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arulprakash (student of constitutional law department in master of law)     06 August 2013

Why article 21 cannot suspended in during emergency

Why article 21 cannot  suspended in during emergency?

1978-44th amandment and parliament  depates about article 21 and emergency?

menaka gandhi v. union of india 1978-lay down interpretation of article 21 whether it is right or worng?


 4 Replies


Dear arul,before I could say something on this matter,I would like to know your views.Since you are doing masters in Law,therefore It seems justified to me to ask you your view and what exactly you want to know/discuss.

arulprakash (student of constitutional law department in master of law)     07 August 2013

it is very simple to say that prior to menaka gandhi case , Art 21 guaranteed protection against arbitrary action

only of executive and not from legislative action.After this case:

A person can be deprived of life and personal liberty only if

1. There is a law.

2. The law must provide a procedure.

3. The procedure is just, fair, and reasonable.

4. The procedure must satisfy Art 14.


SC has accepted that “law” should be reasonable law and not

just an enacted law. To be fair and just, it should follow the

principles of natural justice. Thus, even if “due process of

law” is not explicitly mentioned, the effect is same.

Although Art 21 uses negative words, it has a positive dimension as

well. Thus, it does not just mean right to mere existence but a right to

live with human dignity.

Compensation for violation of Art 21.

44th amendment, Emergency, and Art 20. Art 21 cannot be suspended

on presidential order under art 359.

Democratic Indian (n/a)     08 August 2013

Originally posted by : arulprakash

it is very simple to say that prior to menaka gandhi caseĀ , Art 21 guaranteed protection against arbitrary action

only of executive and not from legislative action.

What goes on in legislature, executive and judiciary in India is well known. Also the Supreme Court is not infaliable. Before Menaka Gandhi case Supreme court was making faulty judgments that Article 21 only protects from executive action. It is a matter of common sense that rights are to be interpreted in the widest possible amplitude and powers to be interpreted in the narrowest possible amplitude. Unfortunately for some unknown reasons, the Supreme Court had not followed this simple principle before Menaka Gandhi case, and had interpreted Article 21 narrowly. Also if legislature or executive can override the Constitutional guarantees(either emergency or no emergency) then the very purpose of such guarantees gets defeated. It would literally mean that the executive can arrest anybody or shoot anybody at their sweet will without following the due process of law. By no stretch of imagination the provisions of Part III of the Constitution can be construed to mean this.

There are many things that which are self evident in the Constitution but are not well known. One such fact is the doctrine of 2nd Amendment of the US Constitution is very much present in our Part III of the Constitution, specifically Article 19. But how many people in the legal fraternity including judiciary are aware of it? I have tried to explain it in some detail in the following post https://www.lawyersclubindia.com/forum/Refusal-of-arms-licence-78361.asp Since you are student of Constitutional law, you will find it interesting.

Kolla Gangadhar (Practicing Advocate since 1986)     09 August 2013

Article 352 of the Cosntituion of  India Proclamation of Emergency (1) The President of has power to issue proclamation of Emergency. After Emergency was lifted and Janata Party came to power the constituion of Inida ws amended to safe guard fundamental rights of the citizens of Inida . During the proclamation of emergency fundamental rights guaranteed under the constitution of India Part-III, Article 12 to 35 can not suspensed , Citizens of Inida have right to move to High court or Supreme Court for enforcement of Fundamental Rights Part-III of the Constitution of Inida. Supreme Court of Inida has delivered number of Judgments to safeguard Fundamental Rights of the citizens of India during the Proclamation of Emergency.  Meneka Gandhi V. Union of Inida  is aland mark Judgement. Article 21 of the Constitution of India , the concept of fairness, procedure established by law must be fallowed.

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