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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