There is a threat to India’s security “whether by war or external aggression or armed rebellion.” Special protection is given to the right to life and personal liberty (Article 21) and the right not to face retroactive punishment (Article 20): a June 1979 amendment to Article 359 of the constitution has meant that these rights may never be suspended, even when a proclamation of emergency is operating.
However, in March 1988 the government introduced the 59th Amendment to the Constitution in parliament, and it became law on 30 March. The amendment, to Articles 352, 356, 358 and 359 of the constitution, permits the government to proclaim an emergency in the state of Punjab, once again on the vaguely defined ground of “internal disturbance” where “the integrity of India” is threatened, and again permits the government to suspend even the protection of the right to life. The amendment also permits direct rule from New Delhi (in India called President’s rule) in the state of Punjab for up to three years without having to obtain parliamentary approval.
The amendment annulled the important protection which the Indian parliament had given in 1979 to the right to life and personal liberty when it passed the 44th Amendment to the Constitution at the end of the 1975- 1977 period of emergency. Thousands of prisoners of conscience were detained throughout India during that emergency and, after a Supreme Court judgment of 1976, were denied the chance to challenge the legality of their arrest or detention and to bring a writ of habeas corpus. The Supreme Court accepted in 1976, in the case of A.D.M., Jabalpur vs. Shiv Kant Shukla (commonly known as the ‘habeas corpus’ case), the argument of the then Attorney General that there was no personal rights law for the time being because during the emergency then in force the basic right to life and liberty was suspended. Indeed, the then Attorney General conceded that during an emergency in which the right to life and liberty enshrined in Article 21 of the constitution was suspended – as had happened anyone could be taken away by a police
