Emergency, Derogation and Suspension

The consequence of the majority holding was that a person detained without any legal authority at all had no court to go to.

The two answers

The textual answer. The Forty Fourth Amendment of 1978 excluded articles 20 and 21 from any order under article 359, replaced internal disturbance with armed rebellion in article 352, required the Cabinet's written advice for a Proclamation, and imposed parliamentary approval by special majority and periodic renewal.

The judicial answer. In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, the Court said in terms that the majority judgment in ADM Jabalpur was seriously flawed and stood overruled, and that the view of Khanna J was the correct one, life and personal liberty not being creations of the Constitution.

Note the order of events: Parliament fixed the text in 1978, and the Court corrected the precedent thirty nine years later.

The Convention machinery

Article 15 of the European Convention. In time of war or other public emergency threatening the life of the nation, a State may take measures derogating from its obligations to the extent strictly required by the exigencies of the situation, provided the measures are not inconsistent with its other obligations under international law.

Article 15(2) makes certain rights non-derogable: article 2 except in respect of lawful acts of war, article 3 on torture and inhuman or degrading treatment, article 4(1) on slavery, and article 7 on retrospective criminal law.

Article 15(3) requires the State to inform the Secretary General of the measures and the reasons, and when they cease.

Section 14 of the Human Rights Act provides for designated derogations in domestic law, which is why a British scheme of detention without trial required a derogation and could be challenged for want of one.

The American position

There is no emergency clause. What there is instead is the suspension clause: Article I section 9 provides that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.

The rest of the Constitution applies in full at all times as a matter of text, and the accommodation happens through doctrine, not through suspension. Korematsu v. United States, 323 U.S. 214 (1944), is the standing example: the Court stated that all legal restrictions curtailing the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny, and then upheld the exclusion order on grounds of military necessity, Murphy J dissenting that it fell into the ugly abyss of racism.

The lesson usually drawn is that the greatest danger to rights in an emergency is not the suspension clause but ordinary doctrine applied deferentially.

Comparison

A worked example

A government wishes to detain suspects without trial during an armed conflict.

India. Preventive detention is available in ordinary times; during an external emergency article 358 removes article 19 as a restraint, and an article 359 order may suspend enforcement of other rights, but not of articles 20 and 21.

United Kingdom. Article 5 does not permit it, so a derogation under article 15 and a designation under section 14 of the Human Rights Act are required, and the derogation itself is reviewable for whether there is a public emergency threatening the life of the nation and whether the measures are strictly required.

United States. No suspension of anything except habeas corpus, and only in cases of rebellion or invasion when the public safety requires it; everything else is fought out under ordinary doctrine.

The cases

Facts. Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, arose when detenus applied to High Courts for habeas corpus notwithstanding a Presidential Order under article 359 suspending the right to move any court to enforce articles 14, 21 and 22, and several High Courts entertained the petitions.

Held, by four to one. The objection succeeded: in view of the Order no person had locus standi to move a writ petition under article 226 for habeas corpus to challenge the legality of a detention order, on any ground including mala fides, and section 16A(9) of the Maintenance of Internal Security Act was valid. Khanna J dissented, holding that the State had no power to deprive a person of life or personal liberty without the authority of law even during an emergency.

Why it matters here. It is the case that shows what a suspension of the remedy means in practice, and it is the reason the Forty Fourth Amendment excluded articles 20 and 21 from article 359.

Facts. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1, was the nine judge privacy reference.

Held, unanimously. Privacy is intrinsic to article 21 and to the Part III freedoms; and the Court stated that the majority in ADM Jabalpur was seriously flawed and stood overruled, the dissent of Khanna J being the correct view.

Why it matters here. It is where the precedent was formally corrected, and it shows a court repudiating its own emergency jurisprudence.

Facts. Korematsu v. United States, 323 U.S. 214 (1944), concerned the conviction of an American citizen of Japanese descent for remaining in a designated military area contrary to a wartime exclusion order, no question being raised as to his loyalty.

Held, by six to three. The conviction was upheld on the ground of military necessity, the Court stating that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny, and that pressing public necessity may sometimes justify such restrictions while racial antagonism never can.

Why it matters here. It is the American emergency failure, achieved without any suspension clause being used, and it shows that a bill of rights with no emergency provision is not thereby protected.

Distinctions

What beginners get wrong

"Article 359 suspends fundamental rights." It suspends the right to move a court to enforce the specified rights. The right remains; the remedy goes. That distinction is what made ADM Jabalpur possible and is the reason the amendment was needed.

"ADM Jabalpur was unanimous." Four to one, and the dissent is the reason it is remembered.

"The Forty Fourth Amendment overruled ADM Jabalpur." An amendment changes the law prospectively; the precedent was overruled in Puttaswamy in 2017.

"The American Constitution has an emergency clause." It has a suspension clause for habeas corpus only.

Limits and criticism

A suspended remedy is a suspended right, whatever the theory says, which is the practical lesson of 1975 to 1977.

Courts defer in emergencies, and both ADM Jabalpur and Korematsu were decided by courts that had the tools to say no.

The Convention machinery is better designed, because it makes the derogation itself reviewable and marks certain rights non-derogable, but it depends on a supranational court.

And the Indian answer is textual and therefore durable: articles 20 and 21 cannot now be suspended by any order, whatever a future court might be minded to hold.

Quick revision

1. Article 352: emergency on the ground of war, external aggression or armed rebellion; internal disturbance was replaced in 1978.
2. Article 358: article 19 does not restrict State power during an external emergency; a recital is required since 1978.
3. Article 359: the President may suspend the right to move any court to enforce specified Part III rights.
4. Articles 20 and 21 cannot be included in an article 359 order, since the Forty Fourth Amendment.
5. ADM Jabalpur, AIR 1976 SC 1207: four to one; no locus standi for habeas corpus; Khanna J dissenting.
6. Puttaswamy, (2017) 10 SCC 1, overruled the majority and approved the dissent.
7. Convention article 15: derogation strictly required by the exigencies; articles 2, 3, 4(1) and 7 non-derogable; section 14 of the Human Rights Act.

Test yourself

1. Distinguish articles 358 and 359. Article 358 operates on article 19 itself: while a Proclamation of Emergency declaring that the security of India is threatened by war or external aggression is in operation, nothing in article 19 restricts the State's power to legislate or act, and since 1978 the law must recite that it relates to the Proclamation. Article 359 operates on the remedy: the President may by order declare that the right to move any court for the enforcement of specified Part III rights shall remain suspended. Article 358 is automatic and limited to an external emergency; article 359 requires an order and may accompany any Proclamation, but may not now include articles 20 and 21.

2. What did ADM Jabalpur decide, and what answered it? That in view of the Presidential Order under article 359 suspending enforcement of articles 14, 21 and 22, no person had locus standi to move a High Court under article 226 for habeas corpus to challenge a detention order on any ground, including mala fides. It was answered twice: by the Forty Fourth Amendment in 1978, which excluded articles 20 and 21 from any article 359 order, replaced internal disturbance with armed rebellion and tightened the procedure for a Proclamation; and by Puttaswamy, (2017) 10 SCC 1, which held the majority seriously flawed, overruled it, and approved the dissent of Khanna J.

3. How does the Convention handle the same problem? By derogation rather than by suspension of a remedy. Article 15 permits a State, in time of war or other public emergency threatening the life of the nation, to take measures derogating from its obligations to the extent strictly required by the exigencies of the situation and not inconsistent with its other international obligations; article 15(2) makes articles 2 except for lawful acts of war, 3, 4(1) and 7 non-derogable; and article 15(3) requires notification to the Secretary General. Section 14 of the Human Rights Act gives effect to designated derogations domestically, so both the existence of the emergency and the necessity of the measures remain reviewable.

4. What does Korematsu show about constitutions without emergency clauses? That the absence of a suspension or emergency provision does not protect rights, because the accommodation happens inside ordinary doctrine. The Court stated the strictest of standards, that restrictions curtailing the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny, and then upheld the exclusion of an American citizen against whom no question of loyalty was raised, on the military's assessment. Deference, not suspension, is what defeats rights in an emergency.