The 44th Amendment and Suspendability

Article 32 itself, so far as it is the vehicle for enforcing the mentioned rights, since clause (1) speaks of the right to move any court.

What can never be suspended, and what that gives a detenu

Article 20. Protection in respect of conviction for offences: no retrospective criminal law, no double jeopardy, and no compulsion to be a witness against oneself.

Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law.

The practical value of article 21 to a person detained during an emergency is the whole of the answer to MU's question, and it should be spelled out.

He may say he is not detained under any law at all. If there is no order, or the order is not under the statute, article 21 is directly infringed.

He may say the detaining authority was not empowered. An order by an officer the statute does not empower is not procedure established by law.

He may say the statutory conditions were not complied with. After Maneka Gandhi v. Union of India, AIR 1978 SC 597, the procedure must be fair, just and reasonable, so non compliance with the procedure the law itself lays down is a breach of article 21 and not merely of the statute.

He may say the detention has become punitive or has exceeded the maximum.

He may say the procedure is itself not fair, just and reasonable, which after 1978 is a challenge to the statute under article 21 even where article 22 is suspended.

And he may say his trial has been indefinitely delayed, since access to justice and a speedy trial are part of the Part III liberty, on Union of India v. K.A. Najeeb, AIR 2021 SC 712.

That is a substantial body of relief, and it exists because of five words.

The relation to article 358

Students conflate the two amendments; keep them apart.

Article 358 was confined, so that it applies only where the Proclamation is on the ground of war or external aggression, and only to laws containing a recital.

Article 359 was limited, so that no order may name articles 20 and 21.

Combine them and consider a Proclamation on the ground of armed rebellion, which is the only domestic ground now available. Article 358 does not apply at all, so article 19 is fully available unless it is named in an order. And even if it is named, articles 20 and 21 cannot be, so the courts remain open on them.

Whether the change was enough

An LL.M. answer should evaluate rather than describe.

The case that it was enough. The 1975 mechanism cannot be reassembled. The decisive step in ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, was that article 21 was the sole repository of the right to personal liberty and had been named in the order, so that no plea about liberty could be made at all. Take article 21 out of the order and the reasoning collapses.

The case that it was not. Article 22 can still be suspended, and article 22 is where the specific protections of a detenu live: the grounds, the Board, the period. A detenu whose article 22 rights cannot be enforced is thrown back on article 21, which is a general standard rather than a set of rules, and the outcome then depends on how a court applies it.

The strongest form of the objection. The 1975 crisis was not caused by article 21 being named. It was caused by section 16A of the Maintenance of Internal Security Act, which withheld the grounds from every court. A statute of that kind could be enacted today, and a detenu's answer would have to be that a procedure which hides the grounds is not fair, just and reasonable under article 21. That is a good argument, but it is an argument, not a rule.

The honest conclusion. The amendment made the repetition of the 1975 mechanism impossible and left the underlying problem to be answered by article 21. Whether that is enough depends on what the courts do with article 21, which is exactly where the responsibility ought to lie, and exactly where it failed in 1976.

A worked example

An emergency is proclaimed on the ground of armed rebellion. An order under article 359(1) names articles 14, 19 and 22. A person is detained; the grounds are never served.

Can he complain of the failure to serve the grounds? Not under article 22(5), whose enforcement is suspended.

Can he complain at all? Yes, under article 21: a detention in which the person is never told why he is held is not a deprivation according to a procedure that is fair, just and reasonable.

Can he complain that the statute discriminates between classes of detenu? Not under article 14, which is named.

Is article 19 available to challenge a restriction on his correspondence? No: it is named in the order, and clause (1A) also frees the State from it.

What if the order had also named article 21? To that extent it would be void, clause (1) not permitting it.

And if the emergency ends? The order ceases with the Proclamation at the latest, and any law made under clause (1A) ceases to have effect to the extent of the incompetency, saving things done.

What it does NOT mean

The 44th Amendment did not make Part III unsuspendable. Only articles 20 and 21.

It did not overrule ADM Jabalpur. It removed the basis on which that reasoning could operate; the overruling came in 2017.

It did not affect article 358 in the same way. That article was confined by a different section of the same amendment.

It does not prevent a statute from restricting a detenu's remedies. It ensures that a court remains open on articles 20 and 21 to test such a statute.

Quick revision

• The amendment: the words except articles 20 and 21 inserted in art 359(1) and in art 359(1A), with effect from 20 June 1979.
• Still suspendable: arts 14, 15, 16, 17, 19, 22, 23, 24, 25 to 30 and the rest of Part III, and art 32 as the vehicle for enforcing them.
• Never suspendable: arts 20 and 21.
• What art 21 gives a detenu: no law at all; an unempowered authority; non compliance with the statute's own procedure; a procedure that is not fair, just and reasonable; excess of the maximum period; and indefinite delay in trial.
• With the confining of art 358 to war and external aggression, a Proclamation on the ground of armed rebellion now leaves art 19 available unless it is named.
• Evaluation: the 1975 mechanism cannot be reassembled, but art 22 remains suspendable and a statute withholding the grounds would have to be answered under art 21.

Test yourself

1. State the amendment exactly. The words the rights conferred by Part III in clauses (1) and (1A) of article 359 were substituted by the words the rights conferred by Part III except articles 20 and 21, with effect from 20 June 1979.

2. Which rights of a detenu can still be put beyond the courts? Article 22 in its entirety, including the requirement to communicate the grounds, the Advisory Board and the maximum period; and articles 14 and 19, among others.

3. Give four pleas a detenu can still make under article 21 during an emergency. That he is not detained under any law; that the detaining authority was not empowered; that the procedure the statute itself prescribes was not followed, which after Maneka Gandhi is a breach of article 21; and that the detention has exceeded the maximum period or has become indefinite.

4. Why does the reasoning of ADM Jabalpur no longer work? Because it depended on article 21 being the sole repository of the right to personal liberty and on article 21 having been named in the Presidential order, and article 21 can no longer be named.

5. What is the strongest objection to saying the amendment was enough? That the practical cause of the 1975 crisis was a statute withholding the grounds of detention from every court, that such a statute could be enacted again, and that the detenu's answer would then be an argument under article 21 rather than a rule.