Human Rights During Emergency

Mr. Soli J. Sorabjee

Senior Advocate, Former Attorney General of India

There are times when a nation is unexpectedly and suddenly overtaken by events and forces, which seriously endanger its security and the lives of its citizens. Such situations may require that individual liberties of the citizens be temporarily suspended in order to cope with the dangers confronting the nation. Emergency situations place democratic governments in a real dilemma by bringing about a conflict between its primary obligation to protect the integrity of the State and its equally important obligation to protect the human rights of its citizens and other persons within its jurisdiction. The State is forced into a choice between competing values and the sacrifice of one to the other. That is the rationale of emergency provisions, which find place in many national constitutions permitting the suspension of guaranteed fundamental rights.

Article 352 of our constitution provides for a declaration of emergency. Under Article 358, on a declaration of emergency, the fundamental rights guaranteed by Article 19 stand suspended. Furthermore Article 359 of the Constitution, as originally enacted, provided that when a Proclamation of Emergency was in operation, the enforcement of any fundamental right may be suspended by the issue of a Presidential Order.

Regional and international instruments of human rights also reflect the same trend. For example, Article 15 of the European Convention on Human Rights (ECHR) permits the Contracting States to take measures derogating from their obligations under the Convention in respect of the guaranteed fundamental freedoms “in time of war or other public emergency threatening the life of the nation. …. " Article 4 of the International Covenant on Civil and Political Rights of 1966 (ICCPR) provides for suspension of the human rights guaranteed by the Government “in time of public emergency, which threatens the life of the nation.” There is a similar provision, Article 27, in the American Convention on Human Rights, 1969 (ACHR), which empowers suspension of human rights guaranteed by the Convention “in time of war, public danger or other emergency that threatens the independence or security of a State Party.”

At the same time it is also recognized that there are certain basic human rights, which cannot be suspended during any kind of emergency, be it war or armed rebellion or civil insurrection. These rights are so basic that to suspend them destroys the basis of a civilised State and the Rule of Laws. Indeed, they are so fundamental to the human personality that without them human life is either not possible (e.g. protection of the right to life) or civilised life becomes impossible and meaningless (e.g. freedom from torture and cruel treatment, right to fair trial). These rights represent “ a core of essential human values.” There is similarity between this thinking and the doctrine propounded by our Supreme Court that there are certain essential features of the Constitution, which from its core or basic structure and are unamendable.

Furthermore, certain rights have no real nexus with the purpose of the emergency in the sense that their suspension does not facilitate or advance the achievement of the objective of the emergency and therefore their suspension is unnecessary. For example, for effective prosecution of war or for quelling an armed rebellion it is not necessary to suspend the guarantee of immunity from imprisonment for inability to fulfill contractual obligations.

In the year 1949 the doctrine that certain basic human rights cannot be suspended was not articulated in human rights instruments. Yet that was precisely what some of our founding fathers projected in the debates in the Constituent Assembly relating to emergency provisions. Draft Article 280 – corresponding to present Article 359 of the Indian Constitution – which empowers the President to issue an order suspending the enforcement of all or any of the fundamental rights, came in for severe criticism.

H.V. Kamath, the stormy petrel of the Constituent Assembly, urged that there are certain guaranteed fundamental rights “which cannot be abrogated in any eventuality, not even in case of the gravest emergency.” He gave the example of the provision abolishing untouchability and asked: “Do you mean to say that when there is an emergency we can permit the observance of these taboos and will not take any action on those who enforce untouchability in any form on anyone else.” After referring to cultural and educational rights, he was emphatic that “there are certain rights which cannot be suspended in any case, however grave the state of emergency be.” (Emphasis supplied) Shibban Lal Saksena vigorously supported this point of view: “There are some articles in this Chapter that have nothing to do with emergency. Why should they be suspended. If this article comes into operation, discrimination can also be practised. And that would go against the spirit of the Fundamental Rights.

Pandit Hirday Nath Kunzru moved an amendment to the effect that only certain fundamental rights in the draft constitution could be suspended because “it is not necessary that, when a Proclamation of Emergency has been issued by the President, all the fundamental rights should be suspended.” (Emphasis added) R.K. Sidhva supported the amendment and argued: “Thee is a clause regarding begar (forced labour). Do you want that in an emergency begar should continue? Article 18 says that no child below the age of fifteen shall be employed in mines. If it is emergency, do you wish that a child of fourteen should go into a mine and work? And then there is Article 19 about rights relating to religion, education and so on.”

Mahavir Tyagi’s objection to the article enabling suspension of the right to move the Supreme Court for enforcement of fundamental rights was forceful and unequivocal: “Even if the whole house agrees to arm the government with such powers even in the case of an emergency, I for one wish to bring it on record that I am opposed to this, now and ever. I think the rights of an individual to move the judiciary should not be taken away in any circumstances.” He was almost prophetic: “… many rich and precious lives, the lives of many a learned and the patriots will be danger if this pernicious article is allowed to creep into the Constitution.”

Unfortunately these far-sighted pleas did not prevail. Alladi Krishnaswami Ayyar, supporting the emergency provisions deftly blunted them by conceding “that there are rights that do not need a suspension during the period of war. Such rights will not, and cannot, be suspended.” He argued that “instead of singling out particular clauses, it is left to the President, who – I have no doubt – will act in a reasonable and proper manner, not in a spirit of vandalism against the fundamental rights guaranteed to the citizen in the Constitution.”

Later events have sadly belied the hopes and assurances of Alladi and other founding fathers who supported the emergency provisions. The warnings which fell on deaf ears in 1949 were painfully realized when emergency was declared on 26 June, 1975 on the pretext that the security of India was threatened by ‘internal disturbance.”

The hardest knock came most unexpectedly from the Supreme Court. In its decision in A.D.M. Jabalpur V. Shivkant Shukla delivered on 28 April 1976 the Court by a majority of 4 to 1, Justice Khanna dissenting, ruled that once there was a Presidential Order under Article 359 suspending the enforcement of the fundamental rights to life and liberty guaranteed by Article 21 a person who is deprived of his liberty by a detention order, even though it was passed mala fide, could not approach the Court for redress.

The Supreme Court in its judgment delivered on 25 January 1977 in Union of India V. Bhanudas, when much further. It ruled that the Presidential Orders suspending enforcement of fundamental rights “impose blanket bans on any and every judicial enquiry and investigation into the validity of an order depriving a person of his personal liberty” and that the Court was debarred from even granting relief in the shape of “giving facilities to a detenu to be taken from his place of detention to his home or to an examination hall or for special medical treatment under a doctor of his choice or for any other facility” because that would be enforcing fundamental right through the aid of the Court.

The consequence of these two disastrous judgments was that the writ of habeas corpus was in substance suspended and the Rule of Law was supplanted. Arbitrary detentions increased, conditions and treatment of detenus in jail worsened and the executive in many cases became a law unto itself.

In the light of the bitter experience of the June 1975 emergency the Constitution (Forty Fourth Amendment) Act, 1978 was passed. Several salutary changes were made in the emergency provisions, the most significant of which was the amendment made to Article 359 to the effect that fundamental rights guaranteed by Articles 20 and 21 of the Constitution could not be suspended during emergency by a Presidential Order under Article 359. Article 20 provides for protection in respect of retrospective criminal laws, double jeopardy and self-incrimination. Article 21 guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law.

India is a party to ICCPR to which it acceded and ratified in July 1979. Article 4 (2) lists seven provisions of the ICCPR from which no derogation is permitted. These are: Article 6 (right to life), Article 7 (prohibition of torture) Article 8, paragraphs 1 and 2 (prohibition of slavery and servitude), Article 11 (prohibition of imprisonment for non-fulfillment of contractual obligations), Article 11 (prohibition against retroactive criminal laws and penalties), Article 16 (the right to be recognized as a person before the law), Article 18 (freedom of thought, conscience and religion).

Under the ICCPR it is the obligation of a party-State to bring its laws in conformity with the provisions of the Covenant. It is regrettable that in the matter of non-suspension of human rights during emergency, all the non-derogable rights under ICCPR have not been made non-suspendable in our Constitution. It is more regrettable, that the Attorney General of India, G. Ramaswami, during the proceedings before the Human Rights Committee under the ICCPR in 1991 should have wrongly asserted that the laws and the Constitution of India are fully in conformity with ICCPR.

At present there are eleven rights, which are recognized as non-derogable, that is non-suspendable, in regional or international human rights instruments.

[i]            Right to life ICCPR: Art.6; ECHR Art.2; ACHR Art.4

[ii]            Prohibition of torture ICCPR, Art.7, ECHR, Art.3; ACHR, Art.5

[iii]            Prohibition of slavery or servitude; ICCPR Art.8; ECHR, Art.4, ACHR, Art.6

[iv]            Prohibition of retroactive criminal laws; ICCPR, Art. 15; ECHR, Art. 7; ACHR, Art.9

[v]            Right to recognition of legal personality; ICCPR, Art. 16; ACHR, Art. 3

[vi]            Freedom of conscience and religion; ICCPR, Art. 18; ACHR, Art. 12

[vii]            Prohibition of imprisonment for breach of contractual obligation: ICCPR, Art. 11

[viii]            Rights of the family: ACHR, Art. 17

[ix]            Rights of the child: ACHR, Art. 19

[x]            Right to a nationality: ACHR, Art. 20

[xi]            Right to participation in government: ACHR, Art. 23

Discrimination is prohibited in these instruments by the very provisions which permit suspension of human rights either specifically, as in ICCPR Article 4 (1) and ACHR Article 27 (1) or by necessary implications on account of compliance ‘with other obligations under international law’ [ECHR, 15 (1)].

The Minimum Standards of Human Rights Norms in a State of Exception [popularly known as the Chowdhury report and referred to as the Paris Minimum Standards] list sixteen non-suspendable rights. They are: Right to legal personality; freedom from slavery and servitude; freedom from discrimination; right to life; right to liberty; freedom from torture and cruel, inhuman or degrading treatment or punishment; right to fair trial; freedom of thought, conscience and religion; freedom from imprisonment for inability to fulfill a contractual obligation; rights of minorities; rights of the family; right to a name; right of the child; right to nationality; right to participate in government and right to a remedy.

The Paris Minimum Standards mark a significant progress in the field of non-derogable rights. In times of war and emergencies certain minorities become special targets of attack. Mahatma Gandhi said civilization is judged by the treatment accorded to minorities. The protection extended to minorities during emergency is a salutary advance. The concept of minorities should, however, not be restricted merely to linguistic, ethnic or religious minorities but should be expansive enough to cover all non-dominant segments of society which by virtue of their peculiar status or condition are subjected to discrimination and disabilities.

Should the Freedom of the Press also be non-suspendable during an emergency? One of the suggestions representing the consensus of a group of Latin American constitutional scholars convened in San Jose, Costa Rica 22 to 27 August 1982, by the Inter American Institution of Human Rights was that, whatever other restrictions might be imposed on freedom of expression, it was essential to preserve the freedom to denounce human rights violations.

There is merit in this view. Freedom of the Press and freedom of expression may legitimately be subject to greater restrictions during an emergency. But it is essential to keep in mind the qualitative distinction on the one hand between restriction on a particular fundamental right, which may vary in its degree and extent depending upon the urgency of the situation and, on the other hand, its suspension or abrogation. The dangers visualized of press freedom during emergency can be taken care of by imposition of restrictions, which during emergency may constitutionally be more stringent than in normal times.

Rights without remedies are worthless. It is of paramount importance that the right to judicial remedies and especially the writ of habeas corpus must not only be guaranteed be the Constitution but should also be made expressly non-suspendable during emergencies. The immense value of the Great Writ, habeas corpus, cannot be over-estimated and its availability during an emergency is indispensable. This will ensure effective supervisory jurisdiction by a competent court of law to determine whether detention is legal and valid. It should also enable the production of detainees before the court, which will go a long away to prevent torture, degrading and inhuman treatment and other physical or psychological abuses to which detenus are usually subjected. In case production is manifestly impracticable or detrimental to public interest the government must in any case be obligated to inform the court about the place of detention. The court should be empowered to give directions for the medical examination of the detainee as also for the inspection of the prison or place of detention by a medical officer appointed by the court. Regular visits by members of the family of the detainee and interviews with legal advisers, subject to reasonable regulations regarding time and place, as also visits by members of the International Red Cross would be helpful and act as a deterrent to inhuman treatment of detainees.

ACHR, of all human rights instruments, is unique in this respect because it is the first to include among the rights that may not be suspended judicial guarantees essential for the protection of non-suspendable rights. Article 7 (1) of the ACHR guarantees to every person the right to personal liberty and security. Article 7 (6) inter alia provides that “any one who is deprived of his liberty shall be entitled to have recourse to a competent court in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful.” Article 7 is not included in the list of non-suspendable rights mentioned in Article 27 (2) which is as follows “Article 3 (Right to juridical personality); Article 4 (Right to life); Article 5 (Right to humane treatment); Article 6 (Freedom from slavery); Article 9 (Freedom from ex post facto laws) Article 12 Freedom of conscience and religion); Article 17 (Rights of the family); Article 18 (Right to a name); Article 19 (Rights of the Child); Article 20 (Right to a nationality); and Article 23 (Right to participate in Government), or of the judicial guarantees essential for the protection of such rights.”

An important question arose whether under the ACHR the writ of habeas corpus can be suspended during an emergency. The Inter American Commission on Human Rights (“The Commission”) took the view that even in emergency situations the writ of habeas corpus may not be suspended or rendered ineffective because “Even with respect to the right to personal liberty, which may be temporarily suspended in special circumstances, the writ of habeas corpus enables the judge to determine whether the warrant of arrest meets the test of reasonableness, which is the standard prescribed by the case law of certain countries that have found themselves in states of emergency.”

The Commission requested the Inter American Court of Human Rights (“The Court”) for its advisory opinion on the question.

The Court referred to its previous advisory opinion in which it had opined that there existed “an inseparable bond between the principle of legality, democratic institutions and the rule of law”, and declared, “In a democratic society, the rights and freedoms inherent in the human person, the guarantees applicable to them and the rule of law form a triad. Each component thereof defines itself, complements and depends on the others for its meaning.” The Court was conscious that the right to personal liberty guaranteed under Article 7 is not listed among the provisions that may not be suspended in exceptional circumstances. That however did not make the writ of habeas corpus unavailable because “In order for habeas corpus to achieve its purpose, which is to obtain a judicial determination of the lawfulness of a detention, it is necessary that the detained person be brought before a competent judge or tribunal with jurisdiction over him. Here habeas corpus performs a vital role in ensuring that a person’s life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment.” In the unanimous opinion of the Court “writs of habeas corpus and of ‘amparo’ are among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by Article 27 (2) and that serve, moreover, to preserve legality in a democratic society.” (Emphasis supplied).

The opinion is remarkable for its reasoning and admirable for its courageous conclusion. What a refreshing contrast to the judgment of the Indian Supreme Court in ADM Jabalpur. It is on the same wavelength as the brilliant dissent of Justice HR Khanna.

It should never be forgotten that the ultimate justification for an emergency in a democratic State is to enable it to preserve vital values of a democratic society temporarily endangered on account of unexpected situations of exceptional gravity. Emergency cannot be declared for undermining the basis of democracy. The Rule of Law is an indispensable feature of democracy. In the absence of the Rule of Law. Lawlessness predominates, especially government lawlessness, when there is no authority to question government’s action, no mechanism to control it and no institution to make it accountable and to check its excesses. However grave the emergency it should always be remembered that there exists an inseparable bond between legality, democratic institutions and the Rule of Law. Once that bond is severed, all ties with decent, civilised life have been severed and human beings become devoid of humanity.