not discriminate solely on the ground of race, colour, sex, language, religion or social origin.
Article 4(2) bars any derogation from Articles 6 (life), 7 (torture), 8(1) and 8(2) (slavery and servitude), 11 (no prison for inability to fulfil a contract), 15 (no retrospective criminal law), 16 (recognition as a person before the law) and 18 (thought, conscience and religion). Under Article 4(3), the State must immediately inform other States Parties through the UN Secretary-General. In General Comment No. 29 (2001), the Human Rights Committee said derogating measures must be exceptional and temporary.
The Indian lesson: ADM Jabalpur
Additional District Magistrate, Jabalpur v. Shivakant Shukla, Supreme Court of India, five-judge Constitution Bench, decided on 28 April 1976. An Emergency had been proclaimed on 25 June 1975, and a Presidential Order of 27 June 1975 under Article 359(1) suspended the right to move any court to enforce Articles 14, 21 and 22. The majority (Chief Justice A.N. Ray and Justices M.H. Beg, Y.V. Chandrachud and P.N. Bhagwati) held that, in view of that Order, no person had locus standi (standing to sue) to move a High Court under Article 226 for habeas corpus to challenge detention under the Maintenance of Internal Security Act, 1971, even on the ground that the detention was illegal or mala fide (made in bad faith). Justice H.R. Khanna dissented.
How the law changed
| Point | Position in 1976 | Position today |
|---|---|---|
| Can enforcement of Article 21 be suspended under Article 359? | Yes, according to the ADM Jabalpur majority | No. The 44th Amendment excludes Articles 20 and 21 |
| Status of the ADM Jabalpur majority | Binding law | Expressly overruled in K.S. Puttaswamy v. Union of India (2017) |
| Status of life and liberty | Treated as dependent on the Constitution's protection | Recognised as inalienable, primordial rights |
Justice K.S. Puttaswamy (Retd.) v. Union of India, Supreme Court of India, nine-judge Bench, decided on 24 August 2017. While recognising privacy as a Fundamental Right, Justice D.Y. Chandrachud (for four judges) called the four majority judgments in ADM Jabalpur "seriously flawed" and held that ADM Jabalpur "must be and is accordingly overruled". The same opinion said that the view taken by Justice Khanna "must be accepted". Justice R.F. Nariman also expressly overruled the majority judgments, and Justice S.K. Kaul agreed with expressly overruling the case.
For a full summary of the 1976 case, see ADM Jabalpur v. Shivkant Shukla.
Example
During a Proclamation of Emergency, Farhan is detained, and a Presidential Order under Article 359 suspends enforcement of several Fundamental Rights. Because of the 44th Amendment, the Order cannot stop Farhan from going to court to enforce Article 21 or Article 20. He can still challenge a detention that is not according to procedure established by law.
Exam point
After the 44th Amendment (1978), enforcement of Articles 20 and 21 cannot be suspended under Article 359, and ADM Jabalpur was expressly overruled in Puttaswamy (2017).
Sources and further reading
- The Constitution of India (as on 1 May 2024), Legislative Department, Ministry of Law and Justice
- Additional District Magistrate, Jabalpur v. S.S. Shukla (28 April 1976), Indian Kanoon
- Justice K.S. Puttaswamy (Retd.) v. Union of India (24 August 2017), Indian Kanoon
- International Covenant on Civil and Political Rights (text), UN Treaty Collection
- Human Rights Committee, General Comment No. 29: States of Emergency (Article 4)
