Legal Question in Constitutional Law in India

Re: which Article overrides which?

Shri Satish Shah has given correct legal position.

Re: which Article overrides which?

Dear Sir,

Herein below we provide reply to your query:

We understand that your query is directed only with regard to Article 352 and its implication on Article 19 and Article 21. Further, we understand that you are aware of the relationship between Article 19 and Article 21.

The Fundamental Rights in the Indian Constitution have been grouped under seven heads. They are not at all distinct and mutually exclusive Rights. Further, the various Fundamental Rights are important in their own spheres and each freedom has different dimensions and law may have to meet the challenge under various Fundamental Rights. Thus a law depriving a person of his personal liberty may have to stand the test of Articles 14, 19 and 21 to be valid.

The provisions of Article 19 as envisaged in the Constitution of India guarantees six fundamental rights (Right to Freedom) to the citizens of India.

The essence of Article 19 is that it guarantees some of the basic, valued and natural rights inherent in a person. These freedoms are necessary not only to promote certain basic rights of the citizens but also certain democratic values in, and the oneness and unity of the country. However, the freedoms guaranteed are not absolute and are subject to reasonable restrictions as provided in article 19(2) to 19(6).

Article 21 guarantees to citizens as well as non citizens a fundamental right to �life and personal liberty� and states that no person shall be deprived of his life or personal liberty except according to �procedure established by law�.

Article 352, which provides for the proclamation of Emergency, gives power to the President to declare emergency if he is satisfied that grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by War, Armed Rebellion or External aggression.

Article 358 provides for power to the Parliament to make any law/laws, which may or may not be in accordance with Part III of the Constitution and Article 359 confers discretionary powers on the President to issue an order suspending the right to move any court for the enforcement of rights conferred by Part III.

The emergency provisions of the Indian Constitution came to recast through the 44th Amendment, 1978 which restricted the scope of Article 358 and 359 in several ways and therefore, after the coming of the 44th Amendment both the Articles of the Constitution are protected in their own respective spheres and ambits. The difference in the protection being accorded to various articles cannot be said to be indicative of according any overriding effect to any Article; therefore, to say that one overrides the other would not be correct.

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Re: which Article overrides which?

Articles 19 and 21 of the Constitution do not override each other. Articles 359 (not Article 352 as stated in your query) provides that while a proclamation of emergency is in operation, the President may by order declare that the right to move a Court for enforcement of all or any fundamental rights other than those conferred by Articles 20 and 21 shall remain suspended. The reason for not allowing suspension of the rights conferred by Articles 20 and 21 is that these deal with personal liberty and should be available at all times to protect against unlawful detention. This Article was amended by the 44th Amendment to the Constitution in 1978 to ensure that there was no repetition of the situation which prevailed during the emergency proclaimed on 25th June, 1975 (exactly 28 years ago) when even unlawful detention could not be challenged in court.

By Article 358 it is provided that during a period of emergency declared when there is war between India and another country, laws may be passed which would otherwise be contrary to Article 19. It is not that Article is overridden by Article 21. There is just temporary suspension in the national interest of the fundamental rights conferred by Article 19.

Re: which Article overrides which?

Article 21 is the most important aricle in the cnstituton.It overrides all articles in the constitution.The judgmeny hich had suspended article 21 during the emwrgency is a wrong judgment.